B'rit Milah

TRR 54-58

A HORROR OF CIRCUMCISION

QUESTION:

An aging adult Gentile is eager to be converted but has an unreasoning horror of circumcision and refuses to undergo the operation. May he be accepted as a proselyte? (Asked by a number of enquirers.)

ANSWER:

From the point of view of Reform Jewish practice, there is no question that this man may be accepted as a proselyte. The Central Conference has long ago decided that in training proselytes, we emphasize the educational and spiritual preparation and do not insist on the two rituals, circumcision and mikveh. But this rule of ours now meets with increasing difficulties. A convert of ours would have difficulty in Israel to be accepted as a Jew with full rights of immigration (the Law of Return). Moreover, in some cities the three religious groupings have agreed to conduct conversions according to the halakhah and, therefore, in such communities, this candidate cannot be accepted as a proselyte.

However, even from the Orthodox standpoint, there is a possibility that he might be accepted. If, for example, a psychiatrist proves that this man’s aversion to the operation is emotionally extreme and it may amount to an insane obsession, then the man may be considered a shotah (an unbalanced person) who is not obligated to fulfill the commandments. This principle is stated frequently in the law, as for example Maimonides (Yad Hil. Melakhim 10:2) who says of shotim, “They are not under the commandment” (ein bnei mitzvah).

But the question then is as follows: Is a man with one obsession (a monomaniac) to be deemed a shotah and therefore free of the commandments? This question brings us to a basic and new problem in the halakhah, namely, how will the historic halakhah come to terms with the new sciences of Psychiatry and Psychoanalysis? In the light of modern discoveries in the human psyche, can the halakhah expand and enrich the understanding of shotah?

The Talmud gives a sort of definition (or description) of the shotah. In Hagigah 3b, we read: Who is a shotah? (To which question Rashi says: Who is therefore free of the commandments?) He who goes out at night alone; who spends the night in the cemetery, and who tears his garments. On the next page there is added: Who is a shotah? He who destroys what is given him. Rashi is aware that these apparently trivial aberrations would seem hardly sufficient to free a man from all obligations to the commandments. Therefore, he expands the statements. For example, the man in question stays in the cemetery because he plans to communicate with evil spirits and demons, etc. In other words, these trivial-seeming statements mean much more than they seem to say. The same understanding of these descriptions of the shotah is held by Joseph Caro (Bet Yosef to Shulhan Arukh Even Ho-ezer 121 (under the paragraph beginning simanei). He says that these descriptions are meant to be merely dugmah, types or examples.

Therefore, in a modern psychiatric development of the halakhah, it would not be difficult to understand “that he who goes out alone” may well include a deeply introverted anti-social person. Or “he who destroys what is given him” may well refer to a madly destructive person. But these developments of the talmudic definitions remain in the future as the halakhah will take into consideration the discoveries of the new mental sciences. In these new halakhic studies which are now beginning, it is quite conceivable that the proselyte candidate in question may be considered a shotah and free from the commandments. But that is for the future, yet we may well hope that in these days of increasing tensions, the development of these studies will not wait “till Elijah will come and solve all difficulties.”

As for the non-Orthodox rabbis, they can in this specific case be content with R. Joshua’s opinion in (Yebamot 46a) that even if he was not circumcised, he is a fully pledged proselyte.

ADDENDUM

An analogous responsum to the theme discussed here is found in the responsa Aaron Kisselov (Tishberei Yam, 15) in Harbin, Manchuria. The question came to him from Rabbi Nathan Alefsky in Irkutsk, Siberia. A Gentile man desires to be converted to Judaism, but the doctors say that the circumcision would be a danger to his health. May he be converted without being circumcised? This, then, is not a question of psychological danger, but of physical danger.

The Rabbi in Irkutsk suggests that it might be permitted to convert him on the basis of the law in Shulhan Arukh Yoreh Deah 260, which states that a person who is mutilated and, therefore, cannot be circumcised, may nevertheless be converted by the bathing in the mikveh alone. However, ‘Rabbi Kisselov rejects this argument. He says that what is stated in the Shulhan Arukh is no true analogy in this case. A mutilated man lacking the organ, of course cannot be circumcised, but this would-be proselyte can be circumcised although the doctors say it would be dangerous to his health. Now, the law states that a priest who is not circumcised because of health danger involved in the circumcision must therefore be kept away from participating in the Temple service. This law is based upon Ezekiel 44:9, which states that a priest who is uncircumcised may not participate in the Temple ritual. The Tosfot (Zevahim 22a) explains how it could happen that a priest could not be circumcised. That would happen if, earlier, his brothers died because of circumcision. In that case, he need not be circumcised because of the danger to his health. Nevertheless, not being circumcised, he cannot fully participate as a functioning priest.

So even though it is a danger to the health of this would be proselyte to be circumcised, he cannot be considered a full convert as he is.

Then, Kisselov says that anyhow these converts nowadays are not sincerely devoted to Judaism but want to be converted because of marriage. And so such conversion not being sincere should be avoided anyhow. This last statement would indicate that it might be possible to argue that such a man to whom circumcision is dangerous might possibly be accepted without it, but that it is better to avoid such dubious conversions and decide in the negative.

TFN no.5755.12 165-168

CCAR RESPONSA

Delayed Berit Milah on Shabbat

5755.12

 

She’elah

The berit milah of a newborn baby was delayed past his eighth day. His parents now wish to schedule that ceremony on a Shabbat, since Shabbat is a day when family and friends can attend the simchah. According to tradition, a delayed berit milah may not take place on Shabbat. Is that the position of Reform Judaism as well? (Rabbi Eric Slaton, Lexington, KY)

 

Teshuvah

This question, as we understand it, concerns the nature and standing of both berit milah and Shabbat as they are observed or ought to be observed in our communities. Is the celebration of the mitzvah of circumcision, truly a powerful Jewish moment, so important and central that it should supersede the restrictions that customarily define Shabbat? Or does the reverence we accord Shabbat demand that other mitzvot, should they interfere with its observance, be set aside? Our answer will consist of two parts: first, a brief survey of the halakhah on the timing of the berit milah, and second, a look at the issue from the standpoint of our own Reform Jewish tradition.

