Neither necessity nor concern about the reactions of the world obligates us to act with integrity and accord equality towards the minorities in our day, but our internal and free values – ‘moral humane obligation.’ “
What is the appropriate attitude toward non-Jews living in the country and functioning as an inseparable part of the social, economic, and civil fabric of Israeli society?
Is it possible to find harmony between the character of contemporary society – of a democratic nature, requiring equality – and Halacha, which distinguishes between Jews and non-Jews in many areas?
Among the halachic authorities of our generation, one finds varying schools of thought regarding this question:
- There are those who claim that our situation today requires total implementation of the laws separating and distinguishing between the Jewish people and other nations dwelling among us. According to this view, one should be especially stringent and meticulous with these distinctions, and with extra emphasis regarding non-Jews who are antagonistic towards the Jewish people and the State of Israel.
- There are those who place the majority of the non-Jewish residents of the State of Israel into the halachic category known as Ger Toshav (“resident alien”). Such residents live in Israel without converting, but accept upon themselves to abide by the Seven Noahide Laws. Accordingly, they claim that it is possible, and perhaps even halachically obligatory, to award full social and economic rights to non-Jewish citizens of the State of Israel.
- Others claim that in light of the partial dependency of the State of Israel upon the other countries of the world, our situation is defined as a time in which “the hand of Israel is not dominant.” Accordingly, we are unable to implement those laws which distinguish Jews from non-Jews, for such a policy could potentially damage the security and strength of the State of Israel, possibly causing a “life threatening” situation (pikuach nefesh), especially for Jews and Jewish communities in the Diaspora.
- A fourth school of thought maintains that the required distinctions between Jews and non-Jews apply exclusively to non-Jews who are not “restrained within the practices of religions.” However, non-Jews who are in fact “restrained within the practices of religions” and adhere to moral values and justice, are not subject to such distinctions, or at least not to a large section of them.
According to all schools of thought, there is a need to distinguish between non-Jews who are faithful to the State of Israel and abide by the law, and the enemies of the State of Israel who seek its demise and encourage terror against the citizens of the State.
Since this topic is comprised of many considerations, which can change according to place and time, we have chosen to present various possible rulings that can afford the necessary tools to reach a worthy verdict in each place and each time. We will then apply these rulings to the following three issues:
- Burial – May a non-Jewish soldier be buried in a military cemetery, next to his Jewish comrades?
- Employment – Is it permissible to employ a non-Jew or to purchase something from him?
- Renting and Selling Houses – Is one permitted to rent or sell a house to a non-Jew?
Practically speaking, it is necessary to judge each case by its merits. There are situations in which preferring a Jew will cause hatred and incitement, and may even endanger Jews around the world; and there are situations in which being lenient may lead to a security risk of losing the State’s sovereignty over certain areas. Therefore, in order to know how to conduct oneself in practice, one needs to consult both security and halachic authorities. It is the governmental leadership’s responsibility to make sure that non-Jewish citizens are accorded rights, while simultaneously safeguarding the national and security interests of the State, considerations which are apt to vary according to place and time.
Sources and Explanations
The Rambam (Laws of Idol Worshipping, ch. 10, law 2) writes: “It is forbidden to heal an idol worshipper, but if he fears him, or is apprehensive over possible hostility, then he may heal for a fee, but it is forbidden to do so without pay; but a ger toshav (foreign resident), since you are commanded to sustain him, you may heal him without pay.” The Rambam adds: “One does not sell them houses or fields in the Land of Israel, but one may rent houses to them in the Land of Israel, on condition that they do not create a neighborhood, and one may not rent fields to them.” The Rambam further states: “Even when it is permitted to rent to them, the intention is not a house to live in, for he might bring in idols; and one does not sell them fruit or produce which is connected to the ground, as it says ’Lo Techanem’ – do not give them a place to settle (‘chanaya’) upon the land, for if they will not have land, their dwelling will be a temporary dwelling.”
