In all your ways acknowledge Him, and He will direct your paths.
PROVERBS 3:6
There exists no area of human concern which Jewish teaching fails to address. Jewish law is hardly limited to ritual matters. Indeed, no aspect of human conduct is so weighty that it is beyond the pale of Halakhah and none is so insignificant that it does not merit the attention of that discipline.
The Sages themselves pointed out that the term halakhah is derived from the verb halokh meaning "to walk." In its primary sense Halakhah is a means of regulating man's journey through life; it is the map which directs man along the footpaths which he has been called upon to traverse. Man's telos is the service of God; but divine service is not restricted to red-letter observances. Ideally, every act and every breath must be consecrated to divine service and hence all activities—the trivial as well as the sublime—are circumscribed by Halakhah. The myriad provisions of Jewish law in all their manifold applications serve to keep man from losing sight of his proper goal and to prevent him from straying from its pursuit.
"Be as meticulous with regard to a minor precept as with regard to a major one," admonished Rabbi Judah the Prince, Avot 2:1. This exhortation, calling for scrupulous observance of all commandments, has always served as a directive governing halakhic investigation. Rabbinic decisors invariably lavish unstinting concern and attention upon all halakhic questions, meticulously examining and analyzing each issue, regardless of whether the problem at hand concerns a "minor precept" or a "major one."
Moreover, rabbinic scholars concern themselves with all halakhic problems, applying themselves to the esoteric and purely theoretic with the same concentration and intellectual rigor as to the practical and commonplace. The pursuit of Torah scholarship has always been regarded as a paramount value in and of itself. Even when bereft of practical application the intellectual endeavor generates it own reward as succinctly stated by the Sages, Zevaḥim 45a, "Investigate and receive reward!"
Tuna Fish
Tuna fish, a relatively inexpensive food, which can be prepared easily as a salad or a sandwich spread, is a staple in the diet of many. Jews, in particular, who are prevented from making use of most prepared foods by virtue of kashrut regulations, have found tuna fish to be a readily available and satisfying food. Since the tuna which is marketed commercially is a kosher species, many observant Jews are under the impression that no kashrut supervision is required.
There are, however, a number of responsa, authored by halakhic authorities of renown, which state that this is not the case. The first of these, written some eighteen years ago by the late Rabbi Yosef Eliyahu Henkin, appeared in the Kislev 5722 issue of the Israeli Torah journal, Kol Torah. Much of the material in this responsum was incorporated in a second item which appeared in the Tevet 5723 issue of Ha-Pardes. More recently, this position was reiterated by Rabbi Moses Feinstein in a responsum dated 16 Iyar 5737, Iggerot Moshe, Yoreh De'ah, III, no. 8.
The kashrut of a fish yet intact can be readily determined by examining the fish for the presence of fins and scales. Fish which have been filleted, or skinned and canned, no longer bear these tell-tale signs of kashrut. It is evident from the rulings of Shulḥan Arukh, Yoreh De'ah 83:7-8 that under such circumstances the fish may not be eaten unless it is readily recognizable as being of a kosher species. Thus Shulḥan Arukh records a prohibition against purchasing fish roe unless the roe possesses certain characteristics associated only with kosher species (e.g., the eggs are round at one end and pointed at the other) and the seller confirms that they are the eggs of a kosher fish.
Rambam, Hilkhot Ma'akhalot Assurot 3:21, rules explicitly that it is forbidden to purchase portions of a fish which lacks fins and scales from a non-Jew. In the article which appeared in Kol Torah Rabbi Henkin also cites the prohibition recorded in Yoreh De'ah 118:1 against eating meat which has been entrusted to a non-Jew for safekeeping or transport. Shulḥan Arukh states explicitly that this prohibition applies with equal rigor to fish. The terminology employed by Shulḥan Arukh is, "Meat or a piece of fish having no sign [of kashrut] which is entrusted to or sent through a non-Jew requires two seals." Fish whose kashrut is not readily discernible may be transported for consumption by Jews only under a double seal. In the absence of the safeguard of a double seal the fish may not be eaten because of the possibility that nonkosher fish may have been substituted.
Rabbi Henkin and Rabbi Feinstein reach an identical conclusion in ruling that it is necessary for a mashgiaḥ (kashrut supervisor) to be present during the processing of the fish and for him personally to examine each fish for the presence of fins and scales. Rabbi Feinstein addresses himself specifically to the question of government supervision and to the contention that fear of punitive measures may constitute an adequate substitute for the presence of a mashgiaḥ. Rabbi Feinstein peremptorily dismisses the notion that government inspection might constitute an adequate safeguard. Moreover, he argues, even a mashgiaḥ "exiting and entering " (i.e., a mashgiaḥ who comes and goes periodically but who is not constantly present) is not sufficient. Such supervision is satisfactory, declares Rabbi Feinstein, only if the activity under supervision is one of sufficient duration so that the mashgiaḥ, on his return, might be able to apprehend a malefactor in the midst of the act. Removal of the skin of a fish, however, can be accomplished so swiftly that a person who wishes to substitute a nonkosher fish need not fear that the kashrut supervisor might return and catch him in the act. Therefore, rules Rabbi Feinstein, it is necessary for the mashgiaḥ to be present constantly throughout the canning process and for him to examine each fish.
The permissibility of canned tuna is also discussed in Rabbi Ya'akov Breisch's ḥelkat Ya'akov, III, no. 10, in a responsum whose composition is attributed to "a son of the author." ḥelkat Ya'akov reaches a conclusion at variance with the position of both Rabbi Henkin and Rabbi Feinstein. Magen Avraham, Oraḥ Hayyim, 20:1, states that the principle that an artisan or tradesman will not ruin his reputation (uman lo meira umnateih) establishes the credibility of such persons, not only with regard to possible adulteration of materials or food products offered for sale, but even with regard to the intrinsic species which he offers for sale provided that such substitution would destroy his credibility not only in the eyes of Jews but in the eyes of his non-Jewish clientele as well. Thus, the testimony of a non-Jewish tradesman may not be accepted in order to verify that an animal has been slaughtered in the prescribed manner since this is not a matter of concern to non-Jews and hence a falsehood would not damage his reputation in their eyes. However, argues Helkat Ya'akov, since substitution of another species of fish is forbidden by law, such substitution, if detected, would damage the processor's reputation in the eyes of non-Jews as well and, accordingly, his statement with regard to the contents of the can may be relied upon.
However, as ḥelkat Ya'akov hastens to add, Magen Avraham's position is rejected by Noda bi-Yehuda, Oraḥ Hayyim, II, no. 72. Noda bi-Yehudah maintains that although it is not to be presumed that a tradesman will establish his business on the basis of fraud he must nevertheless be suspected of being ready to profit from the substitution of one species for another when an inferior product has come into his possession, even when, if detected, his reputation would be damaged in the eyes of non-Jews.
Nevertheless, argues ḥelkat Ya'akov, even Noda bi-Yehuda would concede that the tradesman's declaration may be relied upon when his statement is subject to independent verification even if such verification can be accomplished only with some difficulty. In support of this position he cites Avodah Zarah 34b which states that a certain fish known as ḥeilek may be purchased from a fishmonger but not from other non-Jews. Rashi explains that these are small fish of a kosher species which do not develop fins and scales until they mature. The young of such species are permissible even though they do not yet manifest fins and scales. However, fish of a similar, and not readily distinguishable, nonkosher species are frequently caught with them in the same net. A tradesman is presumed to have the expertise which enables him to distinguish between the diverse species and may be relied upon to remove the nonkosher fish. Rashi carefully adds the comment that these fish are removed by the tradesman because they are of inferior quality and, if not removed, will spoil the taste of the entire batch of fish. Thus, the principle established seems to be that a tradesman's declaration is deemed to be reliable when substitution is detectable and immediately prejudicial to his own economic interests. Despite Rashi's comment, Helkat Ya'akov opines that the tradesman's word may be accepted simply because it is subject to independent confirmation. Applying this principle to canned tuna, Helkat Ya'akov argues that the manufacturer's labeling may be relied upon because the identity of the species within the can can be confirmed by "experts." Whether or not the identity of the species can in fact be confirmed by experts is an empirical question which is not addressed by Helkat Ya'akov. It should also be noted that in the immediately preceding responsum, no. 9, Rabbi Ya'akov Breisch himself expresses reservations with regard to the permissibility of such products on a number of grounds, including the question of identification of species.
