Jewish scholar confirms the teaching of the Talmud
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Jewish History, Jewish Religion -
The Weight of Three Thousand Years
by Professor Israel Shahak
(You can buy it at amazon.com_
( CHAPTER 5)
The Laws Against Non-Jews
AS EXPLAINED in Chapter 3, the Halakhah, that is the legal system of classical Judaism -
as practiced by virtually all Jews from the 9th century to the end of the l8th and as
maintained to this very day in the form of Orthodox Judaism - is based primarily on the
Babylonian Talmud. However, because of the unwieldy complexity of the legal disputations
recorded in the Talmud, more manageable codifications of talmudic law became necessary
and were indeed compiled by successive generations of rabbinical scholars. Some of these
have acquired great authority and are in general use. For this reasons we shall refer for the
most part to such compilations (and their most reputable commentaries) rather than directly
to the Talmud. It is however correct to assume that the compilation referred to reproduces
faithfully the meaning of the talmudic text and the additions made by later scholars on the
basis of that meaning.
The earliest code of talmudic law which is still of major importance is the Misbneh Tarab
written by Moses Maimonides in the late 12th century. The most authoritative code, widely
used to date as a handbook, is the Shulhan 'Arukh composed by R. Yosef Karo in the late
16th century as a popular condensation of his own much more voluminous Beys Yosef which
was intended for the advanced scholar. The Shulhan 'Arukh is much commented upon; in
addition to classical commentaries dating from the 17th century, there is an important 20th
century one, Mishnab Berurab. Finally, the Talmudic Encyclopedia - a modern compilation
published in Israel from the 1950s and edited by the country's greatest Orthodox rabbinical
scholars - is a good compendium of the whole talmudic literature.
Murder and Genocide
ACCORDING TO THE JEWISH religion, the murder of a Jew is a capital offense and one
of the three most heinous sins (the other two being idolatry and adultery). Jewish religious
courts and secular authorities are commanded to punish, even beyond the limits of the
ordinary administration of justice, anyone guilty of murdering a Jew. A Jew who indirectly
causes the death of another Jew is, however, only guilty of what talmudic law calls a sin
against the 'laws of Heaven', to be punished by God rather than by man.
When the victim is a Gentile, the position is quite different. A Jew who murders a Gentile
is guilty only of a sin against the laws of Heaven, not punishable by a court. (1) To cause
indirectly the death of a Gentile is no sin at all. (2)
Thus, one of the two most important commentators on the Shulhan Arukh explains that
when it comes to a Gentile, 'one must not lift one's hand to harm him, but one may harm him
indirectly, for instance by removing a ladder after he had fallen into a crevice .., there is no
prohibition here, because it was not done directly: (3) He points out, however, that an act
leading indirectly to a Gentile's death is forbidden if it may cause the spread of hostility
towards Jews. (4)
A Gentile murderer who happens to be under Jewish jurisdiction must be executed
whether the victim was Jewish or not. However, if the victim was Gentile and the murderer
converts to Judaism, he is not punished. (5)
All this has a direct and practical relevance to the realities of the State of Israel. Although
the state's criminal laws make no distinction between Jew and Gentile, such distinction is
certainly made by Orthodox rabbis, who in guiding their flock follow the Halakhah. Of special
importance is the advice they give to religious soldiers.
Since even the minimal interdiction against murdering a Gentile outright applies only to
'Gentiles with whom we [the Jews] are not at war', various rabbinical commentators in the
past drew the logical conclusion that in wartime all Gentiles belonging to a hostile population
may, or even should be killed. (6) Since 1973 this doctrine is being publicly propagated for
the guidance of religious Israeli soldiers. The first such official exhortation was included in a
booklet published by the Central Region Command of the Israeli Army, whose area includes
the West Bank. In this booklet the Command's Chief Chaplain writes:
When our forces come across civilians during a war or in hot pursuit or in a raid,
so long as there is no certainty that those civilians are incapable of harming our
forces, then according to the Halakhah they may and even should be killed...