Milah on Shabbat in Jewish Law. The Torah states twice that the ritual circumcision (berit milah) of a Jewish boy is performed at the age of eight days (Gen. 17:12 and Lev. 12:3). The latter verse reads: “And on the eighth day (uvayom hashemini) his foreskin shall be circumcised,” from which the rabbis deduce that the circumcision must take place on that very day, even if it happens to fall on Shabbat.1 The traditional expression is milah bizemanah dochah shabbat, “circumcision at its proper time supersedes the Shabbat”: that is, we do procedure even though it requires actions that otherwise violate the prohibitions against doing work (melakhah) on the Sabbath. It follows that a circumcision done prior to or later than a boy’s eighth day (milah shelo bezemanah) does not supersede the Shabbat and may not take place on that day.2

Of particular interest is the precise way in which circumcision at its proper time may take place on Shabbat. The Mishnah records a famous dispute over the issue.3 According to Rabbi Eliezer, since one is permitted to perform the circumcision itself, one may also perform a variety of other actions normally prohibited on Shabbat in order to prepare for

the milah. Thus, one may carry the izmil, the mohel‘s knife, through the public thoroughfare; one may even make a knife if none is available. Rabbi Akiva, however, forbids these actions according to his rule: any labor that could have been performed before Shabbat does not supersede the Shabbat, and any labor that could not have been performed earlier does supersede the Shabbat. Thus, it is forbidden to carry or prepare the knife on Shabbat, even though the circumcision cannot be performed without it, since the knife could have been brought the day before. The halakhah follows Rabbi Akiva’s more stringent position.4 And through that determination, the tradition teaches an important point: though the performance of a mitzvah may entitle us to take actions that normally violate the Shabbat, we are to keep those actions to a  minimum.5 Even if it is the day of a boy’s circumcision, it remains Shabbat for the entire community; Shabbat continues to make its legitimate demands upon the Jew, demands that cannot be ignored or forgotten.6

Reform Approaches. This Committee has consistently held to this position in questions which have come before us. Like Rabbi Akiva, we have held that Shabbat is a sacred span of time, an institution of Jewish life which makes its own legitimate demands upon us. The fact that Shabbat “conflicts” with another mitzvah or worthy cause does not mean that it is Shabbat which must give way. Indeed, the reverse is often the case. Put differently, Shabbat is more than merely a good day on which to schedule good deeds. It is Shabbat kodesh, a holy day; we do not violate or trespass upon it, even for the sake of mitzvot, unless those mitzvot must be performed on it.

In 1977, for example, the Committee was asked whether weddings might take place on Shabbat or festivals. Theoretically, there might be any number of practical reasons why a couple would wish to schedule their wedding on Shabbat, and one could even argue that, as a holy day, Shabbat is an especially meet time to hold the ceremony of marriage, which is in our tradition an act of consecration (kiddushin). Yet the Committee, concerned with “the sanctity of Shabbat as understood and encouraged by the Reform movement,” recommended that the traditional prohibition against weddings on that day be maintained. “We encourage our members to make Shabbat a `special’ day upon which we do not carry out duties and acts performed on other days. Countenancing marriages on Shabbat would detract from this objective and weaken our efforts.”7 In 1986 and again in 1993, the Committee declared that Reform synagogue groups ought not to participate in tzedakah projects, such as the building of houses for the poor, which take place on Shabbat. Although the importance of social action in Reform Jewish thought can hardly be overstated, the importance of Shabbat as a refuge from activity defined as work is also a sacred value to us. Since the tzedakah work is not an emergency and since it could be performed on another day, it ought to take place on a day other than Shabbat.8

Our attitude has been similar with respect to berit milah. We have ruled that circumcision ought to take place on the eighth day, even if another day might be more convenient to the family.9 And we have recommended that a berit milah not be scheduled at night, inasmuch as tradition calls for circumcision to be performed only in the daytime.10 In these cases, we have argued that berit milah is to be distinguished from “circumcision”. The latter is a mere surgical procedure; the former is a ritual act whose parameters are discerned in the rules set down in the Jewish tradition. It is precisely when we conduct it according to those rules that we transform the surgical procedure into a religious observance.

There are times, of course, when berit milah must occur on Shabbat. This, however, is not one of those times. We recognize that it would be more convenient for the family to schedule their son’s circumcision on Shabbat. But if convenience is the only justification for their request, it is, in our view, an insufficient reason to accede to it. If we are

serious, as we say we are, about keeping Shabbat and observing berit milah within our Reform communities, we have no choice but to respect and revere the lines which define them as religious acts.

Notes

  1. 1. Shabbat 132a. The word uvayom seems superfluous; the verse would bear the same sense had it read uvashemini. The Rabbis reason, therefore, that the word comes to teach another detail, i.e., “on that day, even Shabbat.”
  2. Yad, Hilkhot Milah 1:9; SA YD 266:2.
  3. M. Shabbat 19:1.
  4. See note 2.
  5. Similarly, when one needs to eat or drink on Yom Kippur, “we feed him little by little”, i.e., the minimal amount necessary to sustain him, so as to avoid a wholesale abandonment of the commandment to fast on that day; Hilkhot HaRosh, M. Yoma 8:13; SA OC 618:7-8.
  6. For the sake of thoroughness, it should be noted that even Rabbi Eliezer, who assumes a more lenient position in the mishnah, would answer our she’elah in the negative. The circumcision may not take place on Shabbat, since that is not the child’s eighth day.
  7. American Reform Responsa, # 136, pp. 412-415; see Gates of Shabbat, 58. The latter work, in particular, is evidence of our rabbinate’s commitment to the observance of Shabbat as a holy day within Reform communities.
  8. The responsa are, respectively, Contemporary American Reform Responsa, # 176, pp. 265-267, and our responsum 5753.22, in this volume, pp. 169-170 .
  9. ARR, # 55-56, pp. 143-146.
  10. See BT. Megillah 20a, BT. Yevamot 72b, Yad, Hilkhot Milah 1:8, SA OC 262:1; R. Walter Jacob, Questions and Reform Jewish Answers, # 99, pp. 159-161.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.4

CCAR RESPONSA

5768.4

Caesarian and Circumcision

She’elah

A member of our synagogue gave birth to a boy by Caesarian section (C-section) on Shabbat. The boy’s parents attempted to arrange a berit milah on the eighth day of the child’s life, also a Shabbat, but an Orthodox mohel told them C-section baby is not circumcised on a Shabbat or a festival. What is the basis in traditional Jewish law for this position? Should a Reform mohel observe the prohibition against performing the milah on the eighth day of the child’s life if that day coincides with Shabbat or a yom tov? (Rabbi Michael Dolgin, Toronto, ON)

Teshuvah.

