Sunday, April 23, 2017

Am I Really Guilty of Murder?

Please accept my apologies for the long breaks I sometimes need to take between posts.  Pesach, life's necessities, work, and more just get in the way sometimes :-(.  Furthermore, people are constantly sending me new reading material, and of course I have to read it all before I continue to write this blog.  This time I was sidetracked by several books and articles, but most notably by Yaakov Shapiro's book "Halachic Positions" which is plain and simply a spectacular book.  I could not continue to write this blog until I finished it completely. Hence, the long absence, but here I am now, so let's move forward again.

Now that we've analyzed the sugyah in Niddah, it would be appropriate to review the other places in Chazal that discuss issues related to the prohibition of "spilling seed." Specifically, I am going to try to redefine for you what it was that Chazal prohibited, and what the meaning and definitions are of the terms used by Chazal to describe what they believed one may not do.

It is abundantly clear from Chazal, that the prohibition is absolutely not that one may not "spill seed" in a way that cannot potentially lead to pregnancy.  Whatever the nature of the prohibition is, it must be defined differently, and we will be working in future posts to define what is meant by "Hotza'at Zerah L'Vatalah".   In this post I will bring numerous examples throughout the Rabbinic literature that clearly demonstrate that "wasting seed" i.e. ejaculating in a manner that cannot potentially lead to pregnancy, is NOT the true nature of the prohibition.

From here on, I will use the acronym HZLV to refer to the sin that Chazal prohibited.  The reason I will do this, is because I believe that translating it as "wasting" or "spilling" seed causes a huge misunderstanding and is not an accurate translation at all.

Allow me to explain why this is so important.  There is a huge amount of literature that describes the "sin" of masturbation as one of wasting potential life.  We already saw how the Zohar and Chazal compared this sin to murder, and the explanation that many sources have given is because the semen contains the "seed" from which life is born.  Thus, by wasting it, one is "killing" the potential offspring.  As you can imagine, this can be a source of immense consternation to a young Yeshiva bochur who occasionally masturbates due to the normal sexual arousal that happens to a healthy young man from time to time. People like Yosef Mizrachi use this idea to promote guilt, shame, and dangerous misconceptions in videos such as this one on YouTube.

In fact, Chazal could not possibly have believed that HZLV is prohibited because one is killing potential lives.  The comparison to murder has to mean something else entirely.  That is because there many places where Chazal permit or even recommend ejaculation which cannot lead to pregnancy for various purposes.

Just a few examples,

  1. "Biah Shelo Kedarkah" which the overwhelming majority of commentaries understand refers to anal intercourse.  See Nedarim 20a - 20b where it is expressly permitted.
  2. "Letzorech Bedikah" refers to intentionally causing ejaculation in order to examine if a man falls under the Halachic category of a "K'rut Shafchah"  , see Yevamot 76a where it is expressly permitted
  3. Unintentional seminal emission as a positive thing.  See Yoma 88a where it is described as a positive sign if someone has an emission on Yom Kippur.  Although it is clearly referring to an unintentional act, it is inconceivable that Chazal would describe "murder" in such a positive way if indeed "spilling seed" was akin to murder in the way it is often (mis)understood.
There are other examples from the Aggadic literature that also clearly demonstrate that Chazal did not consider any ejaculation that cannot result in pregnancy to be akin to murder in the way it is understood  by many. I will choose not to mention them for the sake of brevity, but if there are enough requests I would be happy to bring more examples. 

If the reason HZLV was prohibited is because one is "killing" potential human beings, I don't believe that anyone can reasonably explain why the above examples were expressly permitted by Chazal. Clearly, something else is involved here.

(Now, I am fully aware that many poskim and commentators over the centuries have taken the approach that HZLV is prohibited and is compared to murder because potential life is being wasted. See Maharal Be'er HaGolah p213-214 for one of many many examples.  I plan on dealing with this at great length in a future post.  Right now, I would like to first be allowed to make the point that this is clearly not exactly what Chazal had in mind, and I will come back to the obvious objections to my claim later, BL'N.)

So far, I have given enough evidence to prove that when Chazal state that HZLV is akin to murder, and they compare those who commit "ni'uf beyad ub'regel" , that they do not mean that it is murder because one is spilling potential life.  So what did they mean? Why did they compare it to murder?  We will investigate that in my next post.

Sunday, March 19, 2017

Let's Get Back to Halachic Basics - The Discussion of Wasting Seed and the Halachic Process


Every time I tackle a topic, I always have to find a balance between being both comprehensive, and staying relevant and readable.  Needless to say, there is so much related material that I have to make serious decisions about how to approach each step of this analysis.  The biggest one of course is the one I am about to make, that is the Talmud itself on the subject of Hotza'at Zera Le'Vatalah.  This is going to form the basis of our Halachic analysis, as the Talmud is of course the basis of Halachah.  Everything we say from this point on will somehow have to relate back to the Talmudic discussions which we are about to analyze here.  

I also will have to go out on a dangerous limb and make the following statement of policy.  This statement was reiterated numerous times before on this blog, most especially during my discussion of the treatment of Gentiles on Shabbat.

My statement is as follows.  I am fully aware that often times my analysis will not reflect the analysis and understanding that was made by the majority of commentators and Halachic Decisors over the centuries.  I therefore declare openly that if a reader of this blog will criticize my analysis on the basis of  "most poskim hold ...etc..." then your criticism is valid, and you should probably go to another blog.

On the other hand, if you are interested in a reading of a particular sugyah (topic) that is BOTH halachically valid AND consistent with rationalist principles, then please go ahead and read further here.  That is my goal.  I am trying to look at this sugyah and understand it in a rationalistic AND halachically valid way.  So I will often have to choose and find halachically valid but sometimes minority opinions that will help us understand the sugyah.  It is well known,  and there is significant precedent for deciding halacha according to minority opinions when the need to do so is extenuating. I will freely admit that I believe that these are extenuating circumstances that require us to find a Halachic path that is both halachically acceptable AND Rationalist.

If you want to know what the principles of Rationalist Medical Halacha are, please refer back to the first post of this blog, where I laid out the five principles of RMH.

Now, let us begin.  The most important reference to the issue of masturbation in the Gemara is in Massechet Niddah 13a-13b.

The text is too long to quote here, so I very strongly recommend that you go get yourself a gemara, and learn the sugyah yourself before you read any further.  If you are finished reading, or if you are such a BAKI B'Shas that you already know the daf by heart, or if you are willing to trust my admittedly very rushed and inadequate summary, go ahead and read further.

Here is my summary of the sugyah.

First, the mishna states that a man who "checks himself" too often should "have his hand cut off" (obviously not literally .. but that it is a bad habit).  The gemara then explains that since a man is "sensitive" he shouldn't check because it may lead to arousal.  The gemara then explains that under certain circumstances it would be OK, like to use a cloth or other item to check himself or clean himself.

The second part of the sugyah records a discussion between Rabbi Eliezer and the Chachamim.  Rabbi Eliezer stated that anyone who holds his male organ is bringing a "mabul" to the world.  The assumption is that it will lead to spilling seed and this was one of the sins of the generation of the flood. The chachamim were concerned that someone really should hold his penis while urinating because if he didn't his urine would spray wildly and people would think he was a "K'Rut Shafcha" meaning that his urethra was damaged and therefore they would suspect that his children were not really his own, as a Krut Shafcha cannot father children.  Rabbi Eliezer felt that it would be better to cast aspersions on his children then to do such a terrible sin as to potentially cause himself to have an erection which may lead to committing the sin of spilling seed.

The gemara goes on to qualify this prohibition of Rabbi Eliezer by bringing some examples where holding oneself would be permitted.  These examples would be cases where one is near his teacher, standing in a high place where he needs to maintain his balance, or a person who has sufficient fear of heaven that he doesn't need to be worried about stimulating himself.  The gemara also states that it does not refer to a married man, because even if he did become stimulated, he has permissible ways to relieve his sexual urges, and only refers to holding oneself at the tip of the penis but not the shaft.

The gemara brings several statements about the extreme severity of this sin, comparing it to the "big sins of idolatry and  murder and states that one who commits this sin deserves the death penalty.

The last segment of the gemara (mostly on 13b) continues to bring more related admonishments, criticizing one who intentionally arouses oneself to the point of getting an erection, and it describes how the Yetzer Harah works, first he gets you to arouse yourself, and then eventually he gets you to commit more egregious sins.  The gemara continues to criticize those people who "Commit adultery with hands and feet" and those people who "play with children".

This gemara is the most explicit and most important source for the idea that spilling seed is a sin and a severe one at that.  So please learn through it carefully on your own.

On page 82 of the thesis of Shilo Pachter, that I have mentioned several times, he begins a lengthy analysis of the opinion of the Rambam and how the Rambam interprets this Gemara.  One of our readers has brought to my attention that though I have been referring to Shilo as a "she" that was because I do not know him personally and the only other "Shilo" that I know is a woman.  Shilo is actually a man, so I apologize for this mistake.  Thank God, I live in a time when I have read enough extremely erudite and insightful Halachic analyses written by women that I could easily make the mistake of assuming that the writer of this incredible thesis could have been a woman as well as a man.  Blessed are we who have arrived at this point in history.

Without quoting all of the lengthy passages of the Rambam (I will gladly provide anyone who asks with the full thesis of Shilo Pachter, just send me an email and I will send it to you), I will summarize the approach of the Rambam.  The Rambam includes the laws of "spilling seed" among the laws meant to keep one away from from committing the worse sins of actual adultry and forbidden sexual relationships.  According to the Rambam, there are two problems with "spilling seed".  One problem is that it may be a method of preventing one from fulfilling the mitzvah of procreation.  This was the sin of Er and Onan, who purposely spilled seed in order to prevent their wife from conceiving a child. The second is that by arousing oneself to the point of masturbation, one brings himself closer to committing the deed of actual forbidden relationships.  When one is married and when it does not interfere with the mitzvah of procreation, there would then be no prohibition against types of sexual activities that do not lead to conception.

The scary pronouncements regarding the sin of spilling seed, are therefore, according to the Rambam, meant to keep us away from unholy activities that potentially lead one to much worse transgressions. They are intended to keep us holy and involved in holier pursuits.  When one looks at the gemara in this way, it all makes a lot of sense.

  1. Not to hold oneself in a way that may arouse you, unless circumstances are such that it is unlikely to lead to arousal
  2. Not to intentionally arouse oneself sexually
  3. Not to intentionally think about sexually arousing thoughts 
  4. Not to commit adultery "with the hand"
  5. not to "play" with children in a sexually arousing way
One who does these things brings him closer to the edge of the prohibited  sexual acts, and creates an environment that can lead toward sin. This explains why this was relevant to the generation of the flood.  It was not the "spilling seed" per say that was the problem, but the unholy environment that was created by their attitude that led to a generation full of immoral behavior.

Most interesting is the interpretation of the Rambam of "committing adultery with the hand and foot".  It has become almost a basic assumption that this refers to masturbation.  This seems to be how most poskim understand this gemara.  By masturbation I mean a person stimulating himself with his own hands in order to reach orgasm and ejaculation.  This however was not at all what how the Rambam understood it.  

The words of the Rambam Pirush HaMishnayot Sanhedrin 7:4 (my translation)
"One who has intercourse with any of the prohibited relations" ..... or if he caresses or touches one of her limbs in order to derive pleasure, regardless of which part of her body he touches for example he rubs himself against her arm or leg. this type of abomination is what the Chachamim referred to as "committing adultery with the hand or foot" 
This is quite different from the "conventional" understanding of "Ni'uf Be'yad" which was so highly condemned by Chazal.  It is very different from what the Kitzur Shulchan Arukh condemned in the quote we brought in the last post.  But it also is so much more accurate of a translation of the language!.  Ni'uf everywhere else has other people involved.  The way the Rambam understood the gemara makes so much sense!  The gemara begins with admonitions not to touch oneself in a way that might cause arousal (even under circumstances that he has no intention of arousing himself as he is only holding himself to urinate), then continues with admonitions not to think arousing thoughts, then continues with admonitions not to intentionally cause oneself to have an erection, then continues to warn that touching a woman (obviously not referring to his spouse!) in a way that causes arousal or even ejaculation is a terrible sin that will often lead to actual intercourse, then continues to warn against touching children in a way that leads to arousal (God forbid).

So we now have a completely different understanding of the sugyah.  The prohibition of "spilling seed" is not an issur in and of itself.  Rather it is a safeguard against getting involved in sins of much worse consequence.  The severe pronouncements about the severity of the sin are meant to scare us away from activities that may lead us down a bad path.  They are not meant literally to say that one who masturbates is actually akin to murder.  There are myriads of examples where Chazal used similar terms to refer to sins as being vastly more horrible then they actually are, and conversely, relatively minor mitzvot that are given way more importance in order to impress upon us how special they are.

How would the Rambam advise a young man who was stimulated sexually by something that he saw, something that he read, something that he dreamt about etc., and then he had an erection and masturbated?  Obviously, I have no right whatsoever to speak on behalf of the Rambam.  However, I would assume that he would advise him to do as the Rambam himself states in Issurei Biah 22:21.  Try to focus your thoughts on holier matters.  Do not ever intentionally arouse yourself. He would then tell him to find a wife so that he can satisfy his sexual urges in a permissible way.  He would certainly not tell him that he is liable for death as a murderer for spilling his seed.

There is so much more to be said of course. However, I am not going to pretend that I have explained the sugyah according to every Rishon and Acharon.  I am only telling you how the Rambam understood the sugyah, and the most readable and rationalistic way of understanding the Gemara.

In my next post, I plan on analyzing several other sugyot in the Talmud that demonstrate that "spilling seed" in and of itself is not a sin, as long as it is not done intentionally to arouse oneself sexually in such a way that may lead to sin.  In other words, not being done in a way that the Rambam would strongly disapprove of.



Thursday, March 16, 2017

"Tum'ah Ve'Taharah" Ritual Uncleanliness and Spilling Seed

Before I begin the topic of today's post, I would like to add a source to illustrate the point I was trying to make in the last post.  If you recall, I developed the idea that the Zohar, and it's interpretation of the Parsha of Onan, became highly influential in how we view the sin of Onan.  This is turn influenced our interpretation of halacha to the extent that the sin of masturbation has become identified with the sin of Onan.  This is true, even though it is quite clear that the sin of Onan was clearly not that he masturbated and spilled seed, but rather that he refused to carry on the name of his brother.

The best example of this is the Kitzur Shulchan Aruch.  The Kitzur was one of the most influential works of Halchah of the 19th and 20th century, and acted (and still does) as a practical halcahic guide for generations of Halacha-abiding Jews for generations.  Here are his words (my translation) 150:1
"It is prohibited to waste seed. This sin is more severe than any other sin in the Torah. These (or this refers to:) are those people who commit adultery with their hands and spill their seed for naught. Not only is this a severe prohibition, but the one who does this is excommunicated, and regarding these people it is said "Your hands are filled with blood" and it is as if he is guilty of murder. See what Rashi writes about this is Parshat Veyeshev regarding the story of Er and Onan who died due to this sin. Sometimes, do to this sin, one's children may die when they are young, or they will be ill, or a person will sufffer from poverty."
There is SO much that can be said about this quote, but the points I would like to make are the following.  A practical Halachic work of incredible influence has just taken the theme of our last post full circle.  The sin of both Er and Onan was spilling seed (specifically by masturbation) .  It is akin to murder. One suffers horribly from it. He even interprets Rashi this way, although that is far from clear - as we saw in our last post.  The ultimate source for everything in the Kitzur Shulchan Arukh and the interpretation of the parsha is completely and totally taken from the Zohar.  This clearly and undeniably demonstrates the point I was trying to make.

Now I would like to move on to an area of influence that we are not used to talking about when discussing practical halacha in modern times.  The laws of Tu'mah ve'tahara, or ritual uncleanliness.  Ritual uncleanliness is a concept that was at one time in our history highly influential in the day to day practice of traditional Jews.  Especially during the time of the Bayit Sheni, it was the reason our ancestors, the forebears of what eventually became Halachic Judaism, were called "perushim" or Pharisees in the secular literature.  However, we no longer adhere to these rules, for reasons which are beyond the scope of this blog.  However, there are a few areas where the influence of the laws of Tu'mah ve'tahara are still felt in our days, and our current topic is one of them.

 In Vayikra 15 we have the following three verses (cut and paste from JPS 1917 edition):
"16 And if the flow of seed go out from a man, then he shall bathe all his flesh in water, and be unclean until the evening. 17 And every garment, and every skin, whereon is the flow of seed, shall be washed with water, and be unclean until the even. 18 The woman also with whom a man shall lie carnally, they shall both bathe themselves in water, and be unclean until the evening."
The meaning of uncleanliness is a topic which is beyond the scope of this blog, but there are several observations that are very relevant to our discussion here.  First of all, this verse is clearly referring to "seed" that has been ejaculated in any way, both through normal marital intercourse, and through masturbation. Indeed, this "uncleanliness" even extends to the woman who has seed inside her vagina due to normal intercourse.  It is therefore clear that this seed makes one "unclean" even after doing what is traditionally considered a great Mitzvah, an obligation upon every man to procreate and engage in normal sexual activity to enhance his relationship and to satisfy his and his spouses normal sexual needs.  This is similar in many ways to the "uncleanliness" that comes upon a person after engaging in one of the greatest and most holy deeds that one can possibly do, that of taking care of a human body after death.

