Good morning,

Thank you very much for the thought and the suggestion.

A.     For your convenience, attached is a scan of the relevant passage from the Meiri in Avodah Zarah.

B.     From the context of the passage in which these words were said, it seems more likely that the intention is the case of delivering a non-Jewish woman’s baby when this involves violating the Sabbath, which is what he was discussing at the beginning of his remarks. Still, I agree that the fact that the Meiri tacked on at the end of the sentence also “the prohibition of foods and drinks such as libation wine and ordinary non-Jewish wine and other prohibitions similar to these” could perhaps open the door to an interpretation of “violation of the Sabbath” detached from the passage, where he had already moved on to other subjects. I would be glad to hear your view.

C.     And while we are on the Meiri’s approach, I would note:

1.     From Maimonides, who forbids violating the Sabbath for a resident alien (Laws of Sabbath 2:12), it clearly follows not like the Meiri school, since according to him even a worthy non-Jew who fulfills his duty in this world does not justify Sabbath violation. Admittedly, from Nachmanides (in his additions to the Sefer HaMitzvot—positive commandment 16 among those “forgotten by the Rabbi”), it emerges that he disagrees. But between us—I feel uncomfortable basing a leniency on the Meiri when it is clear that Maimonides, the central decisor, disagrees. From my study of your trilogy, I assume perhaps that the above would not be much of a consideration in your eyes, and one should accept the truth from whoever says it, but honestly it is a little hard for me to sit comfortably in my chair when I know that the halakhic school I am raising as a banner was contradicted by Maimonides.

2.     I’ll also share that Rabbi Kook’s words—which were also brought by you in the Akdamot article (“The main point is in accordance with the opinion of the Meiri, that all nations who are bounded by proper norms between man and his fellow are already considered like resident aliens in all human obligations”)—seem rather puzzling to me, because he loads into the Meiri something he never said: to include the non-Jews of our time within the halakhic category of “resident alien” was, as I understand it, never claimed by the Meiri. If I understood correctly, your analysis suggests that from among the many ancient halakhic categories, the Meiri in practice found no sufficient, relevant, and current answer to present reality, and the halakhic lacuna that was thereby created was, in his eyes, naturally filled by complete universal equality of legal rights and obligations under Torah law.

Have a good rest of the day, and I’d be glad to continue the conversation,

Hello.
I looked at the Meiri you sent, and in my opinion there is no problem interpreting it that way. Exactly as you explained, that example is not brought because of the context but as part of a list of contexts in which a bounded, civilized non-Jew is still a non-Jew. In my opinion that is a roomy interpretation of his words. And if we add that it also resolves the contradiction in his words, it becomes almost necessary.
C. Indeed, you wrote correctly that in my eyes precedents do not carry much significance, at least when I have a clear position of my own. If it’s hard to sit comfortably, that’s what pills are for. (For you it’s easy anyway. You’re a doctor, no?)
Rabbi Kook’s claim is that the Jewish law requiring a resident alien to accept the seven commandments before a religious court exists only because the presumption regarding the non-Jews was otherwise. In a place where there is a public of non-Jews that keeps them, he is a resident alien even without that. And that is exactly the Meiri’s description of the change in the character of non-Jews. The Meiri admittedly did not call them resident aliens, but from the content of his words that clearly emerges. The change in the law regarding them falls into the category of resident alien in the earlier Jewish law. To my mind this is entirely reasonable and acceptable.

