The concept of Adalat in Yahudiat, Isaiat and Islam

 International Islamic University, Islamabad

 Islamic World View and Civilization II

                                   

Topic: The concept of Adalat in Yahudiat, Isaiat and Islam

                   

Submitted to

Sir Taj Afsar

Prepared by

H. Muhammad Hamid  

Sohail Ahmed                  

Ubaidullah                       

The concept of Adalat in Yahudiat, Isaiat and Islam

Islam:

Man is a social being by nature.  He cannot live always on his own, completely independent of others.  People are interdependent. Consequently, friction arises between them when their personal interests come into conflict with each other.

 There to be a way to prevent people from oppressing one another, to ensure that the weaker members of society receive justice, and to determine right from wrong when issues get complicated or uncertain.  This can only be realized through a judge that has the power to give legal verdicts in cases of dispute.

Concept of judicial in Islam

The existence of a judge is considered by Islamic law and the laws of all the other revealed religions to be both a religious obligation and a necessity of human life. 

 God says:

“We have sent Messengers with clear proofs, and sent down with them the Scripture and the Balance that mankind can establish justice…” (Quran 57:25)

Islam – the religion that God wants for mankind from the time that He sent Muhammad, may the mercy and blessings of God be upon him until the Day of Judgment – shows great concern for the judicial system and those appointed to carry out its responsibilities.  It is the religion that comes to free people from worshipping Creation and bring them to the worship of God.  It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.

God’s Messenger was the greatest of judges.  He used to act in the capacity of judge in the city of Medina, which was the first Islamic state.  He used to appoint people to be judges in other cities.  Among these were `Utâb b. Asyad who was sent to Mecca, Ali b. Abu Talib and Muadh b. Jabal, both of whom were sent to Yemen.

The formation of courts and a judicial procedure have existed since the birth of Islam an are entrenched in the main sources of Islamic Law i.e. the Qur’an, the Sunnah, Consensus of the Companion of the Prophet(S.A.W) (Ijma’) and Divine Analogy (Qiyas).

The formation of the Judicial body is established with the appointment of a Chief Judge who is responsible for the appointments and discipline of other judges. There are three types of judges in Islam.
They are:
1) The judge, Qadi Amm, who settles the disputes among the people in transaction and punishments.
2) The Mushtasib who judges upon violations of the community’s rights.

3) The judge of the Court for the Unjust Act (Mahkamat ul-Madhalim) who settles disputes between people (this includes non-Muslims since they are citizens) and the officials of the state. All the judges must be qualified with being Muslim, mature, free, sane, just and a legal jurist being aware of how to apply rules on the situation. Judges of the Court for the Unjust Acts must additionally be qualified with being male and a Mujtahid i.e. capable of making Ijtihad. Obviously, for many people including Muslims, this condition seems only to confirm that Islam is sexist. But this corrupted and false accusation has been addressed in the leaflet, ‘The Social System’

THE PUNISHMENT SYSTEM (Nidaam’al ukubaat)                                     

The following are principles of the Punishment System:
1) Muslim is accountable for every action that he/she has performed and for every crime there exists a punishment that is enforced by the State. Such a principle is important because it not merely protects the society, but taking the punishment for such crimes through a court of Shari’ah removes its punishment in the Afterlife. It acts as Kaffarah and is the means to repent and seek forgiveness. Muslims need to remember that Allah (swt) knows and will account all your actions. Therefore, it is better to get the punishment in this life and sincerely repent than to face the punishment in the Afterlife. This is because the punishment in the Afterlife is so much more severe i.e. Hellfire.

Many of the Muslims during the time of Mohammed (S.A.W) confessed to their crimes that are severely punishable because they didn’t want to have it count against them on the Day of Judgement. It is narrated by Abu Daud when referring to a man who confessed to an illegal sexual act, and was ordered to be stoned to death, Mohammed (S.A.W) said: “He is more agreeable than the fragrance of musk in the eyes of Allah.”

In another hadith, also narrated in Abu Daud: “A women of Ghamid came to the prophet (S.A.W) and said: ‘I have committed a punishable sexual act.’ He (S.A.W) replied, ‘Go back’ she then returned, and on the next day came to Him (S.A.W) again and said, ‘Perhaps you want to send me back as you did to Ma’iz bin Malik. I swear by Allah (swt) I am pregnant.’ He (S.A.W) said to her ‘Go back until you give birth to the child.’ She left. When she gave birth to the child she brought the child to Him (S.A.W), and said ‘Here he is! I have given birth to it.’ He (S.A.W) said ‘Go back and suckle him until you wean him.’ When she had weaned him, she brought the boy to Him (S.A.W) with something in his hand which he was eating. The boy was then given to a certain man of the Muslims and He (S.A.W) commanded regarding her. So a pit was dug for her, and He (S.A.W) gave orders about her and she was stoned to death. Khalid was one of those who were throwing stones at her. He threw a stone at her. When a drop of her blood fell on his cheek, he abused her. Muhammed (S.A.W) said to him, ‘Gently Khalid. By Him in whose hand my soul is she has repented to such an extent that if one who wrongfully takes an extra were to repent to a like extent, he would be forgiven.’
Then giving command regarding her, He (S.A.W) prayed over her and she was buried.’

2) The principle of the Punishment System is to; “prevent the punishment as much as possible,” since the severity of the punishments serve the primary role of a deterrent. Any shred of evidence that is doubtful or circumstantial will prevent any punishment. Indeed it is narrated in the Sirat (life) of Mohammed (S.A.W) how He (S.A.W) would exert himself to avert the punishment to be implemented upon them. It is narrated that Mohammed (S.A.W) said that: “to free someone criminal is better than to punish someone innocent.” A’isha (R.A) narrated: “Ward off punishments as much as you can. If you find any way out for a Muslim then set him free. If the Imam makes a mistake in granting forgiveness it is better for him than that he should commit a mistake in imposing punishment.”

Contrast this to the West. Their basic philosophy is to find any shred of evidence to punish someone or to convict someone and then search for any evidence to prove it. Look to the Birmingham Six, the Guilford Four, who were all proven to be innocent after years in prison. Now, the West have become so paranoid about the rise of Islam that even having a beard or wearing a jilbab and khimar is considered as evidence to prove that someone is a terrorist and needs to be imprisoned!