Why it is that a great mitzvah can bring one to "uncleanliness" is beyond the scope of this article, but it has been the topic of many a sermon over the years.  For our purposes here, as a blog dedicated to Halachic Rationalism, I just want to point out that ritual "uncleanliness" and whether an act is prohibited halachically have very little correlation to each other.  Nonetheless, for whatever reason, in the area of spilling seed, the topic of uncleanliness has had significant influence in making the act of masterbation quite "taboo".

The uncleanliness that the Torah refers to prohibits a Kohen from performing the Avodah, and indeed anyone from entering the Har Habayit.  It prohibits a person from coming into contact with holy items related to service in the Beit HaMikdash.  None of this has relevence in our time, and does not relate to what a person is allowed to do or prohibited from doing.  However, it is well known that Ezra HaSofer decreed that one who is Tameh from spilling seed cannot read from the Torah (Berachot perek 3). It is also well known that this Takanah did not stand and is no longer relevent today (Talmud Berachot 22a, Rambam Hilchot K'riat Shemah 4:8).

None the less, it has become the practice of many Jews, mostly Chassidic Jews, to go to the mikvah every day in order to fulfill the Takanah of Ezra.  It would be difficult to overstate the impact of this custom of going to the mikvah on the overall idea of the prohibition and "uncleanliness" associated with the "emission of seed".  In the mind of most people, one is not only washing away ritual uncleanliness, but one is washing away sin.  This is true despite the fact that the "uncleanliness" is sometimes a result of one of the greatest Mitzvot, and therefore is not at all related to sin and prohibition.

The sifrei Chassidut, and the works of the Mekubalim of Tzefat, often intertwine the issues of tum'ah with the sin of  wasting seed.  At the same time, the special holiness of the marital act is considered something which brings purity and holiness to the world.  One would get the impression from reading these works, that Tum'ah only comes from the "wasting" of seed, and not from normal marital intercourse.  This point was made by Shilo Pachter in the thesis I mentioned in the last post.  She brings the extremely influential source the "Igerret HaKodesh" which served as the basis for almost all Kabbalistic discussions of sexual intinacy that succeeded that work (origin is in the 13th or 14th century and variously attributed to several different Kabbalists).

The point that I would like to make is as follows.  The emphasis of today's Chassidim on takanat Ezra is one of the very few modern remnants of the practice of Tum'ah ve'tahara.  If you combine this with the association of tum'ah as coming from sin that was emphasized by the kabbalists, one gets a sin that carries a huge amount of "metaphysical weight". In the non-rationalistic world of right wing Orthodoxy today, this makes this quite a scary sin!

None of this of course, has any real Halachic weight.  Tum'ah, we have shown quite clearly is not a result of doing prohibited acts. The practice of mikvah in modern times for takanat Ezra, is not Halachically required, and even if it is recommended for some spiritual reason, certainly has nothing to do with the sin of spilling seed (as it would apply to one who engaged in normal marital intercourse as well).

In the next post I hope to begin the Halachic discussion of the origin of this sin as interpreted by the Halchic sources.  This will obviously take a while, so I hope you are ready for a nice ride.

Sunday, March 5, 2017

Biblical Sources and the Story of Onan

It is always a challenge to figure out where to start when discussing a topic as vast as masturbation in Halachah, so the best approach is to start with the first major verses of the Torah that are relevant to the topic, the story of Onan in the Torah.  This is the first, and most explicit mention of the "destruction of seed" in the Torah, and any search for a biblical source for this prohibition has to start here.

I have found over the years that it is useful to divide any study of a parsha in the Torah into two distinct categories.  There is what I will call "parshanut"  and what I will call "halachic".  I know that many traditional sources like to discuss "pardes"  which divides the meaning of each pasuk into four categories Pshat - the simple meaning, "Remez" - the meanings that are only hinted at but not explicit, "derush" - usually moral messages one can derive from the verse, and "sod" - usually referring to hidden kabbalistic meanings.  However, I find that it is more useful to lump all of those four categories into one and call it "parshanut".  

Parshanut in my scheme refers to the entire body of literature that studies and explains the pasuk.  This encompasses a huge range of styles, traditions, and methods.  The range includes all the way from Lurianic Kabbalah to Rationalistic Rishonim to scientific and historical scholarship.

Halachic refers specifically to how a pasuk is used to derive practical Halachah.  This generally follows the familiar accepted pattern from the Talmudic interpretations to the rishonim, Rambam, acharonim, Tur, Shulchan  Aruch, poskim, she'elot v'teshuvot etc...

I am going to start with an analysis of the "parsha" of Onan from a parshanut perspective.  Obviously, it would be impossible to do a comprehensive treatment of this (or any) parsha in the Torah on this blog in a post like this.  However, I do hope to give a general taste of how this parsha has been and can be interpreted and explained from several major vantage points.  I will start of course, with basic p'shat.  By "p'shat" one means a simple reading of the text, according to the principle "ein mikrah yotzey midey peshuto".

The best treatment I have ever seen of this parsha from a "p'shat" perspective is found in the doctoral thesis of Shilo Pachter entitled "Shemirat HaBrit" and submitted December 2006.  I don't have an online link to this paper, which is recommended reading for anyone who wants to research this topic, but I can send a copy of her paper to anyone interested by email, so feel free to request it.

To summarize her approach, a reading of the parsha makes it clear that the Torah is trying to emphasize the importance of the continuation and perpetuation of the family's lineage.  The sin of Onan was clearly, according to the pasuk, due to the fact that he did not want to contribute to the perpetuation of his deceased brother's name.  He therefore "spilled his seed" instead of allowing Tamar to become pregnant.  The rest of the parsha continues with this theme, and demonstrates how God's plan to bring forth the future Kings of Israel, and indeed the Moshiach himself, continued through Yehuda and Tamar.  The sin of Onan then, according to p'shat, was that he did not want to do his part in the continuation of his family's name and mission.

Next I would like to mention the Kabbalistic approach to this parsha,  In this analysis, I do believe that this approach is particularly important.  That is because I believe that the influence of Kabbalah upon the development of the halachic approach to masturbation has been very influential.  As we continue to delve into this subject, I hope to demonstrate this.

The Kabbalistic approach obviously has gone through many iterations over the years, Lurianic Kabbalah, Hassidic approaches (both Chabad and "non-Chabad"), and other schools of Kabbalah.  However, they all begin with the foundation text of the Kabbalah, the Zohar.  So I will bring here my own translation of the Zohar's words on this parsha. By no means do I pretend to think that this constitutes anything close to a full analysis of the parsha of Onan in Kabbalistic sources.  However, I do believe that it will be exceedingly clear from the "get-go" how the Zohar, and almost all Kabbalistic works that follow on its heels, view the meaning of the sin of Onan. Here is my translation:
"Genesis 38:10 "and it was evil in the eyes of God, that which he (Onan) had done, and God killed him as well" ... and come and see, among all of the sins that one can contaminate himself with in this world, this sin is the one with which a person can contaminate himself the most, both in this world, and in the next world. One who spills his seed for waste,  and draws out his seed with his hand or leg and contaminates himself with it. as it states (Tehillim 5:5) "For you are not a God that desires wickedness, and evil does not reside with You" Therefore, such a person will never merit to see the "Atik Yomin" (the presence of God that the righteous will see in the next world), As it is written here "Evil does not reside with You" and it also states here that (Genesis 38:7) "and Er the first born of Yehuda was Evil in the eyes of God (here the Zohar is making the assumption that the sin of Er was the same as the sin of his younger brother Onan - which the Torah does not explicitly state, but the Zohar - and the Talmud as well as we shall see - make this assumption - RMH).  Regarding this it is also written, (Yeshayahu 1:15)  "Your hands are filled with blood"
The Zohar is making several assumptions and assertions that are by no means reflected in the text of the Torah, but it forms the basis of all subsequent Kabbalistically influenced understandings of this parsha.  The Zohar assumes that:

  1. The sin of Onan is the sin of "wasting seed" (as opposed to the sin of not wanting to perpetuate the family name or some other explanation)
  2. The sin of the older brother Er (which is not specified in the Torah) is also the sin of masturbation
The Zohar also makes the following assertions:
  1. The reason for the sin of masturbation is that it is akin to murder
  2. One who is guilty of masturbation has no portion in the World to Come
Needless to say, these assumptions and assertions are quite powerful. For those schools of Judaism that have been heavily influenced by the Zohar, which in many ways includes most of mainstream Halachic Judaism today, this has had a very strong influence on how masturbation is viewed and how the story of Onan is interpreted.

I would like to go back to the subject of P'shat now, but take it a little deeper.  While the Pachter thesis I mentioned takes the approach of an analysis of the text itself, obviously there is a vast and rich heritage of commentators who explain the text according to its simple meaning.  I think it is obvious to anyone who studies the Torah with the traditional commentators that each commentary has an approach that is variously influenced by many factors including, the Talmud. Midrash, Halacha, Various philosophical schools, Kabbalisitic, and other historical factors.  

Most well known and most influential of course is Rashi, who consistently uses the Talmud, Midrash, and Halacha in his explanations of P'shat.  Therefore, in the minds of most of the readers of this blog, Rashi's interpretation of this Parsha remains the most prominent explanation of the lessons of the story of Onan.

To summarize Rashi, the sin of Er was that he did not want his wife's beauty to be tarnished by pregnancy, and he therefore spilled his seed instead of engaging in natural intercourse.  Rashi's source is the Talmud in Yevamot, and we will delve into that later in the blog extensively. This is a classic example of how Rashi uses a Talmudic interpretation for the explanation of the simple meaning of a verse.  Rashi, in his usual fashion, uses the Talmud to explain the plain meaning of the pasuk, even though the pasuk does not explicitly say anything about Tamar's beauty or about Er spilling his seed.

Many other well known commentators follow Rashi's lead when they explain the sin of Er, including the Rashbam and others.  However, notably, the Ramban explicitly points out that the Torah does not specify the sin of Er, thus leaving it open for interpretation. Ibn Ezra, Ramban, and many others focus on the sin of Onan as the desire not to perpetuate his brother's family name, which adheres much closer to the simple meaning of the text. They choose not to discuss the sin of masturbation at all when explaining this parsha, as it is not necessary for the understanding of the text.  The Ramban does go into depth explaining the mystical significnace of the mitzvah of Yibum in perpetuating the brother's family name.  Although he veers deeply into a mystical topic, he still stays within the plain meaning of the text that does indeed mention that Onan sinned in that he did not want to fulfill that commandment.

To summarize, in this post I tried to demonstrate several approaches to the reading of the story of Onan.  I demonstrated that a simple reading of the Torah says nothing about the sin of spilling seed, but that various traditions have superimposed the sin of spilling seed onto the Parsha in order to explain the narrative.  Rashi used the Talmud and Halachic process to explain the story, and the Zohar used its understanding of the sin of spilling seed in order to explain the Parsha. Ramban and Ibn Ezra used the simple meaning of the text and did not use either Talmudic or Medrashic sources in order to understand the text.

I do ask you to be patient as we move through this topic.  There are many other proposed sources for this prohibition which we will encounter as we go through the Halachic analysis, and a halachic anlysis of this parsha is forthcoming.  For those who are familiar with my style, you already know that I will try to leave no stone unturned, but it takes time.  I do sincerely welcome comments, criticisms, etc, as I find them to be a huge source of information, opposing thoughts, and opinions.  What you tell me does influence my thinking greatly as I try to always keep an open mind.

In the next post I plan on discussing the issues of Tum'ah v'tahara - ritual impurity, and its influence on the prohibition of masturbation.


Monday, January 2, 2017

Masturbation and the "Wasting of Seed"

I have received many requests to discuss various topics in Halachah from a rationalist perspective. However, by far and away the most frequent request is to discuss masturbation and the "wasting of seed".  This was at first quite surprising to me, but after thinking about some of the emails and what people were writing, it dawned on me that this is probably one of the most important but least discussed topics that affect Orthodox Jews and their social and emotional well being.

The impact of this issue on the sexual, emotional and social well being of the Orthodox Jewish male, as he grows through childhood, adolescence, and adulthood, cannot be overstated.  (I am specifically discussing male masturbation, because this is a Halachic blog, and there is no extensive discussion of female masturbation in the Halachic sources.  It is obviously a very important subject in its own right, but since I am not a sex therapist or a social scientist, I will not be discussing it here). The general impact of this issue on Orthodox society is one that I am not competent to assess, but it must be very significant.  Obviously, the Orthodox male has the same sexual issues as every other human being, Jewish or not, but there are several factors unique to our community that make this a topic that really is appropriate for a blog like this one.  

Factor one.  Orthodox Jewish society shies away from discussing topics of a sexual nature.  Ostensibly, this is often justified by claims that to discuss these issues in public is a violation of the principles of modesty or "tzniut".  This argument has some merit of course, as long as the topic is not ignored and that alternative and more "private" types of guidance  were provided to our youth.  Unfortunately, because these subjects are not discussed in public, there is less guidance available to youth, they are often not aware where to turn to for real advice, and the advice given, in the few cases when it is given is often misinformed, to say the least.  

Factor two.  There is a prohibition against masturbation, at least against male masturbation, the well known halachic prohibition against the "wasting of seed".  When a normal human activity such as masturbation is prohibited, this can be a source of huge guilt and shame for an Orthodox youth that is unfamiliar with normal sexual development, and unaware of where he can turn to for help.  Up to 80% of normal male teenagers masturbate, and even if these numbers were different for Orthodox teens, there is still certainly a large percentage of boys that do. The mass psychological impact of  up to 80% of our children being engaged in an activity that they know from the Torah is a sin is something that must be huge.  I am not a social psychologist.  However, I know from my own experience growing up in this environment, and from the few people that have had the guts to openly discuss it, that this issue is extremely important.

Factor three.  The trend toward a more mystical understanding of our religion and away from a more rationalistic perspective is one that readers of this blog are very familiar with.  Anyone with any familiarity with the topic of masturbation in Jewish literature is surely aware of the association between the severity of the "sin" of masturbation and the mystical sources of Judaism.  While there are clearly mainstream halachic sources for the prohibition (which we will discuss in detail when we get into the primary discussion in this series of posts), the mystical sources take this topic and turn it into one of the major sins with cosmic importance way beyond what mainstream halachah dictates.  This can be a major source of despair for teenagers struggling with the issue, especially since they are also the least equipped to understand and differentiate between real halachah and scary pronouncements in mystical sources.

Factor four.  If you remember way back in the beginning of this blog, I discussed the "historical corruption principle" as one of the five principles of rationalist medical halachah.  This principle is extremely relevant to this discussion. This is because so much of the halachic discourse on masturbation is based on the works of medieval Halachic scholars who were heavily influenced by the beliefs of their time regarding the health "dangers" of "wasting seed".  Understanding this is crucial to any rationalistic discussion of the topic, and we will of course be delving into this in much more detail.  However, today's Orthodox youth are often taught in Yeshiva that a historical analysis that associates the Halachic process with  any sort of connection to current scientific and cultural understanding is nothing short of outright heresy.  As such,  an Orthodox youth will often actually believe that he is destroying his brain and his life force when he masturbates, as this is what the "seforim" say, and he wouldn't be able to understand that these things were often simply in full correspondence with the "scientific" beliefs of the time in which they were written.  This adds to the guilt and consternation of the unfortunate and unguided youth of our day.

Factor five.  The meaning of the idea of Jews being a chosen people is often interpreted today that Jews are somehow intrinsically different from everyone else.  Dr Menachem Kellner has demonstrated in his many scholarly works, that rationalist scholars such as Maimonides had a dramatically different view of the meaning of the Jews being a "chosen people".  However, the belief that Jews are intrinsically different is a prevalent idea in many Orthodox circles today.   This leads to suspicion regarding scientific and cultural writings that some Orthodox youth may on occasion be exposed to.  So the rare Orthodox youth who may happen across an article, or even encounter a therapist or teacher, or health care professional who may offer some reasonable guidance on the subject, this can often be rejected due to these suspicions.

Factor six.  The taboo against reading or seeing secular books and articles, especially those regarding sexual matters, make it less and less likely that an Orthodox youth will ever have the chance to be exposed to responsible writings about normal sexual behavior.  The little sexually related material that an orthodox youth may see will often be inappropriate and misleading, and sometimes simply pornographic and potentially dangerous to his healthy sexual development.  This makes it difficult for the typical "yeshiva boy" to understand what is scientific and responsible, and what is dangerous and unhealthy.

There is more to write in this introductory blog post, but I think I have sufficiently demonstrated why this is a particular problem for an Orthodox Jewish male growing up in today's Orthodox world. I think it is obvious that the sexual health and development of the men in our community has a profound and deep impact on our community's health in general. Because I am not a social scientist, I will choose not to go into detail about the type of impact this has on our society. I hope that you agree with me at least that this is an extremely important subject, and that a rationalistic halachic approach may be  very beneficial to the Rationalist Jew.