The selfsame question with regard to the permissibility of tuna fish quite obviously applies to other forms of processed fish, such as fish fillets, fish sticks, chopped fish and the like, in which the species is not recognizable. Helkat Ya'akov, III, no. 10, sec. 5, states that this problem does not arise with regard to canned sardines even though fins and scales (and often the skin as well) have been removed since, in his opinion, sardines are readily recognizable and hence substitution of a nonkosher species would immediately be detected by the consumer.
It has been reported that some rabbinic scholars maintain that fear of civil and criminal penalties for mislabeling of products offered for sale in interstate commerce is halakhically equivalent to the presence of a kashrut supervisor. Although Rabbi Feinstein (Iggerot Mosheh, Yoreh De'ah, I, nos. 47-49) relies upon government regulations in permitting unsupervised milk, as noted, he rejects a similar contention with regard to tuna fish. With the exception of the inconclusive statements found in Helkat Ya'akov, no written responsum expressing the permissive view regarding government regulation and tuna fish is available at present. Presentation of a formal, detailed written opinion by those who espouse this view indicating the nature of their disagreement with the views of Rabbi Henkin and Rabbi Feinstein would be a valuable contribution to halakhic scholarship.
Another problem arising in the processing of canned tuna fish is the possible use of the same utensils, known as retorts, for the steaming of both tuna fish and canned pet food containing a mixture of fish and nonkosher chicken. A similar question is discussed by Rabbi Yitzchak Weisz, Minḥat Yizḥak, III, no. 26, sec. 5. Pri Megadim, Yoreh De'ah, Mishbezot Zahav 92:29, rules that vapor emitted by a utensil does not render a meat utensil unfit for use provided that the dairy utensil contains no actual milk or milk product at the time the vapor is emitted. The use of a retort seems to constitute an exact parallel of this situation. The tuna fish cans are sealed, and hence the steam is prevented from entering the can. The steam which heats the can does simultaneously come into contact with the retort, but only at a time when there is no actual nonkosher product within the retort. According to the principle laid down by Pri Megadim, vapor or steam which has come into contact only with the wall of a nonkosher utensil does not render kosher food within another sealed container unfit.
Nevertheless, Rabbi Weisz hesitates to rely on this line of reasoning because of a factual consideration. It is entirely possible, he contends, that in the course of the cooling process which takes places after steaming some of the steam may condense and form a quantity of water. Condensation of steam which has come into contact with a nonkosher utensil does pose a problem with regard to kashrut. Pri Megadim states explicitly that if liquid (as distinct from vapor) which has come into contact with a nonkosher utensil is present and comes into contact with a kosher utensil, the food within the kosher utensil must be regarded as nonkosher. Moreover, at least one authority, Divrei Yosef, Yoreh De'ah, no. 621, disagrees in part with Pri Megadim on halakhic grounds and maintains that, if the kosher and nonkosher utensils actually touch one another, the vapor or steam emitted by the nonkosher utensils renders the kosher utensils and their contents unfit. Rabbi Weisz also points to the danger that some particles of nonkosher food may be present in the retort itself. Nonkosher food that comes into contact with a kosher utensil in the canning process renders both the utensil and its contents nonkosher. Accordingly, care should be taken that separate retorts be used for steaming kosher and nonkosher products.
Slacks
Slacks and pantsuits have, for some time, been considered stylish attire for women. While at first these fashions were resisted in observant circles, of late such attire has become increasingly more common. On numerous occasions women have requested rabbinic authorities for a ruling with regard to the halakhic propriety of wearing slacks.
The question is a two-fold one: (1) Does the wearing of such attire involve a transgression of the biblical prohibition "A woman shall not wear men's apparel" (Deuteronomy 22:5)? (2) Does such garb violate halakhic norms of feminine modesty? Formal opinions in answer to these questions are found in the responsa of the head of the Jerusalem Bet Din, Rabbi Eliezer Waldenberg, Ẓiz Eli'ezer, XI, no. 62; the Bet Din of the Edah ha-Haredit of Jerusalem, Rabbi Yitzchak Ya'akov Weisz, Minḥat Yizḥak, II, no. 108; and of the late Sephardic scholar, R. Ovadiah Hadaya, Yaskil Avdi, V, Yoreh De'ah, no. 20 and VI, Even ha-Ezer, no. 54. A number of years ago, the question of the propriety of slacks was presented to a number of prominent scholars by Rabbi Yom Tov Lippa Deutsch and their answers appear in Rabbi Deutsch's Taharat Yom Tov, IX, 55 and 77-87.
More recently, the same question was put to R. Ovadiah Yosef in the course of an "Ask the Rabbi" program conducted by the PAI Synagogue in Tel Aviv while Rabbi Yosef still served as Chief Rabbi of that city. His response, which received wide press coverage at the time, was published in the Sivan-Elul 5732 issue of Shma'atin.
Rabbi Weisz and Rabbi Waldenberg both espouse a totally nonpermissive position with regard to this question. These authorities assert that such garb violates laws of modesty and, moreover, constitutes male attire, even though women's slacks are cut differently from men's trousers and are somewhat distinctive in appearance. In discussing a similar question with regard to a form of headgear fashionable in his time, Avnei Ẓedek, Yoreh De'ah, no. 72, asserts that minor differences in style do not change the masculine nature of a garmet. In support of his contention, he points to the fact that the same noun was used both for the garment worn by men and for the garment worn by women.
Rabbi Weisz marshals evidence demonstrating that donning attire associated with the opposite sex is forbidden not only in public but in private as well. Rabbi Weisz also forbids the wearing of ski pants particularly when other items of apparel are identical for both men and women, even though such clothing is designed to afford protection which cannot be assured in any other manner. This also appears to be the position of Divrei Hayyim, Yoreh De'ah, no. 60. Citing Arugat ha-Bosem, Yoreh De'ah, no. 138, sec. 6, Rabbi Weisz further asserts that not only one who himself or herself dresses in the garb of the opposite sex but even one who dresses another person in the garb of the opposite sex is guilty of a transgression. For this reason, according to Rabbi Weisz, it is not permissible to dress even small girls in such garments.
Not cited by Rabbi Weisz is Avnei Ẓedek's statement with regard to the type of pants or trousers which were in vogue for women during his day. Avnei Ẓedek declared that such garb was distinctively feminine in nature and, accordingly, permitted women to continue wearing the garment in question. It would appear that insofar as present day styles are concerned at least some types of pantsuits and the like should be deemed equally distinctive and feminine in nature and hence not forbidden as male attire.
The wearing of a single item of male clothing under circumstances in which the wearer is readily recognized as a female by virtue of her total mode of attire is a matter of dispute. Avnei Ẓedek, citing Baḥ, Yoreh De'ah 182 and Taz 182:4 permits the wearing of a single item of even distinctively male clothing when such a garment is worn as protection against the cold. Avnei Ẓedek quotes an earlier authority who permitted even the wearing of a bekeshe in similar circumstances (and who reports that this was a common practice on the part of women shopkeepers at the time) but stipulated that it be worn together with other items of distinctively feminine apparel. However, Rabbi Shmuel Wosner, one of the scholars whose responsa appear in Taharat Yom Tov, points out that Bet Yosef, Yoreh De'ah 182; Rema 182:5; Taz 182:6; and Shakh 182:7 all rule that it is forbidden for women to wear even a single item of male apparel. This position is based upon the statement of R. Eliezer ben Ya'akov, Nazir 59a, forbidding women to bear arms because armor and weapons are deemed to be male garb. Since women are forbidden to bear arms even though they are otherwise dressed in female attire, it is argued that women may not don even a single article of male clothing.
All of the rabbis whose views on this matter are published in Taharat Yom Tov replied in the negative. The respondents include R. Eliezer Silver of Cincinnati, Rabbi Akiva Sofer (Pressburger Rav), Rabbi Naftoli Hoenig (Sharmasher Rav), Rabbi Israel Veltz (formerly Dayyan of Budapest), Rabbi Yonatan Steif, Rabbi Levi Yitzchak Gruenwald (Tzelemer Rav), Rabbi Shmuel Wosner of Zichron Meir and Rabbi Yosef Gruenwald (Popper Rav).