This she’elah involves a technical point of Jewish ritual law. Yet like many such seemingly “minor” issues, it raises some interesting questions as to how we are to read and to make sense of our traditional sources when these are equivocal. And it raises similar questions concerning the way we interpret our own Reform Jewish sources when these, too, lead to differing conclusions.

1. The Traditional Prohibition. The Orthodox mohel is correct in his understanding of the halakhah, if by that term we mean “the law as stated in the major codes.”[1] While all agree that the infant boy is circumcised on the eighth day of his life, even if that day should occur on a Shabbat or a festival,[2] both Maimonides[3] and the Shulchan Arukh[4] rule that the child delivered through Caesarian section (yotzei dofen) is not to be circumcised on those days. Yet the matter is rather more complicated. The Talmudic source of this rule is B. Shabbat 135a-b, where Rav Assi draws a midrashic link between Leviticus 12:3 (the child is circumcised on the eighth day) and Leviticus 12:1, which speaks of tumat leidah, the ritual defilement that accompanies birth. From that link, he learns that the child is circumcised on the eighth day only when the mother contracts this defilement. Since the woman who delivers by means of C-section does not contract tumat leidah (M. Nidah 8:1), her baby is circumcised at birth.[5] The Talmud objects to Rav Assi’s conclusion by citing an Amoraic dispute in which both authorities are said to agree that the C-section baby is indeed circumcised on his eighth day but disagree as to whether that circumcision should take place on a Shabbat. The Talmud further cites a dispute among the earlier Tanaim as to whether, in fact, the issue of tumat leidah has anything to do with whether the child is to be circumcised on the eighth day.[6] The passage does not explicitly resolve these disagreements, and the post-Talmudic authorities are not surprisingly divided as to the proper decision. Some rule according to Rav Assi: the C-section baby is not to be circumcised on the eighth day, and his milah therefore does not override Shabbat.[7] Others say that the halakhah definitely does not follow Rav Assi, so that the milah for this baby must occur on the eighth day even should that fall on a Shabbat or a festival.[8] And others, including Maimonides and the Shulchan Arukh, unable to decide between the above alternatives, take what we would call the “cautious approach” and rule stringently on both matters:[9] the C-section baby should be circumcised on the eighth day (in case the law in fact requires this) but not on Shabbat or festivals (in case the law in fact forbids this).[10] This stance has become the predominant traditional practice and, in turn, explains what the Orthodox mohel told the parents to whom our sho’el refers.

We suggested above that the Talmudic source of this halakhah is equivocal. This is because it does not clearly indicate the correct rule and has led to conflicting legal interpretations over the centuries. The “cautious approach” of the major codifiers is therefore a reasonable one. When the arguments on both sides of a dispute are so closely balanced that it is impossible to decide with confidence between them, it makes sense to steer a middle course and to affirm the central concerns of both points of view. Halakhic authorities often resort to this device.[11] We, however, are not convinced that the cautious approach was necessary in this case, because it appears to us, as it appears to several rishonim,[12] that the dispute is not so equally balanced. A careful reading of the Talmudic passage indicates that a majority of the Sages named therein reject the connection that Rav Assi makes between tumat leidah and the date of circumcision. In our view, therefore, the better reading of that passage is that the halakhah definitely does not follow Rav Assi:[13] the C-section baby ought to be circumcised on the eighth day, even on Shabbat and festivals.

2. The Reform Halakhic Tradition. The situation in Reform practice is also equivocal, because the two Reform responsa that address this issue arrive at conflicting decisions. Rabbi Solomon B. Freehof rejects the traditional prohibition and rules that we circumcise the C-section baby on Shabbat or a festival.[14] Rabbi Walter Jacob, meanwhile, writes that “we must respectfully disagree” with Rabbi Freehof’s decision[15] and that we should postpone the milah of such a child to the next day.[16] Given that we must choose between these two positions, let us examine the arguments that each of them presents.

Rabbi Freehof criticizes the traditional prohibition on the grounds that the ruling “overextends the statement in the Mishnah (Shabbat 19:3) which speaks only of the androgynous and does not at all mention the Caesarian child.” This is true, but the Mishnah’s silence concerning the C-section baby does not mean that Jewish law ignores the subject. This particular rule, as we have seen, is based not on the Mishnah but on a series of Amoraic and Tanaitic statements brought forth in the Talmud (B. Shabbat 135a-b). All subsequent authorities base their rulings on this Talmudic source, and they do not cite the Mishnah’s silence as an argument either pro or con. As Rabbi Freehof does not discuss the Talmudic source, his responsum offers no substantive argument against the prohibition as registered by Maimonides and the Shulchan Arukh.

Rabbi Jacob upholds the prohibition because “there is neither a Reform ideological reason for a change nor any other reason.” He thereby invokes a general principle of Reform halakhic decision making (pesak): the “default” position of our responsa should be to affirm the traditional practice unless there is sufficient cause based in Reform doctrine that would lead us to depart from that standard. This principle is a powerful one. The affirmation of traditional practice, particularly because that standard helps to unite us with the rest of the Jewish community, has often informed our thinking.[17] Yet in this instance we can identify at least two good “Reform ideological reasons” that do argue for a departure from the traditional practice.

a. Talmudic halakhah treats the C-section baby as an exceptional case because, in the view of the Sages, such a child was “delivered” but not “born” in the usual sense of that term.[18] But this notion is foreign to our contemporary way of thinking. Caesarian section, once considered extremely dangerous and hence very rarely performed, has become much safer and more commonplace; in 2002, nearly 26% of all births in the United States were C-sections.[19] In the conceptual world in which we Reform Jews live and function it no longer makes sense to draw legal and ritual distinctions between babies delivered in the “natural” way and those brought forth from the womb via C-section. To put it another way, the means by which this child has entered the world is much less important to us than the fact that he has entered it.

b. To enforce the traditional prohibition may distract our people’s attention from the religious significance of the mitzvah of berit milah. That mitzvah is performed, in the absence of medical complications,[20] on the eighth day of a Jewish boy’s life, even if that day is a Shabbat or a festival. The timing is an essential element of the mitzvah; we have consistently held that circumcision must take place on the eighth day and be neither advanced nor postponed out of reasons of convenience.[21] To delay the milah from Shabbat until Sunday in this case, on grounds that will strike many as a technicality devoid of substance and relevance, may well persuade members of our community that it is permissible to postpone milah for other, unacceptable reasons (i.e., for the sake of convenience) that they will nonetheless take more seriously.