Sunday, November 8, 2015

Jews and Gentiles on Shabbat: A Rationalist Perspective

I must sincerely apologize once again for the length of time it's been since my last post, and for leaving all of my followers hanging in the middle of an important topic last year. I have been busy with so many things, good things, that I simply haven't had the time to post the kind of quality material that I would like to post on this blog.

So many people have asked me to get writing again, so i will try, but first I would like to release in public an article that has been waiting for publication for several years.  You may remember several years back when I posted a series on treating gentile patients on Shabbat.  During the last few years I have expanded on the subject and it developed into a full fledged article, which I believe is very important and I would like to release it.

Several scholarly journals have expressed an interest in publishing it, but since I am still anonymous, many were unwilling to do so.  However, as this article has anonymously made its rounds among the various Orthodox Journals, it has already spawned some level of opposition.  So I have the dubious distinction of having my detractors already publish responses to my ideas even before my ideas have seen the light of day.

In the spirit of Lehagdil Torah, I will now release the article, and I encourage all of you to disseminate it in whatever forums you believe are appropriate. If anyone would like a pdf version, or Word version of the article sent to them by email, feel free to send me an email and I would be happy to provide. I hope you enjoy it.

So here it is:

In this article I intend to address one of the most difficult dilemmas that I have had with my faith and belief system as a Jew.  Equal rights and equal treatment for all people, regardless of race, religion etc. is a value that is the basis of the society within which we live and function.  As a physician, this value is brought to life in a very real and practical way every day and every moment of my career.    To treat everyone equally with compassion and concern is the basic value which drives any caring physician to provide care as equitably and as justly as possible.

As a Shabbat-observant Jewish physician, this value becomes especially important when caring for my patients on Shabbat.  Trying to maintain the proper reverence for the special mitzvah of Shabbat, while at the same time doing things usually prohibited on Shabbat, is not an easy task.  However, there is no question that on Shabbat, a physician must treat his/her patients with the same compassion, energy and concern that one has on an ordinary weekday.

We are all familiar with the accepted Halachic practice that for matters pertaining to life and death, one must violate the rules of Shabbat to save life.  This is true regardless of the patient’s age, race, gender, or religion.  However, I believe that it is also crucial to understand the background and rationale behind this practice.  This is where the problem begins, and this led me to the need to write this article.

The problem is one that I have discussed on many occasions with many fellow Orthodox Jewish physicians from virtually all sectors of Orthodox Jewish society, and it relates to the rationale for the treatment of non-Jewish patients on Shabbat.  My numerous conversations over the years have led me to be quite certain that I am far from alone when I express my concern regarding this matter.  I almost consistently get the same or similar response when the topic comes up.  The following is an almost direct quote from a learned Orthodox physician (not sure if this matters, but it may interest some of the readers that this physician is one who most certainly would self-identify with the “yeshivish-Chareidi” version of Orthodoxy) whom I met recently while shopping for groceries.  “It simply can’t be that the Ribbono Shel Olam doesn’t want me to treat the goy on Shabbos just like I treat a Jew,” he said, “I know what the seforim say, but I know that there must be another explanation.  The seforim don’t reflect what I know the Torah really wants.”

What is the problem this physician was referring to?  The problem is as follows:  According to virtually all mainstream Halachic authorities, Shabbat is to be violated to save a life, and that includes any human life, whether Jew or gentile [1]. However, according to these authorities, the rationale for saving a non-Jewish versus a Jewish life is very differ rent. The Jewish life must be saved because the Halacha requires it, and we will discuss the details of this rule very soon. However, the gentile life must be saved for a different reason entirely. Briefly, the reason that the modern Halachic authorities agree that we are obligated to violate Shabbat for any life on the Shabbat, is because any other approach would be devastating to our relations with the gentile world, and would arouse such hatred to Jews that it would pose a real threat to Jewish life.    For the remainder of this article, I will use the Hebrew term “Eyvah” to describe the concept that allows one to do otherwise prohibited acts on Shabbat due to the fear of raising hatred among the gentiles.  

It has always bothered me, that while the act of caring for the gentile patient is absolutely permitted and encouraged, as it clearly should be, the reasoning behind this principle seems very deeply flawed.  Is this really the value system that I believe in? Is this really what the Torah wants me to believe? I have always found this to be very hard to accept, and that is why I am writing this article[2].

This issue is a particularly timely one.  We need to face this honestly, and we need to face it directly. For starters, I sincerely believe, just like my friend the Chareidi doctor believes, that there must be another valid Torah approach to this issue.  However, in addition to the personal angst caused by the prevalent approach to fellow Jews, there are two important reasons why we need to face this issue now.

The first is very practical. Everything we say and do as Halachic Jews is scrutinized and judged by the rest of the internet-connected, news-frenzied, blog-inundated world.  Indeed, R’ Moshe Feinstein understood this problem when regarding the specific topic of this article he wrote[3]:

“…and certainly when one considers the immediate publication of the news of what happens across the entire world by the newspapers, there is certainly a problem that one place will learn from another and a terrible incitement can occur where hatred (towards the Jews) will occur and result in terrible persecution and murder (of Jews) it is therefore clear that in our times this is considered a real danger (and therefore it is permitted to treat non-Jews) …”

 …  If only he knew how prophetic his words were, which were written before the internet, cable news programs, and blogs were even invented.

In case you are na├»ve enough to think that we can keep Halachic discussion within the “dalet Amot Shel Halachah” and out of the hands of the anti-Semites, allow me to bring several examples that should frighten you into reality.  The most recent one just hit the press around May 17, 2012, with the screaming headline: “Rabbi Yosef: Treating gentiles Violates Sabbath”[4]. Within hours of R’ Yosef’s Hilchot Shabbat shiur, anti-Semitic websites were having a heyday with this clear evidence of a prominent rabbi and his obvious discrimination against non-Jews.  Who knows what kind of negative repercussions such statements will have in the future?

Probably the most famous such episode in the last century was the Dr. Israel Shahak affair.  Dr. Shahak was a Hebrew university professor who wrote a letter in the December 1965 Haaretz alleging Orthodox discrimination against non-Jews.  One of his primary allegations was that Orthodox Jews would not treat a gentile patient on the Sabbath.  This sparked a huge controversy, with many rabbis countering his claims[5]. Israel Shahak is still the darling of the anti-Semitic world, having gained much fame in numerous anti-Semitic forums on the world-wide web, as any Google search would reveal.

A third recent example was sparked by an article by Noah Feldman in the NY Times magazine in July 2007[6]. Feldman openly discusses his personal struggle with the double standards implicit in this Halachah.  This also generated an internet fueled media fury, and its repercussions are still reverberating throughout the world.

So practically speaking, we as Halachic Jews cannot afford to ignore this important issue.  If we ignore it, we may cause real physical danger to ourselves and the Jewish people in general.
However, the second reason why this is so important, is because of the implicit moral values that one derives from these Halachot.  One can definitely argue that the Halachah is at its core a legal system and not a set of moral principles. Therefore, one might say that it doesn’t really matter why we permit the violation of Shabbat to save the life of a gentile; the bottom line is that it is permitted. However, I do not believe that this is adequate at all.

As Orthodox Jews we profess that the Halachah is a God-given set of rules by which we are supposed to lead our lives.  It is therefore inescapable that the rules, and this includes the rationale behind the rules, have moral implications. It is hard to imagine that God would give us a set of immoral and unjust laws to live by! Today’s “medical ethics” literature is constantly blurring the line between law and ethics in areas such as patient autonomy, preservation of life, and abortion.  Try to find an article about the Halachot of end of life issues without also finding a reference to the reverence of the Halachah for life, or an article about the Halachot of abortion without a reference to the sanctity of the human being, or a discussion of patient autonomy in Jewish law without numerous references to our moral obligation to take care of our own God-given bodies. As an avid reader of this body of literature, I am quite certain that you will come up empty-handed.  It would seem obvious to anyone even slightly familiar with Halachah that the laws are meant to teach and preserve a higher ethical and moral ideal.

So what then are we to make of the fact that the Torah seems to only allow the violation of the Sabbath to save a Jewish life and not a gentile life?  It is true that the authorities today permit the violation of Shabbat to treat a gentile on Shabbat.  On a practical level this may somewhat alleviate the first problem, but it does nothing to help us with the second problem.  We are still stuck with the unfortunate impression that according to the Torah, the life of a gentile is not important enough to trump the laws of Shabbat.

I am going to propose in this article a completely different and Halachically valid approach. Let us begin by analyzing the primary sources and the approach of most Halachic authorities to date.

The Talmud in Avodah Zara[7] says:
"Rav Yosef thought to say that for a Jew (midwife) to deliver an idol worshiper’s baby on Shabbat for pay should be permitted due to eyvah (a fear of causing hatred among non-Jews towards Jews) Abaye responded, “She can say to her - for us that keep Shabbat we can desecrate Shabbat, but for you who do not keep Shabbat we do not desecrate Shabbat".

The issues relevant to our discussion in this passage can be summarized as follows:

1)      It seems that the conclusion of the Talmud is that one is NOT allowed to treat gentiles on Shabbat because of Abaye's statement that there is no Eyvah.  Can one argue that in modern times this "explanation" of Abaye won't work anymore, if so, does R' Yosef's reason for leniency, the fear of Eyvah, still apply?
2)      If Rav Yosef's leniency due to Eyvah does apply nowadays, regarding what level of severity of prohibitions does it apply? There are three possibilities.
a)                          It could be that Eyvah cannot supersede ANY prohibition, not even a Rabbinic decree.  If this is true, then Rav Yosef only meant that Eyvah allows one to treat a gentile at all.  This would be because the Talmud elsewhere prohibits a Jew from treating a gentile who worships idols.  If this is true, R’ Yosef's permission was only meant to permit transgressing this specific decree.  If so, he never meant to permit treating a gentile on Shabbat in a way that would violate the laws of Shabbat.
b)                         Alternatively, it could be that Eyvah is only meant to permit transgressing prohibitions of Rabbinic origin, but not prohibitions of D’Oraytah origin
c)                          Or, it could be that Eyvah can even allow transgressing a prohibition of D’Oraytah origin on Shabbat.

The following is a review of some of the major commentaries and their opinions:
1)      Ritva[8] and Ran[9]  take the position that the concept of Eyvah cannot even allow the transgression of a Rabbinic prohibition.  According to this opinion, the entire concept of eyvah was only used by Rav Yosef to allow the treatment of a gentile in general, but not if it involved the transgression of the Shabbat at all, as in other places the Talmud taught that a Jew should not treat an idol worshipper. R’ Yosef Karo in the Beit Yosef[10] brings a famous argument between Ramban and Rashba vs. Rabbeinu Yonah regarding the permissibility of giving infertility treatments to a gentile.  Ramban and Rashba allowed it due to Eyvah, whereas Rabbeinu Yonah was very critical.  It would seem that the argument revolved around whether or not the concept of Eyvah applies nowadays to allow the treatment of a gentile in general.  Ramban, Rashba, Ran, and Ritva would have allowed it due to Eyvah, while Rabbeinu Yonah would not allow it, presumably because of Abaye’s objection. However, none of these authorities felt that eyvah would allow the transgression of an actual prohibition, even a Rabbinic prohibition. This is also the position taken by the Shulchan Aruch and the Mishna Berura[11].
2)      Tosfot[12]  say that the concept of eyvah would permit someone to transgress a Rabbinic prohibition but not a D’Oraytah prohibition.  Many authorities take this position including the Tosfot Shabbat[13].
3)      No authority seriously entertains the possibility that eyvah would allow transgressing a D’Oraytah prohibition.  However,  several authorities, including the Maharik[14], and the Tiferet Yisrael[15] cleverly use the concept of Eyvah to allow transgressing a D’Oraytah prohibition through an interesting "Halachic trick".  They use the following argument.  Since the Jew is only transgressing the prohibition because  he is afraid of causing hatred (eyvah), he is not doing it because he actually needs to work done for himself. That would make the act that he is doing fit the Halachic category of a “melacha she'aynah tz'richa l'gufa” (work that is done for a purpose OTHER than accomplishing the work itself). Therefore it is not really a D’Oraytah prohibition, rather it is a Rabbinic prohibition, and therefore it can be done due to the concept of Eyvah.
4)      A detailed analysis of the opinion of Rambam regarding this sugyah is to be found in the appendix A to this article

Contemporary Halachah – the “Mainstream Approach”

The modern Halachic authorities invariably bring the sources that we just reviewed  and use them as the basis for practical Halachah.  One of the most important authorities often quoted is the Chatam Sofer[16] who in a classic responsum allows transgressing even a D’Oraytah prohibition to take care of a non-Jewish patient when there is reason to be concerned that the Jew's life would be in danger if he does not treat the gentile.  This is what I like to call "Super-Eyvah" (as we are not just worried about causing hatred, but we are also worried about an actual threat to a Jewish life).  Another important authority is the Divrei Chaim,[17]  who writes, "It is the custom of (Jewish) doctors to transgress D’Oraytah prohibitions on Shabbat. And I heard that it was a decree of the Council of Four Lands that allowed them to do this." The obvious question is, how could the Council decide to allow transgressing a D’Oraytah prohibition by decree? The answers given to this problem include (among others) the clever explanation of the Maharik[18], or the explanation of the Chatam Sofer of "super-eyvah"[19].

The Mishna Berura[20] however, clearly disagrees with the Chatam Sofer and Divrei Chaim.  In a famous remark, he sharply criticizes Jewish doctors who transgress the Shabbat to take care of non-Jewish patients.  He writes, "They are completely intentional transgressors of the Shabbat (mechallelei Shabbat gemurim hem b'mazid) May God protect us!"

Nonetheless, virtually all modern authorities agree[21] that when push comes to shove, a Jewish physician can violate even a D’Oraytah prohibition to save a non-Jewish life.  They come to this conclusion using some combination of the Chatam Sofer, Maharik, and Divrei Chaim and the principles of Eyvah, super-Eyvah, and melachah she’aynah tzerichah legufah.  Each authority has his own stipulations etc... but the bottom line is about the same.  Their advice is generally, try not to be there on Shabbat, but do what needs to be done regardless of the religion of the patient.  Almost all authorities maintain, that for the purpose of the safety of the Jewish people, it is important that Jewish doctors violate the Shabbat to save a life, regardless of whether the patient is a Jew or a gentile.

Responding to the Charges

The aftermath of the Shahak affair led to the need for the Rabbinic establishment to respond to the charges that the Halachah discriminated against non-Jews. To summarize the general response of the rabbis, it is useful to divide the answers into two categories. The first I will call the “darkhei shalom” approach (DSA), and the second I will call the “challel Shabbat achat” (CSA) approach.
The DSA can be described as follows.  Although the Halachah might seem discriminatory, the Torah also includes many areas that are non-Halachic, but equally as important.  For example, when the Torah teaches us that we must act a certain ways because of “darkhei shalom” (the ways of peace), then although it may not be Halachic, it is still the teaching of the Torah.  According to this understanding, this can also be applied when something is allowed or even required due to eyvah.  The Torah is essentially teaching us to act a certain way in order to decrease hatred, or conversely, to increase love and peace[22].

The CSA can also be described as the emphasis on the importance of Shabbat.  This approach starts with the assumption that in actuality, Shabbat is more important than saving lives.  This places Shabbat on the same level as the three cardinal sins of murder, idolatry, and adultery, for which one is required to give up one’s life.  This is something that even non-Jews may understand and is therefore a religious value that is consistent, not a discriminatory value against any particular group of people.  However, when one is faced with saving the life of a Jewish person who keeps the Shabbat, one is only allowed to save his/her life due to the principle of Challel Shabbat achat, K’dei Sheyishmor shabbatot Harbeh” (violate one Sabbath so that he can keep many more in the future).  So by saving the life of the Jew, one is actually not violating Sabbath, but preserving it.  However, a non-Jew will not keep the Sabbath in the future,  and therefore his/her life would not be saved, as the Sabbath is worth dying for.

The Letter of R’ Unterman

The chief advocate of both the CSA and the DSA was R’ Isser Yehuda Unterman.  Among the many responses to the Shahak affair, Rav Unterman’s letter was the most prominent and most frequently quoted of the Rabbinic responses, so I will mention it in his name.

In Adar 5726 (March 1965) Rav Unterman published an article[23] responding to the Shahak affair which consisted of both the DSA and the CSA above.  The first half of the article is a strong defense of the general values of ethics of the Torah as expressed by the principles of darkhei shalom.  In the second half of the article he describes why Shabbat really should not be violated at all even to save lives, if not for the CSA principle.  However, in today’s times, he quotes the Chatam Sofer mentioned above, which supports the idea that since in our times it would be a danger to Jewish lives not to save gentile lives on Shabbat, that we must violate Shabbat for Jewish lives as well.