Rabbi Yosef and Rabbi Hadaya do not view the wearing of slacks as a violation of the prohibition against donning male attire. Nevertheless, both decry the wearing of slacks by women for an entirely different reason. Citing Ohalei Ya'akov, no. 70, Rabbi Yosef avers that the wearing of unisex garments, i.e., garments worn by both men and women alike, does not constitute a violation of the prohibition against wearing garb of the opposite sex. Nedarim 49b reports that R. Judah and his wife shared a single garment. Rabbi Judah wore the garment for prayer while his wife donned the same garment when going to the marketplace. While Rabbi Yosef and Rabbi Hadaya are both of the opinion that the wearing of slacks by women does not constitute a violation of "a woman shall not wear a man's apparel," they maintain that wearing such garb constitutes a breach of feminine modesty, particularly if the slacks or pants are tight-fitting in nature. (See Rema, Yoreh De'ah 178:1.)
The specific question addressed to Rabbi Yosef was, "Which are better, mini-skirts or slacks?" Rabbi Yosef insisted upon rephrasing the question to read, "Which are worse, miniskirts or slacks?" In answering the latter query, he cites Sotah 48a which states, "When men sing and women join in, it is licentiousness; when women sing and men join in, it is like fire in flax. For what practical purpose is this mentioned?—to abolish the latter before the former." Rashi interprets this statement as meaning, "For if [people] will not obey us in abolishing both, we must first abolish that which is as fire in flax." Similarly, argues Rabbi Yosef, miniskirts are more objectionable attire than are slacks, although both are immodest dress. Halakhah requires that the entire thigh, including the upper portion of the knee be covered. Exposure of any portion of the thigh, argues Rabbi Yosef, is a graver violation of feminine modesty than is the wearing of slacks. Rabbi Waldenberg, in an obvious reference to Rabbi Yosef's response, disagrees sharply and opines that both forms of dress are distressing violations of feminine modesty. While there is little doubt that in many instances the type of slacks currently in vogue do not conform with halakhic norms of modest dress, it is difficult to agree that this must necessarily always be the case. For example, an ensemble including slacks designed to be worn under a long modestly cut tunic does not appear to be inherently immodest.
It appears to this writer that the wearing of slacks by students attending institutions of Jewish learning and others identified as standard-bearers of Jewish observance poses the possibility of a quite different transgression. Rambam, Hilkhot De'ot 5:9, presents a detailed discussion of the garb appropriate for a talmid ḥakham. A Torah scholar is forbidden to wear gaudy or ostentatious clothes, or garments which are demeaning in nature. The Gemara, Shabbat 114a, interprets Proverbs 8:36 as teaching that a scholar who by his conduct or personal appearance causes animosity and scorn toward Torah scholars brings contempt upon the Torah itself. It is quite evident that the term talmid ḥakham in this context does not refer exclusively to one who has excelled in scholarship but to anyone who is viewed by the public as a member of the scholarly community. It would also appear that the dictum, "The wife of a scholar is as a scholar" is applicable with regard to these provisions. The governing concern is that those viewed as exemplars of Torah study, whether male or female, comport themselves in a way which enhances rather than detracts from the honor and esteem in which Torah is held. Hence, it would seem that as long as slacks are viewed as improper attire by significant segments of the Jewish community, the wearing of such garb by those charged with bearing the banner of Torah should not be sanctioned.
Female Vocalists
The Gemara, Berakhot 24a, declares, "A woman's voice is provocative, as it says, 'For sweet is your voice and your countenance is comely' " (Song of Songs 2:14). Recognition of the sexually provocative quality of the female voice leads to halakhic ramifications which are two-fold in nature. Since the female voice may arouse sexual desire, halakhic considerations of feminine modesty dictate that a woman should not sing in the company of men. By the same token, a man may not listen to the voice of a female vocalist (Even ha-Ezer 21: 1). Moreover, since the female voice is described as "ervah" or "nakedness," a male may not read the shema, study Torah or recite a blessing when the song of a woman, even of his own wife, is audible to him, just as he may not engage in these activities in the presence of naked or exposed portions of the female body (Oraḥ Hayyim 76:3).
Writing in the Adar II-Nisan 5736 issue of Ma'ayan ha-Torah, a publication of the Pressburg Yeshivah in Israel, Rabbi Abraham Yafe-Schlesinger of Geneva, Switzerland, analyzes these halakhot and discusses the limited contingencies in which it may be permissible to listen to the singing of women. This material has now been included in Rabbi Yafe-Schlesinger's Teshuvot Be'er Sarim, I, nos. 29–30.
One authority, Hatan Sofer, Oraḥ Hayyim, Avodat ha-Yom, Sha'ar Taharat Yadayim, no. 14, permits men to listen to the singing of mixed choral groups. This leniency is based upon the talmudic principle, "Two voices cannot be heard," i.e., when two vocal sounds are heard simultaneously neither sound is clearly audible. Hence, argues Hatan Sofer, when men and women sing together, the sound which is perceived is not the voice of a woman but an entirely different auditory perception. Hatan Sofer's position is rejected by Be'er Yehudah, cited in Ozar ha-Poskim, Even ha-Ezer 21:1, sec. 20:4 and by a contemporary writer, Rabbi Eliyahu Wind, in his compendium Sugah ba-Shoshanim 16:6, as well as by Rabbi Benjamin Silber, Az Nidberu, IX, no. 59.
Rabbi Yafe-Schlesinger also finds grounds to permit men to listen to a woman sing provided it is for a very brief period of time. Tosafat, Sukkah 47b, citing the Palestinian Talmud, Sotah 3:1, indicates that the priest was permitted tactile contact with a woman in elevating the meal-offering. The explanation given is that since such contact was brief in duration there is no reason to fear arousal of sexual desire. The same principle is applied by Rabbi Yafe-Schlesinger to listening to brief snatches of song.
Much earlier, shortly after World War II, Rabbi Yechiel Ya'akov Weinberg was asked by the leaders of Jeschurun, a Jewish youth organization in France, whether it was permissible for them to sponsor programs in the course of which boys and girls sang together. Rabbi Weinberg, Seridei Esh, II, no. 8, reports that, still earlier, he had been surprised to discover that in observant homes in Germany men and women habitually sang Shabbat zemirot together even when guests were at the table and that, at first, he had protested against this custom. However, upon investigation he learned that the practice had been sanctioned by Rabbi Samson Raphael Hirsch and by Rabbi Ezriel Hildesheimer. Subsequently he found that Sedei Hemed, Klalim, ma'arekhet ha-kuf, no. 42, cites a Sephardic authority who sanctions this practice on the basis of the principle that "Two voices cannot be heard" adducing as evidence the verse, "Then sang Deborah and Baruch the son of Abinoam on that day" (Judges 5:1). Since Deborah and Baruch apparently sang together this verse appears to demonstrate that there is no objection to mixed singing. However, in another context, Eliyahu Rabbah, Oraḥ Hayyim 75:5, declares that this incident cannot be cited as substantiating any point of normative halakhah since it is to be viewed as an isolated occurrence which was divinely mandated.
Rabbi Weinberg himself advances another argument in sanctioning mixed singing of Shabbat zemirot and other sacred songs. Citing Sefer ha-Eshkol, Hilkhot Tefillah, no. 4, he argues that listening to the singing of a woman is forbidden only when the listener derives pleasure from the song; when no pleasure is derived from the sound of the voice there is no cause to anticipate erotic stimulation. A person engaged in singing sacred songs, reasons Rabbi Weinberg, is not intent upon deriving pleasure from the female voice and hence there is no prohibition attendant upon women participating in zemirot and the like. See also Seridei Esh, II, no. 14.
Rabbi Weinberg was fully cognizant that this approach was innovative. He emphasized that women who, because of their upbringing and religious orientation, do not wish to engage in such activities should not be encouraged to do so. The recurring theme in innumerable responsa dealing with this and related issues (Maharam Schick, Even ha-Ezer, no. 53, and Iggerot Mosheh, Oraḥ Hayyim, I, no. 26, to cite but two examples), is "whosoever is stringent in such matters should be spoken of as holy." Nevertheless, recognizing the needs of the hour and the phenomenal success of youth organizations in winning the hearts and minds of children who would otherwise be lost to Torah Judaism, Rabbi Weinberg, in this instance, deemed it necessary to encourage such programs in light of their proven pedagogic and inspirational value.