3. Conclusion. We hold that the Jewish child delivered by Caesarian section should be circumcised on his eighth day, even if the eighth day is a Shabbat or a festival. We do so because the traditional rule that prohibits such circumcisions is grounded upon a weak and contested reading of the halakhic sources; because the prohibition is no longer coherent with our understanding of childbirth; and because the maintenance of the prohibition conflicts with our insistence upon the eighth day as the proper time for the mitzvah of berit milah.

It is important to note, however, that all C-sections are not the same. Sometimes the procedure is performed, as it was always performed in the past, as an emergency measure, to deliver a child when a problem developed with a vaginal birth. Today, however, it is often the case that physicians will routinely schedule C-sections for women whom they know or fear will have difficulty giving birth vaginally. For purposes of berit milah, we consider an emergency C-section no different than a regular birth. A baby born as the result of an unscheduled C-section should be circumcised on the eighth day even if that day is Shabbat or a festival. However, a scheduled C-section is a different matter, since parents in that case have the option to choose a day that would avoid scheduling a berit milah on Shabbat or a festival. In those cases, the berit milah should be performed after Shabbat or the festival, in keeping with traditional practice.

NOTES

1. This note is not the place for an extended discussion of the nature of halakhah. It bears emphasis, however, that our entire Reform responsa enterprise is based upon the assertion that “the” halakhah is not to be identified with any particular, formal statement of it, whether that statement is a paragraph in the Shulchan Arukh or whether it reflects the consensus opinion among the contemporary Orthodox rabbinate. In fact, we would argue that the entirety of the Jewish legal tradition is based upon this assertion. Halakhah is the ongoing conversation and argument over the meaning of the texts of that tradition and their application to our lives. To identify any “code” or banc of poskim as the final arbiters of the law is to cut short this argument and to deny us the opportunity to read and to understand the sources as best we can, according to our own lights.

2. See Leviticus 12:3 (“On the eighth day the flesh of his foreskin shall be circumcised”) and B. Shabbat 132a (“‘On the eighth day’ – even if it is a Shabbat”). Yad, Milah 1:9; Shulchan Arukh Orach Chayim 331:1ff and Yoreh De`ah 266:2.

3. Yad, Milah 1:11.

4. Shulchan Arukh Orach Chayim 331:5 and Yoreh De`ah 266:10.

5. See Rashi ad loc., s.v. kol she’ein imo temei’ah leidah.

6. If the answer to this question is “no,” which is the view attributed to the anonymous (majority) position in the baraita (against that of R. Chama), then the C-section baby would obviously be circumcised as all other babies: on the eighth day, including Shabbat.

7. Among these: R. Yonah Gerondi, cited in Chidushei HaRashba, Shabbat 135b and in R. Nissim Gerondi’s commentary to Alfasi, Shabbat 135b; Chidushei HaRitva, Shabbat 135b.

8. See Nachmanides, Chidushei HaRamban, Shabbat 135b, who takes this position in theory (although retreats from it in practice). He is perhaps the anonymous authority to whom this position is attributed in R. Nissim, Rashba, and Ritva (see preceding note). See as well Sefer HaHashlamah (Provence, early 13th century), Shabbat 135b.

9. This is how R. Nissim (note 6, above) and R. Yosef Karo (Kesef Mishneh, Milah 1:3 and Beit Yosef, Orach Chayim 331 and Yoreh De`ah 266) account for Rambam’s ruling (see note 2, above) as well as the silence of R. Yitzchak Alfasi on this issue in his Halakhot to Shabbat 135. See also R. Asher b. Yechiel, Hilkhot HaRosh, Shabbat 19:6; R. Menchem HaMe’iri, Beit Habechirah, Shabbat 135b; and R. Zerachyah Halevi, Sefer Hama’or to Alfasi, Shabbat 135b.

10. Yad, Milah 1:7; Shulchan Arukh Yoreh De`ah 262:3.

11. Another example of this approach is the compromise over hatafat dam berit, the taking of a drop of blood from a proselyte who was circumcised prior to deciding upon conversion to Judaism. Some authorities say that this ritual is a requirement for conversion, while others say that there is no requirement that we take a drop of blood from a previously-circumcised proselyte. Therefore, we do take the drop of blood, “just in case” the halakhah requires this of a Jew by choice, but we do not recite a berakhah over this procedure, “just in case” it is not required (which would render the blessing a berakhah levatalah). See Shulchan Arukh Yoreh De`ah 268:1 and Siftei Kohen ad loc., n. 1.

12. Nachmanides, Rashba, and R. Nissim (notes 6 and 7, above), among others, make this point.

13. This reflects the general rule that “we incline after the majority” in deciding disputes among Talmudic authorities: M. Eduyot 1:5; B. Berakhot 9a and numerous other places (“yachid verabim halakhah kerabim”); B. Bava Metzi`a 59b (“acharei rabim lehatot” in a dispute over legal interpretation). We should not imagine that this “general” rule is an ireoclad one; “majority rule” does not always decide matters in the Talmud. However, the fact that Rav Assi’s is a minority opinion does serve to weaken its claim to being the “correct” interpretation of the halakhah.