Elsewhere, the Rambam writes: “One sustains the poor of idol worshippers together with the poor of Israel for the sake of maintaining peaceful relations (Gifts to the Poor, 7, 7), and, “One asks how they are keeping for the sake of maintaining peaceful relations (Idol Worship 10, 5). After all of the above, The Rambam writes (ibid, law 6): “All this is relevant only when Israel is exiled among idol worshippers, or they have the upper hand over Israel, but when Israel has the upper hand, it is forbidden for us to maintain idol worshippers among us, and even if he dwells temporarily; until he commits himself to the seven commandments that the sons of Noah were commanded; and if he commits himself to these seven commandments, then he becomes a ger toshav; but we do not accept a ger toshav, except in periods in which the Jubilee year is observed.” According to the Rambam, since it is not possible to accept gerim toshavim (foreign residents) in our period, there are those who claim that it is not permissible to allow non-Jews to settle in the State of Israel.
The Shulchan Aruch adds this rule (Yore De’a, 151): “One may not sell houses and fields to idol worshippers in the Land of Israel; but it is permissible to rent them houses, but not fields.” This rule became the source of a major dispute in the context of the topic of selling the Land of Israel during the Sabbatical (Shmitta) year (“heter mechira”), starting at the end of the 19th century.
Having said this, it should be emphasized that not all of the Rishonim (Medieval commentators) adopted the Rambam’s ruling (the Ra’avad, for example), and there are commentators of the Rambam (such as the Kesef Mishne) who explained his opinion differently from the way that we have presented it. These contrary opinions and commentators are the basis of the possibility to compromise and create a bridge between the Halacha and the foundations and principles of democracy.
Approaches of the Halachic Authorities of Our Generation
There is an approach that does not consider that there has been any significant change regarding the rights of minorities in the modern State of Israel. Such an approach can be found in an article written by Rav Yehuda Gershoni (Techumin 2, “המיעוטים וזכויותיהם במדינת ישראל לאור ההלכה”). Rav Gershoni analyzes the various schools of thought, and his conclusion is that it is possible to apply the category of Ger Toshav to the Muslim minority among us, and to give them civil and economic rights. Regarding Christians and other minorities, however, it is not at all clear that it is permissible to offer them equal rights.
The second approach is that of Rav Yitzhak Isaac Halevi Herzog, in his book, “תחוקה לישראל על פי התורה “ (pp. 12-21). Rav Herzog is of the opinion that it is possible to consider the majority of the non-Jewish residents of the country to be in the category of Ger Toshav, and to accordingly afford them equal rights. Rav Herzog bases his position on three suppositions:
- Neither Muslims nor Christians are classified as idol worshippers. This is true of Muslims because all of their worship is directed to one God, as the Rambam already ruled in a number of places. As for the Christians, even if they believe in the Trinity and link other entities together with God, nevertheless the Sons of Noah were not prohibited from including other entities in their belief, and it is therefore not considered to be idol worship. Even Catholics, who use the crucifixion as part of their ritual, do not actually worship the figure, and therefore this also is not actual idol worship.
- In the Laws of Idol Worship (10, 6), the Rambam rules that when “the hand of Israel is not dominant,” it is forbidden to allow a non-Jew who is not a Ger Toshav to dwell in the Land of Israel. But the Ra’avad in his comments on this law, disagrees and states that if the person does not worship idols, he is allowed to settle in the Land of Israel, while the Kesef Mishne at this point writes that even the Rambam agrees to this. According to these lenient positions, there is no problem in allowing people of other nations to settle in the Land of Israel, as long as they do not worship idols.
- Additionally, one must take into account the words of Rav Avraham Yitzhak Hacohen Kook, in his responsa “משפט כהן” (ch. 58, sec. 61): “An entire nation that behaves according to such manners shall be considered for this matter as Ger Toshav.” Namely, the people of a nation that, as part of their beliefs, conduct themselves according to the Noahide laws, do not need to specifically commit themselves before a Beit Din, authorized for this purpose. (The author of “כלי חמדה” wrote similarly, חמדת ישראל, p. 202.) For this reason, the fact that the Jubilee is not commemorated today does not create a problem. Indeed, accepting a Ger Toshav in front of a Beit Din is dependent upon the Jubilee being commemorated. However, according to this understanding, an entire nation that behaves suitably according to their beliefs, does not need to be accepted by a Beit Din, and the people of such a nation are considered Ger Toshav even when the Jubilee is not commemorated.
It is true that there are those who opposed the approach of Rav Herzog, especially his second and third suppositions, and they claimed that it is not possible to apply the law of Ger Toshav today, whether it be because the Jubilee is not commemorated, or because it is necessary to accept the seven Noahide laws specifically before an authorized Beit Din. For instance, Rav Shaul Yisraeli, in his book “עמוד הימיני” (ch. 12) rules that one may not rely only on the Ra’avad’s opinion in order to bolster the status of non-Jews in the State of Israel.