It is also worth mentioning the Lord Rabbi Immanuel Jacobovits who wrote an article in the Tradition Journal[24] which essentially reiterated Rav Unterman’s views. The most extensive and thorough iteration of the CSA approach was an online article on the Shamash.org website written by R’ Gil Student[25]. This approach was also taken by R’ Shlomo Aviner[26].

There are some obvious problems however with both the DSA and CSA approaches to solving this dilemma.  The first issue is that we are still left with the uneasy feeling that we started with.  The advocates of this approach have still not answered the essential charges of their detractors. That is that the according to them, the Halachah still does distinguish between the lives of Jews and gentiles regarding the violation of Shabbat.  So if we were to accept their arguments, though we might have mitigated the objections a little bit, the essential problem still exists.

There are other problems with taking this approach, but a full analysis would be quite lengthy and beyond the scope of this article. However, I will briefly touch upon why I feel these approaches are not only inadequate due to my “uneasiness”, but also present Halachic difficulties as well.
The Halachic problem with the CSA and DSA is that the simply don’t reflect the conclusion of the Talmud.  At the conclusion of its’ discussion, the reason given for the obligation to save lives on Shabbat is because of “vachay bahem” that the Mitzvot were given to live by, not to die from their observance.  This directly contradicts the claims of the CSA advocates.  After numerous possible explanations for pikuach nefesh docheh Shabbat were proposed, Shmuel concludes the Gemara as follows[27]: “Says Rabbi Yehuda in the name of Shmuel, Had I been there, I would have said that my explanation is better than theirs, “Vachay behem – One shall live by them, not die by them. Says Rava: For all the other reasons there is a disproof, except for the reason of Shmuel for which there is no disproof.”

The only reason quoted by Rif and Ran[28] is the reason of Shmuel, the only reason quoted by Rashi in Sanhedrin . The only reason according to Rosh[29] is that of Shmuel, not any others. The Ramban whom we will quote later in this article clearly states that the reason given by Shmuel is the reason we violate Shabbat to save lives. Rambam as well, equates Shabbat with all other Mitzvot that are violated when life is threatened, as he states[30], “(the observance of) Shabbat is pushed away (dechuyah) when there is danger to life, just like all other mitzvot.” He is clearly trying to point out that life supersedes Shabbat, as he further states clearly two stanzas later[31], “One is prohibited from delaying the violation of the Shabbat when treating an ill person who is endangered, as the Torah states (the mitzvot) that people shall do and live by them, not die by them.”

The list of authorities who bring the reason of Shmuel as the final reason for pikuach nefesh docheh Shabbat is very long, but suffice it to say that the overwhelming majority of the poskim assume that we violate Shabbat because of the supremacy of life, not because of CSA[32].

I would refer the reader to R’ Student’s article and the other advocates of the CSA and DSA to see in detail what their defenses are against the arguments I just presented above.  The purpose of this article is to demonstrate an entirely different approach, which assumes that saving lives does in principle supersede Shabbat, as Shabbat is not one of the three sins for which one is supposed to give his/her life.

A Different Halachic Approach – Meiri

So far, we are unfortunately left with the conclusion that indeed, according to the letter of the law, one really should violate the Shabbat only to save a Jewish life.  Even the saving of the gentile life is only permissible because one is indirectly saving Jewish lives as well, as we are preventing the  spread of anti-Semitic hatred of Jews.  However, there is a different understanding of the law, which I will describe in the remainder of this article. The basis and starting point to understand this different  approach is the famous opinion of Meiri. 

Many people who have studied Talmud in depth are familiar with Meiri's opinions as they relate to the Halachic status of non-Jews. However, the full extent of his opinions, and the extent to which many later authorities have subscribed to his opinions is not well known.  When I was exposed to Meiri in yeshiva, I was under the impression that his words were just apologetics that were meant to calm relations with the gentiles, but that in reality they were not Halachically important and that they were not meant (even by Meiri himself) to be taken seriously[33].

However, the truth is  that Meiri's opinions are not apologetics at all, but they are a comprehensive and complete philosophy of how to understand the attitude of the entire Talmud and Halachah as it relates to the treatment of non-Jews.

To summarize; according to Meiri, the contemporary gentiles of his day (basically Muslims and Christians) are all considered "Baalei haDat" - people of religion.  Meiri considered these Baalei haDat to be different from the non-Jews referred to by Chazal – as they were pagans who had no religion at all (at least not what the Rabbis of the Talmud would have considered a religion).
Meiri’s comments are extensive and spread throughout his commentary on the Talmud.  For the sake of brevity, I chose to summarize his opinions in the following three categories.  The quotations from Meiri that support each of these categories and all the assertions I attribute to Meiri, are to be found in the footnotes for those interested in reading Meiri’s own words. Please keep in mind that my footnotes, although they are thorough, only represent a small selection of Meiri’s words on each topic.
1)      The first category regards the laws of business interaction with non-Jews.  This refers mostly to things that are prohibited due to fear that the gentile would use the profits for idol worship.  This category Meiri held did not apply at all to his contemporary gentiles[34]
2)      The second category deals with all Halachic distinctions between Jews and non-Jews. This includes the obligation to save a non-Jewish life (including on Shabbat[35]), the obligation to return his lost object[36], the death penalty for killing a human being[37] (which the Meiri held applied to non-Jews as well), to give him charity and free gifts[38], the laws of damages[39], and many more such laws.  In this category, the Meiri held that his contemporary gentiles were equal to Jews on all levels. 
3)      The third category deals with Halachot meant to keep Jews from intermingling (and intermarrying) with gentiles.  This includes things like a Gentile's wine, milk, bread and so on.  In these Halachot, the Meiri did not distinguish between his contemporary gentiles, and those that lived in the time of the Talmud[40].

Contrary to what is often claimed, Meiri’s opinions were far from simple apologetics, as his comments are wide ranging and consistent throughout his commentary on Shas.  Repeatedly his points are emphasized and reiterated, and he clearly developed his approach thoroughly and comprehensively. For example,  R’ Eliezer Waldenberg writes in a letter[41] that it is implausible to argue that his entire approach to an enormous portion of the Talmud was simply constructed out of fear of the censors.  He also states that we should use the Meiri as a "Makor Beit Av" (roughly translated as - "a primary conceptual building block" - my translation) when considering questions for dealing with gentiles in our times.

To assume that it was simply fear of the censors that drove the Meiri to formulate his extensive theories will becomes less and less plausible as one studies his commentaries on the Talmud.

Much of my understanding of Meiri comes from a book called "Bein Torah leChochmah" by Moshe Halbertal.  It is worthwhile reading for anyone interested in learning more about Meiri and his opinions[42].

Probably the most interesting finding of Halbertal's study, is how he describes the reasoning behind Meiri ‘s approach.  It is clear from Meiri that he felt that anyone who did not have a "Dat" (religion)was certainly someone who would not be bound by basic morality and justice. Halbertal proves that according to the Meiri, a society of Ba'alei Dat (people of religion) is a society of morals and justice, whereas a society without "Darchei HaDat" is one that is evil and corrupt.  This is a very important point, and it is one that we will come back to later. Any society that is moral and just according to the Meiri would have the same status as Jews regarding these types of laws.  It is important to recognize that in the middle ages, most philosophers believed that religion was the basis of morality.  Although today many philosophers might argue that a society can be atheistic and still moral, this was not an accepted position in the time of Meiri.

For example, Meiri goes as far as saying that those that are "gedurim beDarchei Hadat” (subjected to the laws of religion) would be  considered "Im She'Itcha BeTorah uveMitzvot" (a people that is your kin in Torah and righteous ways).  The Talmud derives[43] that one is only obligated to return the lost object of someone included in the verse,” lo Tonu Ish et Amito”[44] - Im She'Itcha B'Torah UVe'Mitzvot, which Meiri learns explicitly includes non-Jews; as opposed to learning that it is excluding them! (The logic is that anyone who observes the seven Noahide laws and lives a moral life, is considered a brother in keeping Torah and Mitzvot with the Jewish people.)
The important lesson we learn from Meiri is that there is a Halachic distinction between different types of gentiles.  That is for gentiles who are moral and not idol worshippers (which for Meiri an idol worshipper was synonymous with someone who lacked morals) one may transgress Shabbat to save their life, because they are gedurim bedarchei haDat, and thus they are not included in the restrictions placed against amoral idol worshippers.

The Ger Toshav Approach

There are other Halachic authorities that have proposed ideas that are very similar to the opinion of the Meiri, but with a little different “twist”.  The most common theme is to apply the concept of a Ger Toshav to our modern day gentiles.

R’ Nachum Rabinovich[45] deals with the question of what a Jewish Israeli soldier should do if he/she confronts an enemy soldier wounded on the battlefield on Shabbat.  He differentiates between an injured terrorist and an ordinary non-Jewish soldier.  According to R’ Rabinovich, an ordinary non-Jew who is a Christian or Muslim would be considered a ger toshav.  He establishes in the responsum that there is a mitzvah to save the life of a ger Toshav even on Shabbat, at the same level as there is a mitzvah to save the life of a Jew.

R’ Rabinovich cites several important sources for his contention that a modern day Christian or Muslim is considered a ger toshav.  First, he brings proof from Ramban[46] that saving the life of a ger Toshav would supersede Shabbos. He then brings R’ Tzvi Hersh Chajes (the "Maharatz Chajes"), who held that modern day Christians and Muslims have the status of Gerei Toshav[47].  According to R' Rabinovich, the terrorist would not be considered a ger Toshav, by virtue of the fact that he is not a moral human being.  This is because a primary requirement to attain the status of Ger Toshav a gentile must accept to live by basic moral laws.  Therefore the terrorist should only be saved on Shabbat due to Eyvah. An ordinary enemy soldier though, would be considered a Ger Toshav, and one must violate the Shabbat for him because saving his life supersedes the Shabbat.

This is a different angle then Meiri.  According to Meiri, non-Jews who live in a moral and just society are considered “baalei dat” and we are therefore obligated to save their lives on Shabbat[48].  According to R' Rabinovich though, we save their lives due to the concept of Ger Toshav.  Once we give contemporary gentiles the status of Gerei Toshav, we are obligated to save their lives on Shabbat in accordance with the opinion of Ramban (and other Rishonim as well, as we shall discuss later in this article).

R’ Rabinovich was not alone among modern poskim in his contention that contemporary gentiles should be considered gerei toshav and thus one should violate the Shabbat to save their lives. R’ Yehuda Gershuni [49] also argues at length that contemporary gentiles should have the Halachah of gerei Toshav and thus one should violate the Shabbat to save their lives.  R’ Aryeh Leib Braude[50], Rav of Lvov, Poland also presents the same argument.  We will present summaries of some of their most important arguments in the following discussion.

This teshuva of R’ Rabinovich opens up an entirely new idea regarding saving the lives of gentiles on Shabbat.  We will now examine this possibility in depth.  We will begin with R’ Rabinovich’s assertion that one may violate Shabbat in order to save the life of a Ger Toshav.

Pikuach Nefesh Docheh Shabbat, Can it Really apply to a Ger Toshav?

The opinion of Ramban that saving the life of a Ger Toshav supersedes Shabbat will strike many of the readers of this article as quite revolutionary.  Therefore I believe it is important for us to analyze Ramban and where this assertion comes from, so that the readers of this article have a deeper understanding of this opinion.  I believe that this will also shed significant light on our understanding of the opinion of Meiri as well, which according to many authorities is based on the principle of Ger toshav, or according to our analysis may be based on a different principle of “Gedurim BeDarchei Hadatot”.

We will start with the following verse[51]:

“And if thy brother be waxen poor, and his means fail with thee; then thou shalt uphold him: as a stranger and a settler (Ger VeToshav Vachai Imach)  shall he live with thee”
“Take thou no interest of him or increase; but fear thy God;(VeChai Achicha Imach) that thy brother may live with thee.”

The Torat Kohanim (Sifra) on the first verse states as follows:

“Ger – this refers to a ger tzedek (a righteous full convert to Judaism), Toshav – this refers to a Ger that eats (non-kosher slaughtered) carcasses (a common Rabbinic term for a ger toshav), Vachai Imach – Your life precedes his life (chayecha Kodmin LeChayav)”

The Torat Kohanim (Sifra) on the second verse expounds further in the meaning of “your life precedes his life”

“that thy brother may live with thee - Ben Peturi explained this verse that if two people were travelling in the desert and one of them has a jug of water, if one of them will drink it he will make it to a settled place, but if they both share it and drink they will both die of thirst, they should both drink it and die as it states “that thy brother may live with thee” (this infers that people should live equally together) Rabbi Akiva responded to him “that thy brother may live with thee” Your life precedes the life of your friend (chayecha kodmin lechayei chaveircha)”

Ramban, in his Peirush al HaTorah on this verse, understands this pasuk to be a specific “Mitzvat Aseh” – a positive commandment to save the life of a fellow Jew, Ger Tzedek, and ger Toshav.  In fact, according to Ramban, this is the specific Mitzvat aseih of Pikuach Nefesh.  The following are the words of Ramban:

… “Vachai Imach” that he shall live with you, this is a specific positive commandment to help him live, from this verse we are commanded on (the mitzvah of) pikuach nefesh as a mitzvat aseih, and using this verse chazal taught, “from here Ben Peturi explained that if two people … (see above quote from the Sifra)” and then the Torah repeats and states Vachai Achichah Imchah, to strengthen and warn us further of (the importance of) this mitzvah …

Ramban then repeats this assertion in his commentary to Rambam’s sefer HaMitzvot, where Ramban counts as Mitzvat Aseih # 16 this mitzvah, in the following language:

“Mitzvah 16: That we are commanded to support the life of a Ger Toshav, to save him from evil that may befall him, that if he is drowning in a river or if he is buried under rubble that we should try with all our energy to save him, and if he is ill, we should involve ourselves in healing him. And certainly this also would apply to a fellow Jew or a ger Tzeddek that we are also obligated to him in all of these matters. And for them this is the pikuach nefesh which supersedes the Shabbat, as the pasuk states “then thou shalt uphold him: as a stranger and a settler (Ger VeToshav Vachai Imach)  shall he live with thee…”

The Ramban’s intention is crystal clear, that the mitzvah of Pikuach Nefesh which supersedes Shabbat is derived from this verse, and this verse is referring to a Ger Toshav[52].

Rabbeinu Hillel[53], also quotes this verse and understood that the verse vachai Imach is referring to the mitzvah of pikuach nefesh for a Ger toshav.   R’ Shimon b Tzemach Duran, also known as Rashbatz[54] also understood the verse this way, and writes clearly that this is a mitzvah of Pikuach Nefesh for a ger Toshav that supersedes Shabbat.

So now we understand the Torah origin and Rabbinic origin of this Halachah according to the Rishonim that we just mentioned.

As I suggested before, this may help us understand the basis for Meiri’s position that those gentiles who are gedurim bedarchei hadattot warrant chillul Shabbat to save their lives. As we have seen before, Meiri understands the terms of the Torah such as “Reyachah, Akhicha, Amitecha” as including those who are “Gedurim beDarchei Hadatot”, as opposed to excluding them[55].  It is therefore quite possible to suggest that Meiri understood the verse “veChay Achicha imach” to be coming to include all people in the category of “achicha “, meaning all those who are gedurim bedarchei haDatot.  This would be consistent with Meiri’s opinions as we have found in other places.
So what then do the other Rishonim, do with the Torat Kohanim we just mentioned? Fortunately, Ramban helps us out by explaining the opinion of Rambam, which is likely the opinion of the majority of other Rishonim who do not agree with Ramban on this point.

The conclusion of Ramban’s words that we quoted above is as follows[56]:

“…But this Mitzvah (the mitzvah to support the life of a Ger Toshav) the “Rav” (the Rambam) included in the mitzvah of tzedakah (charity) which is mitzvah # 195 from the verse “and thou shalt open your hand” but in truth they are two separate mitzvoth”

So the opinion of Rambam is clear, the mitzvah referred to in this verse has nothing to do with pikuach nefesh at all, but rather it is a mitzvah to support the life of a ger toshav by helping him, through charity, loans, and other means of support.  However, it has nothing to do with Pikuach Nefesh.  This is consistent with the Rambam’s words in Hilchot Shabbat as follows[57]:

“…However, we do deliver the baby of the daughter of a “ger toshav” because we are commanded to help him live (“leHachayoto”) but we cannot violate the Shabbat even for her”

So Rambam clearly disagrees with Ramban on two counts.  He disagrees regarding the special mitzvah of pikuach nefesh for a ger Toshav, so he does not count it in his sefer HaMitzvot, and he disagrees with Ramban’s assertion that this mitzvah would supersede Shabbat.

Rashi in his comments on the same verse seems to agree with Rambam, as he comments on the words “thou shalt uphold him (Vehechezakta bo)” as follows[58]:

“Do not allow him to fall, but give him strength at a time when he needs an outstretched hand, this can be compared to a load on a donkey that is falling while it is still loaded on the donkey, one hand can upright it and it will stay, but once it falls, five people together may not be able to reload it”

Clearly, Rashi also understood that this mitzvah was referring to charity, not to saving his life.
So we have established the basis of the machloket Rishonim regarding saving the life of a Ger Toshav on Shabbat.  The Rambam, Rashi, and most other Rishonim seem to hold that it would not supersede the Shabbat, while Meiri, Ramban, Rashbatz, and Rabbeinu Hillel would hold that saving the life of a ger Toshav would supersede Shabbat.