14. Today’s Reform Responsa (TRR), no. 35, pp. 92-94.

15. This reminds us that Jewish law, as a general rule, does not recognize a doctrine of binding precedent (takdim mechayev, in the language of contemporary Israeli jurisprudence). The decisions of past authorities can and do serve as sources of guidance (takdim mancheh) for the present-day posek, and most halakhists show deference to such decisions, particularly if they represent a historical consensus in the scholarship. However, the individual judge is entitled to rule as she or he sees fit on the basis of his or her best interpretation of the sources. See (at length) Mark Washofsky, “Taking Precedent Seriously: On Halakhah as a Rhetorical Practice,” in Walter Jacob and Moshe Zemer, eds., Re-Examining Reform Halakhah (New York: Berghahn Books, 2002), 1-70.

16. Questions and Reform Jewish Answers (NARR), no. 95 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=95&year=narr).

17. For a description of how this principle works in the activity of the Responsa Committee, see the Preface by Rabbi W. Gunther Plaut to Teshuvot for the Nineties (TFN) (New York: CCAR, 1997), p. x: “Our procedure [in writing responsa] was marked by two considerations. First we asked: ‘How might Tradition answer this question?’ Then, after exploring this aspect, we asked: ‘Are there reasons why, as Reform Jews, we cannot agree? If so, can our disagreement be grounded in identifiable Reform policy?’ In this way we placed Reform responsa into the continuum of halakhic literature.” For an example of this principle at work, see our responsum “A Non-Traditional Sukkah,” TFN, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5755).

18. The sources say this explicitly; see M. Nidah 8:1. Indeed, the connection that Rav Assi draws between circumcision on the eighth day and tumat leidah is understandable only if we think that the C-section baby was not “born” in the first place. An example of how the halakhah registers this distinction is that the yotzei dofen, because he was not technically “born” to his father, is not regarded as the firstborn son (bekhor) for purposes of inheritance; see B. Bekhorot 47b on Deuteronomy 21:15 (veyaldu lo); Yad, Nachalot 2:11 and Shulchan Arukh Choshen Mishpat 277:7 (lefi shelo nolad). All of this reminds us, of course, of William Shakespeare, Macbeth, Act V, Scene VIII, lines 12-16.

19. The figure is provided by the US National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/002911.htm (Accessed May 30, 2008).

20. See Shulchan Arukh Yoreh De`ah 262:2 along with Siftei Kohen ad loc.

21. American Reform Responsa (ARR), nos. 55-56, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=55&year=arr and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=56&year=arr).

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 170

CCAR RESPONSA

New American Reform Responsa

107. A Berit Milah Plate

QUESTION: A family which has seen some berit milah plates in a museum would like to commission one for their grandson, soon to be born. Is there a specific design which tradition suggests? (Allen Levy, San Francisco CA)ANSWER: There is nothing in the traditional halakhic literature which deals with this subject. It is interested in the problems of the berit itself and the various individuals involved. As we turn to the literature on Jewish art objects, we will find a variety of silver plates designed for the berit (A. Kanof Jewish Ceremonial Art, Isaiah Shachar Jewish Tradition in Art, Beverly R. Cohen The Cofeld Judaic Museum, Cissy Grossman A Temple Treasury, etc). Some depicted the berit itself with a large group in attendance, while others dealt with the theme of Elijah and the Messianic Age. Some of the other plates appear to be more personal and referred to family events which were to be stressed for the next generation. Any of these themes or others which the family many suggest would be appropriate.June 1990

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 157

CCAR RESPONSA

New American Reform Responsa

97. A Minyan and Berit Milah

QUESTION: Is a minyan required for a berit? (Morris F. Rosenberg, El Paso TX)ANSWER: Reform practice follows the Orthodox tradition in regard to the minyan. It is preferable to have the berit in the presence of ten adults (of course, for us, men or women), but this has not been considered essential (Tur and Shulhan Arukh Yoreh Deah 265.1, see also Itur and Maharil). It is considered of primary importance to have the berit on the appropriate eighth day unless the illness of a child prevents that. This takes precedence over the ability to gather a minyan, and so even if the berit is held only in the presence of the mother and father without any of the other attendants, this is considered perfectly acceptable. Without doubt the custom of having a berit in the synagogue, and even setting aside a special chair for Elijah for this purpose is a way of assuring the attendants of a minyan at the service. So the berit is frequently held in conjunction with the shaharit or minhah service and all those in attendance formed a minyan for both the service and for the berit. For us in the United States it should usually be easy to get a minyan except in the more isolated small communities. If it is possible we should do so. If not, the berit should be conducted in as festive a manner as the circumstances permit.December 1990

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 49-51

CCAR RESPONSA

Contemporary American Reform Responsa

30. Role of a Godfather in the Circumcision

Ceremony

QUESTION: What is the role of the godfather in the

circumcision ceremony? Is it possible for a godfather to withdraw his consent for this act some

years later? (Rabbi J. Folkman, Columbus, OH) ANSWER: The primary role of

godfather is that of helping at the time of the circumcision. Among oriental Jews where a table

was not used for the circumcision, someone specially designated simply held the child upon his

knees. The Midrash (to Ps. 36.10) stated that each portion of the body was designated for

a mitzvah, and the knees were for holding a child during circumcision (Roqeah

108). This was the practice during the many centuries when the circumcision was held at home

and also subsequently when the ceremony was moved to the synagogue, which seems not to

have occurred before the ninth century in Persia, and probably reflected an imitation of the

Muslim custom to circumcise in the mosque. This custom was then followed by both rabbinic and

Karaite Jews (L. Löw, Die Lebensalter in der Jüdischen Literatur). From there

the custom was introduced to Europe and is mentioned in northern France in the eleventh

century and in Germany in the thirteenth. The Hebrew term used for godfather,

sandeq, is from the Greek and later Latin syndicus. (French,

comprère, German or Yiddish, gevatter, Spanish, padrino,

Hungarian, koma, Hebrew, baal berit). Various midrashim refer to the

sandeq, as did Or Zaruah Hil. Milah in the thirteenth century (for example,

Midrash to Gen. 18.1; Ps. 35.10; Neh. 9.8). The office was discussed by Isserles at length

in a note (Shulhan Arukh Orah Hayim 65.11). As the office is considered an

honor, the individual fulfilling it has to be of good character and pious. He, in turn, possesses

certain rights, as that of being called to the Torah on the day of the circumcision if it fell

on the day when the Torah is read (Maharil 84a). He, of course, sits in the special

chair provided in many synagogues if the circumcision is customarily held there. It

seems that the sandeq was also responsible for certain financial contributions to the

festivities of the circumcision. Usually the meal connected with it was prepared at his expense. In

order to prevent this from becoming an unusual burden, the Tosafists, Peretz De Corbeil and