3) Islam came to secure and protect five issues and these apply also to the Al-Dhimma (non-Muslim citizens), for Mohammed (S.A.W) said, “Whoever harms a Dhimmi it is as if he harms me.” Also because
within the Islamic State, all citizens carry equal status and no one is allowed to discriminate against the other. The five issues are: a) Belief: The secular nature of the West has made Religion the continual
subject of attack. The Western media and its so called intellectuals have spent so much time attacking not only Islam but also dishonoring our past prophets such as Isa (as) i.e. Jesus. This is prohibited.

Conferencing the non-Muslims, the meaning of the Qur’anic verse: “there is no compulsion in religion” (TMQ 2:256), means that non-Muslims cannot be forced to become Muslim and their right to practice their religion is protected.

The Islamic Belief is the pillar of the Deen and like any precious jewel, it is protected. Therefore anyone who wants to leave Islam after accepting it and being advised is subject to the penalty of death as is anyone who slanders the Belief of Islam. It seems peculiar that the West find this intolerable, e.g. Salman Rushdie and more recently, Taslima Nasreen from Bangladesh, when they themselves use their belief i.e. freedom to kill and destroy people and nations for benefit in Iraq, Bosnia or Afghanistan.

b) Honor: In Islam women are an honor and must be protected from all harm, slander, and degrading actions. By contrast the West sees women as merely objects of desire and uses the woman’s body as an economic commodity to sell. Therefore, Islam protects the woman by punishing those who even backbite against her. Moreover, Islam protects the dignity of the woman by punishing those who are not properly covered in the public life (refer to the Social System leaflet) and those who commit offences such as adultery and fornication.

c) Mind: the use of alcoholic drinks and any other substances that befog the mind are forbidden in Islam. Contrast this to the people in the West who live on alcohol and are now trying to legitimize drugs. The social problems that have resulted from this are well known as the social and moral fabric of society is being destroyed.

d) Property: unlike the Western government and various banks and building societies that steal your money in a very civilized way e.g. mortgages and insurance, Islam protects the wealth of all its citizens by securing a harsh punishment i.e. cutting the hands of the thief. This punishment has been the subject of the greatest attack by the West as being barbaric and backward. But this attack is not only baseless but serves to expose the hatred and distortion of the West. In fact cutting the hands of the thief has several strict conditions, e.g. it requires two witnesses, property has to be taken from a secure place, if you steal because you are needy there is no punishment, if you steal less than certain amount (nisab) there is no cutting. These and the other conditions reduce the likelihood of the punishment ever being carried out.

e) Life: Mohammed (S.A.W) said that: “the blood of a Muslim is worth more than the Ka’ba and all its surroundings.” Therefore the punishment for murder is death with the right of family of the deceased to forgive and receive blood money.

These securities that Islam protects are the very things which any human being wants to secure. Look at any person, he/she wants security for the life, for the money, the honor etc… and there is not one society in the world that offers this. Indeed, in the West these securities are often exploited and abused. It’s impossible to get any peace of mind with a mortgage and/or loan looming over your head, with crime so high particularly rape and theft and a system that offers no comprehensive solution to these problems.

The punishment system is dived into four categories:
4-i) Hudood: this punishment is “the Right of Allah (swt) and no one can forgive.” It covers six areas:
a)Fornication (100 lashes), adultery (stoning to death) and he actions
of the people Lut (as) i.e. homosexuality.
b) (Al-Qazf) Slandering, dishonoring, spreading lies and rumors (80 lashes).
c) Stealing (cutting the hands).
d) Alcohol and that which befogs the mind (80 lashes).
e) (Al-Baggi), transgression between two groups of Muslims and by the people against the state e.g. the people of Al-Murtadeen at the time of Khaleef Abu Bakr (R.A) over the issue of the payment of Zakat. (Hiraba) Highway Robbery.
f) (Al-Murtad) the Muslim who changes his/her belief i.e. commits apostasy (death).

ii) Al-Jynayaat: “the right of the person and he/she can forgive.” This category covers mainly the issue of killing, whether unlawful or accidental and the right of the individual or family to forgive and demand blood money (diya). Example:
a) blood money from the one who kills with intention is the equivalent of 100 camels 40 of which have to be pregnant.
b) blood money from the one who kills but unintentionally i.e. manslaughter, is the equivalent of 100 camels.
The hadith narrated by Imam an-Nisai mentions that every part of the body has blood money, for example, the blood money for the eyes is equivalent of 50 camels.
iii) Al-Ta’azir: this considered “the right of the community.” It covers those issues which affect the society is everyday life like, shouting in the streets and throwing rubbish onto the street. The state adopts the punishment for the crime.
iv) Al-Mukhalafat: this is the “right of the state,” it covers the issues which the state enacts such as breaking the speed limit, parking in no parking areas etc… Again, the state will adopt the punishment for
the crime.

CONCLUSION

In conclusion the very basis of the judicial and punishment system lies in the obligation (fard) to pronounce the judgment and to carry out the punishment. But without the Islamic State no individual is allowed to execute any of the punishments. All these obligations need to be applied and enacted, otherwise the Ummah will remain sinful even she (the Ummah) prayed, performed Hajj, gave Zakat etc… To remove the sin off their neck all the Muslims are obliged (fard) to work towards the establishment of the Islamic state according to the method of Mohammed (S.A.W), which will apply the Law of Allah (swt) not only liberate the Muslims but also the humanity out of the Oppression (i.e. Capitalism/Democracy) through intellectual and political struggle wherever we are.

CHRISTIANS IN COURT

Law courts and legal arbitration were a part of the way of life among the Greeks of Corinth. The Roman government had set up a system of legal courts. The courts were held in the agora, the city marketplace. Today you can go to the ruins of Corinth and stand in that same marketplace. To one side was a large stone seat. It was known as the Bema Seat, the seat of judgment. It was from here that the local governor would preside over each case; rendering his judgment after all sides of the question had been heard.

The Jewish way of doing things was somewhat different. The Jews believed that, since they were the chosen people of God, they ought not to take their disputes into pagan courts. They thought that to do so would be to imply that God’s law was inferior to pagan law. Thus among the Jews it was considered to be a form of blasphemy to take another Jew to court.