Contemporary Gentiles, Can they have the Halachic Status of a Ger Toshav?

In order to apply the principle of Ger Toshav to contemporary gentiles, as R’ Rabinovich did in his teshuva, we need to overcome a significant hurdle.

The Talmud states:

“Who is considered a Ger Toshav? Anyone who accepts in front of three Chaveirim (a Halachic bet din) not to worship idols” this is the opinion of R’ Meir, The Chachamim state “Anyone who accepts upon himself to keep the seven mitzvoth that were accepted by the sons of Noach”[59]
“The Ger Toshav is only done during times when yovel is in effect”[60]

The obvious conclusion would be that the entire concept of Ger Toshav cannot be applied to modern gentiles for two reasons.  First because they never formally accepted in front of a qualified bet din to keep the seven noahide laws, and second because the Yovel is not kept in our times.  This is codified by Rambam[61], and is accepted as practical Halachah. So how could we even discuss this possibility, and how could R’ Rabinovich apply this concept to modern gentiles?  In the following discussion, we will bring numerous authorities and opinions, and demonstrate how we can apply the Ger Toshav concept even despite the lack of formal acceptance, and despite the fact that Yovel is not in effect in contemporary times.

Maharal

R’ Yehuda Loewe of Prague, better known as the “Maharal”, in his Be’er Hagolah[62] writes a detailed response to those who claim that Chazal discriminate against non-Jews.  It is worthwhile for the reader to read Maharal’s words in their entirety, as this sefer is readily available to all.  I will summarize here his basic thesis, which is strikingly similar to that of Meiri in many ways.
Maharal divides humanity into three basic groups; Jews, non-Jewish monotheists, and idol worshippers.  Maharal, like Meiri, claims that the discriminatory laws of Chazal toward non-Jews only refer to those who do not keep the basic rules of morality.  Maharal equates those who are not monotheists with those who lack basic morals.  In this he also reflects Meiri’s belief that morality is dependent upon the belief in one God.  This is a common theme in medieval philosophy in general and should not be surprising.  In reference to the second group of human beings, the monotheists (which is clearly referring to his contemporary Christians), he applies all of the rules of a Ger Toshav as follows[63]:

“…This second group includes the remainder of people that are not of the Bnai Yisrael, that are not included in the Torah of Moshe, but none-the-less they have not left the path to “flip the plate upside down” and worship gods other than God Himself who is Everything, rather they only worship the Primary Cause Unto whom Everything belongs…and when he accepts upon himself to worship the Primary Cause he is called a Ger Toshav … and this is mentioned in many places in the Torah …”

According to Maharal, all of the positive references in the Talmud to non-Jews, such as those stating that the righteous gentiles merit the world to come, refer to this monotheistic group, clearly referring to Christians and Muslims.  The Maharal, similar to Meiri’s understanding of “Im sheitcha beTorah U’Vemitzvot”, learns from the Torah’s language “re’ehu” roughly translated as “kin” or “friend” that the Torah meant to include those who are also moral and ethical people, even though they are not Jews. Here are Maharal’s words[64]:

“And behold those gentiles who worship God have a partnership and togetherness with us as they also have One God, this is the primary factor that binds them together (with us) and unites them (with us) … Therefore the Torah states[65] “and when the ox of one man gores the ox of his kin (re’ehu)…” The language “re’ehu” connotes togetherness … and since they are friends together, they should not damage one another, and they should pay each other for damages… however, one who takes himself outside of the group to another side as he does not worship The Creator of all things, rather he worships something else, he is called by the Torah a “nochri” (stranger or gentile) and the Torah does not obligate one to pay him (for damages)…”

 Maharal slightly veers from Meiri’s understanding when he equates the second group of monotheists with the concept of the Ger Toshav.  Meiri never invoked this principle, but Maharal clearly understood that his contemporary Christians and Muslims had the Halachic status of gerei toshav.  Although he extends all of the Halachic privileges of Gerei toshav to his contemporary mono theists, he does not explicitly state that one would violate the Shabbat to save their lives.  He does however use the language “She’metzuvah aleinu le’hachayoto” which is the same language that the Ramban and the Rashbatz used in reference to the Ger Toshav when they permitted violating the Shabbat to save his/her life.  Maharal though was not directly referring to Shabbat when he used that language.

R’ Yechiel Heller

While discussing my ideas with some friends, someone brought to my attention a teshuva written by the well-known R’ Yechiel Heller, author of the Teshuvot Amudei Ohr[66].

Rav Heller’s essay is probably the most extensive treatment of the subject from a renowned and respected posek, and he takes the same position as Maharal, that contemporary monotheists have the Halachic status of gerei toshav.  R’ Heller during his lengthy discussion goes through several steps.
  1. He establishes that when an entire community lives by the principles of the seven noahide laws and basic morality, that they have the status of Gerei Toshav[67]even without a formal acceptance of the seven laws and even in modern times.
  2. He establishes that modern day Christians do keep the Noahide laws and basic morality (He establishes that even those who believe in the divinity of Jesus are guilty only of “shituf”, which is not one of the seven laws)
  3. He applies all of the positive references in Chazal to the righteous gentiles to modern day Christians, similar to Maharal
  4. He demonstrates that during the time of Chazal most nations were morally corrupt in addition to worshipping idols
  5. Interestingly, R’ Heller argues that Rambam also agreed that entire nations do not require a formal acceptance and would apply even today[68]
Rav Heller goes on to write page after page of practical Halachic implications of his ideas.  These include all laws of business, charity, and more.  There is a further recurring theme which is reminiscent of the words of Meiri and Maharal.  Here is a quote[69]
“…I also felt it appropriate to explain that which we often find in the words of our Rabbis in the Talmud, as in many places derived from the Torah’s words such as “Achicha” (your brother) and “amitecha” (your kin) and “re’echa” (your friend) that many of these languages exclude the idol worshipper. In all of this words it is obvious that they only meant to exclude the idol worshippers, who are evil and sin towards God and against the rest of humanity, as we explained, but a Ger Toshav, (such as those we are discussing) was never excluded from the category of “Achicha” and certainly not from the category of “Re’echa”  (friend)…”

R’ Meir Dan Plotzki

Another authority who applies the laws and privileges of Ger Toshav to all moral human beings who keep the seven Noahide laws is R’ Meir Dan Plotzki.  In his work Chemdas Yisrael, R’ Plotski establishes several important points:
  1. That any gentile who lives a life committed to keeping the seven Noahide laws is considered a Ger Toshav with all its privileges, even without a formal acceptance.  This is because a formal acceptance is only necessary for those who have been idol worshippers and immoral, but now they want to repent and become a Ger Toshav.  Only for such people is a formal acceptance necessary.  However, someone who has never been an idol worshipper who has been keeping the seven noahide laws all of his/her life would have the Halachah of a Ger Toshav even without a formal acceptance.
  2. That even in our times, any gentile who keeps the seven laws is considered a Ger Toshav[70].
  3. That according to Ramban, saving the life of a Ger Toshav supersedes Shabbat, because of the positive commandment of “Le’hachayoto”[71].  R’ Plotski has a lengthy discussion regarding this opinion of Ramban.  His discussion goes well beyond the scope of this article, but it is worthwhile reading for anyone interested in studying the Ramban in depth.


R’ Tzvi Hersh Chajes

R’ Tzvi Hersh Chajes also writes that modern Christians and Muslims have the Halachic status of Gerei Toshav[72].  He also discusses at length why they don’t require a formal acceptance of the Seven Noahide laws in front of a panel of three.  Unlike Maharal and R’ Heller who learned that entire nations do not require a formal acceptance, and unlike R’ Plotski who held that a formal acceptance is only required of someone who once was an idol worshipper, R’ Chajes had a different explanation[73].

According to R’ Chajes, anyone who keeps the seven Noahide laws out of a tradition that he accepted from his ancestors, and that tradition is based in a belief in monotheism and God-given laws, would be considered a Ger Toshav.  This tradition acts in place of a formal acceptance. R’ Chajes argued that contemporary Christians and Muslims do keep the basic laws of morality and monotheism precisely because of such a tradition, and therefore they should be considered Gerei Toshav.

R’ Aryeh Leib Braude

The Maharal, R’ Heller, R’ Plotzki and R’ Chajes all laid the foundation for the Halachic basis of considering contemporary gentiles to be Halachic Gerei Toshav.  However, they did not make the explicit statement that we should therefore violate Shabbat to save their lives.  R’ Aryeh Leib Braude was the first to explicitly state that this principle should practically apply to contemporary gentiles, and that Jewish physicians should violate the Shabbat to save gentile lives based on the principle of Ger Toshav.

In his sefer Mitzpeh Aryeh[74] R’ Braude in a lengthy teshuva describes how we derive from the pasuk vechai imakh the principle that pikuach nefesh supersedes Shabbat for all human beings, even gentiles, as long as they are moral and keep “denim u’mishpatim”.  He essentially concludes exactly like Meiri did, but never actually quotes Meiri.  He does quote the Ramban though, and he indicates that he is applying the same principle of Ger Toshav to all moral and ethical gentile nations.

Rav Yehuda Gershuni

Rav Yehuda Gershuni gives perhaps the most thorough treatment of this topic of all contemporary poskim, and it is worthwhile to summarize his ideas[75].  His teshuva addresses three basic questions.
  1. Do contemporary Christians and Muslims have the Halachah of idol worshippers, or do they have the Halachah of a Ger Toshav (or some type of intermediate status)?
  2. Is it possible for the concept of Ger Toshav to apply in contemporary times?
  3. Does the command “Le’hachayoto” include only financial support of the Ger Toshav, or does it also include saving his life, and does that include violating Shabbat as well

To answer his first question, R’ Gershuni primarily relies upon Meiri and R’ TH Chajes and brings many of the sources which we have already discussed.  He thus concludes that contemporary monotheists would be considered either as gerei toshav, or as Meiri describes them, gedurim bedarchei hadatot.

To answer his second question, he makes two interesting arguments. He begins by quoting an interesting language from the Ran:
“Although Bnei Noach are already warned (forbidden) to worship idols, because they are not careful to keep this rule, we require them to accept it (in front of bet din), therefore anyone who hasn’t formally accepted it is assumed to be an idol worshipper”[76
It seems clear that the Ran understood that the formal acceptance was only required because of the rampant nature of idol worship during the times of the Talmud.  However, R’ Gershuni argues, when entire nations are adherent to religions that are not idol worship, such acceptance would not be required.

He then presents a lengthy discourse to prove that the concept of Ger Toshav actually does apply in contemporary times.  However, it is only during the times of Yovel that we proactively accept such converts (“lechatchila”).  Since these nations accepted it upon themselves, and this is as valid as a Bet Din, they therefore can still achieve that status on their own (“B’Dieved”).

In dealing with his third question, he brings the Ramban and Meiri that support the notion that the mitzvah of Pikuach Nefesh applies to a Ger toshav, even as it applies to violating Shabbat to save their life.

More on the Ger Toshav Approach

As we have seen, the differentiation between the Halachic status of gentiles who are moral and keep the noahide laws, vs. those who are immoral and do not keep the laws, has a long and well-established  Halachic history.  In order to lend further support to the thesis of this article, I will briefly summarize several more prominent authorities that should be mentioned.

R’ Dovid Tzvi Hoffman[77] writes that contemporary gentiles (he is referring to Christians) are Halachically considered Gerei Toshav.  R’ SR Hirsch[78] writes similar ideas in many places. While Rav Hirsch does not explore in detail the practical Halachic ramifications of this approach,  R’ Hoffman does invoke the clearly defined Halachic category of Ger Toshav.

R’ Hirsch also discusses the commentary of R’ Yaakov Emden[79] , which strongly supports the argument that Christians and Muslims are moral and just and therefore should be considered Gerei Toshav. However, he does not actually take the plunge and explicitly write that they would have that Halachic status.  His words are stirring though, and certainly offer our approach some strong backing. However, although it is possible that he would agree, I don't think there is enough evidence to claim that R’ Emden actually held that they would have the Halachic status of Gerei Toshav.

Many authorities argue that the actual basis of Meiri's position is the principle of Ger Toshav.  
However, especially after Halbertal's study, it seems to me that this is not an accurate description of Meiri’s opinion[80].  Prominent among the authorities who believed that Meiri’s opinion was based on the principle of Ger Toshav was none other than R’ AY Kook[81].

R’ Kook utilizes an arresting choice of words, which lends very strong support to our approach. In reference to the opinion of Meiri as compared with the majority of other authorities, he uses the language "HaIkkar K’HaMeiri" (“the “primary” or “correct” position is like the Meiri”). R’ Kook clearly supports the opinion of Meiri for practical Halachic practice that all societies that are just and moral are considered Geirei Toshav. R’ Isaac Herzog takes this approach as well[82], equating modern gentiles with Geirei Toshav.

R’ Ahron Soloveitchik[83], also invokes the Meiri when discussing treating gentiles in our time.  He uses the Meiri to develop his approach that differentiates between gentile societies based on their morality and behavior. This is very similar to the approach of R' Rabinovich, and clearly R’ Soloveitchik was relying on the opinion of Meiri.

Another important authority who must be mentioned is the now famous remark of the Seridei Aish, R’ YY Weinberg[84], who stated in one of his letters to Professor Atlas that the opinion of the Meiri should be adopted as normative Halachah.

With our analysis so far, we have established a completely different Halachic basis from that found in the “mainstream” Halachic literature for the obligation to save the lives on non-Jews on Shabbat.  We will assume that contemporary gentile society is moral and just, or in the words of the Meiri, “gedurim Bedarchei HaDatot venimusim”.  We are therefore, according to Meiri, obligated to save their lives on Shabbat just as we are obligated to save the lives of Jews.

Alternatively, we can assume that contemporary gentiles that keep the seven noahide laws are considered Gerei Toshav, based on the other authorities we have just reviewed.  This would follow the opinions of Maharal, R’ Heller, R’ Plotski, R’ Dovid Tzvi Hoffman, R’ Kook, R’ Herzog, R’ YY Weinberg, R’ Ahron Soloveitchik, and R’ Rabinovich.  If we then apply the opinions of the Ramban, Rashbatz, Meiri, and Rabbeinu Hillel, one would be obligated to violate the  Shabbat in order to save the life of a contemporary gentile.

What about Non-Christian and Non-Muslim Gentiles?

We have thus far identified two basic approaches with which many Halachic authorities differentiate between “our” modern gentiles and the idol worshippers of the time of the Talmud.  Both according to  Meiri's opinion that gentiles are included in "Im Sheitcha beTorah uveMitzvos”, or the approach of the other authorities that they are considered gerei toshav, our obligation to save their lives is dependent upon the fact that today's gentiles are part of a just and moral society.

This leads to the following question.  According to Meiri, a just and moral society is by definition a monotheistic society. According to the other authorities, to give a gentile the status of a ger toshav, he would need to keep the seven Noahide laws, including the Laws concerning idol worship.  For the purpose of our discussion, we will assume that both Christianity and Islam are monotheistic religions. (The question of Christianity and idol worship is a major issue, but not one that we will deal with in detail in this article, as almost all of the authorities that we have mentioned until now do not consider Christianity to be idol worship, at least for gentiles.  For some authorities, this is due to their understanding of Christianity itself[85]. For others, it is because belief in some other godly entity in addition to God Himself (i.e. Jesus) may not be prohibited for a non-Jew or some other rationale - otherwise known as “shituf”. Although this can be hotly debated, we cannot deny the fact that Meiri and the other authorities explicitly considered Christianity to be a monotheistic faith).

So what about Hindus, Buddhists, other religions, secularists, and indeed even outright atheists that may still believe in and live as a part of what we would otherwise consider to be moral and just societies?  Can we desecrate the Shabbat to save their lives as well?  After all, isn't belief in One God one of the seven basic Noahide Laws?

There are two ways we can deal with this issue.

For the first approach I must give credit to a very thorough article available online by Rabbi David Berger[86]. R’ Berger presents Moshe Halbertal’s analysis of Meiri and argues as follows.  It is clear from Halbertal's study of Meiri that the reason why Meiri felt that monotheism was necessary in order to treat gentiles equally was because non-monotheistic societies were by definition corrupt and immoral.  There are references in Meiri that suggest that he agreed that philosophers, even if they may not believe in God, may also be considered equal to Jews in the same way as monotheistic gentiles that do profess belief in monotheism.  This would be true if their philosophical beliefs led them to lead moral and just lives[87].