You began by saying that this inquiry started from a question by a colleague who does not observe the commandments. I understand that you do not want apologetics but a straightforward presentation of the Jewish law—but also not dishonesty. Therefore you feel that it is proper to rely on precedents and sources (preferably central ones) and not only on your own opinion or interpretation; otherwise you are not presenting to him the Jewish law but your own personal position. That smells like apologetics and/or dishonesty. But I agree with the policy and disagree with the conclusion. You are not supposed to defend the Jewish law as a historical-factual organism (what happens in it in practice), but the Jewish law as the will of God (= the Torah), and even if many err, that is to their discredit and not to the discredit of the Holy One, blessed be He. And indeed, I would not defend the approaches of most halakhic decisors of our time, and I do not see in that any criticism of the Jewish law. You can tell him that in your opinion, in true halakhic terms, one really should violate the Sabbath to save a non-Jew, and add honestly that most decisors disagree because they cling to the existing categories due to a conservative approach (not out of wickedness). But that is their problem, not yours and not the Holy One’s. Here’s a novelty: it is possible to be honest, God-fearing, and moral without desecrating God’s name. In our wretched condition these days, that really is a novelty.
One should remember that even if there is such a Meiri, it is still an esoteric position, and therefore even if you rely on him you have not gained much. Almost all halakhic decisors do not follow his position (and many even claim that his words were written out of fear of censorship). So the Meiri does not change much if your aim is to defend the Jewish law as a historical-factual organism (what people there actually do in practice). Therefore, by the same token, in my opinion you should present to him the Jewish law as the will of God (what it ought to have been, not what it is) and defend that. And the conservatives do indeed desecrate God’s name, but that is them, not you, for not defending them.
This reminds me of a struggle I waged in Yeruham about twenty years ago against a corrupt local council head whose coalition was with the Haredim, of course. The rabbi of the Haredi community (of which I was a member) sent me a letter saying that I was desecrating God’s name by criticizing their conduct and saying that they were corrupt, etc. I told him that he had twisted notions about desecrating God’s name. In my view, the one who steals desecrates God’s name, not the one who publicizes it in order to fight against it. If he doesn’t want desecration of God’s name, then let him stop cooperating with corruption and theft instead of silencing me.
Honesty requires not defending positions that are unworthy of defense, even if they are the prevalent positions. Presenting those positions honestly is not desecration of God’s name. Holding them is desecration of God’s name. And again, in my opinion those who hold them are not wicked and immoral in intention. They are captives of conservative conceptions (against which I wrote the above-mentioned book).

Good afternoon,

I read your words several times. Thank you very much for taking the time and troubling yourself to look into this and answer me at length and in detail:

1.     After thinking it over, your interpretation of the contradiction in the Meiri sounds reasonable to me. Thank you.

2.     As for Rabbi Kook—if we accept Rabbi Kook’s innovation, which thereby clears the halakhic hurdles and criteria for defining a resident alien, then one can read that into the Meiri. But, in my limited understanding, the Meiri himself said what he said even without adopting and expanding the concept of “resident alien,” since the Meiri never mentions this concept anywhere in his words. If I understand him correctly, the Meiri in practice found no existing halakhic category that served as a sufficient alternative for the reality of his day. In his view a halakhic lacuna was created, and in his eyes it was naturally filled by equality—the logical and reasonable default in his view.

3.     The final paragraph of your words gives me much to think about. You indeed captured well the tension I am in—the desire:

A.     to defend the position of the Jewish law (as opposed to my own view, which does not interest the questioner),

B.     and to do so with honesty and sincerity that sits well with a moral and sensitive heart (as opposed to apologetics—A. enmity (great enmity), B. the sophisticated claim that violating the Sabbath is really like the three cardinal transgressions, and in practice one violates it for saving life only for the internal reason of “violate one Sabbath for him so that he may keep many Sabbaths”—because then in effect we are “gaining” Sabbaths).

I appreciate the honesty of what you wrote, even though it is bold.

My teacher and rabbi, Rabbi Lichtenstein of blessed memory, noted on several occasions that in his view the moral principle can serve as a tool of decision in a halakhic dilemma. When pure halakhic considerations allow several possible rulings, moral considerations can join the decisor’s toolbox and guide him as to which path and what halakhic mode to take. And thus he writes:

“Moral standards and their truth are assigned an important role in understanding and defining Jewish law. A Jew is indeed obligated to answer ‘Here I am’ if the command ‘offer him there as a burnt offering’ is laid upon him; but before drawing the knife, he is permitted, and even obligated, to verify as best he can whether this is indeed what he was commanded, whether the message is unequivocal, and whether the value-clash is really so frontal. To the extent that interpretation is needed and has room—and this must be clarified—a sensitive and intelligent conscience is one of the factors shaping judgment. Just as Maimonides, in his time, consciously used a metaphysical conception in order to penetrate the depth of verses, so too a moral outlook may be employed in order to arrive at the content of Jewish law, and at times to mark out its boundaries” (Spring of Morality—on morality, faith, and society, p. 47).