Rabbi Weinberg's original negative reaction is indeed substantiated by numerous authorities. Ozar ha-Poskim, Even ha-Ezer 21:1, sec. 20:3, cites numerous authorities, including Be'er Sheva, Kuntres Be'er Mayyim Hayyim, sec. 3; Yosef Omez, no. 602; Menaḥem Meshiv, no. 26; Hazon la-Mo'ed, no. 5; Rabbi Israel Veltz, Ha-Nesher, 5694, p. 64 and others who specifically forbid listening to women singing Shabbat zemirot and the like.1Rabbi Silber cites Be’er Sheva, Be’er Mayim Ḥayyim, no. 3, in pointing out that quite apart from the prohibition against listening to female song, a man may not sing certain Shabbat zemirot if women are singing at the same time. It is forbidden to recite the shema or to study Torah when the voice of any female is audible. Hence it is forbidden to sing, or to recite, shir ha-ma‘alot or any other song which has biblical passages as its text while women are singing zemirot because the singing of such songs is actually Torah study as well. Zemirot of this nature, declares Rabbi Silber, may not even be sung by husband and wife together just as the husband may not recite shema while his wife sings. Similar sources are cited by Rabbi Veltz in his newly-published Teshuvot Divrei Yisra'el, Oraḥ Hayyim, no. 35.
Yishrei Lev, Even ha-Ezer 100:12, is quoted as stating that the rabbis of Erez Yisra'el protested when a woman crooned her baby to sleep in the presence of men despite the fact that she was singing sacred melodies in praise of God. There is, however, another source which supports Rabbi Weinberg's opinion. Sedei Hemed, Klalim, ma'arekhet ha-kuf, no. 42, cites an earlier authority, Divrei Hefez 113b, who advances precisely the same thesis as Rabbi Weinberg. Divrei Hefez permits men to listen to women singing hymns of praise to God, crooning a baby to sleep and lamentations for the dead since it may be assumed that they do not seek to derive pleasure from the female voice in such circumstances.
Female Vocalists on the Radio
The question of whether or not it is permissible to listen to songs sung by women on the radio or on a gramophone is discussed briefly by Yitzchak Cohen in the Av 5737 issue of Or Torah. The question, to be sure, is not a new one and has been widely discussed in responsa literature. The various sources dealing with the question are cited by Rabbi Solomon Braun, She'arim ha-Mezuyanim be-Halakhah, I, 42:10; Rabbi Ovadiah Yosef, Yabi'a Omer, I, Oraḥ Hayyim, no. 6; R. Eliezer Waldenberg, Ẓiz Eli'ezer, V, no. 2; and Ozar ha-Poskim, Even ha-Ezer 21:1, sec. 20:5.2See also sources cited by R. Chanoch Safran, Teshuvot mi-Ben ha-Meḥaber, no. 6, appended to R. Betzalel Ze’ev Safran, Teshuvot ha-Rabaz, I (Jerusalem, 5722).
The earliest authority to issue a permissive ruling with regard to a similar question is Maharam Schick, Even ha-Ezer, no. 53. The Gemara, Sanhedrin 45a and Sotah 8a, declares that sexual desires are aroused by vocal stimuli only when accompanied by visual perception. Rabbi Aryeh Yehudah ha-Kohen, Sha'arei Torah, VIII, no. 73 compares the female voice to the hair of a married woman and argues that just as there are no restrictions with regard to hair which has been severed from the body, so also there are no restrictions with regard to the disembodied voice. Although the argument may be apropos with regard to the question of "nakedness," the analogy does not serve to establish that the recorded voice is not sexually provocative. Tosafot, however, cites Megillah 15a which records that the mere mention of the name of Rahab—a courtesan of Scriptural fame (Joshua 2:1-22)—was sufficient to cause sexual arousal even in the absence of visual stimulation. Tosafot resolves the apparent contradiction between this statement and the statements found in Sanhedrin 45a and Sotah 8a by noting that the Gemara posits such arousal only in the case of a woman with whom the individual is already acquainted.3See Tosafot, Ta‘anit 5b, and cf., Maharsha, Megillah 15a. A similar distinction is explicitly made by the Gemara, Avodah Zarah 20b, in the discussion of an analagous halakhah. Accordingly, Teshuvot Bet She'arim, Oraḥ Hayyim, no. 33; Rabbi Yehudah Leib Zirelson, Teshuvot Ma'arkhei Lev, no. 5; and Rabbi Ze'ev Wolf Leiter, Teshuvot Bet David, no. 188, rule that listening to a female vocalist is forbidden only when the listener sees the singer as well, or, alternatively, when the listener is acquainted with the vocalist.4This is also the opinion of Imrei David, no. 85 and Rabbi Shalom Yosef Feigenbaum, Sha‘arei Torah, VII, no. 113, sec. 3.
Rabbi Yosef concurs in this ruling but adds that it is forbidden to listen to a female vocalist who is known to the listener even if the woman in question is known to him only through photographs. It would then, a fortiori, be forbidden to listen to a female vocalist appearing in a motion picture since the appearance of the picture actually coincides with the auditory perception. An identical distinction is drawn by Rabbi Menasheh Klein, Mishneh Halakhot, V, no. 224. Rabbi Klein, although he brands the practice distasteful (mekhu'ar ha-davar), nevertheless finds no technical prohibition against listening to the radio voice of a woman who is not an acquaintance, but forbids a male to avail himself of television entertainment of this nature.5See also Kuntres Ḥakhmei Yisra’el, kuntres 8, no. 166.
A more restrictive ruling was issued by Rabbi Eliezer Deutsch, Pri ha-Sadeh, III, no. 32, and later by Rabbis Ya'akov Breisch, Helkat Ya'akov, I, no. 163; Shmuel ha-Levi Wosner, Shevet ha-Levi, III, Even ha-Ezer, no. 181; and Benjamin Silber, Az Nidberu, IX, no. 9. These authorities prohibit listening to female vocalists on the radio in all circumstances.6Pri ha-Sadeh is cited incorrectly by She‘arim ha-Meẓuyanim be-Halakhah as permitting this practice. They argue quite simply that the prohibition concerning listening to female vocalists is based upon the ability of the voice itself to arouse desire.7This is also the opinion of Ohel Mosheh, I, 32, sec. 3, and Birkat Ḥayyim, no. 21. The statements in the Gemara which posit a lack of arousal in the absence of visual perception, they contend, are limited to cases in which sensual stimulation is totally lacking. Rabbi Wosner argues that even Maharam Schick permitted only solicitous inquiries with regard to women who are not acquaintances but did not rule that it is permissible to listen to female singers on the radio or records. Rabbi Silber cites Mesilat Yesharim, chap. II, in developing the argument that the prohibition against listening to female song is a prohibition entirely independent of any prohibition against arousal of sexual desire.
Rabbi Y. M. Toledano, Teshuvot Yam ha-Gadol, no. 29, differentiates, although unconvincingly, between listening to a vocalist on the radio and listening to a recording of a female voice. Rabbi Toledano forbids listening to the broadcast voice of a female vocalist but permits listening to the same song on a record. He argues that while it is a true female voice which is broadcast over the radio, a recorded voice is, in effect, a disembodied voice.8It might, however, be cogently argued that the recorded female voice retains its erotic quality but does not constitute nakedness. If so, a man may not be permitted to listen to the recorded voice of a woman other than his wife but would nevertheless be permitted to recite kri’at shema while listening to his wife’s recorded voice. The prohibition with regard to kri’at shema is based upon the consideration that the sound of the female voice is tantamount to “nakedness.” Since the recorded voice does not have this status a man might then recite kri’at shema even though his wife’s voice is audible. See R. Aryeh Yehudah ha-Kohen, Sha’arei Torah, VIII, no. 73. This distinction is rejected by Rabbi Silber in his halakhic compendium, Bet Barukh 6:32.
It should be noted that none of the discussions heretofore cited seeks to draw an analogy based upon various discussions of the question of listening to the blowing of the shofar or the reading of the Megillah on the radio. The two situations are not at all analogous. With regard to the blowing of the shofar, the actual sound of the shofar must be heard; with regard to the Megillah, the actual voice of the reader must be heard. However, the female voice, it may be argued, has the status of ervah because of its sexually provocative quality. Hence, the sole relevant question is whether or not this quality is in any way mitigated by projection over the airwaves. The only authority who regards the question of listening to a female voice on the radio as identical to the question concerning hearing the sound of the shofar and the reading of the Megillah on the radio is R. Eliezer Waldenberg, Ẓiz Eli'ezer, V, no. 2, sec. 5.
Settlement in Egypt
Recent events have focused the attention of the entire world upon diplomatic relationships now being forged between Jerusalem and Cairo. Diplomatic shuttles between Jerusalem, Cairo, Aswan and Ismailia have already brought in their wake pleasure jaunts ferrying tourists between the holy places and the pyramids. With the establishment of normal relations between Israel and Egypt it will undoubtedly become possible for Jews not only to enter Egypt as tourists but also to consider establishing residence in that country for longer periods of time. In point of fact, renewed discussion in recent years of the permissibility of permanent domicile in Egypt actually antedates the events leading to the establishment of diplomatic ties between Israel and Egypt.