Under no circumstances should an Arab be trusted, even if he makes an
impression of being civilized ... In war, when our forces storm the enemy, they
are allowed and even enjoined by the Halakhah to kill even good civilians, that is,
civilians who are ostensibly good. (7)
The same doctrine is expounded in the following exchange of letters between a young
Israeli soldier and his rabbi, published in the yearbook of one of the country's most
prestigious religious colleges, Midrashiyyat No'am, where many leaders and activists of the
National Religious Party and Gush Emunim have been educated. (8)
Letter from the soldier Moshe to Rabbi Shun 'on Weiser '
With God's help, to His Honor, my dear Rabbi,
'First I would like to ask how you and your family are. I hope all is well. I am, thank
God, feeling well. A long time I have not written. Please forgive me. Sometimes I
recall the verse "when shall I come and appear before God?' (9) I hope, without
being certain, that I shall come during one of the leaves. I must do so.
'In one of the discussions in our group, there was a debate about the "purity of
weapons" and we discussed whether it is permitted to kill unarmed men - or
women and children? Or perhaps we should take revenge on the Arabs? And
then everyone answered according to his own understanding. I could not arrive at
a clear decision, whether Arabs should be treated like the AmeIekites, meaning
that one is permitted to murder [sic ] them until their remembrance is blotted out
from under heaven, (10) or perhaps one should do as in a just war, in which one
kills only the soldiers?
'A second problem I have is whether I am permitted to put myself in danger by
allowing a woman to stay alive? For there have been cases when women threw
hand grenades. Or am I permitted to give water to an Arab who put his hand up?
For there may be reason to fear that he only means to deceive me and will kill
me, and such things have happened.
'I conclude with a warm greeting to the rabbi and all his family. - Moshe.'
Reply of Shun 'on Weiser to Moshe
'With the help of Heaven. Dear Moshe, Greetings.
'I am starting this letter this evening although I know I cannot finish it this evening,
both because I am busy and because I would like to make it a long letter, to
answer your questions in full, for which purpose I shall have to copy out some of
the sayings of our sages, of blessed memory, and interpret them. (11)
'The non-Jewish nations have a custom according to which war has its own
rules, like those of a game, like the rules of football or basketball. But according
to the sayings of our sages, of blessed memory, [ ... ] war for us is not a game
but a vital necessity, and only by this standard must we decide how to wage it.
On the one hand .... ] we seem to learn that if a Jew murders a Gentile, he is
regarded as a murderer and, except for the fact that no court has the right to
punish him, the gravity of the deed is like that of any other murder. But we find in
the very same authorities in another place [ ... that Rabbi Shim'on used to say:
"The best of Gentiles - kill him; the best of snakes dash out its brains."
'It might perhaps be argued that the expression "kill" in the saying of R. Shim'on
is only figurative and should not be taken literally but as meaning "oppress" or
some similar attitude, and in this way we also avoid a contradiction with the
authorities quoted earlier. Or one might argue that this saying, though meant
literally, is [merely] his own personal opinion, disputed by other sages [quoted
earlier]. But we find the true explanation in the Tosalot. (12) There [ .... ] we learn
the following comment on the talmudic pronouncement that Gentiles who fall into
a well should not be helped out, but neither should they be pushed into the well to
be killed, which means that they should neither be saved from death nor killed
directly. And the Tosafot write as follows:
"And if it is queried [because] in another place it was said The best of Gentiles -
kill him, then the answer is that this [saying] is meant for wartime." [ ... ]
'According to the commentators of the Tosafot, a distinction must be made
between wartime and peace, so that although during peace time it is forbidden to
kill Gentiles, in a case that occurs in wartime it is a mitzvah [imperative, religious
duty] to kill them.[...]
