1.3. Defining Ger Toshav III

As expected, all later scholars⁴² decide the halakhah, practice, in accordance with the chachomim: a ger toshav is a non-Jew who has accepted, before three scholars, the observance of the seven Noahide laws. One scholar, however, Rashi, is inconsistent in his definition of a ger toshav. In a number of places⁴³ Rashi appears to define ger toshav using Rabbi Meir’s criteria.⁴⁴ Strangely, though, Rashi rules like the chachomim in Avodah Zarah 24b. What then does Rashi actually hold? Scholars have taken the position that Rashi must hold like the chachomim. After all, the idea that Rashi would deviate from the basic tenets  of Talmudic interpretation is unthinkable. The difficulty lies in explaining the occasions in which Rashi appears to follow Rabbi Meir.

Many great scholars have tried to unravel this problem, yet no single approach has succeeded.⁴⁵ The most famous explanation of Rashi is that of the Beer Sheva.⁴⁶ He explains that Avodah Zarah 64b (the aforementioned source of the three opinions as to the criteria for a ger toshav) is part of a larger Talmudic conversation about when Jews are obligated to support a non-Jew who lives among them within Israel.⁴⁷

According to the Beer Sheva, Rashi agrees with the chachomim only with regard to providing support to a ger toshav. However, the Beer Sheva explains that Rashi follows Rabbi Meir’s opinion for all other matters affecting the ger toshav.

The Beer Sheva’s explanation works well for many instances where Rashi appears to espouse Rabbi Meir. However, it is contradicted by Rashi’s comments to Arakhin 29a. There, Rashi seems to apply Rabbi Meir’s criteria even for the sake of defining a ger toshav for communal support.⁴⁸

Maimonides,⁴⁹ the Arbah Turim,⁵⁰ and the Shulchan Aruch⁵¹ all record the position of the chachomim as conclusive: to become a ger toshav a non-Jew must accept the seven Noahide laws upon himself before a beis din, a tribunal of three qualified scholars.

E) When Does the Ger Toshav Status Apply?

The Talmud⁵² notes a similarity of language between the verses describing an indentured servant and a Ger Toshav:

• Indentured Servant: Deuteronomy 15:16 – In the event that he says to you: “I will not leave you,” because he loves your household and because it is a benefit to him…⁵³
  

• Ger toshav: Deuteronomy 23:17 – He shall dwell with you in your midst, in whichever place he will choose from your cities because it is a benefit to him…
  

This similarity of language, called a gezeira shava⁵⁴ in the system of Talmudic interpretation, indicates that the two concepts share similarities. In this case, the law of the ger toshav is similar to the law of freeing an indentured servant: it only applies when the Jubilee cycle⁵⁵ is in full observance. Maimonides codifies this qualification as law⁵⁶ and it is accepted as such by all later authorities. Since full observance of the Jubilee year ceased around 600 BCE,⁵⁷ no ger toshav have been accepted by Israel since that time. Of course, this means that acceptance of ger toshav is not possible in our times, as Maimonides writes:

Even if a non-Jew comes and accepts upon himself the entire Torah with the exception of but a minor detail, we still do not accept him [as a ger toshav],⁵⁸

and,

A ger toshav may only be accepted in a time when the Jubilee year is in full observance. When the Jubilee year is not in full observance, we can only accept full converts.⁵⁹

F) A 20th Century Problem: Non-Jewish Residence in Israel

What is meant by “we do not accept them?” This is an extremely important question, and one that has immediate relevance. As we saw above, idolaters are prohibited from residing in Israel. However, this prohibition only applies when the Jews have rulership over Israel and the non-Jews therein. It appears that this criterion is based on political sovereignty, and not on any redemptive qualifications such as the end of the exile or rebuilding of the temple. Given the establishment of the state of Israel, the prohibition of non-Jewish residency must again be in force.

However, we have no Jubilee observance and, therefore, cannot grant ger toshav status. If this is the case, then how can any non-Jews reside in Israel? Must not they be forcibly removed?

To answer this question, we must take a very close look at the identity of a ger toshav. Becoming a ger toshav has three broad effects on a non-Jew:⁶⁰

1)  He is granted permission to reside in Israel,

2)  He becomes entitled to support from the Jewish community, and

3)  He is treated differently from an idolater with regards to many laws.⁶¹

A basic reading of Maimonides’s statement of the laws pertaining to a ger toshav implies that acceptance of the seven Noahide laws before a beis din is needed to convey all three effects. However, according to Maimonides’s chief disputant, the Raavad,⁶² things are not  so simple:

This [the Maimonides’s] interpretation is closed and sealed, failing to explain what is meant by “we do not accept ger toshav unless the Jubilee year is observed, ” nor what is to be done with the mitzvos of a ger toshav… Rather, these are the mitzvos that are not in affect when the Jubilee is not observed (some of them create leniency for him [the non-Jew], and some create stringency): When the Jubilee is not observed, he [the non-Jew] may even reside within cities [in Israel]… this is the leniency. We have no obligation to support him – this is the stringency.