Roman law recognized this attitude of the Jews and so the Jewish synagogues were empowered to try any case and to pass any sentence upon a Jew as long as it did not carry a penalty of death.

With the rise of the church at Corinth, it was not long before legal disputes arose between the new converts.

Perhaps Brother Marcus is in the market for a new camel. He goes down to Alexander’s Used Camel Dealership in downtown Corinth. He picks up a camel but does not purchase the warrantee. As soon as he gets the camel home, he notices that it is cross-eyed. Nobody wants a cross-eyed camel, so he immediately returns to the dealership and demands to speak to the manager. Lo and behold, the manager is none other than Deacon Alexander from church. Brother Marcus explains his predicament to Deacon Alexander who listens and then says, "I’m so sorry that this had to happen to you and I wish that you had taken our low-cost camel warranty, but there is nothing that I can do for you."

At this point, Brother Marcus decides that he has one of three options. First, he can beat Deacon Alexander with a big stick. This might be fun, but it is obviously not the spiritual thing to do. Besides that, Deacon Alexander might have an even bigger stick.

Secondly, he can take his case to the Jewish synagogue and have it tried there. However neither he nor Deacon Alexander are Jewish.

So the only alternative is for him to take Deacon Alexander to the civil court of the city. In this way, it will be a Gentile judge who is bringing judgment upon two Gentiles.

This situation was evidently becoming more commonplace in Corinth. The law courts were filling up with Christians who were filing suit against other Christians. Paul moves to direct his attention to this problem.

In chapters 5-6, Paul deals with three specific problems that were infecting the church:

5:1-13

6:1-11

6:12-20

Sexual Misconduct that called for church discipline

Legal Lawsuits that called for church oversight

Lustful temptations that called for a connective reminder

Unity broken by sin

Unity threatened by disagreements

Unity shared in Christ

It is interesting that this one is sandwiched between two issues that deal with sexuality among Christians. The real issue was one that goes back to the earlier chapters of the book. It was the issue of unity.

THE PROBLEM STATED

Does any one of you, when he has a case against his neighbor, dare to go to law before the unrighteous, and not before the saints? (1 Corinthians 6:1).

Paul has a very interesting way of dealing with this problem that was taking place in the Corinthians church. Instead of making accusations, he asks a series of questions. He will ask a total of nine questions in the first seven verses. The implication is that, as the Corinthian Christians read this passage and ask themselves these nine questions, they will be passing judgment upon themselves.

A Question about the Unrighteous: Does any one of... dare to go to law before the unrighteous? (6:1).

This reference to "the unrighteous" does not necessarily mean that the pagan rulers of Corinth were particularly bad people or that they did not have the means to judge the issues of their society. It does not mean that they were any worse than the Corinthians Christians. This could be pretty bad at times.

What it does mean is that the Christians are to be different. They have been credited with the righteousness of Christ. It might not show at the moment, but Christians are righteous.

Paul is not concerned that the Corinthian Christians might not receive a fair hearing before the civil courts. Fairness is not at issue here. What is at issue is that the Corinthian Christians have such a low view of their authority and the position of the saints.

A Question about the Saints: Does any one of you, when he has a case against his neighbor, dare to go to law before the unrighteous, and not before the saints? (6:1).

What is a saint? We have a false view if we think of a saint as some super stained glass spiritual mighty man. If you have come to Jesus Christ in faith, then you are a saint. You have been "saintified" -- set apart as a special person who is God’s personal possession.

This is a special position. Not everyone is called to be a saint. Only God’s people are thus called. If you have such an exalted position, then you are qualified to be a judge. There is coming a day when you shall be a judge.

REASONS FOR REMAINING OUT OF COURT

Or do you not know that the saints will judge the world? And if the world is judged by you, are you not competent to constitute the smallest law courts?

Do you not know that we shall judge angels? How much more, matters of this life?

If then you have law courts dealing with matters of this life, do you appoint them as judges who are of no account in the church?

I say this to your shame. Is it so, that there is not among you one wise man who will be able to decide between his brethren, 6 but brother goes to law with brother, and that before unbelievers?

Actually, then, it is already a defeat for you, that you have lawsuits with one another. Why not rather be wronged? Why not rather be defrauded? 8 On the contrary, you yourselves wrong and defraud, and that your brethren. (1 Corinthians 6:2-8).

Paul now goes on to explain why the Corinthian Christians were wrong in taking one another to court. The fact that Paul gives such an explanation tells me something about Christianity. It tells me that Christianity is not merely a list of arbitrary rules. There are REASONS for my faith and for my new lifestyle. When I come to church, I am not instructed to leave my brain outside in the parking lot ("Pick up your brain when you leave and don’t forget it, lest you lose your mind").

Christianity isn’t like that. It is a religion with reasons. Paul is going to give six reasons why we ought to settle disputes between Christians within the church.

Because Saints will Judge the World: Or do you not know that the saints will judge the world? And if the world is judged by you, are you not competent to constitute the smallest law courts? (6:2).

Jesus promised His disciples that one day they would sit in judgment over the nation of Israel.

And Jesus said to them, "Truly I say to you, that you who have followed Me, in the regeneration when the Son of Man will sit on His glorious throne, you also shall sit upon twelve thrones, judging the twelve tribes of Israel." (Matthew 19:28).

This promise of rulership is not limited to the twelve disciples. Jesus offers this same promise to all who obey Him.

"And he who overcomes, and he who keeps My deeds until the end, to him I will give authority over the nations; 27 and he shall rule them with a rod of iron, as the vessels of the potter are broken to pieces, as I also have received authority from My Father" (Revelation 2:26-27).

There is coming a day when the meek shall inherit the earth. Right now, the earth belongs to the strong. But it is going to change hands. God is going to take back this planet and He will give it to His people. His people will judge the world.

Here is the point. If you are going to be in a position to sit on the supreme court of the whole world, then you are certainly qualified to sit on a civil dispute between two Christians.

Because Saints will Judge Angels: Do you not know that we shall judge angels? How much more, matters of this life? (6:3).