'And this is the difference between a Jew and a Gentile: although the rule
"Whoever comes to kill you, kill him first" applies to a Jew, as was said in
Tractate Sanhednn [of the Talmud], page 72a, still it only applies to him if there is
[actual] ground to fear that he is coming to kill you. But a Gentile during wartime
is usually to be presumed so, except when it is quite clear that he has no evil
intent. This is the rule of "purity of weapons" according to the Halakhah - and not
the alien conception which is now accepted in the Israeli army and which has
been the cause of many [Jewish] casualties. I enclose a newspaper cutting with
the speech made last week in the Knesset by Rabbi Kalman Kahana, which
shows in a very lifelike - and also painful - way how this "purity of weapons" has
caused deaths.
'I conclude here, hoping that you will not find the length of this letter irksome. This
subject was being discussed even without your letter, but your letter caused me
to write up the whole matter.
'Be in peace, you and all Jews, and [I hope to] see you soon, as you say. Yours -
Shim'on.
Reply of Moshe to R. Shun 'on Weiser
'To His Honor, my dear Rabbi,
'First I hope that you and your family are in health and are all right.
'I have received your long letter and am grateful for your personal watch over me,
for I assume that you write to many, and most of your time is taken up with your
studies in your own program.
'Therefore my thanks to you are doubly deep.
'As for the letter itself, I have understood it as follows:
'In wartime I am not merely permitted, but enjoined to kill every Arab man and
woman whom I chance upon, if there is reason to fear that they help in the war
against us, directly or indirectly. And as far as I am concerned I have to kill them
even if that might result in an involvement with the military law. I think that this
matter of the purity of weapons should be transmitted to educational institutions,
at least the religious ones, so that they should have a position about this subject
and so that they will not wander in the broad fields of "logic", especially on this
subject; and the rule has to be explained as it should be followed in practice. For,
I am sorry to say, I have seen different types of "logic" here even among the
religious comrades. I do hope that you shall be active in this, so that our boys will
know the line of their ancestors clearly and unambiguously.
'I conclude here, hoping that when the course ends, in about a month, I
shall be able to come to the yeshivah [talmudic college]. Greetings - Moshe.'
Of course, this doctrine of the Halakhah on murder clashes, in principle, not only with
Israel's criminal law but also - as hinted in the letters just quoted - with official military
standing regulations. However, there can be little doubt that in practice this doctrine does
exert an influence on the administration of justice, especially by military authorities. The fact
is that in all cases where Jews have, in a military or paramilitary context, murdered Arab
non-combatants - including cases of mass murder such as that in Kafr Qasim in 1956 - the
murderers, if not let off altogether, received extremely light sentences or won far-reaching
remissions, reducing their punishment to next to nothing. (13)
Saving of Life
THIS SUBJECT - the supreme value of human life and the obligation of every human being
to do the outmost to save the life of a fellow human - is of obvious importance in itself. It is
also of particular interest in a Jewish context, in view of the fact that since the second world
war Jewish opinion has - in some cases justly, in others unjustly - condemned 'the whole
world' or at least all Europe for standing by when Jews were being massacred. Let us
therefore examine what the Halakhah has to say on this subject.
According to the Halakhah, the duty to save the life of a fellow Jew is paramount. (14) It
supersedes all other religious obligations and interdictions, excepting only the prohibitions
against the three most heinous sins of adultery (including incest), murder and idolatry.
As for Gentiles, the basic talmudic principle is that their lives must not be saved, although
it is also forbidden to murder them outright. The Talmud itself (15) expresses this in the
maxim 'Gentiles are neither to be lifted [out of a well] nor hauled down [into it]'. Maimonides
(16) explains:
As for Gentiles with whom we are not at war ... their death must not be caused,
but it is forbidden to save them if they are at the point of death; if, for example,
one of them is seen falling into the sea, he should not be rescued, for it is written:
'neither shalt thou stand against the blood of thy fellow' (17) - but [a Gentile] is not
thy fellow.
In particular, a Jewish doctor must not treat a Gentile patient. Maimonides - himself an
illustrious physician - is quite explicit on this; in another passage (18) he repeats the
distinction between 'thy fellow' and a Gentile, and concludes: 'and from this learn ye, that it
is forbidden to heal a Gentile even for payment...'