Personally, I feel that were it not for the Meiri, such a claim—that all the discrimination of the Sages (in tort law and civil law) stems from their moral corruption—would require clear proof, which in my humble opinion we do not have. Therefore, finding the Meiri to rely on is, in my eyes, an important halakhic precedent and a legitimate source, even though not many were found who wrote as he did (though Rabbi Kook, Rabbi Weinberg, and a few others did side with his words).

In closing, which pill would you recommend to help me sit comfortably in the chair?

With respect, great appreciation, and wishes for a peaceful Sabbath,

Hello.

2. In my opinion there is no need to enter into the definition of resident alien in Talmudic Jewish law. The Meiri meant that just as we require a different attitude toward a resident alien for the same reason, so too we would require it toward a bounded, civilized non-Jew. In the time of the Sages there were no such civilized non-Jews, so they used the term resident alien, because it was sharp and clear. But in the Meiri’s period there are civilized non-Jews even if they do not fall into the category of resident alien (because they are idolaters and also did not accept the seven commandments before a religious court), and therefore there is no obstacle to extending the leniency to them. Rabbi Kook only adds and says: that itself is a resident alien. And it is possible that the Meiri too would agree with him on this. But it does not matter all that much. See further below regarding the difference from Rabbi Kook’s time, when the non-Jews were not idolaters.
By way of analogy: a stormy argument I once had with your father (if I’m not mistaken, you’re Dov’s son, right?) after a lecture I gave in the Orthodox Forum, regarding the status of the courts in our day. Broadly speaking, one can say that the dispute about today’s courts is fought between jurists and rabbis: the jurists argue that it is permitted to make use of them because they are not non-Jews and not idolaters. They assume that the prohibition of non-Jewish courts is not about the legal content (foreign law) but about the judge as person (a foreign judge). In my opinion that is a baseless claim, both scripturally and logically, and Rabbi Ariel refuted it well in Tehumin (volume 2, I think, in his controversy with Judge Bazak), as did many others. By contrast, the rabbis argue that it is forbidden to make use of them because they have the status of forbidden courts. Shochetman constructed distinctions between different areas, but that is not our topic here. I argued that halakhically it is clear that the rabbis are right and there is a prohibition against making use of them, but it is also clear that the jurists are right in that we have no such option today. In other words, I claim that there is no halakhic permission, and yet it is permitted and necessary to use them. Your father argued to me that one cannot make such a halakhic claim, because every permission has to be based on an existing halakhic category.
Years later I thought that in fact we have here a situation like the courts in Syria. According to the law of the Talmud, it is permitted to litigate before them. True, there are two differences compared to our day: 1. Nowadays there are expert judges, whereas in Syria there were not. 2. The Syrian courts did not judge according to foreign law but according to their own reasoning (following the view of the Hazon Ish that this is the problem in the State of Israel). Therefore the permission of the Syrian courts cannot be applied to today’s courts. I claim that this is true, but only formally; in truth the permission cannot be slotted into the category of the Syrian courts. Rather, I now ask: what was the basis for the permission in Syria that the amoraim themselves found? What did they themselves rely on? Did they have a verse? This permission has no halakhic basis whatsoever. It is clear that they understood that one cannot accept a situation in which a community lives without an effective legal system. And when there are no fit judges, they permit appointing whoever is available. So they permitted a severe Torah prohibition (“like planting an Asherah tree beside the altar”), without a source and apparently also without a decision of the Sanhedrin or anything of that sort. If so, then in our day too, despite the two differences I mentioned, we are still in a situation where if we insist on the prohibition of forbidden courts there will be no effective legal system, because halakhic law would not be accepted today by the whole public (and it also cannot really cope with contemporary problems without very deep revisions, which would bring it very close to the prevailing legal system). If so, that same permission of the Syrian courts is relevant today too despite the differences. Notice that this is not a halakhic permission, since today there is no Sanhedrin that could permit an absolute Torah prohibition, and clearly today’s courts do not fall under the definition of the Syrian courts (because of the two differences), but reason indicates that this is a prohibition that cannot be maintained and therefore should not be taken into account, exactly as it was then. This is a strange (halakhic?) category, but in my opinion very correct. By the way, I think everyone agrees with this, but they do not dare say it, or even think it explicitly, and so they try to present the permission as if it has some basis (the judges). Others (the rabbis) denounce the permission and still use it, while blatantly turning a blind eye to anyone who violates the prohibition (and almost everyone violates it). In my opinion it is better to be honest and not twist the Jewish law and/or the reality.
That is exactly what I claim regarding the Meiri. Perhaps in his eyes this did not formally fall into the category of resident alien (because of the two differences: there was no acceptance before a religious court, and they were idolaters), but the same permission they found for the resident alien exists here too. He may not technically be a resident alien, but if he is a moral human being he deserves humane treatment. Rabbi Kook only adds that this itself is a resident alien (because there is no need for acceptance before a religious court if one keeps the seven commandments).
True, according to my understanding of the Meiri they do not keep the seven commandments, since they are (enlightened) idolaters. But the Meiri claims that if they are moral, they have the status of a resident alien—the same basis for leniency that applied to the resident alien. Rabbi Kook had it easier, because the non-Jews living around him also were not idolaters (though the Catholics are still difficult), so he can apply to them the label of resident alien and the permission becomes broader even in halakhic terms, but the basic idea is the same.