It is one thing to say that you are going to judge the world. It is quite another thing to say that you are going to pass judgment on angels. Angels are most impressive beings. They hold a high position in God’s kingdom; but your position is even higher.

If you will be considered capable of judging angels, then you ought to consider one another as capable of judging between your present issues.

Because Saints have a Higher Position than Unbelieving Judges: If then you have law courts dealing with matters of this life, do you appoint them as judges who are of no account in the church? (6:4).

Corinth was the seat of the local proconsul over all of Achaia, the country that we know today as Greece. His authority was second only to the Roman Emperor. Yet the proconsul and even the emperor of Rome held a lower position than the least believer at Corinth.

The justice who sits upon the Supreme Court is of no account in the church. He will not judge the world. He will not judge angels. He will not rule in the kingdom.

Because Saints have a Higher Wisdom than Unbelieving Judges: I say this to your shame. Is it so, that there is not among you one wise man who will be able to decide between his brethren (6:5).

Disputes between believers ought to be settled by believers because saints have a higher wisdom than unbelieving judges.

It this first three chapters of this epistle, Paul develops how the wisdom of God is greater than the wisdom of the world. The secular jurist has no basis for a correct judgment over believers because he cannot see the bigger picture. His judgment has only the temporal in view. He does not have a correct perception of the eternal picture. Therefore his judgment must be viewed as inferior.

Why didn’t the Corinthian believers go to other Christians to help them judge their disputes. I think that one reason might have been because each person within the church thought himself a capable judge, but considered that no one else was. Perhaps each member of the church thought that he or she was the only person qualified to judge.

It reminds me of a story I heard of a church that met one night to discuss some matters. During the meeting, a newcomer stood up and asked, "Does this church have any spiritual leaders?" There were several people within the church who had considered themselves to be spiritual leaders, but no one else did. They sat waiting for someone to stand up and to mention their name so that they could swell up with pride. Eventually one man did stand up. To their surprise, he reported, "Leaders? No, we don’t have any spiritual leaders."

Because Saints are Brothers: Brother goes to law with brother, and that before unbelievers (6:5).

Another reason that disputes between believers ought to be settled by believers is because believers are brothers.

When my family has a family argument, it stays in the family. My younger brother and I used to fight upon occasion. Those conflicts would sometimes get to the point where my parents would be called in as the arbitrator of a dispute. It would usually be over who got to play with a certain toy or who received the larger piece of cake.

Do you want to know something? My parents never took our problems before a judge or a lawyer or a court of law. Why not? Because this was a family matter. Whether big or small, family matters are generally settled within a family. When this stops happening, the breakup of the family is imminent.

If you are a Christian, then you are a part of a family. This is God’s family. One thing a family doesn’t do is to take its problems and disputes to outsiders.

Christians are not to be characterized by disputes. We are to be characterized by love.

This brings us to a question. What about those instances when going to court with a believer is absolutely unavoidable? What about when some sort of irreconcilable difference that takes place that legally demands that the secular courts be involved? In cases of child abuse or neglect or abandonment or in other such criminal cases, Christians may be forced to turn to secular courts.

Let me suggest that, if this takes place, the Christian is to enter into the court system with the attitude that his desire is to glorify God rather than to seek material advantage for himself.

Because even when you Win, you Lose: Actually, then, it is already a defeat for you, that you have lawsuits with one another (6:7).

A final reason that Christians are not to take one another to court is because even when you win a financial or legal victory, you ultimately lose. You may win the legal award. The judge may award you the victory. But the Judge of the universe has judged it as a loss.

Paul asks the rhetorical questions: Why not rather be wronged? Why not rather be defrauded? (6:7). It is better to suffer wrong and to be cheated than to stoop to taking another Christian to court.

You might be inclined to argue and to disagree with such a statement, "How can I possibly survive in the world today if I try to operate by those rules? I could end up losing everything that I have!" Yet this is exactly what Jesus demands of us. He set forth this standard in His Sermon on the Mount.

"But I say to you, do not resist him who is evil; but whoever slaps you on your right cheek, turn to him the other also. 40 And if anyone wants to sue you, and take your shirt, let him have your coat also." (Matthew 5:39-40).

The situation that Jesus describes is only slightly different than the one in Corinth. He pictures a believer who has been taken to court. He is being sued. Someone is attempting to take a portion of his material possessions from him. What is to be the Christian’s attitude in this case? The Christian is not to be concerned with protecting his material wealth.

I do not think that this means the Christian is to act foolishly with his money. But it does mean that the protection of his material and financial wealth is to take second place to his spiritual wealth.

The wisdom of the world say to protect yourself from any kind of physical or financial harm. The wisdom of God says to protect yourself from any kind of spiritual fall. A Christian’s primary concern should be that his attitude toward his circumstances is a mirror of the attitude of Jesus Christ.

In the case at Corinth, this meant that it was better to suffer wrong than to take another Christian to court in an effort to sue him.

Now let’s make this personal. Let’s bring it into the 21st century. Let’s apply it to your own situation. What is your first concern when you deal with other believers? Is it for their spiritual best? Or is it for the protection of your own material possessions? The Bible tells you to put your money where your mouth is. He tells you that, as goes your possessions, so will go your heart.

Do not lay up for yourselves treasures upon earth, where moth and rust destroy, and where thieves break in and steal. But lay up for yourselves treasures in heaven, where neither moth nor rust destroys, and where thieves do not break in or steal; for where your treasure is, there will your heart be also. (Matthew 6:19-21).

Concept of Court/Adalat in Judaism

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.

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. To cause indirectly the death of a Gentile is no sin at all.

   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: 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.

   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. 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.

   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.

   Letter from the soldier Moshe to Rabbi Sbipn '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?' 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, 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.

'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. 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 altogether, received extremely light sentences or won far-reaching remissions, reducing their punishment to next to nothing.

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. 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 expresses this in the maxim 'Gentiles are neither to be lifted [out of a well] nor hauled down [into it]'. Maimonides 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' - 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 passagehe 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. 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.

   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. 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  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. 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 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.

   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.

   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. 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'. 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, 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 response of Hatam Sofer 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.

   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. 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.