The rout of the Egyptian Third Army in the aftermath of the Yom Kippur War found Israeli troops within some fifty miles of Cairo. Having crossed the Red Sea in pursuit of the aggressor, the Israeli army, for a time, occupied a significant segment of Egyptian territory. During that period, a number of army camps were established. The soldiers settled into a nearly normal routine of life, even to the point of establishing a "yeshivah" for Torah study. Of course, the capture and holding of this territory were, at the time, vital to the security and defense of the State of Israel. The phenomenon of a new Jewish "settlement" in Egypt did, however, generate interest in the question of whether settlement within the boundaries of biblical Egypt would be permissible even in the absence of danger. The opinions of various rabbinic authorities regarding the parameters of the prohibition against residence in Egypt are collected and discussed in the 5735 issue of Torah She-be-'al Peh, in two separate contributions authored by Rabbi Judah Gershuni and Rabbi Shiloh Raphael.9See also R. Aaron Kahn, Or ha-Mizraḥ, Iyar-Tammuz 5739.
Interesting, not only from the perspective of Halakhah, but also as a historical sidelight is that, now, several years later, following the late President Sadat's visit to Jerusalem, Israeli reporters were invited to cover subsequent developments in Egypt. A number of reporters inquired of Rabbi Ovadiah Yosef whether or not it was permissible for them to travel to Egypt in order to do so. The response, which deals not only with a temporary sojourn but with permanent residence as well, appears in the Adar 5738 issue of the Sephardic Torah journal, Or Torah.
Although residence in Egypt seems to be explicitly forbidden by Scripture, many Jewish communities did thrive in Egypt over the centuries, apparently without evoking the censure of rabbinic authorities in the post-talmudic era. Indeed, Rambam himself lived in Egypt for many years. It is unthinkable that Rambam willingly committed a transgression in doing so, although R. Estori ha-Farḥi, Kaftor va-Feraḥ, chapter 5, reports that, while visiting Egypt, he was informed by a grandson of Rambam that the latter was wont to append to his signature the legend "who each day transgresses three negative commandments," i.e., the three biblical prohibitions against residence in Egypt. R. Jeruchem Fishel Perle, in his commentary to Kaftor va-Feraḥ, Pirḥei Zion (Jerusalem, 5706), p. 184b, cites R. Ya'akov Emden's incredulity in questioning the authenticity of this report. Rabbi Reuben Margulies, Margaliyot ha-Yam, Sanhedrin 21b, reports that this legend is not to be found affixed to any of the many extant letters and responsa of Rambam. Kaftor va-Feraḥ as well as Radbaz, in his commentary to Hilkhot Melakhim 5:7, assert that the government authorities did not permit Rambam to leave Egypt because of their desire to retain his services as a physician to the Egyptian court.
In any event, the establishment of Jewish communities in Egypt, apparently with rabbinic sanction, indicates that residence in Egypt is permissible at least under some circumstances. The following are the varying and diverse views set forth by different authorities with regard to the ramifications of the prohibition against residence in Egypt:
1. Rambam records the prohibition against residence in Egypt both in Sefer ha-mizvot, negative commandment no. 46, and in Mishneh Torah, Hilkhot Melakhim 5:7-8. In Sefer ha-mizvot Rambam cites three separate verses as sources for this prohibition: "You shall henceforth return no more this way" (Deuteronomy 17:16); "… by the way whereof I said unto you, 'You shall see it no more again' " (Deuteronomy 28:68); and "For whereas you have seen Egypt today, you shall see them again no more forever" (Exodus 14:13). In citing all three verses as negative commandments Rambam follows the Palestinian Talmud, Sukkah 5:1. The Babylonian Talmud, Sukkah 51b, however, cites only Deuteronomy 17:16. Maharsha explains that, for the Babylonian Talmud, Exodus 14:13 is a promise rather than a prohibition. Deuteronomy 28:68 is presumably viewed as a threatened punishment rather than as a prohibition. Basing himself upon the Palestinian Talmud, Rambam declares that the prohibition is limited to permanent residence. Accordingly, it is permissible to return to Egypt for business purposes or for other reasons which involve only temporary domicile. Rambam further rules that it is permissible to reside in Egypt if the land is conquered by "a king of Israel" with the approval of the Sanhedrin "since [the Torah] forbids [us] only return to [Egypt] as individuals or to dwell therein while it is in the hands of idolaters." The reason, as explained by Rambam, is that settlement in Egypt is forbidden because of the degenerate moral character of the ancient Egyptians. Reference to the immorality of ancient Egypt is made in Leviticus 18:13. Hence, when Egypt is under the dominion of Israel, Jews are permitted to reside in that land.
A number of commentaries question why, according to Rambam, the prohibition should remain in effect in our day. The prohibition, states Rambam, is predicated upon the immorality of the ancient Egyptians. The Tosefta, Kiddushin 5:6, reports that Sennacherib, King of Assyria, upon conquering most of the civilized world of his day, effected forced population transfers among the nations under his domain in order to solidify his rule. As a result, the peoples of antiquity are no longer ethnically identifiable. If descendants of the morally degenerate Egyptians of antiquity no longer inhabit Egypt, why should settlement in that country be forbidden? Torat ha-Melekh, Hilkhot Melakhim 5:7, answers that while Sennacherib forcibly removed the bulk of the Egyptian population and resettled them elsewhere, a significant number undoubtedly remained in Egypt and, for that reason, settlement in Egypt remains forbidden. R. Chaim Joseph Azulai, Hayyim Sha'al, I, no. 91, sec. 4, infers from Rambam's choice of language that the prohibition against living in Egypt remains in effect even if that country is inhabited by other non-Jews. Rambam states that it is forbidden to live in Egypt not "while it is in the hands of Egyptians," but rather "while it is in the hands of akum," i.e., idolaters or gentiles. Technically, then, the prohibition is against residence in the land of Egypt rather than against living among Egyptians.
2. R. Eliezer of Metz, Sefer Yere'im, no. 309, opines that the ban against settlement in Egypt is not a restriction against residence in Egypt but a restriction against return to the land. As a prohibition against return, the commandment restricts only "return … this way" (Deuteronomy 17:16), i.e., by way of the route travelled by our ancestors in departing from Egypt. R. Joseph Saul Nathanson, in his commentary on the Pentateuch, Divrei Sha'ul, remarks that the detailed scriptural description of the route travelled by the generation of the Exodus is of more than historical significance. It serves to delineate the route by which Jews are forbidden to return to Egypt. Return by other routes is permitted. Ritva, Yoma 38a, also interprets Sefer Yere'im in this fashion. To'afot Re'em, a commentary on Sefer Yere'im, refutes this interpretation by citing Sukkah 51b which declares that the Jewish community of Alexandria was annihilated because its members had established a settlement in Egypt in violation of the biblical commandment. According to Divrei Sha'ul's analysis, the Alexandrian Jews, who presumably did not return via the route mapped out in the Bible, should not have been deemed transgressors. Since the Gemara reports that they were punished, it may be inferred that the prohibition is broader than asserted by Divrei sha'ul. Teshuvot Dei Hashev, Yoreh De'ah, no. 15, and Ma'aseh Bezalel, no. 573, interpret Sefer Yere'im as meaning that it is forbidden to return to Egypt from the Land of Israel but that return to Egypt from other countries is not forbidden.
3. Rabbenu Baḥya, in his commentary on the Bible, Deuteronomy 17:16, states that this prohibition is directed against living among Egyptians rather than against establishing residence in the land of Egypt and is designed to prevent Jews from imitating the immoral life-style of the Egyptians. According to Rabbenu Baḥya, the prohibition forbids only living among the degenerate Egyptians of the time of the Exodus and was not intended to apply to later generations. This is also the position of Rabbenu Meyuḥas ben Eliyahu, as found in his recently published commentary on the Bible (Jerusalem, 5728). The obvious problem with regard to this position is that it appears to be contradicted by the previously cited statement of Sukkah 51b to the effect that the Jews of Alexandria sinned in settling in Egypt.