3. I too once thought that we violate the Sabbath from an internal halakhic consideration, and therefore even a Jew’s life as such does not justify violating the Sabbath. Consequently, there is no discrimination in the fact that a non-Jew’s life does not override the Sabbath. That is not a devaluation of non-Jewish life but a stringency regarding Sabbath violation. But in Yoma there is an additional rationale, “and live by them,” and from that standpoint it is more difficult.

As for Rabbi Lichtenstein’s words, I myself wrote similarly in my book Walking Among the Standing, but with one important difference. In my view Jewish law and morality are two independent categories. Jewish law strives toward religious goals, and morality toward others. Therefore, in my opinion there are no laws intended to achieve a moral goal, including those that very much seem to be such, and this would require elaboration. Consequently, morality cannot serve as an interpretive tool in Jewish law. And yet I agree with him that when there is a dilemma among several possibilities that are legitimate from a halakhic standpoint, one may choose among them on moral grounds. Not because morality interpretively decides which one is correct. There is no decision, because morality is not a halakhic factor, and therefore we remain in doubt. But in a doubt among several possibilities, I am permitted to choose a legitimate option for moral reasons, and thus I am no longer in doubt, and the laws of doubt no longer apply to me. This is no worse than a case of great pressure and distress, where one is permitted to rule leniently in pressing circumstances even by choosing a strained opinion and a minority view (“Rabbi Shimon is worthy to be relied upon in pressing circumstances”). In this I differ from Rabbi Lichtenstein.

And in our case, the possibility of interpreting it this way exists even without the Meiri (whom did he rely on when he did so? So why is it permitted for him and forbidden for me? The Meiri is not a Sanhedrin). Therefore, in a moral situation of pressing need, I am permitted to interpret it this way. By the way, an even more radical claim is possible: fundamentally, the life of a non-Jew and that of a Jew are the same. The only issue is that the non-Jew does not keep the seven commandments, and he made the property and lives of Jews permissible against them. Once they conduct themselves properly, the law returns to its original place. Notice that here I am not claiming that because of a moral consideration one should violate the Sabbath to save a non-Jew’s life. Morality here is only a means of defining whom the Jewish law is talking about. I save his life because that is what Jewish law says, not because I chose it due to a moral consideration. Psychologically and emotionally, of course I breathe easier because of morality, but the halakhic permission is derived through halakhic tools. I am not choosing between two halakhically legitimate options on moral grounds, but claiming that there are not two such options. The Jewish law requires violating the Sabbath to save a non-Jew.