   All this is far from being a dead issue. The most up-to-date halakhic position on these matters is contained in a recent concise and authoritative book published in English under the title Jewish Medical Law. This book, which bears the imprint of the prestigious Israeli foundation Mossad Harav Kook, is based on the response of R. Eli'ezer Yehuda Waldenberg, Chief Justice of the Rabbinical District Court of Jerusalem. A few passages of this work deserve special mention.

   First, 'it is forbidden to desecrate the sabbath ... for a KaraiteThis is stated bluntly, absolutely and without any further qualification. Presumably the hostility of this small sect makes no difference, so they should be allowed to die rather than be treated on the sabbath.

   As for Gentiles: 'According to the ruling stated in the Talmud and Codes of Jewish Law, it is forbidden to desecrate the Sabbath - whether violating Biblical or rabbinic law - in order to save the life of a dangerously ill gentile patient. It is also forbidden to deliver the baby of a gentile women on the Sabbath.'

   But this is qualified by a dispensation: 'However, today it is permitted to desecrate the Sabbath on behalf of a Gentile by performing actions prohibited by rabbinic law, for by so doing one prevents ill feelings from arising between Jew and Gentile.'   This does not go very far, because medical treatment very often involves acts banned on the sabbath by the Torah itself, which are not covered by this dispensation. There are, we are told, 'some' halakhic authorities who extend the dispensation to such acts as well - but this is just another way of saying that most halakhic authorities, and the ones that really count, take the opposite view. However, all is not lost. Jewish Medical Law has a truly breathtaking solution to this difficulty.

   The solution hangs upon a nice point of talmudic law. A ban imposed by the Torah on performing a given act on the sabbath is presumed to apply only when the primary intention in performing it is the actual outcome of the act. (For example. grinding wheat is presumed to be banned by the Torah only if the purpose is actually to obtain flour.) On the other hand, if the performance of the same act is merely incidental to some other purpose (melakhah seh'eynah tzrikhah legufah) then the act changes its status - it is still forbidden, to be sure, but only by the sages rather than by the Torah itself. Therefore: In order to avoid any transgression of the law, there is a legally acceptable method of rendering treatment on behalf of a gentile patient even when dealing with violation of Biblical Law. It is suggested that at the time that the physician is providing the necessary care, his intentions should not primarily be to cure the patient, but to protect himself and the Jewish people from accusations of religious discrimination and severe retaliation that may endanger him in particular and the Jewish people in general. With this intention, any act on the physician's part becomes an act whose actual outcome is not its primary purpose' ... which is forbidden on Sabbath only by rabbinic law.   This hypocritical substitute for the Hippocratic oath is also proposed by a recent authoritative Hebrew book.

   Although the facts were mentioned at least twice in the Israeli press, the Israeli Medical Association has remained silent.

   Having treated in some detail the supremely important subject of the attitude of the Halakhah to a Gentile's very life, we shall deal much more briefly with other halakhic rules which discriminate against Gentiles. Since the number of such rules is very large, we shall mention only the more important ones.

Sexual Offenses

Sexual intercourse between a married Jewish woman and any man other than her husband is a capital offense for both parties, and one of the three most heinous sins. The status of Gentile women is very different. The Halakhah presumes all Gentiles to be utterly promiscuous and the verse 'whose flesh is as the flesh of asses, and whose issue [of semen] is like the issue of horses' is applied to them. Whether a Gentile woman is married or not makes no difference, since as far as Jews are concerned the very concept of matrimony does not apply to Gentiles ('There is no matrimony for a heathen'). Therefore, the concept of adultery also does not apply to intercourse between a Jewish man and a Gentile woman; rather, the Talmud equates such intercourse to the sin of bestiality. (For the same reason, Gentiles are generally presumed not to have certain paternity.)

   According to the Talmudic Encyclopedia: 'He who has carnal knowledge of the wife of a Gentile is not liable to the death penalty, for it is written: "thy fellow's wife" rather than the alien's wife; and even the precept that a man "shall cleave unto his wife" which is addressed to the Gentiles does not apply to a Jew, just there is no matrimony for a heathen; and although a married Gentile woman is forbidden to the Gentiles, in any case a Jew is exempted.'

   This does not imply that sexual intercourse between a Jewish man and a Gentile woman is permitted - quite the contrary. But the main punishment is inflicted on the Gentile woman; she must be executed, even if she was raped by the Jew: 'If a Jew has coitus with a Gentile woman, whether she be a child of three or an adult, whether married or unmarried, and even if he is a minor aged only nine years and one day - because he had willful coitus with her, she must be killed, as is the case with a beast, because through her a Jew got into trouble' The Jew, however, must be flogged, and if he is a Kohen (member of the priestly tribe) he must receive double the number of lashes, because he has committed a double offense: a Kohen must not have intercourse with a prostitute, and all Gentile women are presumed to be prostitutes.

Status

According to the halakhah, Jews must not (if they can help it) allow a Gentile to be appointed to any position of authority, however small, over Jews. (The two stock examples are commander over ten soldiers in the Jewish army' and 'superintendent of an irrigation ditch'.) Significantly, this particular rule applies also to converts to Judaism and to their descendants (through the female line) for ten generations or 'so long as the descent is known'.

   Gentiles are presumed to be congenital liars, and are disqualified from testifying in a rabbinical court. In this respect their position is, in theory, the same as that of Jewish women, slaves and minors; but in practice it is actually worse. A Jewish woman is nowadays admitted as a witness to certain matters of fact, when the rabbinical court 'believes' her; a Gentile - never.

   A problem therefore arises when a rabbinical court needs to establish a fact for which there are only Gentile witnesses. An important example of this is in cases concerning widows: by Jewish religious law, a woman can be declared a widow - and hence free to remarry - only if the death of her husband is proven with certainty by means of a witness who saw him die or identified his corpse. However, the rabbinical court will accept the hearsay evidence of a Jew who testifies to having heard the fact in question mentioned by a Gentile eyewitness, provided the court is satisfied that the latter was speaking casually ('goy mesiah left tummd) rather than in reply to a direct question; for a Gentile's direct answer to a Jew's direct question is presumed to be a lie. If necessary, a Jew (preferably a rabbi) will actually undertake to chat up the Gentile eyewitness and, without asking a direct question, extract from him a casual statement of the fact at issue.