It is important to recall that according to our understanding of Meiri, he did NOT base his opinion on the principal of Ger Toshav (despite the fact that many authorities might have understood the Meiri that way).  The principal of Ger Toshav would require the gentile to accept the idea of One Deity.  However, it is plausible, that Meiri would not have required monotheism for a gentile to get the privileges that he extended to monotheists.  Let me reiterate, that Meiri did not believe that there could be such a thing as a society of simple masses that could be moral without a fundamental belief in a God that judges our actions and rewards and punishes our behavior accordingly.  He did however allow for the possibility of individual philosophers that may lead moral lives despite a lack of a belief in monotheism.  Had Meiri been aware of modern non-Monotheistic societies that are moral and just, it is entirely plausible that he would have considered them to be worthy of all the privileges that he extended to the Muslims and Christians of his time.

I admit that this may seem at first glance to be a bit of an unjustified stretch of the Meiri's opinion. However, R’ Berger brings some strong support for this idea from an essay by R’ Ahron Soloveitchik.

Let me quote from Rabbi Berger's article[88]:

“The view that gentile behavior rather than theology determines how Jews should treat them is at least implicit in a relatively recent English essay by R. Ahron Soloveichik. He argues that love of other Jews must be blind, but love of gentiles, which he sees as an obligation expressed in the Rabbinic principle called “love of people” (ahavat ha-beriyyot), is grounded in the intellect and varies with the degree to which gentiles lead moral lives and treat Jews decently. This position is spelled out more rigorously in his novellae to Sefer ha-Madda. Here he maintains that the discriminatory laws against non-Jews result only from their status as evildoers (their shem rasha). Non-Jews who behave righteously by following the six Noahide laws other than the prohibition against avodah zarah are not considered evil as long as their theological error was inherited, as the Talmud suggests about pagans in the diaspora, from their parents and is thus considered inadvertent or even a result of compulsion. It is worth quoting more fully R. Jacob Emden’s application of this Talmudic dictum in a responsum to which R. Soloveichik alludes. “The Sages,” says the responsum, “declared, ‘The gentiles outside the Land of Israel are not worshippers of avodah zarah; rather, they follow the customs of their ancestors.’ Therefore their blood is precious in our eyes and would remain so even if we were ruling over them so that they were conquered under our control in our own land. After all, the Sages said—even with respect to full-fledged idolaters--that one does not lower them into a pit. How much more is this so in the diaspora where we take refuge under their protection; we are, then, obligated to protect them with all our ability and save them from death and from any loss or damage to the point where even guarding their money should be a labor of love."(all italics are my own)

Here we have none other than R’ Ahron Soloveitchik saying exactly what we had just thought might be too much of a stretch to attribute to Meiri.  He clearly divorces the requirement of the seventh of the Noahide laws, the requirement to believe in One God from the equation necessary to be considered a good as opposed to an evil person.  According to R’ Soloveitchik, any gentile who is not evil, whether or not he is a monotheist, warrants equal Halachic treatment.  This makes our approach to Meiri a more palatable and real.
Indeed, I do believe that I can prove from the words of Meiri himself that he would have agreed that even pagans who are not monotheists can be considered among the “gedurim bedarchei haDat, and therefore would be accorded the same privileges.  In Avodah Zarah[89], Meiri discusses the laws of gift giving to non-Jews.  He brings a Tosefta[90] which explicitly permits gift giving to a non-Jew who is one’s neighbor or friend.  The Meiri is apparently bothered by the fact that in the days of the Talmud, this should have been prohibited, as the gentiles of the time (at least the overwhelming majority of gentiles with whom Chazal had contact) were “worshippers of the stars and constellations” as we have seen throughout his writings.  So in explanation of the Tosefta, the Meiri writes that the Tosefta was referring to those gentiles  in the time of Chazal (R. Shimon ben Gamliel in this case) were gedurim beDarchei haDat.
So Meiri clearly understood, even in the days of the pagans, that some gentiles had taken themselves out of the category of idol worshippers, and placed themselves among the category of gedurim bedarchei haDat!  I don’t think anyone would reasonably claim that the Meiri thought R. Shimon ben Gamliel was referring only to Christians and Moslems! Obviously Meiri knew that the gentile neighbor or friend of R. Shimon ben Gamliel was most likely a pagan!
This clearly supports the claims we made in the name of R. Ahron Soloveitchik.  That according to the Meiri, theological belief in monotheism is NOT a prerequisite to deserving the privileges accorded by Meiri to all moral and ethical people, regardless of their faith.
It also supports the contention of Halbertal, that according to Meiri, religion is only important because that is the only basis of a moral and ethical society.  However, should such a society exist among philosophers or even pagans, even without the belief in One God, then such people would still be due the privileges of those who are “Gedurim beDarchei haDat”. 
 In summary, according to this approach, any society that is just and moral, even if the society is not based on monotheism, would be considered equal to Jews and among other things, saving their lives would be permitted on the Shabbat.
A second possible approach would be that of R’ TH Chajes, the "Maharatz Chajes".  In his essay entitled Tiferes L'Yisrael he tackles this problem in a different manner.
Remember that R’ Chajes held that today's gentiles are considered Gerei toshav, and therefore we are obligated to save their lives, even on Shabbat.  But how could someone who worships Avodah Zarah (assuming that the gentile were non-Muslim and non-Christian – R’ Chajes explicitly does not consider Christianity to be avodah zarah for a gentile) be considered a Ger toshav?  So R’ Chajes explains (my own translation):
"See Ramban in Parshas Acharei on the pasuk "VeLo Taki HaAretz...." who writes that [worship of other gods]  in conjunction ("beshituf") for non-Jews was only prohibited within the land of Israel ... and see Mor Uketziah by the Gaon R Y' Emden OC 224 the "shituf" is permitted to non-Jews ...and according to my opinion, This is what Chazal meant when they stated in Chulin 13b "The non-Jews of outside Israel are worshipping "avodah zarah" in purity, as they are only following the customs of their forefathers (minhag avoseihem b'yedeihem") and see the Rambam in Peirush HaMishnayot first perek of Chulin on the Mishnah regarding ritual slaughter performed by a non-Jew who writes that there are two categories of Idol worshippers - those that are truly serving forms and talismans, and those that are simply following the customs of their forefathers ... and the intent of the Rambam is to say that [the second category of idol worshippers] truly intend to worship the God of Gods (Elokei Ha'elokim) but they simply mix into their worship other concepts..."  

So according to R’ Chajes, most other religious people today would really be considered monotheists for our purposes here, although they themselves may mix other foreign concepts into their worship.  I am not an expert in comparative religion, so I do not know how far it is realistic to extend this concept in contemporary times.  However, this is another way that this Halachic authority extended the privileges of gerei toshav to all moral human societies.

If one carefully examines the words of R’ Y Emden that Rabbi Berger and R’ Soloveitchik cited, you will find that he seems to be endorsing the position of R’ Chajes, and he explicitly extends this to "full-fledged idolaters", and he applied the same principle of "minhag avoseihem b'yedeihem".
Another simple way of explaining R’ Chajes’ opinion would be to say that no society today is really an idol worshipper anymore.   “Real” idol worship is thus a thing of the past.

This approach leaves some lingering questions which I will choose not to deal with.  R’ Chajes contention that no societies today are really idol worshippers can obviously be rigorously contested. However, a full analysis of contemporary religious practices and beliefs, which would be required to fully test R’ Chajes idea, is well beyond the scope of this article.

In summary thus far, we have demonstrated a completely different, but Halachically valid approach to the violation of the Shabbat laws to treat patients.  According to our analysis, any human being who is a member of a just and moral society deserves equal compassionate treatment, even on Shabbat, whether or not he/she is a Jew or a gentile.  Based on the understanding of R’ Soloveitchik, R’ Chajes, and the other authorities we mentioned, there is no questionnaire required to make sure the patient is a true monotheist.

In the unlikely event that a contemporary Orthodox physician is confronted with the need to save someone’s life who is known to be immoral, unjust, and not worthy of either the title of “Ger toshav” or “Ben Dat”, then and only then does it become necessary to invoke the principle of eyvah.  Such an example would be the suicide bomber of R’ Rabinovitch’s discussion.  He clearly has demonstrated his immoral and unjust character, and he is clearly a member of a society that is dedicated to murder and destruction.  None the less he would still be saved on Shabbat, but only because of eyvah, not because the laws of Shabbat are truly suspended for his/her benefit.

In an article by Rabbi Dov Karrol[91], he briefly touches upon the ideas expressed in this article, and he quotes, R’ Ahron Lichtenstein, as follows:

“My teacher and rosh yeshiva Rav Ahron Lichtenstein of Yeshivat Har Etzion explain to me that while the views that take the first approach (that treating a non-Jew is only permitted due to eyvah) address the practical issue, justifying saving the life of a gentile under certain conditions, they sidestep the fundamental issue. Rav Lichtenstein said that were he to be confronted with a case of violating Shabbat to save the life of a gentile, he would act to save the life of the gentile on principle, relying on those views that allow for it in principle, not based on societal concerns alone. Rav Lichtenstein also mentioned that his rebbe and father-in-law, Rav Yosef Dov Soloveitchik, ruled that this was permissible even in cases where there would be no problem of negative results, independent of such issues…”

This brings further support to our ideas, as according to R’ Lichtenstein, even in a hypothetical case where the principle of eyvah would not apply (say for example if one is alone on a desert island with a gentile and there is no possibility of negative repercussions) one would still be obligated to violate the Shabbat to save the life of a gentile, not because it is practical, but because it is Halachically the right thing to do.

Conclusion

There are several objections that I anticipate many will have to my thesis.

The first objection is that my suggestion conflicts with the opinion of the majority of the Halachic authorities, both the Rishonim and the contemporary authorities.  I freely admit that this is true, as I said several times in the article.  However, this issue is extremely important, and numerous well known Rabbinic authorities have recognized the same issues that I have raised.  I believe that under these circumstances it is necessary for us to rule in favor of the minority.

Another objection that some may raise is that I am guilty of applying my modern egalitarian sensitivities to the Torah, instead of learning from the Torah directly the values I should hold.  Indeed, one may claim that I predetermined what I believe, then searched the Torah for a justification of my beliefs.  In a sense, we all must admit that we are affected by our surroundings and the value systems of the societies within which we live.  The Meiri himself was affected by the attitudes prevailing in medieval Provence[92], but then so was Rabbeinu Yonah influenced by the extreme racial and religious discrimination that was common in the society within which he lived. How are we to judge between these influences to decide which one is right?  We can only study the sources and do our best to identify Torat Emet.  That was my goal in this study.

Some may claim that I still have not found full equality among people of all kinds, as according to my thesis, people who are members of corrupt and amoral societies would not warrant violation of Shabbat to save their lives, if not for the concept of eyvah.  This still may not be acceptable to those who would argue that all people are created equal …  However, I would counter that this itself a lesson of the Torah.  All people DO have the right to life, and that life supersedes the restrictions of Shabbat.  However, should you choose to be immoral, corrupt, violent, and choose to profess this as a way to live among others, such as the suicide bomber of R’ Rabinovich’s responsum, then you have given up that right to have your life saved on the Shabbat.  That is a choice made by this particular society, not a choice we as Jews have forced upon them.

Others may claim that all of the writings of Meiri and the authorities I mentioned were simply apologetics, but deep down even they believed that the Torah differentiates between the lives of Jews and gentiles on Shabbat.  I have already responded to this claim several times regarding some of these authorities, but I would like to add one more point.  It is time for us to follow in practice what R’ YY Weinberg and R’ Kook and the others told us.  It is time to take the Meiri and those that followed him seriously as the foundation for modern Halachic practice as it pertains to our relationships with gentiles.  They told us this wise advice because they knew it was time for this to happen, and we have waited too long to implement their advice in practice.

Another objection I have heard was that these debates should not be made public, and it is wrong to publish such articles in Journals that are available online to the entire world.  They claim that the anti-Semites might pick up on these debates and therefore the publication of this article will cause hatred against Jews.  To this I respond that for precisely this reason it is crucial that we publicize to all Jews what the Halachic attitude towards gentiles is supposed to be.

Only by openly discussing these issues in these types of forums will challenge all of us to seriously and honestly contemplate what our true beliefs are regarding how we are supposed to relate to the rest of the world. 

I emphasized several times in the article that there are no real practical implications of my ideas regarding the practice of caring for gentile patients on Shabbat.  As we quoted from the great poskim of our generation, virtually all agree that a Jew is obligated to save the life of a gentile on Shabbat, even if it involves a D’Oraytah prohibition.  However, I also realize that the implications of my ideas are far reaching, and they potentially may involve practical Halachic matters regarding how we relate to our gentile neighbors.  Even if there were no practical implications, accepting my suggestions would certainly represent a paradigm shift in the way Halachic Jews view the status of gentiles in Halachah.

I have listed many leading Orthodox thinkers who either have taken this step themselves, or at least considered it as a possible solution to a difficult conundrum.  However, I recognize that I can only make suggestions, while the current Torah leadership needs to determine if this is going to become a valid and accepted Halachic approach. To the extent that the ideas I expressed may have some practical Halachic ramifications, one should of course discuss such real situations with their Rav before making decisions based on this article.

We all should be familiar with our God given mission to work towards the goals so eloquently taught to us by our holy prophets.  As Yeshayahu foretold, in Yeshayahu 2:3 “And many peoples shall go and say: 'Come ye, and let us go up to the mountain of the LORD, to the house of the God of Jacob; and He will teach us of His ways, and we will walk in His paths.' For out of Zion shall go forth the law, and the word of the LORD from Jerusalem.”  Think for a moment, the goal of our entire existence as a people is to bring the message of the Torah to the entire world.  This is where we are going, this is our holy mission.  How then does the master of the universe want us to treat all of His children?  How does he want us to teach the nations of the world to love and respect the God-given Torah and the people of Israel who practice and live by its’ teachings?  What attitude should we have towards our neighbors?  These are the thoughts I want everyone to ponder, and I believe that at least some of the readers of this article will understand how important it is that the Halachah we live by reflects the true values of the Torah.



APPENDIX A

The following is an analysis of the opinion of Rambam regarding the comments of Rav Yosef and Abaya in Avodah Zarah 26a.  Rambam brings this Gemara in two places, in Hilchot Avodah Zarah, and in Hilchot Shabbat.

In Hilchot Avodah Zarah[93] he writes as follows:

“A Jewish Woman should not nurse the child of a gentile because she is raising a child for idol worship, and she should also not deliver a gentile baby. However, she can deliver the child for pay because of eyvah”

In this chapter, Rambam is dealing specifically with gentiles who are idol worshippers.  Rambam states unequivocally earlier in this same chapter that contemporary Christians are considered idol worshippers [94].  One is therefore left to wonder exactly what he held one should do in a similar situation involving Moslems, amongst whom Rambam actually lived. It is well known that Rambam considered Islam to be a monotheistic religion and not idol worshippers at all. Exactly how these rules might apply to gentiles who are mono theists is somewhat unclear, as the problem of raising child for idol worship ostensibly should not exist .

However, it is clear from the quote above that Rambam agreed that the concept of eyvah was only meant to permit the delivery of an idol worshipper’s child, but not in order to permit violation of Shabbat.  This brings us to the second instance that Rambam brings this Gemara, in Hilchot Shabbat[95].

“One may not deliver the baby of a gentile on Shabbat, even for pay and we are not concerned with “eyvah” even if there is no violation of Shabbat. However, we do deliver the baby of the daughter of a “ger toshav” because we are commanded to help him live (“leHachayoto”) but we cannot violate the Shabbat even for her.”

Rambam clearly holds that Abaye’s explanation of why we do not deliver gentile babies on Shabbat would apply even in contemporary times.  Therefore eyvah would not be applicable in our times at all when the delivery takes place on Shabbat.  It is also certain that Rambam felt that one cannot violate Shabbat to save the life of a Ger Toshav.  But the words of Rambam require some clarification.  The problem is as follows:

In Hilchot Avodah Zarah, it was clear that the reason one may not deliver the baby of a gentile was because of the concern that one is bringing into the world a child who will be an idol worshipper.  However, if one is being paid for this service then one is allowed to deliver the child due to Eyvah, so the concern of raising an idol worshipper is overridden by eyvah.  However, in Hilchot Shabbat, Rambam states that one may not deliver such an infant on Shabbat as the concept of eyvah is not a concern due to Abaye’s explanation.  The obvious inference is that although eyvah can supersede the prohibition of delivering an idol worshipper’s baby, it cannot supersede the transgression of Shabbat, due to Abaye’s explanation. If there was no transgression of Shabbat, then Eyvah would apply, and one could deliver the baby of an idol worshipper, due to eyvah.

But then Rambam states that on Shabbat one may deliver the baby of a Ger Toshav, although not if it involves the violation of Shabbat!  If so, then exactly what is Rambam permitting us to do for a Ger Toshav which was not already permitted for an idol worshipper? On one hand, we cannot violate Shabbat either for a Ger Toshav, or for a true idol worshipper. On the other hand, we can deliver the baby of an idol worshipper when chillul Shabbat is not involved, and similarly we can deliver the baby of the ger Toshav if chillul Shabbat is not involved, so wherein lies the difference?

Therefore, one must understand that in the first statement of Rambam, contrary to what is allowed by the ger toshav, for an idol worshipper one is not even allowed to deliver their baby on Shabbat, even if it does not involve any violation of Shabbat! So how then does Abaye’s explanation work, if there is no violation of Shabbat, one cannot explain that we only violate Shabbat for those that keep Shabbat, it is irrelevant!