According to the Raavad, the inability of the courts to accept a ger toshav in our times is only for the purpose of obligating the Jewish community to sustain the ger toshav.⁶³ It appears that, even without acceptance of the Noahide laws before a beis din, a gentile may nevertheless live in Israel provided that he keeps the Noahide laws. This is also the understanding of Tosafos⁶⁴, the Rashba,65 and the Kesef Mishnah.⁶⁶ The Kesef Mishnah explains, however, that a careful reading of Maimonides reveals that Maimonides would even agree with the Raavad: that acceptance before a beis din is only needed for the sake of entitling the non-Jews to support. It is not needed to allow a non-Jew to live in Israel.⁶⁷

Therefore, when the authorities conclude that we do not accept ger toshav in our times, it means that a ger toshav cannot today bind the Jewish community to support and protect him in Israel.

Yet, if acceptance before a beis din is only needed to qualify one for communal support,  then why does a ger toshav receive the other two benefits – of residency and as a non- idolater?

The answer is that these two factors (which are actually one-in-the-same) are automatic consequences of the non-Jew’s rejection of idolatry. They are not a result of his acceptance of the Noahide laws before a beis din. Recall that the purpose of prohibiting non-Jewish residency in Israel was:

They [idolaters] shall not dwell within your land lest they cause you to sin against Me and worship their gods.⁶⁸

If a non-idolatrous gentile wishes to live in Israel, there is no danger of him corrupting the faith of the Jewish populace. Therefore, the prohibition against his residency should not apply.

Put succinctly: every ger toshav may be a non-idolatrous resident, but every non-idolatrous resident is not necessarily a ger toshav.

The majority of authorities⁶⁹ who have tackled the question of non-Jewish residency in the modern state of Israel have relied upon this interpretation of ger toshav (that a non-Jew only need to not worship idols)⁷⁰ to permit the residency of non-Jews in Israel.⁷¹

We must keep in mind that the necessity for deciding, in practice, the exact definition of ger toshav has only become pertinent since the establishment of the state of Israel. Prior to this time, Torah scholars offered many possible understandings of the ger toshav (as we shall soon see).

___________________________________________________________________________________________________________

42 See notes below.

43 I.e. Avodah Zarah 64b, Sanhedrin 96b, Yevamos 48b.

44 It should be pointed out that Rabbeinu Gershom to Kerisus 9b appears to define a ger toshav similarly to Rashi and Rabbi Meir. Nevertheless, his opinion, like Rashi’s, is not accepted as halakhah.

45 See VeShav HaKohen 37. In a well-known responsum, the Veshav HaKohen cites these many attempts in an admirable effort to find consistency in Rashi. He is unable to do so, however, and concludes that Rashi requires further study.

46 Beer Sheva to Sanhedrin 96b. Beer Sheva is a commentary on the Talmud in the style of Tosafos. Authored by Rabbi Yissaschar Ber Eulenberg (1550-1623), chief justice of the rabbinic court of Gorizia, Italy.

47 Avodah Zarah 64b – 65a. Although this passage quotes Rabbi Meir’s opinion, the view of Rav Yehudah brought therein is nevertheless pertinent.

48 For other attempts at resolving Rashi’s understanding of the criteria for a ger toshav, see the responsa VeShav HaKohen 37 and Margolios HaYam ad. loc. See also Rabbi Yaakov Kaminetzky’s BeInyan Ger Toshav in Sefer haZikaron LeZekher Moreinu veRabbeinu ha-Gaon R. Rafael Borukh Sorotzkin, pp. 198-200. See also Rabbi Moshe Shternbuch in Edut, No. 6 (Adat II 5749), p. 30.

49  Hilkhos Melachim 8:10-11, Hilkhos Avodas Kokhavim 10:6,  Hilkhos Issurei Biah 14:8,  and Hilkhos Shabbos 20:14.

50 Yoreh Deah 124 – see Bais Yosef ad loc.

51 Yoreh Deah 124:2.

52 Arakhin 29a.

53 In the Jubilee year all indentures servants were freed. This verse speaks of a servant who rejects freedom, whishing instead to remain with his master. See note 55, below.

54 Gezeira shava, an “equivalent decree” is one of the methods of scriptural exegesis revealed along with the Torah at Sinai.