4. Ritva, Yoma 38a, declares that the prohibition against residence in Egypt was in force only as long as the people of Israel dwelled in Erez Yisra'el. During the exile, when Israel is dispersed among the peoples of the world, no land is forbidden to them. Rabbi Isaac ha-Levi Herzog, Heikhal Yizḥak, Even ha-Ezer, I, no. 12, questions whether according to Ritva, the prohibition is not again applicable in our own day, subsequent to the establishment of a Jewish homeland in Erez Yisra'el.
5. Ritva cites yet another opinion. "Some say" that the prohibition is no longer in effect since the Egyptian cities of antiquity have been destroyed and their populace dispersed by Sennacherib. According to this view, the restriction is directed against living among Egyptians, but not against residence in the land of Egypt. Hayyim Sha'al, I, no. 9, sec. 2, argues that this view is not compatible with the Gemara's assertion that the Jews of Alexandria were punished for having returned to Egypt. Rashi, Sukkah 51b, indicates that the Alexandrian community was established after the destruction of the First Temple, during the time of Jeremiah, after Sennacherib effected the transfer of populations. Similarly, Mekhilta Beshalaḥ, 2:13, speaks of instances of punishment for return to Egypt subsequent to the time of Sennacherib. An identical view is tentatively set forth by Sefer mizvot Gadol, negative commandment 227, and rejected because of precisely this objection.
Rabbi Yosef, seizing upon the phrase, "and these cities are different ones which were settled afterwards," understands this opinion in an entirely different manner. According to Rabbi Yosef's interpretation, the meaning of this statement is that the geographic location of Egypt of today is not identical with that of Egypt of the Bible. The cities inhabited by Rambam and others were not part of ancient Egypt and hence Jews may reside in such places without restriction. Indeed, Rabbi Ya'akov Castro, in a gloss to Even ha-Ezer 128, declares that the city of Cairo is not within the boundaries of ancient Egypt. Citing Sa'adia Ga'on's translation of Numbers 13:22, R. Castro identifies Egypt of antiquity with the area surrounding Fostat. Rabbi Yosef points out, however, that the basic question is not really resolved since Alexandria was within the boundaries of Egypt, as indicated by Sukkah 51b, and Jews nevertheless resided in Alexandria over a period of centuries.
6. While at least some of the other authorities cited maintain that the essence of the prohibition is residence among Egyptians, Sefer Yere'im clearly maintains that the essence of the prohibition is return to the land of Egypt. Mahari Perle, in his commentary on the Sefer ha-mizvot of R. Sa'adia Ga'on, and Minḥat Eliyahu, no. 37, maintain that there are two distinct prohibitions, one against residence in Egypt and a second against settlement among the people of Egypt. Exodus 14:13, "You shall see them again no more," implies a prohibition against settlement among the people, while the other two verses refer to return to the land of Egypt. Rabbi Gershuni and Rabbi Raphael both endeavor to show that this is also the position of Rashi in his commentary to both Sanhedrin 21a and Exodus 14:13, as well as that of Sefer Yere'im.
Rashi explains that the prohibition against a king amassing horses is predicated upon the fear that a king who maintains an interest in horses would send purchasing agents to Egypt, a country once renowned for fine horses, and thus violate the prohibition against returning to Egypt. Ramban, Commentary on the Bible, Deuteronomy 17:16, rejects this rationale, pointing out that the Palestinian Talmud explicitly permits return to Egypt for purposes of commerce.10Cf., however, Ḥayyim Sha’al, who offers a different interpretation of Rashi’s position.
In arguing that return to Egypt from countries other than Erez Yisra'el is permitted, Sefer Yere'im cites Sanhedrin 93a, which reports that at the time that Hananiah, Mishael and Azariah were cast into the burning oven, Daniel was sent to bring swine from Alexandria. Since there is no prohibition against journey to Egypt for business purposes, Daniel's action in this regard does not at all appear to support Sefer Yere'im's thesis.
In explanation of Sefer Yere'im's position, Rabbi Raphael argues that, insofar as the ban against residence in the land is concerned, there is indeed a distinction between permanent dwelling and temporary residence for business purposes and the like. However, insofar as the prohibition against settling among the people of Egypt is concerned, no such distinction can be drawn. Accordingly, return to Egypt even for purpose of commerce is, infact, included in the biblical prohibition. The statement found in the Palestinian Talmud which permits return for purposes of commerce must be understood as permitting return to Egypt only subsequent to the displacement of the Egyptian populace by Sennacherib. Since the inhabitants of Egypt are no longer the Egyptians of antiquity, temporary residence in Egypt is now permissible.11It should be noted, however, that Daniel’s return to Egypt occurred subsequent to the population exchange at the time of Sennacherib. Thus Daniel would have been permitted to return for purposes of commerce even from the land of Israel and the incident would not serve to demonstrate that return to Egypt from other lands is not forbidden. Sefer Yere’im is able to cite this narrative in support of his thesis because he follows the opinion of R. Joshua, recorded in the Tosefta, Yedayim 2:8, who maintains that Egypt was not permanently affected by Senna-cherib’s population exchange. In this context the Tosefta cites the verse, “At the end of forty years will I gather the Egyptians from the people whither they were scattered” (Ezekiel 29:13). The opinion of R. Joshua is rejected by all other authorities.
7. Teshuvot Radbaz, IV, no. 73, notes that only permanent residence in Egypt is forbidden as is indeed stated explicitly by Rambam, Hilkhot Melakhim 5:8. Radbaz offers an apologia for the conduct of those who lived in Egypt by stating that their residence was merely transient in nature since all Jews eagerly anticipate the opportunity to settle in Erez Yisra'el.
8. Pirḥei Ẓion explains that Rambam was willing to live in Egypt because in our day there is no greater prohibition involved in living in Egypt than in living in any other country. Rambam, Hilkhot Avodah Zarah 7:9, rules that is is forbidden to enter any city containing idols. In his Commentary on the Mishnah, Avodah Zarah 1:4, Rambam adds that, in our day, we have no choice and are forced to live in such cities since all cities contain edifices devoted to idolatry. Since all places are, in actuality, prohibited as places of residence, our justification for residing in such places is that the necessities of life force us to do so. This justification applies to residence in Egypt as well, since removal of one's residence to another country would also involve violation of a prohibition.
9. Rabbi A. I. Kook, Mishpat Kohen, no. 145, advances the novel view that the prohibition against return to Egypt devolves only upon individuals, but that entire communities may establish settlements in Egypt. This position, he maintains, is that of Rambam. Rambam's terminology in Hilkhot Melakhim is usually understood as distinguishing between individual settlement as against conquest by a king. Rabbi Kook, however, interprets Rambam quite literally as permitting settlement by any community. According to Rabbi Kook, it must be assumed that Alexandrian Jews were punished despite the fact that they constituted a community because they had originally transgressed in returning to Egypt as individuals.
War and Non-Jews
The prophet Habakkuk asks plaintively, "Why … art Thou silent when the wicked swallows up the man more righteous than he? For Thou makest men as the fish of the sea" (Habakkuk 1:13–14). Among the myriad species of the animal kingdom there is virtually none which preys upon its own kind. Carnivorous animals will devour other animals but not members of the same species. Preying upon members of the creature's own species is a phenomenon which is found only among the fish of the sea. Even a fish will swallow only a fellow creature smaller than itself. Man is unique among land animals in his propensity for attacking and destroying his fellow man. Man outdoes the fish in destroying not only others smaller and weaker than himself, but also in attempting to swallow up others equal to and better than himself.
"Pray for the welfare of the government, for without fear of [the government] men would swallow one another alive," advises the Mishnah, Avot 3:2. The base instincts of man are curbed only by fear. Individuals have reason to fear the power of the state. States, however, are subject to no higher temporal authority and hence have no reason for fear. Nations, as human institutions, give collective expression to the selfsame base instincts which are inherent in the individuals of whom they are comprised. As a result, nations, in their relationships with one another, behave precisely in the manner which the Mishnah putatively ascribes to individuals: they "swallow one another alive."
The nations of the world have indeed attempted to regulate warfare, but its elimination remains a utopian ideal which eludes mankind. The Geneva Convention, the United Nations Charter and international treaties of friendship have certainly not effected a metamorphosis in the basic nature of man. There is a story told about a missionary who was sent on a mission into the wilds of Africa. When asked by his superiors to submit a report there was little of a positive nature for which he could claim credit. "Well," he was asked, "did you at least succeed in eradicating cannibalism in your area?" "No," he replied, "the natives are still cannibals, but at least they now eat with knives and forks." Renunciation of chemical and biological warfare, humane treatment for prisoners of war, etc., are certainly marks of "civilized" peoples, but on a more fundamental level such matters are little different from a convention requiring cannibals to eat with knives and forks. "Civilized warfare" is inherently a self-contradiction.