One possible explanation, and it seems that this is how Chazon Ish[96] understood Rambam, is as follows: Rambam held like Tosfot that the concept of Eyvah would allow transgression of Rabbinic prohibitions.  Therefore, on a weekday, one may transgress the Rabbinic prohibition of “bringing into the world an idol worshipper” due to fear of eyvah.  However, on Shabbat, if Rabbinic prohibitions are involved one may not transgress them due to Eyvah because Abaye’s explanation eliminates the concern for eyvah.  According to Chazon Ish, Rambam agrees with Tosfot that once the process of labor begins, the baby is considered “ne’ekar latzet” and therefore no D’Oraytah prohibitions are incurred by delivering the baby.  These Rabbinic prohibitions then DO NOT apply to a Ger Toshav, as we have the positive Torah commandment of “Le”hachayoto” which supersedes the Rabbinic prohibition, so we are obligated to deliver the baby of a Ger Toshav.  However,  if it would involve a D’Oraytah prohibition,  we may not violate the Shabbat for her.

Another understanding of Rambam is the Chatam Sofer[97]. Chatam Sofer understands that the reason why one may not deliver the baby of an idol worshipper in Shabbat, despite the fear of eyvah, applies even where no Shabbat transgressions occur at all.  The Chatam Sofer derived this from the words of the Maggid Mishna who stated that the reason why she may not deliver the baby on Shabbat is because she can “slip out of the situation (“lehishamet ve”lomar lah”)and state that there is Chillul Shabbat here and therefore we only violate Shabbat for those who keep the Shabbat.”[98] 
According to Chatam Sofer then, the conclusion of Rambam’s words regarding a Ger Toshav, is simply meant to state that one should not claim that chillul Shabbat is involved when it isn’t actually involved, as we are obligated to help the Ger Toshav.  However, even Rabbinic prohibitions would not be transgressed for a Ger Toshav.

This analysis may help us understand what Rambam might have held regarding gentiles who are not idol worshippers. If the reason why one is prohibited to treat a gentile is out of concern for the violation of a Rabbinic prohibition associated with the delivery, as the Chazon Ish understood, then Rambam in Hilchot Shabbat was not only referring to idol worshippers, he was referring to ALL gentiles.  Therefore, one would conclude that as long as no chillul Shabbat was occurring at all (even Rabbinic prohibitions), one may deliver the baby of a non-idol worshipper, monotheistic gentile even on Shabbat.  But if a Rabbinic prohibition were involved, then one can only deliver the baby of a ger toshav (but no other gentile – even a monotheist would have this leniency, unless one considers them a ger toshav), because of the mitzvah of lahachayoto.  Whereas if a D’Oraytah prohibition was involved, one may not deliver any gentile on Shabbat.

But if the reason why one may not treat the gentile on Shabbat is out of concern for bringing an idol worshipper into the world, as Chatam Sofer understood it, then this entire law would only apply to idol worshippers.  The ger Toshav’s baby though, one would be allowed to deliver, because they are not idol worshippers.  Presumably, one could deliver the baby of any monotheist as well. However, no violation of Shabbat would be allowed at all, even Rabbinic prohibitions, as one can use Abaye’s explanation.

In summary, Rambam’s opinion is as follows:
  1. One may not deliver the baby of an idol worshipper during the week, except for pay due to eyvah
  2. Chazon Ish - One may not deliver the baby of an idol worshipper on Shabbat if one is transgressing a Rabbinic decree, and one cannot apply the concept of eyvah
  3. Chatam Sofer – One may not deliver the baby of an idol worshipper on Shabbat, even if there is absolutely NO Shabbat violation at all, due to the explanation of Abaye
  4. Chazon Ish – One may deliver the baby of a Ger Toshav on Shabbat as long as no D’Oraytah violation occurs
  5. Chatam Sofer – One may deliver the baby of a Ger Toshav on Shabbat as long as NO violation of Shabbat occurs, even Rabbinic decrees


Is it possible that according to Rambam, that contemporary monotheistic gentiles can be considered a Ger Toshav? The simple answer to this question has to be that no, it is not possible. That is because according to Rambam[99], in order for a person to be considered a ger toshav, he must accept upon himself  to keep the seven Noahide laws in front of a Beit Din of three people.  Furthermore, we also only accept people to this status during a time that the laws of Yovel are in effect  [100]. So it would seem clear that according to Rambam, contemporary mono theists, even if they keep the noahide laws, cannot be considered Gerei Toshav with all of the Halachic privileges that are given to Gerei Toshav.





[1] R. Moshe Feinstein, Iggerot Moshe vol. 4:79; R. Yitzhak Ya'akov Weiss, Responsum Minhat Yitzhak, vol. 1 53, vol. 3 20, vol. 10 31:14; R. Eliezer Yehudah Waldenburg, Responsum Tzitz Eliezer, vol. 8 15:6; R. Ovadia Yosef, Responsum Yabia Omer, vol. 8 Orah Hayim 38; R. Shlomo Zalman Braun, She'arim Metzuyanim Bahalakhah, 92:1; R. Zvi Hirsch Shapira, Darkhei Teshuvah, 158:3; R. Yehoshua Yishayahu Neuwirth, Shemirat Shabbat Kehilkhatah ch. 40 n. 42; R. Simhah Benzion Rabinowitz, Piskei Teshuvot, 390:2
[2] See “Between the Yeshiva World and Modern Orhodoxy:The Life and Works of Rabbi Jehiel Jacob Weinberg by Marc Shapiro Portland, Oregon 2002 page 182 footnote 47, where he quotes a conversation between Gerald Blidstein and R Joseph B. Soloveitchik, where Gerald Blidstein recalls as follows: ‘I remember that in Israel there was a real problem, do you save a gentile on the Sabbath? One evening during this time (I presume this was during the prominent “Shahak affair”) I was with the rav, and he said, “I have been in Boston many years and I always rule that one saves the lives of gentiles, because if we don’t permit this, they won’t treat our sick ones.” I asked him if this reason satisfied him from a moral standpoint, and he replied, “No, from a moral standpoint it does not satisfy me.” ‘  We can infer from this conversation that R’ Joseph B Soloveitchik indeed shared our moral concerns regarding this Halachah.  This may be what led the Rav to rule that even when no eyvah applied that we should save the lives of Gentiles, as we quote in the name of R’ Ahron Lichtenstein at the end of this article
[3] Iggerot Moshe Orach Chaim 4:79
[5] See The late Lord Rabbi Immanuel Jacobovits  for one example. http://www.edah.org/backend/document/jakobovits1.html 
[7] Avodah Zarah 26a
[8] Chiddushei HaRitva Avodah Zarah 26a
[9] Rabbeinu Nissim on the Rif 7b
[10] Beit yosef bedek habayis 154:2
[11] Shulchan Arch Orach Chaim 330:2, Mishna Berura 330:8
[12] Tosfot Avodah Zarah 26a D’H “Savar”, see analysis of Tosfot in Tzitz Eliezer Chelek 8 Siman 15 Perek 6:2
[13] Tosfot Shabbat OC 330:5
[14] Shut Maharik 137
[15] Avodah Zarah Perek 2, Mishna 1:6
[16] YD 131
[17] OC 2:25
[18] See  R’ Ovadiah Yosef in Halachah U’Refuah Chelek 1 page 147 who explains the Divrei Chaim this way
[19] See R’ Eliezer Waldenburg in Tzitz Eliezer Chelek 8 Siman 15 Perek 6:10 who explains the Divrei Chaim this way
[20] Shulchan Aruch Orach Chaim 330:2, Mishna Berura 330:8
[21] See footnote 1
[22] Among others, the DSA was also taken by R’ Dr Yaakov Avigdor in Ohr HaMizrach. Interestingly, an article by Dr Ellman in     R’ Shimon Shkop
[23] See the Kol Torah Journal Adar 5726, Jerusalem,  Shana 37, Choveret 6 Pages 95-99
[24] Available here online: Tradition Journal, Summer 1966 Volume 8 Number 2, pages 58-65 “A Modern Blood Libel – L’Affaire Shahak”
[25] see R’ Student here 
[26] Shut She’elat Shlomo 3:105
[27] Yoma 85a
[28] See Rif and Ran in Yoma 5a
[29] See Rosh Yoma Chapter 8 # 16
[30] Hilchot Shabbat 2:1
[31] Hilchot Shabbat 2:3
[32] The argument that R’ Student mentions that one does not violate Shabbat to save a non-Observant Jew, is also questionable, as this Halachah was only stated regarding one who is a Mumar L’Challel Shabbat B’Farhesyah, which is a very different concept from an average Jew who may or may not keep Shabbat. See Pri Megadim 328 MZ 6
[33] See R’ Dovid Z Hillman in TZEFUNOT; I,1 (1988) page 65 for an extensive reworking of the Meiri that follows this approach
[34] Meiri mentions this in numerous places, however, it is most explicit in his introductory comments to the first perek of avodah zarah D’H “Yesh makshim” where he writes (in reference to the laws restricting business with gentiles prior to their holidays, which he notes that the practical custom of Jews in his day was not to adhere to these restrictions) as follows:

“..and behold the custom of today is to permit business even on the day of their festival itself, therefore, the real explanation seems to me that these restrictions were only stated in regards to the worshippers of idols and the forms and shapes, however in our days (with modern Christians) it is completely permitted. And that which the Gemara states “Notzri L’Olam Assur” I explain that it refers (not to Christians) but to the Notzrim who come from faraway lands as it states in Jeremiah 4:16, …”

Two important points are evident from the Meiri:
1)       That he does not consider modern Christians to be idolaters
2)       That all business restrictions against “idol worshippers” do not apply to modern Christians

[35] See Meiri’s comments in Yoma 84a, quoted in full in footnote #80
[36] See Meiri Bava Kama 113b where he states as follows:

“[regarding one who finds the lost object of an idol worshipper] returning it to him is  derech Chassidut, and we are not obligated to act in the way of chassidut for someone who has no religion and similarly to cause him to err … there is no obligation to return it however anyone who comes from the nations that are gedurim bedarchei haDat and the worship of god, even if their faith is very different from ours, they are not included in this rule but rather they are like a full Jew for these matters whether for his lost object or for causing him to err and for all other things without any difference…”

[37] See Meiri Sanhedrin 57b where he writes explicitly as follows:

“…and a Jew who kills a gentile, any gentiles who does not keep the seven noahide laws, is not liable for the death penalty because he is an idol worshipper, although it is none the less prohibited to do so … but if they are of those gentiles who abide by the seven noahide laws, he is considered among the baalei hadat (and thus the Jew would be liable for the death penalty .. and even though the simple reading of this sugya seems to say something else be careful not to make a mistake and explain it any other way (than I just explained it)

[38] See Meiri Avodah Zarah 20a where he writes as follows:

“[regarding the law not to give a matnat chinam (free gift) to an idol worshipper] the Tosefta explains that this rule only applies to a gentile who is not an acquaintance of his or a traveler, but if he was his neighbor or his friend than he is allowed to give him gifts because it is similar to a sale, however anyone who is a member of one of the nations that is gedurot bedarchei hadatot and they believe in God, there is no doubt that even if he is not his acquaintance and he does not know him, it is permitted, and even appropriate …”

[39] See Meiri Bava Kama 37b where he writes as follows:

“According to what is said in the Gemara, this law (the law that when the ox of a Jew gores the ox of a gentile that he is not obligated to pay) applies only to the nations which are not restricted by ways of religions and customs, as the Gemara said of them, "[God] saw that the Sons of Noah [non-Jews] were not fulfilling the Seven Commandments they accepted upon themselves, so He permitted their property to the Jews," as long as they are obliged by these commandments -- therefore, those [non-Jews] who fulfill the Seven Commandments should be treated by us as we are treated by them, and we should not favor ourselves in judgment; now it is unnecessary to specify that this is also the case concerning the nations restricted by ways of religions and customs.”
[40] See Meiri Avodah Zarah 26a where he writes as follows (commenting on the mishnayot that list numerous Halachot regarding idol worshippers including not leaving animals under their care out of suspicion of bestiality, not delivering their infants, not getting a haircut from an idol worshipper and more, see Mishna Avodah Zarah Perek 2):

“I have seen many people puzzled by the fact that nowadays nobody is careful to observe these laws. But I have already explained which Gentile nations are meant in this tractate; and the names of their holidays will also testify to it: for, as I mentioned above, they all are feasts of ancient nations, not restricted by the ways of religions, but practicing fervently and persistently worship of idols, stars and talismans, which -- and all things like them -- are essentials of idolatry, as has been already explained. But in any event, with regard to [avoiding] the possibility of violation of the prohibitions concerning Sabbath and the prohibitions concerning food and drinks [of non-Jews] -- e. g. [the ban] on wine of libation, and on their wine per se, and all those type of bans, whether it is only consuming something [of theirs] in food which was banned, or getting any advantage of it, or if the bans were made in order to prevent intermarriages -- all the [non-Jewish] nations come under these prohibitions... From now on, let these things be settled on your mind, so that it will not be necessary to clarify them specifically on each and every occasion, but you should be able to analyze on your own whether in any particular case the ancient nations are meant or the non-Jews in general; examine things, and you will know them.”

Here Meiri lays out clearly his rule differentiating between those laws which are designed to keep Jews from intermarrying with gentiles, which he believes applies to all gentiles, and the laws that are based on their immorality, which he believes did not apply to modern gentiles.
[41] Introductory letter to Hayyim David Halevi, Bein Yisrael la-Ammim (Jerusalem, 1954), pp.16-17
[42] The extent to which Meiri’s Halachic opinions differed from his predecessors and contemporaries , and the extent to which Meiri believed in this seemingly revolutionary philosophy, is a subject of intense scholarly discussion.  While this is beyond the scope of this article, I will at least guide you to some of the most important sources on this subject:

  1.  Jacob Katz, Beyn Yehudim le-goyim: Yahas ha-Yehudim li-shekheneyhem bi- Yemey ha-Beynayim u-bi-tehillat ha-Zeman he-Hadash (Jerusalem, 1960); see esp. pp.35–56.
  2.  Ephraim E. Urbach, “Shittat ha-sovlanut shel R. Menahem ha-Me’iri: Mekorah u-migbaloteha,” in Studies in the History of Jewish Society in the Middle Ages and in the Modern Period Presented to Professor Jacob Katz on His Seventy-Fifth Birthday, ed. I. Etkes and Y. Salmon (Jerusalem, 1980), 34–44 [reprinted in Ephraim E. Urbach, Mehkarim be-madda‘ey ha-Yahadut, ed. Moshe David Herr and Yonah Fraenkel, vol. 1 (Jerusalem, 1996), 366–76].
  3.  R’ David Berger “Jews, gentiles, and the Modern Egalitarian Ethos Some Tentative Thoughts” at this link: 
  4.  Moshe Halbertal, Beyn Torah le-hokhmah: Rabbi Menahem ha-Me’iri u-ba‘ale ha-Halakhah ha-maimoniyyim bi-Provence (Jerusalem, 2000).
  5. Meiri and the non-Jew: A Comparative Investigation by Dr. Yaakov Elman Published by Brill Publishing 2011 “New Perspectives on Jewish-Christian Relations” p.263-296
  6. Gregg Stern, Philosophy and Rabbinic Culture: Jewish Interpretation and Controversy in Medieval Languedoc (London, 2009).

To summarize, Jacob Katz presented the Meiri as an innovative and original thinker who developed a unique and almost modern philosophical framework of a new Jewish attitude towards Gentiles.  Urbach sharply criticized Katz and pointed out numerous inconsistencies within the Meiri, and Halbertal demonstrated that Katz’s view was much closer to the truth. Stern and Berger agreed with Halbertal’s view and supported Katz.

I will admit that I have been heavily influenced by Halbertal, and this article reflects my feelings on this issue.  I must refer the reader though to Dr. Elman’s work, who, like Urbach, points out numerous inconsistencies in the Meiri.  This led Dr. Elman to propose that the Meiri did not quite have such a consistent philosophy regarding the proper attitude towards non-Jews.  In all fairness, I must recommend that the interested reader should read Dr Elman’s article in its’ entirety and decide for themselves.  However, I would like to mention here some of my own thoughts regarding the “inconsistencies” of the Meiri raised by Urbach and Elman.

Three key “inconsistencies” were the following:

  1.  The Meiri's comment that it would be Middat Chasidut not to allow one's child to nurse from a gentile nurse "because a child's food plays a large role in the child's moral formation" (see footnote 3 on page 266)
  2. The Meiri's understanding of the laws of Tumah regarding a non-Jewish corpse and that they do not transmit tumat ohel because they are not included in the category of "adam" (see section III of his article started on page 278)
  3. The Meiri's acceptance of the Halachah that a non-Jew cannot serve as a "shaliach" (agent) for a Jew, not only in religious matters such as terumah, but even in civil matters, because they are not included in the verse "atem - gam atem". 
Elman sees all of these as contradictory to the Meiri's seemingly liberal views regarding nations that are "gedurim bedarchei hadat" and demonstrate that the Meiri was conflicted about this position.