Money and Property

(1) Gifts. The Talmud bluntly forbids giving a gift to a Gentile. However, classical rabbinical authorities bent this rule because it is customary among businessmen to give gifts to business contacts. It was therefore laid down that a Jew may give a gift to a Gentile acquaintance, since this is regarded not as a true gift but as a sort of investment, for which some return is expected. Gifts to 'unfamiliar Gentiles' remain forbidden. A broadly similar rule applies to almsgiving. Giving alms to a Jewish beggar is an important religious duty. Alms to Gentile beggars are merely permitted for the sake of peace. However there are numerous rabbinical warnings against allowing the Gentile poor to become 'accustomed' to receiving alms from Jews, so that it should be possible to withhold such alms without arousing undue hostility.

(2) Taking of interest. Anti-Gentile discrimination in this matter has become largely theoretical, in view of the dispensation (explained in Chapter 3) which in effect allows interest to be exacted even from a Jewish borrower. However, it is still the case that granting an interest-free loan to a Jew is recommended as an act of charity, but from a Gentile borrower it is mandatory to exact interest. In fact, many - though not all - rabbinical authorities, including Maimonides, consider it mandatory to exact as much usury as possible on a loan to a Gentile.

(3) Lost property. If a Jew finds property whose probable owner is Jewish, the finder is strictly enjoined to make a positive effort to return his find by advertising it publicly. In contrast, the Talmud and all the early rabbinical authorities not only allow a Jewish finder to appropriate an article lost by a Gentile, but actually forbid him or her to return it. In more recent times, when laws were passed in most countries making it mandatory to return lost articles, the rabbinical authorities instructed Jews to do what these laws say, as an act of civil obedience to the state - but not as a religious duty, that is without making a positive effort to discover the owner if it is not probable that he is Jewish.

(4) Deception in business. It is a grave sin to practice any kind of deception whatsoever against a Jew. Against a Gentile it is only forbidden to practice direct deception. Indirect deception is allowed, unless it is likely to cause hostility towards Jews or insult to the Jewish religion. The paradigmatic example is mistaken calculation of the price during purchase. If a Jew makes a mistake unfavorable to himself, it is one's religious duty to correct him. If a Gentile is spotted making such a mistake, one need not let him know about it, but say 'I rely on your calculation', so as to forestall his hostility in case he subsequently discovers his own mistake.

(5) Fraud. It is forbidden to defraud a Jew by selling or buying at an unreasonable price. However, 'Fraud does not apply to Gentiles, for it is written: "Do not defraud each man his brother"; but a Gentile who defrauds a Jew should be compelled to make good the fraud, but should not be punished more severely than a Jew [in a similar case].'

(6) Theft and robbery. Stealing (without violence) is absolutely forbidden - as the Shulhan 'Arukh so nicely puts it: 'even from a Gentile'. Robbery (with violence) is strictly forbidden if the victim is Jewish. However, robbery of a Gentile by a Jew is not forbidden outright but only under certain circumstances such as 'when the Gentiles are not under our rule', but is permitted 'when they are under our rule'. Rabbinical authorities differ among themselves as to the precise details of the circumstances under which a Jew may rob a Gentile, but the whole debate is concerned only with the relative power of Jews and Gentiles rather than with universal considerations of justice and humanity. This may explain why so very few rabbis have protested against the robbery of Palestinian property in Israel: it was backed by overwhelming Jewish power.

Gentiles in the Land of lsrael

In addition to the general anti-Gentile laws, the Halakhah has special laws against Gentiles who live in the Land of Israel (Eretz Yisra'el) or, in some cases, merely pass through it. These laws are designed to promote Jewish supremacy in that country.

   The exact geographical definition of the term 'Land of Israel' is much disputed in the Talmud and the talmudic literature, and the debate has continued in modern times between the various shades of zionist opinion. According to the maximalist view, the Land of Israel includes (in addition to Palestine itself) not only the whole of Sinai, Jordan, Syria and Lebanon, but also considerable parts of Turkey. The more prevalent 'minimalist' interpretation puts the northern border 'only' about half way through Syria and Lebanon, at the latitude of Homs. This view was supported by Ben Gurion. However, even those who thus exclude parts of Syria-Lebanon agree that certain special discriminatory laws (though less oppressive than in the Land of Israel proper) apply to the Gentiles of those parts, because that territory was included in David's kingdom. In all talmudic interpretations the Land of Israel includes Cyprus.

   I shall now list a few of the special laws concerning Gentiles in the Land of Israel. Their connection with actual zionist practice will be quite apparent.

   The Halakhah forbids Jews to sell immovable property - fields and houses - in the Land of Israel to Gentiles. In Syria, the sale of houses (but not of fields) is permitted.

   Leasing a house in the Land of Israel to a Gentile is permitted under two conditions. First, that the house shall not be used for habitation but for other purposes, such as storage. Second, that three or more adjoining houses shall not be so leased.

   These and several other rules are explained as follows: ... 'so that you shall not allow them to camp on the ground, for if they do not possess land, their sojourn there will be temporary.' Even temporary Gentile presence may only be tolerated 'when the Jews are in exile, or when the Gentiles are more powerful than the Jews,' but when the Jews are more powerful than the Gentiles we are forbidden to let an idolator among us; even a temporary resident or itinerant trader shall not be allowed to pass through our land unless he accepts the seven Noahide precepts, for it is written: 'they shall not dwell in thy land'that is, not even temporarily. If he accepts the seven Noahide precepts, he becomes a resident alien (ger toshav) but it is forbidden to grant the status of resident alien except at times when the Jubilee is held [that is, when the Temple stands and sacrifices are offered]. However, during times when Jubilees are not held it is forbidden to accept anyone who is not a full convert to Judaism (ger tzedeq).

   It is therefore clear that - exactly as the leaders and sympathizers of Gush Emunim say - the whole question to how the Palestinians ought to be treated is, according to the Halakhah, simply a question of Jewish power: if Jews have sufficient power, then it is their religious duty to expel the Palestinians.