Judah, the Pious, stated that an individual was only permitted to serve in this capacity once

(Maharil Hil. Milah). Ezekiel Landau (1713-1793) disagreed with this and stated that the

same individual could be asked a number of times. He also reported that in Poland in his time

the rabbi was often appointed as the permanent sandeq and participated in this fashion in

each berit (Nodah Biy’hudah, Vol. I #86). Moses Sofer rejected Landau’s

interpretation and cited astrological reasons for having a sandeq officiate only once in this

role (Hatam Sofer, Orah Hayim #158, 159.) Various opinions were cited by Elijah Gaon

(Beer Hagrah to Yoreh Deah 265). It is possible for women to participate in this

role, although Isserles suggested that this not be done (Shulhan Arukh Yoreh Deah

265.11). Women participated among German Jews, while other Jewish communities

discouraged it. Christians also have assisted in this fashion, as for example, in 1484 in

Castrogiovanni, Sicily (L. Zunz, Zur Geschichte und Literatur, p. 499). Several medieval

councils tried to prohibit such Christian participation (Council of Terracinana in 1330). Similar

prohibitive statements are found in Protestant ordinances. In modern times, the role of

sandeq and godfather has sometimes been separated, but there is no basis for this in the

earlier tradition. In all the traditional material there is no discussion whatsoever of any additional

responsibility on the part of the sandeq beyond the circumcision. In other words, his

privileges and his responsibilities end with the ceremony. Therefore, it would not be possible for

the individual to withdraw his participation at a later time.July 1978

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 149-151

CCAR RESPONSA

New American Reform Responsa

93. A Circumcision without Parental Consent

QUESTION: A baby boy born to Jewish parents required a one week hospitalization due to a serious illness. The parents indicated that they wished to have the child circumcised but did not want a berit. The grandmother inquired about a berit. The physician who is a trained mohel subsequently circumcised the child. As he performed the medical procedure on the eighth day, he decided to recite the blessing for a berit milah, reasoning that a berit is a mitzvah central to Judaism and that in this case the recital of the blessing was known only to the individual and to God. Was this an appropriate act? (Stanley Berkowitz, Los Angeles CA)ANSWER: As you have appropriately indicated in your letter the berit milah does not affect the Jewishness of this child who is the offspring of two Jewish parents and is Jewish by birth. The obligation of berit milah rests upon the father. It is the duty of the father, or in some instances of the mother, to circumcise the child or to delegate the responsibility to their agent (shaliah). Under some special circumstances a bet din may perform this task for the father. (For full references see W. Jacob (ed) American Reform Responsa #54). We might argue that the berit milah performed by the physician/mohel benefits the child and one may benefit a person even without his consent. That is true only when the individual or those responsible for that person would consent if the situation became known. That is not the case here. We might also follow another line of reasoning which would state that berit milah is a mitzvah which is incumbent upon every Jew and which if not accomplished by the father may be enforced by a bet din (Kid 29a; Shulhan Arukh Yoreh Deah 261.1) or by the entire Jewish community in the absence of a bet din (Arukh Hashulhan Yoreh Deah 261.2 and Shulhan Arukh 265.1 and commentaries). In other words, one could look upon this mohel as a delegate of the entire Jewish community upon whom the obligation of berit milah rests even without parental consent. This line of reasoning is the one used by the haredi group in Israel for all mitzvot. As they are obligatory upon all Jews they consider it their obligation to enforce the mitzvot with or without the consent of those for whom it is being done. We reject this line of reasoning and have always felt strongly that no form of religious coercion can be permitted. The Jews have fought many battles against religious coercion. In the Middle Ages and in modern times we have struggled against baptisms carried out without the consent of parents by well intentioned Christian maids. In our own century we have fought against Sunday legislation, obligatory prayer in the schools, mandatory attendance at baccalaureate service, etc., so we can certainly not condone religious coercion in this instance either. We would like to persuade the parents in this instance as well as many others to follow the mitzvot and encourage them to provide this minimal beginning of a religious life for their child. The mohel/physician may feel strongly that berit milah is an absolute obligation. Therefore he has good grounds for refusing to do this circumcision unless it is to be done as a berit milah and it may be wise for him to take this road so that his own integrity is not violated. Discussion with the family may change their attitude toward berit milah especially if they had only vague objections to the ritual. The ritual is fundamental to Jewish life and that should be explained fully. If they have strong objections we should honor them, although we believe the parents to be wrong. The physician should not have performed this berit milah.July 1988

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 169-170

CCAR RESPONSA

New American Reform Responsa

106. Elijah and the Berit

QUESTION: Some young parents would like to provide a chair for Elijah for the synagogue to be used at any berit held in the synagogue. Are there any specifications for such a chair? What is the connection between Elijah and the berit? (Norman Goldberg, New York NY)ANSWER: Elijah has been traditionally connected with the berit because of his concern with Israel forsaking its covenant with God (I Kings 19.10). This verse, when understood narrowly, could refer to the berit, so one of the early rabbinic books indicated that for this reason a chair of honor for Elijah has been provided at every berit milah (Pirkei Rabbi Eliezer 28). The connection may also reflect our Messianic hopes; there is the unspoken wish that the child about to enter into the covenant will live to see the Messianic Age and help to bring it about. In the traditional ritual and our own, Elijah is mentioned on several occasions. These passages seek a hopeful Messianic future. The few chairs for Elijah which I have seen in museums or synagogues are nice pieces of furniture without any specific design. The oldest surviving chair is from the eighteenth century. If this young couple wishes to design a chair which may symbolize the Messianic future then any theme of peace and prosperity mentioned by the prophets, or some aspect of the life of Elijah himself, would be appropriate in the decoration. There is nothing in the traditional literature nor in the examples from the past which may guide us.December 1989