Accordingly, Rav Yisraeli suggests a third approach. After he clarifies that the Ra’avad’s position is that these prohibitions only apply to the original seven nations that in inhabited the Land of Israel, he points out that even according to the Rambam, the prohibition against allowing idol worshippers to dwell among us is applied only when “the hand of Israel is dominant.” In today’s geopolitics, it is feasible to say that Israel’s hand is not dominant, and “even though in certain contexts the State does have control, it is not necessary to rule accordingly, for we are not considered to be in a position that ‘the hand of Israel is not dominant’; whether due to fear of becoming embroiled in a war … or whether … because the majority of Jews are not in the country, and the entire country isn’t even under our rule, and the nation of Israel is not able to perform the commandment of totally expelling them from the Land; consequently, there is no obligation even in those places where our hand is dominant.” Rav Herzog, who we quoted above, after discussing the angle of Ger Toshav, takes a similar position to Rav Yisraeli, but with a variation. To his understanding, the assessment that the destiny of Israel is dependent upon the agreement of the nations of the world and their protection, necessitates considering their position regarding minorities in the State. Harming Christians and negating their rights breaches the covenant and the benevolence that the Christian nations extend to Israel, and this endangers the very existence of the Jewish State. Rav Herzog also writes:
“These commandments, which are public commandments, not incumbent upon each individual, but upon the ruling body, upon the Jewish government, in whichever form it may be, that has the power to perform them, were only given in the first place to the Nation of Israel who were conquering the land, and were receiving sovereignty by itself, without any concern for other nations. Clearly that is the background in the Torah for these commandments, and the simple understanding of the passages is self-explanatory. Therefore, indeed, without this background, and in such a situation that the State is given only upon this specific condition, these commandments do not apply, just as these commandments do not apply in the Diaspora, or even in the Land of Israel when our hand is not dominant … in such a manner, we were not commanded, and there is no commandment in this context, nor transgression.”
Rav Herzog uses Rav Yisraeli’s reasoning, but adds to it that since the State is essential to the needs of the nation, we must allow even actual idol worshippers to settle among us, and even give them rights, as is customary in democratic countries.
In addition to this claim, it should be emphasized that in a world in which social networks play such a central role in forming public discourse, an isolated incident of a single individual who discriminates against a non-Jew is likely to turn viral in the social networks, and to arouse waves of hatred in the whole world, thus endangering the Jews of the Diaspora. These concerns were accentuated by the South African chief rabbi, Rabbi Warren Goldstein, who participated in the deliberations of the Beit Midrash, and reported that the letter of the rabbis that was publicized in 5771 against renting apartments to Arabs created a real danger for the Jews of South Africa.
In our days, the danger of desecrating God’s name is even greater, as a result of discrimination against minorities. The obligation of decent behavior and avoiding discrimination towards the minorities among us, is a sanctification of God’s name, and serves as an avoidance of its desecration (Rav S. Goren, משנת המדינה, p. 46, Rav A. Sugarman, ניב המדרשיה, 18-19).
The fourth approach is that of Rav Haim David Halevi (תחומין ט’, “דרכי שלום”). In his opinion, all of the laws of isolation that were stated in this matter relate specifically to worshippers of foreign gods, sculptures, and graven images. This viewpoint is based on the methodology of Hameiri who is of this opinion (as is explained, for instance, in the tractate Gittin 62a, and in the tractate Avoda Zara in several places). Regarding the methodology of Hameiri, the author of the responsa ‘ציץ אליעזר’, הלכות מדינה(vol. 3, p. 257) writes: “It is not feasible to say that this entire methodology was written by Hameiri, only because of the censor, and for the sake of living harmoniously with non-Jews, and therefore these views of Hameiri can serve us as a prototype when we come to deal with these problems concerning the nations in our times.”