Regarding the question why the thesis that the Sages’ attitude toward them stemmed from their moral corruption should be accepted—I elaborated on this in my article on the Fifth Root. In brief, in my opinion the burden of proof is on the one who claims the opposite. If there is a law for which I offer a reasonable explanation, and you merely wonder whether perhaps I am wrong but do not offer an alternative explanation, then the burden of proof is on you. Why abandon a reasonable explanation merely because of a doubt that perhaps it is not correct?! This too would require much elaboration; I have written and spoken about it quite a bit.

Those are the pills that can improve your sitting in the chair, and in my opinion quite effectively. May you have proper rest.

Sabbath peace,

Good afternoon,

Sorry for the delayed response, and once again many thanks from the depths of my heart for your deep engagement and for the time you devoted to answering me. I can’t tell you how much I appreciate it.

A.     In order to refine and make sure I understood accurately: I understand from your words:

1.     That you disagree with the sentence I wrote: that the Meiri “in practice found no existing halakhic category that served as a sufficient alternative for the reality of his day. In his view a halakhic lacuna was created, and in his eyes it was naturally filled by equality, the logical and reasonable default in his view.”

2.     On the other hand, you agree with me that he did not formally see them as “resident aliens” per se (because there is no acceptance before a religious court, and it is not even clear that such acceptance can be done nowadays, and they are considered idolaters), and therefore he does not mention anywhere the law of resident alien.

3.     In your understanding, he did indeed find a similar halakhic category—resident alien—and from there expanded the application of the idea to every civilized and moral non-Jew, even without formal acceptance in court. If I understand you correctly—similar to Rabbi Kook—you too need the claim that for an entire nation there is no need to clear the technical hurdles of formal acceptance before a religious court.

B.     I liked the example of the courts and the Syrian courts. Very interesting. When I was in yeshiva I considered going into law. One of the things that kept me away from the field was the halakhic problem with the practice. I studied the issue and was not convinced by the “kashrut” of the field. My father [Dov—you were right] argued that, apart from that, academia suited my personality more than practice itself, which requires a certain roughness with which I was not blessed. Over time I have grown emotionally closer to the positions you’ve just described. In practice, I do not see a realistic chance of running modern legal systems with the current toolbox we have in hand. The Shulchan Arukh we have is neither rich enough nor updated enough to deal with the whole range of today’s problems. It is fascinating to learn Rabbi Chaim and the Ketzot, but the distance between that and implementation in the modern world is great.

C.     As for relying on the reasoning of “violate one Sabbath,” and thereby dulling the moral discomfort in the issue under discussion: as stated, this is a sophisticated suggestion, but in my humble opinion it is not the truth, as the Bi’ur Halakhah already wrote correctly (in section 328, if I recall correctly) and the Minhat Hinukh (Musaf HaShabbat). The plain sense of the passage is that in the end the source is “and live by them,” and therefore throughout the various discussions of saving life—such as Sanhedrin 74a, “What makes you think?” (Rashi, Rabbenu Yonah, and the medieval authorities there), and more—“and live by them” is the source under discussion. True, there are sources where the above reasoning of “violate one Sabbath” is mentioned (Shabbat 151b), but that is in order to broaden the scope of the permission (as the Netziv wrote on the She’iltot regarding saving a fetus, and in Meromei Sadeh on the passage in Yoma), not in order to limit it. I know my words are not agreed upon [there are disputes between Beit Meir and Rabbi Akiva Eiger precisely on this point; in Hemdat Yisrael by Rabbi Meir Dan Plotski it sounds like “violate one Sabbath” was also accepted to narrow the permission; I also saw that the Ginat Veradim (the Sephardic work), when discussing Sabbath violation for a Karaite, also understands it that way], but it seems to me that the more accepted approach is as I stated.

D.     The relation between Jewish law and morality—I read at length in your important trilogy. Thank you.

E.     You wrote: “Regarding the question why the thesis that the Sages’ attitude toward them stemmed from their moral corruption—I elaborated on this in my article on the Fifth Root.” I would very much like to look at the source. I did not understand where you elaborated on this.