However, the refusal of a Jew - particularly a Jewish doctor - to save the life of a Gentile
may, if it becomes known, antagonize powerful Gentiles and so put Jews in danger. Where
such danger exists, the obligation to avert it supersedes the ban on helping the Gentile.
Thus Maimonides continues: ' ... but if you fear him or his hostility, cure him for payment,
though you are forbidden to do so without payment.' In fact, Maimonides himself was
Saladin's personal physician. His insistence on demanding payment - presumably in order to
make sure that the act is not one of human charity but an unavoidable duty - is however not
absolute. For in another passage he allows Gentile whose hostility is feared to be treated
'even gratis, if it is unavoidable'.
The whole doctrine - the ban on saving a Gentile's life or healing him, and the suspension
of this ban in cases where there is fear of hostility - is repeated (virtually verbatim) by other
major authorities, including the 14th century Arba'ah Turirn and Karo's Beyt Yosef and
Shulhan 'Arukh. (19) Beyt Yosef adds, quoting Maimonides: 'And it is permissible to try out
a drug on a heathen, if this serves a purpose'; and this is repeated also by the famous R.
Moses Isserles.
The consensus of halakhic authorities is that the term 'Gentiles' in the above doctrine
refers to all non-Jews. A lone voice of dissent is that of R. Moses Rivkes, author of a minor
commentary on the Shulhan Arukh, who writes. (20)
Our sages only said this about heathens, who in their day worshipped idols and
did not believe in the Jewish Exodus from Egypt or in the creation of the world ex
nihilo. But the Gentiles in whose [protective] shade we, the people of Israel, are
exiled and among whom we are scattered do believe in the creation of the world
ex nihilo and in the Exodus and in several principles of our own religion and they
pray to the Creator of heaven and earth ... Not only is there no interdiction against
helping them, but we are even obliged to pray for their safety.
This passage, dating from the second half of the 17th century, is a favorite quote of
apologetic scholars. (21) Actually, it does not go nearly as far as the apologetics pretend, for
it advocates removing the ban on saving a Gentile's life, rather than making it mandatory as
in the case of a Jew; and even this liberality extends only to Christians and Muslims but not
the majority of human beings. Rather, what it does show is that there was a way in which the
harsh doctrine of the Halakhah could have been progressively liberalized. But as a matter of
fact the majority of later halakhic authorities, far from extending Rivkes' leniency to other
human groups, have rejected it altogether.
Desecrating the Sabbath to Save Life
DESECRATING THE SABBATH - that is, doing work that would otherwise be banned on
Saturday - becomes a duty when the need to save a Jew's life demands it.
The problem of saving a Gentile's life on the sabbath is not raised in the Talmud as a main
issue, since it is in any case forbidden even on a weekday; it does however enter as a
complicating factor in two connections.
First, there is a problem where a group of people are in danger, and it is possible (but not
certain) that there is at least one Jew among them: should the sabbath be desecrated in
order to save them? There is an extensive discussion of such cases. Following earlier
authorities, including Maimonides and the Talmud itself, the Shulhan Arukh (22) decides
these matters according to the weight of probabilities. For example, suppose nine Gentiles
and one Jew live in the same building. One Saturday the building collapses; one of the ten -
it is not known which one - is away, but the other nine are trapped under the rubble. Should
the rubble be cleared, thus desecrating the sabbath, seeing that the Jew may not be under it
(he may have been the one that got away)? The Shulhan 'Arukh says that it should,
presumably because the odds that the Jew is under the rubble are high (nine to one). But
now suppose that nine have got away and only one - again, it is not known which one - is
trapped. Then there is no duty to clear the rubble, presumably because this time there are
long odds (nine to one) against the Jew being the person trapped. Similarly: 'If a boat
containing some Jews is seen to be in peril upon the sea, it is a duty incumbent upon all to
desecrate the sabbath in order to save it.' However, the great R. 'Aqiva Eiger (died 1837)
comments that this applies only 'when it is known that there are Jews on board. But ... if
nothing at all is known about the identity of those on board, [the sabbath] must not be
desecrated, for one acts according to [the weight of probabilities, and] the majority of people
in the world are Gentiles. (23) Thus, since there are very long odds against any of the
passengers being Jewish, they must be allowed to drown.
