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From: "Jewish History, Jewish Religion: The Weight of Three Thousand
Years",
by Professor Israel Shahak, London, 1994, by Pluto Press.
Extract from
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 18th 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 laws 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.
'Now go and smite Amalek, and utterly destroy all that they have,
and spare them not; but slay both man and woman, infant and suckling,
ox and sheep, camel and ass.'
(Samuel, 15:3)
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.
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 Shim'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 Amalekites, 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 Shim'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 Sanhedrin [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. Shim'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 [training] 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 all together, 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.[15]
The Talmud itself 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.
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