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 216-237

CCAR RESPONSA

American Reform Responsa

68. CIRCUMCISION FOR ADULT PROSELYTES

(Vol. III, 1893, pp. 69ff) Mr. President and Gentlemen of the Central Conference: Your Committee, appointed in last year’s conference, to whom were referred the papers on the subject of circumcision of adult proselytes (Milat Gerim), beg leave to present the following report to the consideration of your honorable body. The papers before us in vour Yearbook of 1891-92 are as follows 1. A paper by Dr. Aaron Hahn of Cleveland (Yearbook, pp. 56-69) 2. A paper by Dr. Isaac Schwab of St. Joseph (ibid., pp. 69-84). 3. Responses to Dr. Henry Berkowitz of Kansas City (one to the Rev. Mr. Bien of Vicksburg) on the same subject by the Rev. Dr. Felsenthal of Chicago; Prof. Mielziner of Cincinnati; Sonnenschein, then of St. Louis; Gottheil of New York; Moses of Louisville; Schreiber, then of Little Rock; Landsberg of Rochester; Hecht of Milwaukee; besides a number of reprints from different denominational journals, which were not referred to your committee.(Vol. III, 1893, pp. 73-95) A careful perusal of all these papers resulted in the undoubted information that all but two of the authorities mentioned are in favor of discontinuing the practice (“Shev ve-al ta-aseh”) of circumcision of adult proselytes, while several are in favor of retaining the practice of the ritual bath (Tevila). Dr. Schreiber, in his epistle to Dr. Berkowitz, adds to the former a respectable number of European authorities, and the reprints from denominational journals swell the number of the former considerably. The two authorities opposed to the discontinuance of the rites are Professor Dr. Mielziner, from the Rabbinical standpoint, and the Rev. Dr. Schwab, also from the Biblical standpoint. The latter, however, admits (Yearbook, p. 83): “If any changes in the mode of admitting them [proselytes] have to be made, it must, we propose, be done on the independent account that modern American Reform Judaism [is] desirous of it…But it must not be attempted under cover of a relative authority from the so-called rabbinical age.” The difference of opinion in regard to the ritual bath (Tevila) and the strong negative feeling in regard to circumcision (Milat Gerim), necessitated your committee to reinvestigate the entire subject with the following results.The Union of Israel The foundation of Judaism is the Pentateuch. This is historical Judaism. Its provisions and teachings may be differently expounded, reduced to practice, and applied to meet emergencies, according to different places, ages, and circumstances (honest, free thought is a privilege of man older than all literary works) without disturbing the unity of Judaism. The various phases of Judaism in the prophetic time and in the time of the Hebrews’ Second Commonwealth, Tannaim, Amoraim, Savoraim, and Geonim, in Palestine, Persia and Alexandria; in the philosophic, rationalistic, rabbinistic, and Kabbalistic times of all succeeding ages–all are no more than the garments of the same body, more or less justifiable in their respective times and places, or perhaps every one legitimate at its time as far as it was based upon the Pentateuch provisions and teachings. It follows, therefore, that American Judaism, being one of these historical phases, is no less in union with Israel and in unity with Judaism than any of its other phases ever was, as long as it is based upon the Pentateuchal provisions and teachings. This is to say that American Judaism remains in unity with Judaism in general, as long as it adheres to the provisions and teachings of the Pentateuch, even according to our own construction. The Pentateuch Permits the Reception of Proselytes The first preliminary question, then, must be whether the Pentateuch ordains or even permits the reception of proselytes from the midst of the non-Israelites. We know that the Torah permits to receive proselytes from among the Gentiles. 1. In Deuteronomy 23:4, it is ordained: “An Ammonite or Moabite shall not enter into the congregation of the Lord; even to their tenth generation shall they not enter into the congregation of the Lord forever.” The Ammonites and Moabites–the descendants of Lot and his daughters, according to Genesis l9–were two petty nations southeast of Palestine. Only these, and no other nationality, are “forever” debarred from entering the congregation of the Lord. This naturally involves the permission of the Torah to receive proselytes from the midst of other nationalities. The Rabbinical expounders understand this prohibition to refer only to the males of Ammon and Moab and not to the females, on account of the fact given in the Book of Ruth that the royal family of David descended from a Moabite woman; and they interpret the prohibition of intermarriage to mean only that the Ammonite and Moabite shall not be permitted to marry a daughter of Israel (see Rashi, Ramban, and Targum Yerushalmi in loc. cit.). The law, however, was understood in the Talmud (Berachot 28a, “Yehuda ger Amoni”) to the effect that no male proselytes from Ammon and Moab shall be received in Israel. Therefore, it proves that the Torah permits to receive proselytes from every nationality, race, and tribe (except those specified), and is neither racial nor tribal in its provisions. 2. Numbers 15:15: “The congregation [as a religious body] hath one [and the same] statute for you and the Ger that dwelleth permanently with you; it is an ordinance forever in your generations; as ye are, so shall be the Ger before the Lord.” The word Ger occurs fifty-odd times in the law of Moses, and always signifies the non-Israelite who associated himself permanently with the Israelites. The Law guarantees to him all rights and privileges of the native Israelite (haezrach). He is included in the general law of humanity, “Love thy neighbor as thyself” (Leviticus 19:19), as is specifically stated in verses 33 and 34: “And if a Ger sojourneth with thee in your land, ye shall not vex him. The Ger that dwelleth with you shall be with you as one born among you, and thou shalt love him as thyself,” etc. This is repeated emphatically in Deuteronomy 10:19, preceded by the statement that God loves the Ger, it is enjoined, “And ye shall love the Ger.” Although this covers the whole ground of man’s natural rights, claims, and privileges, yet the law specifies in numerous instances what should be done for the Ger, or also what he should do to exercise these rights and privileges. Thus, in all ordinances concerning alms to the poor, benefaction and assistance to the needy, recognition and protection by the administrators of the law, taking part in the ritual sacrifices of thanksgiving, rejoicing or atonement, and all services of the priesthood to the people–the Ger is mentioned specifically to have equal rights and claims with the native Israelite. This entire negation of all racial, tribal, or other limitations of human rights is extended to–or rather outdone–in the case of the fugitive slave: “Thou shalt not deliver unto his master the