   All these laws are often quoted by Israeli rabbis and their zealous followers. For example, the law forbidding the lease of three adjoining houses to Gentiles was solemnly quoted by a rabbinical conference held in 1979 to discuss the Camp David treaties. The conference also declared that according to the Halakhah even the 'autonomy' that Begin was ready to offer to the Palestinians is too liberal. Such pronouncements - which do in fact state correctly the position of the Halakhah - are rarely contested by the Zionist 'left'.

   In addition to laws such as those mentioned so far, which are directed at all Gentiles in the Land of Israel, an even greater evil influence arises from special laws against the ancient Canaanites and other nations who lived in Palestine before its conquest by Joshua, as well as against the Amalekites. All those nations must be utterly exterminated, and the Talmud and talmudic literature reiterate the genocidal biblical exhortations with even greater vehemence. Influential rabbis, who have a considerable following among Israeli army officers, identify the Palestinians (or even all Arabs) with those ancient nations, so that commands like 'thou shalt save alive nothing that breatheth' acquire a topical meaning. In fact, it is not uncommon for reserve soldiers called up to do a tour of duty in the Gaza Strip to be given an 'educational lecture' in which they are told that the Palestinians of Gaza are 'like the Amalekites'. Biblical verses exhorting to genocide of the Midianite were solemnly quoted by an important Israeli rabbi in justification of the Qibbiya massacre, and this pronouncement has gained wide circulation in the Israeli army. There are many similar examples of bloodthirsty rabbinical pronouncements against the Palestinians, based on these laws.

Abuse

Under this heading I would like to discuss examples of halakhic laws whose most important effect is not so much to prescribe specific anti-Gentile discrimination as to inculcate an attitude of scorn and hatred towards Gentiles. Accordingly. in this section I shall not confine myself to quoting from the most authoritative halakhic sources (as I have done so far) but include also less fundamental works, which are however widely used in religious instruction.

   Let us begin with the text of some common prayers. In one of the first sections of the daily morning payer, every devout Jew blesses God for not making him a Gentile. The concluding section of the daily prayer (which is also used in the most solemn part of the service on New Year's day and on Yom Kippur) opens with the statement: 'We must praise the Lord of all ... for not making us like the nations of [all] lands ... for they bow down to vanity and nothingness and pray to a god that does not help.' The last clause was censored out of the prayer books. but in eastern Europe it was supplied orally, and has now been restored into many Israeli-printed prayer books. In the most important section of the weekday prayer - the 'eighteen blessings' - there is a special curse, originally directed against Christians, Jewish converts to Christianity and other Jewish heretics: 'And may the apostates' have no hope, and all the Christians perish instantly'. This formula dates from the end of the 1st century, when Christianity was still a small persecuted sect. Some time before the 14th century it was softened into: 'And may the apostates have no hope. and all the heretics perish instantly', and after additional pressure into: 'And may the informers have no hope, and all the heretics perish instantly'. After the establishment of Israel. the process was reversed, and many newly printed prayer books reverted to the second formula, which was also prescribed by many teachers in religious Israeli schools. After 1967, several congregations close to Gush Emunim have restored the first version (so far only verbally, not in print) and now pray daily that the Christians may perish instantly'. This process of reversion happened in the period when the Catholic Church (under Pope John XXIII) removed from its Good Friday service a prayer which asked the Lord to have mercy on Jews, heretics etc. This prayer was thought by most Jewish leaders to be offensive and even antisemitic.

    Apart from the fixed daily prayers, a devout Jew must utter special short blessings on various occasions, both good and bad (for example, while putting on a new piece of clothing. eating a seasonal fruit for the first time that year, seeing powerful lightning, hearing bad news, etc.) Some of these occasional prayers serve to inculcate hatred and scorn for all Gentiles, We have mentioned in Chapter 2 the rule according to which a pious Jew must utter a curse when passing near a Gentile cemetery, whereas he must bless God when passing near a Jewish cemetery. A similar rule applies to the living; thus, when seeing a large Jewish population a devout Jew must praise God, while upon seeing a large Gentile population he must utter a curse. Nor are buildings exempt: the Talmud lays down that a Jew who passes near an inhabited non-Jewish dwelling must ask God to destroy it, whereas if the building is in ruins he must thank the Lord of Vengeance. (Naturally, the rules are reversed for Jewish houses.) This rule was easy to keep for Jewish peasants who lived in their own villages or for small urban communities living in all-Jewish townships or quarters. Under the conditions of classical Judaism, however, it became impracticable and was therefore confined to churches and places of worship of other religions (except Islam). In this connection, the rule was further embroidered by custom: it became customary to spit (usually three times) upon seeing a church or a crucifix, as an embellishment to the obligatory formula of regret. Sometimes insulting biblical verses were also added.

   There is also a series of rules forbidding any expression of praise for Gentiles or for their deeds, except where such praise implies an even greater praise of Jews and things Jewish. This rule is still observed by Orthodox Jews. For example. the writer Agnon, when interviewed on the Israeli radio upon his return from Stockholm, where he received the Nobel Prize for literature, praised the Swedish Academy, but hastened to add: 'I am not forgetting that it is forbidden to praise Gentiles, but here there is a special reason for my praise' - that is, that they awarded the prize to a Jew.

   Similarly, it is forbidden to join any manifestation of popular Gentile rejoicing, except where failing to join in might cause 'hostility' towards Jews, in which case a 'minimal' show of joy is allowed.

   In addition to the rules mentioned so far, there are many others whose effect is to inhibit human friendship between Jew and Gentile. I shall mention two examples: the rule on 'libation wine' and that on preparing food for a Gentile on Jewish holy days.

   A religious Jew must not drink any wine in whose preparation a Gentile had any part whatsoever. Wine in an open bottle, even if prepared wholly by Jews, becomes banned if a Gentile so much as touches the bottle or passes a hand over it. The reason given by the rabbis is that all Gentiles are not only idolators but must be presumed to be malicious to boot, so that they are likely to dedicate (by a whisper, gesture or thought) as 'libation' to their idol any wine which a Jew is about to drink. This law applies in full force to all Christians, and in a slightly attenuated form also to Muslims. (An open bottle of wine touched by a Christian must be poured away, but if touched by a Muslim it can be sold or given away, although it may not be drunk by a Jew.) The law applies equally to Gentile atheists (how can one be sure that they are not merely pretending to be atheists?) but not to Jewish atheists.