Secondly, the provision that a Gentile may be saved or cared for in order to avert the
danger of hostility is curtailed on the sabbath. A Jew called upon to help a Gentile on a
weekday may have to comply because to admit that he is not allowed, in principle, to save
the life of a non-Jew would be to invite hostility. But on Saturday the Jew can use sabbath
observance as a plausible excuse. A paradigmatic case discussed at length in the Talmud
(24) is that of a Jewish midwife invited to help a Gentile woman in childbirth. The upshot is
that the midwife is allowed to help on a weekday 'for fear of hostility', but on the sabbath she
must not do so, because she can excuse herself by saying: 'We are allowed to desecrate the
sabbath only for our own, who observe the sabbath, but for your people, who do not keep the
sabbath, we are not allowed to desecrate it.' Is this explanation a genuine one or merely an
excuse? Maimonides clearly thinks that it is just an excuse, which can be used even if the
task that the midwife is invited to do does not actually involve any desecration of the
sabbath. Presumably, the excuse will work just as well even in this case, because Gentiles
are generally in the dark as to precisely which kinds of work are banned for Jews on the
sabbath. At any rate, he decrees: 'A Gentile woman must not be helped in childbirth on the
sabbath, even for payment; nor must one fear hostility, even when [such help involves] no
desecration of the sabbath.' The Shulhan 'Arukh decrees likewise. (25)
Nevertheless, this sort of excuse could not always be relied upon to do the trick and avert
Gentile hostility. Therefore certain important rabbinical authorities had to relax the rules to
some extent and allowed Jewish doctors to treat Gentiles on the sabbath even if this
involved doing certain types of work normally banned on that day. This partial relaxation
applied particularly to rich and powerful Gentile patients, who could not be fobbed off so
easily and whose hostility could be dangerous.
Thus, R. Yo'el Sirkis, author of Bayit Hadash and one of the greatest rabbis of his time
(Poland, 17th century), decided that 'mayors, petty nobles and aristocrats' should be treated
on the sabbath, because of the fear of their hostility which involves 'some danger'. But in
other cases, especially when the Gentile can be fobbed off with an evasive excuse, a Jewish
doctor would commit 'an unbearable sin' by treating him on the sabbath~. Later in the same
century, a similar verdict was given in the French city of Metz, whose two parts were
connected by a pontoon bridge. Jews are not normally allowed to cross such a bridge on the
sabbath, but the rabbi of Metz decided that a Jewish doctor may nevertheless do so 'if he is
called to the great governor': since the doctor is known to cross the bridge for the sake of
his Jewish patients, the governor's hostility could be aroused if the doctor refused to do so
for his sake. Under the authoritarian rule of Louis XIV, it was evidently important to have
the goodwill of his intendant; the feelings of lesser Gentiles were of little importance. (26)
Hokhrnat Shloinoh, a 19th century commentary on the Shulhan 'Arukh, mentions a
similarly strict interpretation of the concept 'hostility' in connection with the Karaites, a
small heretical Jewish sect. According to this view, their lives must not be saved if that
would involve desecration of the sabbath, 'for "hostility" applies only to the heathen, who
are many against us, and we are delivered into their hands .. But the Karaites are few and we
are not delivered into their hands, [so] the fear of hostility does not apply to them at all.' (27)
In fact, the absolute ban on desecrating the sabbath in order to save the life of a Karaite is
still in force today, as we shall see.