In accordance with this line of thinking, Rav Halevi rules:
“Since the non-Jewish nations of today are not considered idol worshippers, therefore, even if Israel’s hand was dominant, in the halachic and practical sense of those days, in no circumstance would we be obligated to treat the non-Jews of today according to the laws of idol worshippers. Therefore, in the entire network of relations between Israel and non-Jews, whether in Israel or in the Diaspora; whether regarding the attitude as a society or as a state towards its non-Jewish citizens, or the attitude as an individual towards his non-Jewish neighbor or friend, there is absolutely no need to preserve these relations only “because of harmonious relations” (“מפני דרכי שלום”), but because they no longer fit the halachic definition of idol worshippers. Therefore, their livelihood, visiting their sick, burying their dead, comforting their mourners and other concerns, all may be done in the framework of a humane, moral obligation “.
It is neither necessity nor concern about the reactions of the world that obligates us to act with integrity and to accord equality towards the minorities in our day. It is, rather, our internal and free values – “moral humane obligation.”
Together with the possibility and the requirement of allowing minorities to live in dignity, giving them rights with no discrimination, Halacha is also sensitive to the possibility that these rights may be abused. Accordingly, there are a number of limitations to minorities’ residing under Israeli rule. Therefore, for example, according to the Midrash Halacha (ספרי דברים רנט יז), one may not settle them on the borders due to security concerns (Rav N.T. Friedman שנה בשנה (תשכ”ג), Rav S. Goren משיב מלחמה, vol. 1, pp. 249 – 257, Rav Y. Rozen, תחומין ד’, pp. 259 – 266.)
We have thus summarized the theoretical approaches of the halachic authorities. We shall now briefly discuss the three issues raised earlier, based on these approaches.
Burial of a non-Jew Next to a Jew
In the tractate Sanhedrin (47a), the Gemara rules that one does not bury a wicked person (rasha) next to a righteous person (tzaddik), nor a severely wicked person next to a mildly wicked person. The halachic rulers learned from this that one does not bury a Jew next to a non-Jew. This is also apparent from what is said in the tractate Gittin (61a), that one buries the non-Jewish dead next to the Jewish dead, due to harmonious relations, and it seems from there that at least in principle one should not do so. One should add that even for the sake of harmonious relations, medieval commentators (Rishonim) maintained that one should not literally bury the non-Jewish dead next to the Jewish dead. The intention of the Gemara here is that we should participate in the burial of non-Jews, and not actually bury them in the same place, side by side.
Should this be the law, even in the case in which a non-Jew who served in the Israeli army is killed, and there is an appeal to bury him in an Israel army cemetery, alongside his comrades, the Jewish soldiers? In such a case, it is possible to be lenient and bury him beside Jewish soldiers, for several reasons:
- The Rambam does not mention the law that one does not bury a wicked person beside a righteous one, and even though this law appears in the Shulchan Aruch (Yore De’a 362, 5), nevertheless, when necessary, one may rely on the Rambam who does not rule this way (see Rav Arusi, תחומין 14 p. 313).
- One may deduct from a careful reading of the Rambam in the laws of Kings (10, 12) that one may bury a Ger Toshav next to a Jew, and so is the opinion of the Bach (Yore De’a 151), that for the sake of harmonious relations one may bury a Jew and a non-Jew side by side.
- Similarly, the leniency is necessary for the sake of the morale of the fighters and their ability to fight, a concern which has a shade of “saving lives” (on this principle, see Rav M. Halperin,תחומין 22, פינוי חללים בשבת, p. 106), since they know that should they die, they will be afforded dignity in their death, and be buried in an Israeli Army cemetery, in a section alongside their comrades, and will not be buried in a separate plot, on the side.
Moreover, since the source of the custom is that one may not bury a wicked person next to a righteous person, it seems obvious that one would not define a non-Jew who forfeited his life for the sake of the Jewish people as a wicked person! See tractate Bava Batra ( 10b), regarding the dead of Lod who, according to some opinions, were not Jewish. It proclaims there that no man is able to stand in their presence due to their distinction, as they forfeited their lives for the sake of the people of Israel.
It should be noted that the actual halachic ruling on this issue is determined by the Army Rabbinate, and it is possible that there may be exceptional circumstances which justify an alternative ruling, in accordance with their comprehensive view of all relevant considerations and of Halacha.
In תחומין (Tchumin), vol. 32 and 33, two articles were published, one by Rav Shlomo Aviner, and the other by Rav Ohad Fixler, who deal with this question. Since these articles are accessible to all, we shall not repeat the content, but only mention the main sources and the halachic conclusions which arise from these articles.