Halakhah, as it applies to Jews, recognizes that man has no right to make war against his fellow. War is sanctioned only when commanded by God, i.e., when divine wisdom dictates that such a course of action is necessary for fulfillment of human destiny. Even a milḥemet reshut, or "discretionary war" is discretionary only in the sense that it is initiated by man and does not serve to fulfill a divine commandment. But even a milḥemet reshut requires the acquiescence of the urim ve-tumim; the message transmitted via the breastplate of the High Priest is a form of revelation granting divine authority for an act of aggression. Judaism sanctions violence only at the specific behest of the Deity. Human reason is far too prone to error to be entrusted with a determination that war is justified in the service of a higher cause. Such a determination can be made only by God Himself.
The teachings of Judaism with regard to non-Jews are somewhat more complex. Non-Jews are not held to the same standards of behavior as Jews. Although the Noachide Code, which embodies divine law as it is binding upon non-Jews, prohibits murder it does not necessarily prohibit as an act of murder the taking of human life under any and all circumstances. It is quite clear that when confronted by a situation in which an individual's life is threatened, all persons, non-Jews as well as Jews, have an absolute right to eliminate the aggressor in self-defense.12See Sanhedrin 57a; R. Yehudah Rosenbaum, Teshuvot Ben Yehudah, no. 21; Minḥat Ḥinnukh, no. 296. "Ha-ba le-horgekha hashkem le-horgo—If one seeks to kill you, kill him first" (Sanhedrin 72a) is a principle which applies to Noachides as well as to Jews. Accordingly, a defensive war requires no further justification.
I
In situations in which an individual's own life is not directly threatened, but a threat exists with regard to the life of another human being, Jews are bound by the law of the "pursuer" (rodef). Jewish law not only permits, but demands, that anyone finding himself in the position of being able to save the life of an intended victim must do so, even if such rescue necessitates sacrificing the life of the pursuer.
The question which requires examination is whether the law of pursuit which mandates intervention by a third party in order to save the life of an intended victim extends to Noachides as well. Minḥat Hinnukh, no. 296, concludes that Noachides have discretionary authority to intervene in such situations but do not have an absolute obligation to do so.
The Gemara, Sanhedrin 73a, attempts to derive the "law of the pursuer" from the commandment "You shalt not stand idly by the blood of your neighbor" (Leviticus 19:16). This commandment establishes a general obligation to come to the aid of a person whose life is endangered. Ultimately the Gemara derives an obligation to preserve the life of the victim even if it is necessary to sacrifice the life of the pursuer in order to accomplish this end from the verse "For … the betrothed damsel cried and there was none to save her" (Deuteronomy 22:27). From this statement the Gemara infers that were a bystander to be present he would be obligated to preserve the betrothed damsel from violation by any means possible, including summary execution of the would-be rapist. By virtue of the juxtaposition (hekesh) of homicide and rape of a "betrothed damsel" in the immediately prior verse the Gemara derives a binding obligation requiring any and all bystanders to intervene and to preserve the life of the intended homicide victim by any means possible.
Minḥat Hinnukh cogently argues that the commandments expressed in Leviticus 19:16 and Deuteronomy 22:27 are incumbent only upon Jews and hence cannot establish obligations upon non-Jews who are bound only by the provisions of the Noachide Code. Minḥat Hinnukh does, however, adduce another source which serves as a basis for derivation of the "law of the pursuer" and which is applicable to Noachides as well. The Gemara, Sanhedrin 72b, cites the verse "Whosoever sheddeth the blood of man, by man shall his blood be shed" (Genesis 9:6) as granting dispensation to preserve the intended victim by eliminating the pursuer. The phrase "by man" is understood as calling for the shedding of blood "by any man," i.e., by persons witnessing the act, rather than as a reference to punitive measures to be undertaken subsequent to the act. Thus the Gemara understands the verse as referring, not to an act of homicide which has already been committed, but to the prevention of a would-be homicide. The verse, which was addressed to Noah, establishes a law not only for Jews, but for Noachides as well. The general principle is that any commandment given prior to Sinai is binding upon Noachides even subsequent to the Sinaitic revelation provided it has been reiterated at Sinai. The law of the pursuer is indeed repeated in Exodus 22:1. In the course of the same discussion, the Gemara, Sanhedrin 72b, states that the statute formulated in this passage, which provides that a thief who breaks into a dwelling during the night may be smitten without penalty, is based upon the assumption that the thief is intent not only upon larceny but will commit homicide as well if he meets resistance. Hence the thief is in effect a pursuer and may be put to death if necessary by virtue of the "law of the pursuit." Tosafot, Sanhedrin 72a, commenting on the redundancy of the multiple scriptural sources for the "law of pursuit" states that Exodus 22:1 serves only to establish a license for execution of the pursuer but does not make such a course of action obligatory. The obligation, according to Tosafot, is expressed solely in Deuteronomy 22:27. Minḥat Hinnukh assumes that Tosafot intends this comment to apply as well to the interpretation of Genesis 9:6, which presents the same difficulty. The phrase ba-adam damo yishafekh, according to Minḥat Hinnukh's understanding should thus be translated "by man may his blood be shed" and serves to grant permission to put the aggressor to death when necessary to preserve the life of the victim, but does not mandate such action.13R. Shlomoh Zevin, Le-Or ha-Halakhah, p. 17, argues against Minḥat Ḥin nukh’s position and maintains that Noachides are not merely permitted, but are obligated, to execute the pursuer in order to preserve the pursued. He argues that this is evident from the phrase “domo yishafekh” which he maintains must be translated “by man shall his blood be spilled.” It would, however, appear that the question raised by Tosafot, Sanhedrin 73a, s.v. af, with regard to the earlier cited verse which speaks of the ba ba-maḥteret applies with equal validity to this verse. It would appear that Tosafot’s statement that the verse establishes permission rather than obligation applies to the subsequently cited verse “ba-adam damo yishafekh” as well. Accordingly, concludes Minḥat Hinnukh, Noachides are justified not only in acting in self-defense but may eliminate a threat to the lives of others as well, even though, in contradistinction to Jews who are bound by Sinaitic revelation, they are under no obligation to do so.
Another authority, R. Meir Dan Plocki, Hemdat Tisra'el (New York, 5725), p. 178, citing Zekhuta de-Avraham, argues that a non-Jew is not only permitted but, according to Rambam, is obligated to kill an aggressor in order to preserve the life of the intended victim. Hemdat Tisra'el bases his argument upon Rambam's understanding of the mizvah of dinin, the last of the seven commandments which constitute the Noachide Code. According to Rambam, the commandment of dinin establishes an obligation binding upon non-Jews to enforce the provisions of the Noachide Code and to punish Noachide transgressors. Accordingly, argues Hemdat Yisra'el, a non-Jew must kill the aggressor, not by virtue of the "law of the pursuer," but because of the mizvah of dinin which obliges every Noachide to enforce the provisions of the Noachide Code which inter alia provides for the execution of murderers. Hemdat Yisra'el does express some reservation with regard to this argument. He expresses uncertainty with regard to whether the commandment of dinin mandates only execution of transgressors after the fact, or whether it requires intervention in the sense of "prior restraint" as well in order to prevent an infraction of the Noachide Code. However, examination of Rambam's ruling in Hilkhot Melakhim 9:14 should dispel any doubt with regard to this point. Rambam rules that Noachides are required, by virtue of the mizvah of dinin, to establish a judiciary system. The courts are required both to execute judgment and "to admonish the populace." The obligation "to admonish the populace" certainly establishes an obligation with regard to prior restraint in enforcing the Noachide Code. Although Rambam does not explicitly state that Noachides are empowered to use lethal force in preventing such infractions it may well be argued that the Noachide court may use whatever coercive measures the situation may require in order to accomplish this end. Since the mizvah of dinin is incumbent not only upon an established judiciary but also upon every individual Noachide it then follows that any Noachide may use lethal force, if necessary, in order to prevent commission of a capital transgression by another Noachide.
Three other authorities, R. Isaac Schorr, Teshuvot Tevu'ot Shor, no. 20, p. 32b; R. Isaac Schmelkes, Teshuvot Bet Yizḥak, Yoreh De'ah, II, no. 162, sec. 4; and R. Chaim Soloveitchik, Hiddushei Rabbenu Hayyim ha-Levi al ha-Rambam, Hilkhot Rozeaḥ 1:9, clearly state that Noachides no less than Jews are obligated to eliminate an aggressor in order to preserve the life of an intended victim. These authorities maintain that the law of pursuit constitutes an obligation binding upon Jew and gentile alike.