The whole subject is extensively discussed in the responsa of R. Moshe Sofer - better
known as 'Ilatam Sofer' - the famous rabbi of Pressburg (Bratislava) who died in 1832. His
conclusions are of more than historical interest, since in 1966 one of his responsa was
publicly endorsed by the then Chief Rabbi of Israel as 'a basic institution of the Halakhah'.
(28) The particular question asked of Ratam Sofer concerned the situation in Turkey, where
it was decreed during one of the wars that in each township or village there should be
midwives on call, ready to hire themselves out to any woman in labor. Some of these
midwives were Jewish; should they hire themselves out to help Gentile women on weekdays
and on the sabbath?
In his Tesponsum, (29) Hatam Sofer first concludes, after careful investigation, that the
Gentiles concerned - that is, Ottoman Christians and Muslims - are not only idolators 'who
definitely worship other gods and thus should "neither be lifted [out of a well] nor hauled
down",' but are likened by him to the Amalekites, so that the talmudic ruling 'it is forbidden
to multiply the seed of Amalek' applies to them. In principle, therefore, they should not be
helped even on week- days. However, in practice it is 'permitted' to heal Gentiles and help
them in labor, if they have doctors and midwives of their own, who could be called instead of
the Jewish ones. For if Jewish doctors and midwives refused to attend to Gentiles, the only
result would be loss of income to the former - which is of course undesirable. This applies
equally on weekdays and on the sabbath, provided no desecration of the sabbath is involved.
However, in the latter case the sabbath can serve as an excuse to 'mislead the heathen
woman and say that it would involve desecration of the sabbath'.
In connection with cases that do actually involve desecration of the sabbath, Hatam Sofer -
like other authorities - makes a distinction between two categories of work banned on the
sabbath. First, there is work banned by the Torah, the biblical text (as interpreted by the
Talmud); such work may only be performed in very exceptional cases, if failing to do so
would cause an extreme danger of hostility towards Jews. Then there are types of work
which are only banned by the sages who extended the original law of the Torah; the attitude
towards breaking such bans is generally more lenient.
Another responsuin of Hatam Sofer (30) deals with the question whether it is permissible
for a Jewish doctor to travel by carriage on the sabbath in order to heal a Gentile. After
pointing out that under certain conditions traveling by horse- drawn carriage on the sabbath
only violates a ban imposed 'by the sages' rather than by the Torah, he goes on to recall
Maimonides' pronouncement that Gentile women in labor must not be helped on the
sabbath, even if no desecration of the sabbath is involved, and states that the same principle
applies to all medical practice, not just midwifery. But he then voices the fear that if this
were put into practice, 'it would arouse undesirable hostility,' for 'the Gentiles would not
accept the excuse of sabbath observance,' and 'would say that the blood of an idolator has
little worth in our eyes'. Also, perhaps more importantly, Gentile doctors might take
revenge on their Jewish patients. Better excuses must be found. He advises a Jewish
doctor who is called to treat a Gentile patient out of town on the sabbath to excuse himself
by saying that he is required to stay in town in order to look after his other patients, 'for he
can use this in order to say, "I cannot move because of the danger to this or that patient,
who needs a ~doctor first, and I may not desert my charge"
With such an excuse there is no fear of danger, for it is a reasonable pretext, commonly
given by doctors who are late in arriving because another patient needed them first.' Only 'if
it is impossible to give any excuse' is the doctor permitted to travel by carriage on the
sabbath in order to treat a Gentile.
In the whole discussion, the main issue is the excuses that should be made, not the actual
healing or the welfare of the patient. And throughout it is taken for granted that it is all right
to deceive Gentiles rather than treat them, so long as 'hostility' can be averted. (31)
Of course, in modern times most Jewish doctors are not religious and do not even know of
these rules. Moreover, it appears that even many who are religious prefer to their credit - to
abide by the Hippocratic oath rather than by the precepts of their fanatic rabbis. (32)
However, the rabbis' guidance cannot fail to have some influence on some doctors; and
there are certainly many who, while not actually following that guidance, choose not to
protest against it publicly.
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