In Sifra, Parashat Behar (3, 3) it is taught that if a man wants to purchase something, he should do so from a fellow Jew, and not from a non-Jew. From this passage, Rav Benzion Meir Hai Uziel reaches the conclusion in his responsa Mishpetei Uziel (Choshen Mishpat, 44) : “In the beginning of his words, his honorable Torah scholar assumed that the commandment of Hebrew labor is due to the obligation of charity … but in my humble opinion, there is another commandment involved with Hebrew labor, and it is not only because of charity, but because of a national and brotherly obligation … this commandment of the Sages is a prototype for any work involving cooperation, between a seller and a buyer, or a worker and an employer; whether it be practical in the form of commercial negotiations, or temporary hiring, it should be done with a Jew. And this commandment also obligates the worker, that he should give preference to performing his work for and giving his time to his brother, the Jew… for the commandment to prefer Hebrew labor is not only a commandment of admirable charity, but also a full obligation, that is given to the jurisdiction of the Beit Din, which obligates the seller, the manufacturer, the employer, and the worker to give preference to their brothers.”
However, on the other hand, we have seen that there is an obligation to afford the same benefits to the Ger Toshav that dwells among us, as we do to our fellow Jew, in that we must allow him sustenance and to have a livelihood (Vayikra, 25:35; Masechet Avoda Zara 65a). We have also mentioned the passage of Gemara in tractate Gittin, which states that we must allow sustenance for non-Jews and treat them well for the sake of harmonious relations. In light of this, it seems feasible to suggest that even though the obligation of an individual towards his Hebrew brother is greater than his obligation to members of other nations, at the same time it is the obligation of the State – whether due to the law of Ger Toshav (assuming that non-Jews have that status in our days), or for the sake of harmonious relations, and a concern for animosity or desecration of God’s name, or in the name of basic moral and humane duty – to make sure that all residents of the State of Israel can live in dignity. Obviously, should the State demand of its individuals to assist with the livelihood of its non-Jewish residents, it is the individual’s obligation to answer this call.
Renting and Selling Houses to Members of Other Nations
There is a prohibition that appears in the Torah that states: “They shall not dwell in your land.” Simply speaking, it seems that this prohibition is directed towards whomever it is that rules the Land, and the sovereignty must prevent foreign nations from settling in the Land of Israel. On this matter, the halachic authorities wrote that the prohibition today only refers to idol worshippers. Alternatively, the prohibition does not apply when Israel’s hand is not dominant. Another possibility is that the nations that dwell among us today have the status of Ger Toshav; and therefore the prohibition does not apply.
However, there is another prohibition, namely “Lo Techanem,” which was interpreted by the Sages as, “Do not give them land for ‘chanaya’ (residing).” This prohibition falls upon each individual, and it is possible that some of the reasons given above for leniency (obligation of the State, concern for desecrating God’s name) are not applicable here. Nevertheless, one can still say that this prohibition does not apply in certain cases:
- The prohibition applies only when the Jew does so for the benefit of the non-Jew, but if he does so for his own benefit, it is not considered “Lo Techanem.”
- Even if the prohibition of Lo Techanem applies today, it is intended only to include idol worshippers (see the book “Mizbe’ach Adama, p. 12, side 1.)
- In the Rashba’s responsa (vol. 1, sec. 8), he allowed giving a gift to a non-Jew who is not an idol worshipper and, accordingly, one may possibly also permit selling such a person property in the Land of Israel.
- It is possible, according to what we explained above, that some or most of the non-Jews living in Israel today are considered to be in the category of Ger Toshav.
- If we give a general prohibition, there is a concern over causing animosity, and we have already explained that due to animosity, various prohibitions concerning relations with other nations should be waived.
It should be noted that regarding renting houses, one should be lenient, for the basis of the prohibition is to avoid providing a place in the Land of Israel for members of other nations to settle permanently. As rental is temporary, the rented apartment still belongs to the Jew and not to the non-Jewish tenant.
As stated above, for any practical decision, it is necessary to consult halachic and security experts, since the halachic ruling is dependent upon considerations of place and time. Whenever there is likely to be a desecration of God’s name or a wave of hatred towards Jews, there is room to be lenient. On the other hand, when leniency may allow the entrance of a population that is antagonistic toward the Jewish community, the result could be increased security risk as well as spiritual and/or social danger to the local residents. In such a case, one should abide by the strict letter of the law.