F.     The claim that fundamentally the life of a non-Jew and of a Jew are the same is very appealing to me. I have been toying with that idea for a long time. Many argue that the permission of saving life exists for Noahides as well (in the laws of murder—it seems this is a dispute between Rabbi Chaim and the Hazon Ish; there is the famous Tosafot that the permission of saving life is based on reason and does not need “and live by them,” except that without it we would not learn it from the three transgressions, and more). If so, it seems to me that fundamentally one should transgress in order to save the life of a non-Jew as well. The passage about clearing away a collapsed heap and delivering a non-Jewish woman’s baby on the Sabbath (because you are delivering a child for idolatry) is the surprising and exceptional one, and perhaps those two passages are the exception—and deal with idolaters, as the Meiri understood, and with increasing idolatry in the world. But if we are dealing with a non-Jew bounded by religion and civilized norms, then we return to the original and basic law. If so, what I wrote—“in practice he found no existing halakhic category that served as a sufficient alternative for the reality of his day. In his view a halakhic lacuna was created, and in his eyes it was naturally filled by equality, the logical and reasonable default in his view”—is not correct. The Meiri restores them to the original and basic law. The matter still needs to be developed, and there is more to examine, but I wanted to share this with you, and perhaps, God willing, I will write it up in a letter (or maybe an article?).

With respect, appreciation, and great thanks for the dialogue.

I learned a great deal from it.

Have a blessed day

Hello.

A.     Correct. In the end one could perhaps say that he did not find such a category, since completing the law by analogy or some extension of the law of resident alien could itself be considered a lacuna (this is a significant part of the discussions around the Foundations of Law Act in Israeli law today).

C.     Even in the Yoma passage itself it emerges that the source from the reasoning of “violate one Sabbath for him” was not rejected. The rejection is only because one cannot learn from it that even doubtful danger to life overrides the Sabbath, but regarding a definite case it appears that this too remains a valid source even in the conclusion.

E.     He Shall Send Forth His Roots is a collection of articles on Maimonides’ Roots that came out in two volumes. Here is the link: https://asif.co.il/%D7%A1%D7%A4%D7%A8%D7%99%D7%99%D7%AA-%D7%99%D7%95%D7%9E%D7%90/%D7%A1%D7%A4%D7%A8%D7%99%D7%9D/%D7%99%D7%A9%D7%9C%D7%97-%D7%A9%D7%A8%D7%A9%D7%99%D7%95-%D7%A2%D7%99%D7%95%D7%9F-%D7%A4%D7%99%D7%9C%D7%95%D7%A1%D7%95%D7%A4%D7%99-%D7%95%D7%9E%D7%98%D7%90-%D7%94%D7%9C%D7%9B%D7%AA%D7%99-%D7%91%D7%99/

But I don’t remember that I dealt with this question in the Fifth Root. Did I definitely write that? I no longer remember. What does appear there is that if I offer a logical explanation for a Torah law and someone else wonders whether perhaps it is not correct (but without raising any argument against my explanation), the burden of proof is on him and not on me. It comes up there in the context of whether we interpret the reason for the verse. (I argue that because of this one should not explain that we do not interpret the reason for the verse out of concern that perhaps the reason is not correct, contrary to the standard explanation of that rule.) That is of course relevant also to the discussion of the proposal to interpret the laws regarding attitudes toward non-Jews on the assumption that they were morally corrupt.

F.  The claim that the life of a non-Jew and a Jew are the same is not necessarily my claim. I claim that the life of a non-Jew also has great value (enough to justify violating the Sabbath), and one may not harm it under any circumstances. If I had to save a Jew or a non-Jew from drowning, and their situations were equal, it would certainly be reasonable to save the Jew. Both because he is obligated in more commandments (like the rules of precedence in Horayot) and because he is one of my people.

The dispute whether the permission of saving life is ultimately based on reason or Scripture already begins among the medieval authorities, but that is not our topic here.