It may be inferred from Rambam's ruling, Hilkhot Melakhim 9:4, that a Noachide may execute a pursuer in order to preserve the victim. Jewish law specifies that if it is possible to preserve the life of the intended victim by merely maiming the pursuer it is forbidden to take the life of the latter. However, should a Jew take the life of the pursuer when, in fact, it is not absolutely necessary to do so, Rambam, Hilkhot Rozeaḥ 1:13, rules that he is culpable only at the hands of Heaven but is not to be executed by a human court. In Hilkhot Melakhim 9:4, Rambam makes a distinction between a Jew and a Noachide with regard to this provision and rules that a Noachide who might have preserved the victim by merely maiming the aggressor is to be put to death for having taken a human life. The clear inference of this statement is that when it is necessary to take the life of the pursuer in order to preserve the victim, it is permissible, and perhaps even obligatory, for a Noachide to do so.14See, however, R. Yehudah Rosenbaum, Teshuvot ben Yehudah, no. 21, cited by Sedei Ḥemed, Klalim, ma‘arekhet ha-gimel, no. 44, who maintains that the “law of the pursuer” does not apply to Noachides. Teshuvot Ben Yehudah asserts that Rambam means to imply that only the pursued Noachide victim may kill his aggressor but that, under the Noachide Code, a third party has no right to intervene.
The "law of pursuit" is certainly no less applicable when it is an entire community or nation, rather than an individual, which is pursued. Thus, military action is certainly justifiable when undertaken either in self-defense or on behalf of a victim of aggression.
II
More fundamental is the question of whether or not there exists a general exclusion to the prohibition against homicide which justifies the taking of human life under conditions of war. Insofar as the halakhah applicable to Jews is concerned there are obviously conditions, limited though they may be, under which this is the case. The various categories of obligatory war (milḥemet mizvah) and discretionary war (milḥemet reshut) encompass situations in which there exists no immediate danger to the warring party. War is nevertheless permissible under at least certain restricted conditions even though the taking of human life is inevitable. These categories are, however, limited to Jews. The war against Amalek and war for the conquest of Erez Yisra'el are wars which only Jews may undertake. A milḥemet reshut or discretionary war may be undertaken only upon the initiative of the monarch of the Jewish commonwealth with the approval of the Sanhedrin and the urim ve-tumim. No analogous provision is found in Noachide law. It is therefore not surprising that virtually no discussion of whether or not a Noachide may legitimately engage in warfare is to be found in the writings of early authorities.
One latter-day authority does find grounds upon which to rule that non-Jews who engage in war are not guilty of murder. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Pentateuch, Ha'amek Davar, Genesis 9:5, finds dispensation for warfare in the very verse which prohibits homicide to the Sons of Noah: "And surely your blood of your lives will I require … and at the hand of man, at the hand of every man's brother, will I require the life of man." The phrase "at the hand of every man's brother" appears to be entirely redundant since it adds nothing to the preceding phrase "at the hand of man." Ha'amek Davar understands this phrase as a limiting clause: "When is man punished? [If he commits homicide] when it is proper to behave in a brotherly manner." However, in time of war when animosity reigns among nations the taking of life in the course of military activity is not punishable. Again, in Ha'amek Davar, Deuteronomy 20:8, this authority states that "even" a Jewish monarch may engage in battle, thereby implying that gentiles are certainly not prohibited from doing so. Earlier, Maharal of Prague, in his commentary on the Bible, Gur Aryeh, Parshat Va-Yishlaḥ, speaking of the action taken by the sons of Jacob against the inhabitants of Shechem, states that the family of Jacob constituted, in effect, a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. This position is, however, contradicted by a number of other authorities. R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, declares wars of aggression to be forbidden to Noachides under all circumstances. In support of his position, Hatam Sofer cites the discussion found in Sanhedrin 59a. The Gemara declares that non-Jews do not enjoy legal prerogatives of conquest (lav benei kibush ninahu). Hatam Sofer demonstrates that the Gemara, Gittin 38a, does indeed affirm that non-Jews may acquire title to lands captured in wars by virtue of conquest. The phrase "lav benei kibush" must then be understood, argues Hatam Sofer, as meaning that non-Jews have no right to engage in war for purposes of conquest even though post factum they may acquire title in this manner. The identical argument is advanced by R. Abraham Dov Ber Kahane, Dvar Avraham, I, no. 11 and by R. Menachem Ziemba, Zera Avraham, no. 24. These authorities are in agreement with Hatam Sofer's view that non-Jews may not engage in a war of aggression under any circumstances.
III
Jewish participation in a war between non-Jews is a complex problem. According to the authorities who maintain that Noachides are forbidden to wage wars of aggression it would follow that Jews are forbidden to participate in such wars. To aid and abet a non-Jew in commission of a transgression of the Noachide Code is a violation of the prohibition "Thou shalt not place a stumbling block before the blind" (Leviticus 19:14). Moreover, it is clear that if the war is illicit for non-Jewish combatants there is no operative principle which conveys upon Jews the right to engage in battle. It is perhaps for this reason that Tosafot, Avodah Zarah 18b, cites the opinion of Rabbenu Elchanan who rules that Jews may not participate in such wars.
R. Ze'ev Wolf Leiter, Teshuvot Bet David, no. 71, forbids voluntary enlistment in time of war because of the danger involved and describes the death of a soldier who does enlist in the armed forces as tantamount to suicide.15R. Meir Eisenstadt, Teshuvot Imrei Esh, Yoreh De‘ah, no. 52, surprisingly permits voluntary enlistment despite the danger involved. Rabbi Leiter also decries this practice because of the possibility that the enlistee will take the lives of Jewish soldiers in the "enemy" army.16Rabbi Leiter also cites a narrative recorded by Josephus indicating that the inhabitants of Scythopolis forced the Jews that were among them to bear arms against their fellow Jews in violation of Jewish law. See The Life of Flavius Josephus, sec. 6. See also Or Zaru‘a, Avodah Zarah, chap. 1, no. 132. Teshuvot Hatam Sofer, VI, no. 29, although also decrying voluntary enlistment, permits a conscript to hire a Jewish substitute. Hatam Sofer forbids enlistment because of lack of kosher food in the armed forces and the necessity for violation of Shabbat restrictions, but fails to mention the intrinsic prohibition against military aggression which he posits in the earlier cited responsum. This consideration may have been omitted because Hatam Sofer certainly intends his criticism to encompass peacetime enlistment and enlistment in armies engaged in wars of defense permitted to non-Jews. Hatam Sofer permits the hiring of a substitute only because the person hired would readily find others prepared to engage him as a mercenary and hence would in any event violate dietary and Sabbath restrictions.17Cf., however, Mishneh le-Melekh, Hilkhot Malveh ve-Loveh 4:2. It is of interest to note that in the same responsum Ḥatam Sofer, citing Baba Batra 8a, applauds the exemption of Yeshiva students from the draft. See also Teshuvot Imrei Esh, no. 52, who rules that “students of Torah” are exempt from conscription.
Of particular import is the statement of Mishnah Berurah 329:17, who rules that Jews must allow themselves to be conscripted in accordance with the "law of the land."18Cf., R. Samuel Turk, Pri Malkah, no. 64 and the response of R. Menasheh Klein, op. cit., no. 65. The reason advanced is particularly noteworthy, viz., that failure to do so will enrage the citizenry and may result in loss of Jewish life. It is precisely this reason which is given by Rema, Oraḥ Hayyim 334:25, in permitting a Jew to extinguish a fire on Shabbat even though the fire poses no danger to life. Mishnah Berurah does not at all discuss the legitimacy of war on the part of non-Jews but permits Jews to participate simply as a matter of pikuaḥ nefesh.
In the day that thou didst stand aloof,
In the day that strangers carried away his substance,
And foreigners entered into his gates
And cast lots upon Jerusalem,
Even thou wast as one of them
But thou shouldst not have gazed on the day of thy brother,
In the day of his disaster …
Yea, thou shouldst not have gazed on their affliction
In the day of their calamity.
The prophet chastizes Edom for standing by silently while aggression is committed against Israel. The implication, argues Rabbi Zevin, is that Noachides have an obligation to do battle against an aggressor.