55 The Jubilee cycle is the 50 year agricultural and legal cycle observed during ancient times. It is no longer observed in our times (see note 53). In the 50th year, the Jubilee year, all indentured servants were freed. See Leviticus 25:39 – 40.

56 Hilkhos Issurei Biah 14:8.

57 See Maimonides, Hilkhos Shemitta 10:8. The Jubilee year is only observed when the tribes are dwelling in their territories. With the exile of Gad and half of Manasseh in about 600 BCE, observance of the cycle ceased.

58 Hilkhos Issurei Biah ibid.

59 Hilkhos Avodas Kochavim 10:6.

60 It may be argued that there are more effects than these three. Listing them all, however, is more an exercise in taxonomy than one relevant to this discussion. For the sake of brevity, I have chosen to represent the identity of the ger toshav using these three broad effects. The point is that the identity of a ger toshav includes many facets which are, to a degree, independent of each other.

61 As we shall see, it is possible that 3 and 1 are really one in the same.

62 Hilkhos Issurei Biah 14:8.

63 This is similar to the Beer Sheva’s attempt to explain Rashi’s inconsistencies in defining a ger toshav.

64 To Avoda Zarah 65a.

65 Responsa I:182.

66 Hilkhos Avodas Kochavim 10:6.

67 See Tzafnas Paneach to Hilkhos Issurei Biah 14; See also Rashba’s Toras HaBayis; Bais Yosef to YD 124.

68 Exodus 23:33. See Hilkhos Avodas Kochavim ibid.

69 Sheelas Shlomo II:433 who cites this as the opinion of Rav Tzvi Yehudah Kook as well; Mishpat Kohen 61; Mishnas  HaMedinah  p.  65;  Siach  Nachum  93.  This  opinion  is  relied  upon  by  most  authorities  who have weighed the issue. A number of other permissive factors have been offered as well. For example, Rav A. I. Kook in Iggros Ra’ayah 89 (as well as Mishpat Kohen 58) and Rav I. Herzog in Shut Heichal Yitzchak EH 1:12 (and in Techumim II, p. 172) cite the Meiri (to Bava Kama 113a and Yoma 84b) that the prohibition against non-Jewish residence does not apply to civilized people; indeed they have an automatic, collective status of ger toshav. This opinion is problematic for at least four reasons. First, is that the halakhah prohibiting non- Jewish residency is intended to protect the integrity of Jewish faith and practice (as per Exodus 23:33 – see Maimonides, Hilkhos Avodas Kokhavim 10:6). If so, then why should we be concerned as to whether or not the non-Jew is uncivilized? The second issue is that the Meiri’s views on the halakhic status of non-Jews are unique and controversial. They have very little precedent or acceptance in Torah literature. The third problem is with the general use of the Meiri as a halakhic source. Shortly after the completion of his commentary in the late 13th century, almost all of his manuscripts were lost.  They remained undiscovered  the 1920’s. Having been outside the stream of halakhic debate and development for so long, never having been seen by the Tur, Shulchan Aruch, Shakh, Taz, etc., the acceptability of his opinions as halakhically dispositive is difficult. Fourth, the Meiri’s position is in the severe minority and is contradicted by both earlier and later authorities. See HaPardes 26, pp. 7-13. Rabbi Menachem Kasher, HaTekufah HaGedolah ch. 13, proposes an alternative reason to permit non-Jewish settlement in Israel: that the prohibition of non-Jewish residency does not apply today because Jewish rulership of the land is not complete. According to R. Kasher,  it seems that non-Jewish residency is only a problem once the messianic redemption has occurred.  However, R. Kasher alone espouses this view and it is not quoted or entertained by later scholars.

70 Of course, this position requires an examination of the monotheistic statuses of both Christianity and Islam. Islam is relatively easy to deal with. However, defining Christianity’s monotheistic status is no easy task. It appears that the burden of this determination is what drove some of the minority of the halakhic opinions on non-Jewish residency to rely upon the Meiri. By doing so, one avoids the question of Christianity’s status altogether. For the purposes of residency, however, most of the authorities mentioned in note 69 find enough doubt as to the overall communal status of Christianity to allow Christians to reside as non-idolaters.

71 However, what about the restrictions that dictate where a ger toshav may reside? Since the residence of a non-Jew is dependent on his rejection of idolatry, then all of those restrictions should apply equally to contemporary non-idolatrous gentiles. The current circumstances of Israel, though, are not comparable to those of ancient times. For example, the holiness of the cities and of Jerusalem is not as it once was.  Therefore, non-Jewish residence in these places may be allowed. For further elaboration, see again the sources in note 69.