   The laws against doing work on the sabbath apply to a lesser extent on other holy days. In particular, on a holy day which does not happen to fall on a Saturday it is permitted to do any work required for preparing food to be eaten during the holy days or days. Legally, this is defined as preparing a 'soul's food' (okhel nefesh); but 'soul' is interpreted to mean 'Jew', and 'Gentiles and dogs' are explicitly excluded. There is, however, a dispensation in favor of powerful Gentiles, whose hostility can be dangerous: it is permitted to cook food on a holy day for a visitor belonging to this category, provided he is not actively encouraged to come and eat.

   An important effect of all these laws - quite apart from their application in practice - is in the attitude created by their constant study which, as part of the study of the Halakhah, is regarded by classical Judaism as a supreme religious duty. Thus an Orthodox Jew learns from his earliest youth, as part of his sacred studies, that Gentiles are compared to dogs, that it is a sin to praise them, and so on and so forth. As a matter of fact, in this respect textbooks for beginners have a worse effect than the Talmud and the great talmudic codes. One reason for this is that such elementary texts give more detailed explanations, phrased so as to influence young and uneducated minds. Out of a large number of such texts, I have chosen the one which is currently most popular in Israel and has been reprinted in many cheap editions, heavily subsidized by the Israeli government. It is The Book of Education, written by an anonymous rabbi in early 14th century Spain. It explains the 613 religious obligations (mitzvot) of Judaism in the order in which they are supposed to be found in the Pentateuch according to the talmudic interpretation (discussed in Chapter 3). It owes its lasting influence and popularity to the clear and easy Hebrew style in which it is written.

   A central didactic aim of this book is to emphasize the 'correct' meaning of the Bible with respect to such terms as 'fellow', 'friend' or 'man' (which we have referred to in Chapter 3). Thus §219, devoted to the religious obligation arising from the verse 'thou shalt love thy fellow as thyself', is entitled: 'A religious obligation to love Jews', and explains:

   To love every Jew strongly means that we should care for a Jew and his money just as one cares for oneself and one's own money, for it is written: 'thou shalt love thy fellow as thyself' and our sages of blessed memory said: 'what is hateful to you do not do to your friend' ... and many other religious obligations follow from this, because one who loves one's friend as oneself will not steal his money, or commit adultery with his wife, or defraud him of his money, or deceive him verbally, or steal his land, or harm him in any way. Also many other religious obligations depend on this, as is known to any reasonable man.

   In §322, dealing with the duty to keep a Gentile slave enslaved for ever (whereas a Jewish slave must be set free after seven years), the following explanation is given:

   And at the root of this religious obligation [is the fact that] the Jewish people are the best of the human species, created to know their Creator and worship Him, and worthy of having slaves to serve them. And if they will not have slaves of other peoples, they would have to enslave their brothers, who would thus be unable to serve the Lord, blessed be He. Therefore we are commanded to possess those for our service, after they are prepared for this and after idolatory is removed from their speech so that there should not be danger in our houses, and this is the intention of the verse 'but over your brethren the children of Israel, ye shall not rule one over another with rigor', so that you will not have to enslave your brothers, who are all ready to worship God.

   In §545, dealing with the religious obligation to exact interest on money lent to Gentiles, the law is stated as follows: 'That we are commanded to demand interest from Gentiles when we lend money to them, and we must not lend to them without interest,' The explanation is:

   And at the root of this religious obligation is that we should not do any act of mercy except to the people who know God and worship Him; and when we refrain from doing merciful deed to the rest of mankind and do so only to the former, we are being tested that the main part of love and mercy to them is because they follow the religion of God, blessed be He. Behold, with this intention our reward [from God] when we withhold mercy from the others is equal to that for doing [merciful deeds] to members of our own people.

   Similar distinctions are made in numerous other passages. In explaining the ban against delaying a worker's wage (§238) the author is careful to point out that the sin is less serious if the worker is Gentile. The prohibition against cursing (§239) is entitled 'Not to curse any Jew, whether man or woman. Similarly, the prohibitions against giving misleading advice, hating other people, shaming them or taking revenge on them (§§240, 245, 246, 247) apply only to fellow-Jews.

   The ban against following Gentile customs (§262) means that Jews must not only 'remove themselves' from Gentiles, but also 'speak ill of all their behavior, even of their dress'.

   It must be emphasized that the explanations quoted above do represent correctly the teaching of the Halakhah. The rabbis and, even worse, the apologetic 'scholars of Judaism' know this very well and for this reason they do not try to argue against such views inside the Jewish community; and of course they never mention them outside it. Instead, they vilify any Jew who raises these matters within earshot of Gentiles, and they issue deceitful denials in which the art of equivocation reaches its summit. For example, they state, using general terms, the importance which Judaism attaches to mercy; but what they forget to point out is that according to the Halakhah 'mercy' means mercy towards Jews.

   Anyone who lives in Israel knows how deep and widespread these attitudes of hatred and cruelty to towards all Gentiles are among the majority of Israeli Jews. Normally these attitudes are disguised from the outside world, but since the establishment of the State of Israel, the 1967 war and the rise of Begin, a significant minority of Jews, both in Israel and abroad, have gradually become more open about such matters. In recent years the inhuman precepts according to which servitude is the 'natural' lot of Gentiles have been publicly quoted in Israel, even on TV, by Jewish farmers exploiting Arab labor, particularly child labor. Gush Emunim leaders have quoted religious precepts which enjoin Jews to oppress Gentiles, as a justification of the attempted assassination of Palestinian mayors and as divine authority for their own plan to expel all the Arabs from Palestine.

   While many zionists reject these positions politically, their standard counter-arguments are based on considerations of expediency and Jewish self-interest, rather than on universally valid principles of humanism and ethics. For example, they argue that the exploitation and oppression of Palestinians by Israelis tends to corrupt Israeli society, or that the expulsion of the Palestinians is impracticable under present political conditions, or that Israeli acts of terror against the Palestinians tend to isolate Israel internationally. In principle, however, virtually all zionists - and in particular 'left' zionists - share the deep anti-Gentile attitudes which Orthodox Judaism keenly promotes.