Personally, I believe that the Meiri was actually quite consistent in his views nations that are gedurim bedarchei haDat.  However, the Meiri also acknowledged that although the nations that are “gedurim bedarchei haDatot” are in many ways equal to Jews, the Torah is still a superior system of morality and leads to a superior development of spirituality than the other religions.  For this reason, when Jews keep the Torah, there is something special about the Jewish people that no matter how spiritual and moral a gentile is, he/she is still not a Jew who adheres to the Torah.  This is something so obvious from so many areas of the Torah and Chazal that it cannot be disputed.  All of the examples mentioned reflect the Meiri's understanding of this fundamental difference between Jews and Gentiles. The nursing issue, the Tumah issue and not being included in the category of "Adam", and the inability to serve as an agent due to being excluded from the category "atem", all of these are true only because even the Meiri acknowledges that on a certain spiritual level, there is something special that is unique to the Jewish people which even the most moral gentile cannot attain (without converting to Judaism of course).  this does not seem inconsistent to me at all.  Please see footnote 92 for more discussion of the Meiri and the origin of his opions.

The Meiri clearly did not mean to equate Jews and non-Jews in every way possible, as we can see that he clearly upheld the restrictions that discouraged intermarriage between Jews and non-Jews.  He simply developed a philosophy that accorded significant respect and humanity to societies of gentiles that upheld moral and ethical systems of belief and behavior.
[43] Bava Metziah[43] 59a
[44] Vayikra 25:17
[45] Rosh yeshiva of Yeshiva Birkat Moshe in Maaleh Adumim, in Shut Melumdei Milchamah Hilchot Shabbat:43
[46] in his comments on The Rambam Sefer HaMitzvot 16, also Rashbatz in Zohar HaRakia Azharot 39 states that saving the life of a Ger Toshav supersedes Shabbat, and he brings Ramban as his source, Also see Ramban in his commentary on the Torah VaYikra 25:35 where he derives the mitzvah of Pikuach Nefesh from the words “vechay Imach” which refers to a ger toshav
[47] See his essay titled “Tiferes L’Yisrael”
[48] This important distinction between Meiri’s category of nations that are “gedurim bedarchei hadatot” and the idea that the concept of Ger Toshav can be applied to contemporary gentiles as R’ Rabinovich is arguing, is elaborated in detail by Halbertal.  It was also recognized by R’ Yehuda Gershuni in the article quoted in the next paragraph
[49]  “Or HaMizrach” Volume 16, p. 34.  I found this source through the generous help of Prof. Marc B. Shapiro.
[50] Shut Mitzpeh Aryeh Tinyana Chelek 1 Siman 10 Lvov, 1912 .  I found this source through the generous help of Prof. Marc B. Shapiro.

[51] Vayikra 25:35,36 (JPS translation)
[52] It may be possible to suggest that while the verse in Vayikra 18:5 “ve-chai bahem” teaches us that one may violate a commandment of the Torah to save one’s own life, it may not be enough to teach us that one must also violate the Torah to save someone else’s life. For this reason the Sifra according to the Ramban requires an additional pasuk of “ve-chai akhikha imakh” to tell us that one is also obligated to violate the Torah to save other’s lives as well.  This understanding of the Ramban is also to be found in the Sefer Mishnat Avraham by R’ Avraham Ahron Preis, Pomer Publishing, Toronto, Canada 1950. I found this source through the generous help of Prof. Marc Shapiro.
[53] See Peirush Rabbeinu Hillel on Sifra on this verse,  and one of the earliest Peirushim of the Sifra
[54] Rashbatz in Zohar HaRakia Azharot 39
[55] See Meiri’s comments in bava Metziah 59b for one important example, and see Halbertal p. 88 for more details on this approach of Meiri
[56] See his comments in Sefer HaMitzvot Mitzvat aseih :16
[57] Mishna Torah Hilchot Shabbat 2:12
[58] Rashi Vayikra 25:35
[59] Avodah Zarah 64b
[60] Eruchin 29a
[61] Hilchot Issurei Biah 14:7,8
[62] See Be’er hagolah, Be’er 7
[63] See page 144 in the paragraph which begins “Ve’od Amru” in the popular Hoenig edition Bnei Brak 1980
[64] See page 145 in the paragraph which begins “Nimtzah” in the popular Hoenig edition Bnei Brak 1980
[65] Shemot 21
[66] This essay was printed in a work entitled “Sheni Perakim'al Davar haHov l'Ohev haKaisar” and it was published in St. Petersburg in 1852.  It was a challenge to find, but I was able to secure a copy of the book from a friend in Silver Spring MD Dan Rabinowitz.  This teshuva is discussed in the Journal Yeshurun Volume 4 5759 (1998) pages 655-663 in an article by R’ Eliezer Katzman.  He describes the interesting circumstances behind the publishing of this teshuva under the auspices of the Czarist Government. One might question the sincerity of Rav Heller’s teshuva on the grounds that it might have been coerced and not truly reflective of his Halachic opinions. There are several scholars who have described the circumstances of the writing and publication of this work, and I will refer the reader here to two of these. I highly recommend that the interested reader see these articles for him/herself.
1)       A. Shochet "Mashehu 'al HaSefer 'Shnei Perakim' SINAI 102 (1988) PP. 63-71
2)       Eliezer Katzman, “L’Demuto shel R”Y Heller Ba’al Amudei Ohr” Yeshurun Volume 4, p.655-663

There are several reasons why I believe that this teshuva represents the genuine Halachic position of Rav Heller. I will summarize these reasons as follows:

1)       Rav Heller’s Teshuva was written in response to a query by his cousin R’ Avraham David Strashun of Vilna, there is no indication that this teshuva was coerced any more than any of the other teshuvos R’ Heller write to this very same family member. It may be true that the publisher Mendelstam published this teshuva in order to ingratiate himself with the authorities, but there is no reason to believe that this influenced R’ Heller when he wrote it.
2)       Rav Heller wrote a lengthy teshuva of almost 40 pages, including almost 20 pages full of Halachic conclusions that could be made based on his basic chiddush that entire nations that accept the sheva mitzvos are considered gerei toshav.  If it was simply an apologetic nod to the Czarist government, there would have been no need to discuss the Halachic ramifications regarding yayin Nesech and stam yaynam, Hilchos yichud, the issur to sell weapons to a gentile, beyomo titeyn secharo, Hilchot ona'ah, hashavat aveidah, tzedakah and many more.
3)       Rav Heller makes many of the same arguments that are also made by the others mentioned in this article, many of whom were writing Halachic opinions and not apologetics. This includes the Mitzpeh Aryeh, the Maharal, and numerous others quoted in this article
4)       R’ Heller’s basic argument is used by other major poskim in determining Halachah. Most important of which is R AYH Kook (see the following footnote) who uses the same argument as part of the reasoning that allowed the sale of EY during shemittah. Rav Herzog also used the same argument as well. Neither of these authorities quoted R’ Heller, though it is unlikely that they would have had access to his sefer which was rare and only published once. If they took this position as a serious Halachic possibility why shouldn’t we assume that R’ Heller meant it as well?
5)       R’ Katzman has in his possession a teshuva written by another great 19th century Lithuanian posek that responded to and refuted the arguments of R’ Heller.  This manuscript has not yet been published, but it is unlikely that the other Rabbinic leaders would have needed to write Halachic responses to R’ Heller if his teshuva was never serious in the first place and his only purpose was to placate the Czarist government.
6)       In a conversation with R’ Tzvi Hersh Weinreb (Executive VP Emeritus of the Orthodox Union and Editor in Chief of the Koren Talmud Bavli) he also added the following point. Every teshuva that is written is influenced by the circumstances surrounding it, but we don’t dismiss the teshuva just because it was influenced by its circumstances! We still need to take what R’ Heller said seriously, as it still remains valid as an opinion.
7)       I discussed this as well with Prof. Marc Shapiro who concurred that the teshuva did not follow the usual pattern of apologetic literature that consists of a several sentence disclaimer claiming that all references to gentiles only refer to the idol worshippers of Talmudic times, not our contemporary gentiles.  Instead, he wrote an entire teshuva demonstrating this idea.
8)       Neither of the articles I referenced above (The Katzman article or the Shochet article), provides any evidence that the actual teshuva of Rav Heller was written under pressure.  Although it is clear that the publication of the book, and other material (especially the German translation) was written mostly to appease the authorities, the teshuva of Rav Heller seems genuine for the reasons which I stated.

[67] Interestingly, R’ AYH Kook in Shut Mishpat Kohen Laws of Shemittah and Yovel 58 seems to take this position as well.  He says there that the laws of “Lo Techaneim” do not apply to Muslims because they accepted the worship of One God as a nation.  R’ Y Herzog in “Nochrim BeMedinah Yehudit” published by “Beit Reuvein Mass” Jerusalem 2008 understood R’ Kook to be saying that since they accepted monotheism as a nation that they have the laws of Gerei Toshav, see his words on the top of page 59, “as my predecessor (R’ Kook) determined that an entire nation that accepts upon itself the seven laws has the status of Geirim toshavim”
[68] See R' Heller pages 50,51 paragraphs 3 and 4
[69] See R’ Heller page 69 paragraph 44
[70] See Chemdas Yisrael Pietrikov 5687, Kuntrus Ner Mitzvah p 202 number 35, also note that according to R’ Plotski’s this is actually the opinion of Rambam regarding contemporary monotheistic gentiles!
[71] See Chemdas Yisrael Pietrikov 5687, Kuntrus Ner Yisrael, p 27 number 52, it is worthwhile to review there his lengthy analysis of Ramban’s opinion
[72] See “Kol Sifrei Maharatz Chajes” Jerusalem 5718, page 489
[73] See the final paragraph of the “Kuntrus Acharon” of his work “Minchat Kenaot” published by Meyerhoffer in 1849 available online here 
[74] Shut Mitzpeh Aryeh Tinyana Chelek 1 Siman 10 Lvov, 1912 .  I found this source through the generous help of Prof. Marc B. Shapiro.
[75] “Or HaMizrach” Volume 16, p. 34.  I found this source through the generous help of Prof. Marc B. Shapiro.
[76] Pirush HaRan al HaRif Avodah zarah 1b D.H. “Dinra”
[77] See chapter 8 of the book “Fundamentals of Judaism” published by Feldheim, NY edited by Jacob Breuer
[78] See Hirsch in “The Collected Writings”, volume 7, the essay titled “Talmudic Judaism and Society”
[79] See his commentary on Pirkei Avot 4:13
[80] The Meiri himself, when discussing the laws of violating Shabbat to save a life, in Yoma 84a states, “Pikuach Nefesh Eyn holchin Bo Achar rov – How is this? In a courtyard where there are present Jews and worshippers of the stars and constellations (ovdei kochavim umazalot) for whom we are not obligated to violate the Shabbat for them [to save their lives] because they have no religion and they don’t even care for the general obligations of civilized living among others (Sh’eyn lahem shum dat vegam eynam chosheshim lechovat chevrat ha’adam)”

Several points are clear from this statement of the Meiri.
1)       He clearly states that we are obligated to violate Shabbat to save the life of a gentile who is a ben dat, consistent with our thesis
2)       It is clear that the reason why we are obligated is because they are included in the category of benei dat, and not because of the concept of ger toshav
3)       We get another hint as to why he feels that being a “ben dat” is so important, because only people with a religion are moral and civilized.  This lends strong support to what we claim later in this article that had the Meiri been aware of moral societies that are not religious, he would probably have agreed that they too would warrant chillul Shabbat to save their lives.  There are many other such references in the Meiri, but this one was written specifically regarding chillul Shabbat, so I felt it was important to mention here. 
[81] see Iggrot Reiyah vol. 1 page 99
[82] Techukah L’Yisrael Al Pi HaTorah vol 3 p. 278 (Jerusalem , 1989)
[83] See his book “Logic of the Heart, Logic of the Mind”  pages 139, 151
[84] see Torah Umaddah Journal 7 - 1997)
[85] See J. David Bleich, “Divine Unity in Maimonides, the Tosafists and Me’iri,” in Neoplatonism
and Jewish Thought, ed. Lenn E. Goodman (Albany, 1992), 237–254 who argues that Meiri had a mistaken view of Christian theology
[86] See “Jews, Gentiles, and the Modern Egalitarian Ethos: Some Tentative Thoughts” by David Berger Formulating Responses in an Egalitarian Age, ed. by Marc Stern (Lanham, 2005), pp. 83-108 also available at this link: (see pages 26, 27)
[87] See Halbertal in Bein Torah le Chokhmah p. 101 note 35
[88] Page 26 of the above article
[89] Avodah Zarah 20a
[90] Tosefta Avodah Zarah 3(4):14, ed. M. S. Zuckermandel
[91] See “Laws of medical Treatment on Shabbat” by R’ Dov Karrol available here http://www.yuTorah.org/lectures/lecture.cfm/756185/_Dov_Karoll/Laws_of_Medical_Treatment_on_Shabbat
[92] Exactly what influenced the Meiri to develop a Halachic philosophy that was so different from most other authorities is a fascinating question. I would point anyone interested in learning more about the influences that caused the Meiri to develop his philosophy to footnote # 42, and especially to Dr Elman’s article.  While Halbertal and others claimed that it was the unique intellectual and religious environment that existed in Provence that led to the Meiri’s departure from Halachic norms, Dr. Elman has a much more interesting explanation for the Meiri’s unique attitudes.  He claims that the Meiri had a special emotional relationship with a Christian scholar whom he respected and dealt with as a close friend and confidant.  Dr Elman believes that it was this deep emotional connection which led the Meiri to develop a philosophy that justified fostering respectful and meaningful interpersonal relationships with people of other faiths.

This idea is carried much further in another article by Israel ben Simon,"The Origins of the Meiri’s Commentary on the book of Proverbs and the Concept of 'Nations Bound by the Ways of Religion'" (JSIJ - Jewish Studies, an Internet Journal available here).  Ben Simon argues that the Meiri was heavily influenced by the writings of R’ Jacob Anatoly, the son-in-law of the famous R’ Shmuel ibn Tibbon, translator of many of the works of the Rambam.  Anatoly is the author of a work called “Melmad HaTalmidim” and in it there are many references to his opinions regarding the status of non-Jews.  Ben Simon points out many parallels between the thoughts of the Meiri and the writings of Anatoly, in some cases even using almost identical language.  It is well known that Anatoly was a close friend of the Christian scholar Michael Scots.  This leads one to wonder what kind of influence the friendship of Anatoly and Scots, and Meiri and his Christian friend had on their thoughts regarding the status of gentiles.

To carry this thinking further, it is worthwhile considering the article by Professor Menachem Kellner, “We are not alone”.  In this article he discusses the idea that the difference between Jews and Gentiles can be understood in two ways.  One is what he attributes to R’ Yehuda HaLevi, and that is that there is an ontological difference between the Jew and gentile, something totally independent of the Torah how the person behaves and/or believes.  The second, and according to Kellner the more ancient and authentic approach is that the entire difference between Jew and Gentile is simply based on the Torah and the moral lifestyle that a Torah observant nation adheres to.  In this scheme, a gentile who is moral and ethical would be on a “higher” level than a Jew who disregards the Torah.

Kellner traces this idea through the thinking of the Rambam and the Maimonideans who followed in his footsteps.  If one puts all of this together, one finds a clear path from the Rambam, through R’ Shmuel ibn Tibbon and Anatoly, to the Meiri.  When thought of in this way, the Meiri’s thoughts are not quite as revolutionary as we thought.  They merely are the halachic application of ideas that had been around for centuries. 
 
Dr Elman's idea is also very relevant to those of us who live in contemporary society and interact regularly with many fine and moral gentiles who often personify the values that we consider to be “darchei datot venimusim” the ways of religion and ethics.  Our personal relationships with members of other faiths have led us to realize that they can often be intelligent, spiritual and deeply moral people just like Jewish people can be. The opinions of Meiri are therefore quite understandable to the 21st century Modern Orthodox Jew.
[93] Hilchot Avodat Kochavim 9:18
[94] Hilchot Avodat Kochavim 9:4
[95] Hilchot Shabbat 2:12
[96] See Chazon Ish OC 59:5, it seems clear from his words that he understood that Rambam held like Tosfot that only Issurei deRabbanan were permissible due to eyvah, but that Abaye’s explanation still stands today, therefore, for a ger Toshav, Issurei deRabbanan would be permitted.
[97] See Chatam Sofer  YD 131,
[98] (Though this is certainly not the only possible interpretation of the Maggid Mishna’s words, this is how Chatam Sofer understood them; that she is able to claim that there is Chillul Shabbat, even though in actuality there may not actually be any Chillul Shabbat. An alternate understanding of the Maggid Mishna would be as follows: “Le’Hishamet” - that she may slip out of the sticky situation by saying … “Velomar lah”  -and say to her etc… This understanding would not support the Chatam Sofer at all.)
[99] Hilchot Melachim 8:10
[100] Hilchot Avodat Kochavim 10:6