servant that is escaped from his master unto thee. He shall dwell with thee, even among you, in that place which he shall choose in one of thy gates, where it liketh him best; thou shalt not oppress him” (Deut. 23:16-17). To the best of our knowledge, there never existed, and there does not now exist, any code of laws in any other country with such provisions to protect, naturalize, and assimilate the alien, the foreigner, the stranger, or the Ger with the dominant nation, which so carefully enjoins respect for the dicta of humanity and justice. It seems, therefore, that the Torah invites non-Israelites to come and associate themselves with Israel. It holds out inducements to the alien, not of the seed of Abraham, which at that time no other people offered to one not of their kin, and even now the most enlightened nations offer with considerable limitations. There can be no doubt that the Pentateuch permits the reception of proselytes from all races and classes of men. That the prophets after Moses cherished this idea and predicted its universal success and realization, is evident from passages of the prophetic and psalmic scriptures. We only need to read, in order to be convinced thereof, Isaiah 2:1-4; 56:6-7; Micah 4:1-5; and Zachariah 14:9, 17:21. Still, with all that, there is no commandment in the Law and no suggestion in the Prophets to enjoin upon any man the duty to go forth and to make proselytes among the Gentiles. The fundamental literature of Judaism only permits and favors the reception of proselytes, but ordains nowhere that this should be done by any person.The Torah Prescribes No Initiatory Observance at All for the Proselyte The Pentateuch bestows particular care upon all particulars of man’s private and publiclife and his manifold relations to God and man, providing general and special laws, ordinances, and statutes for almost every doing of man. Furthermore, the same Torah legislates as carefully and humanely for the protection, benefit, and well-being of the foreigner, stranger, and alien of any kind, and evidently holds out most liberal inducements to the Ger to come and affiliate himself with the congregation of Israel, hence the coming in of such Gerim was certainly sanctioned and expected by the lawgivers. If we take all this into consideration, it must appear strange that the same Torah prescribes no initiatory observance for the incoming proselyte–no law, no ordinance, no provision whatever as to what the proselyte must do or what must be done with or for him to make of the pagan a member of the congregation of Israel. The argument e silentio, basing on the absolute silence of the Torah on this point, would induce the common-sense reasoner to the conclusion that the author of the Torah wanted no initiatory observances imposed on the Ger, and that the declaration of an honest man that he is a monotheist in good faith and in perfect harmony with Israel’s doctrine and canon should be all-sufficient. So, indeed, Yom Tov Lipmann Muehlhausen, in his Sefer Hanitsachon to Genesis 17:10 (Hackspan edition), expresses himself: “Ein emuna teluya bamila, ela balev,” “Faith in Judaism depends not on circumcision; it depends on the heart.” In the same sense, the great rabbi Elijah Mizrachi in his Sefer Mayim Amukim (Responsum no. 27) expresses himself thus in regard to the acceptance of a proselyte: “Umide-oraita sagi bekabalat Torah bifnei beit din bilvad,” “According to the Torah, the acceptance of the Torah before a college of three is all-sufficient.” Still clearer–and to the same effect–Rabbi Yehudah Aryeh de Modena, in his book Bechinat Hakabala, expressed his opinion like Elijah Mizrachi. But we do not propose to depend on any argument e silentio. We only wish to establish the fact the Torah prescribes no law, ordinance, statute, or any provision in any other form, for the modus of accepting a proselyte into the congregation of Israel, from which it follows that none of those rites is law of Moses (mideoraita), hence they could be only Rabbinical law (miderabanan). And on this point we have in our favor the whole Rabbinical literature, as we shall see instantly. We open the Rabbinical Code by Moses Maimonides and read in Hil. Melachim 10.7 “Hamila nitstava bah Avraham yezar-o bilvad, shene-emar, ‘Ata vezar-acha achareicha’…vehem hamechuyavin bamila.” (“Circumcision was commanded to Abraham and his seed only, as said (Genesis 17), ‘Thou and thy seed after thee’…. and they are obligated to circumcision”). This decision of Maimonides (see Kesef Mishneh) is based upon the Talmud, Sanhedrin 59, to which we will refer below. The same is the case with a former paragraph of Maimonides (ibid., 8.10): “Mosheh Rabbenu lo hinchil et haTorah vehamitzvot ela leYisra-el, shene-emar, ‘Morasha kehilat Ya-akov,’ ulechol harotseh lehitgayer mishe-ar ha-umot, shene-emar, ‘Kachem kager,’ aval mi shelo ratsa, ein kofin oto lekabel Torah umitzvot.” (“Moses bequeathed the Torah and the Commandments to Israel only, as said (Deut. 30:4), ‘an inheritance of the congregation of Jacob,’ and anyone of the Gentiles who of his free will wishes to embrace it, as said (Num. 15:15), ‘Like you is the Ger’; but none shall be coerced against his will to embrace the Torah and the Commandments.”) Herewith the principle in regard to the Abrahamitic rite is laid down once and for all: Circumcision is ordained in the Torah for the children of Abraham only. Every father in Israel (not the mother) has the duty to circumcise, or have circumcised, his son on the eighth day after his birth. If the father failed to perform this duty, the Rabbis add, it devolves on the uncircumcised son every day of his life to fulfill the commandment; if he also fails, the Beit Din may enforce it. Whoever is not of the seed of Abraham certainly is not charged with this duty. The Ger is one not of the seed of Abraham, one who attaches himself to the congregation of Israel as a monotheist, in perfect harmony with Israel’s doctrine and canon. Hence (mide-oraita) he is a Ger (see also Exodus 12:48), without submitting to the Abrahamitic rite, or even to Korban and Tevila. It is legitimate to infer from the various statements of the Torah concerning the equality of the Ger and the native Israelite that he–whenever he has become a Ger–is identified with the seed of Abraham. Therefore it is an established custom to call the Ger in all sacerdotal matters “Ben Avraham Avinu,” “Son of our Father Abraham.” This is stated expressly and explicitly by Moses Maimonides, in his epistle to the learned and very distinguished proselyte, Obadiah of Palestine, who had asked him whether he, the Ger, should say his prayers, “Eloheinu velohei avoteinu” (Igeret Teshuvot HaRambam, Prague, Gersoni edition, 1726, p. 58b). Maimonides responded that “all persons, to the very end of all generations, who profess monotheism as it is written in the Torah, are of the disciples of our Father Abraham, they and all their descendants…. This shows that Abraham, our Father, is the father of his faithful descendants that walk in his ways, and the father of his disciples and these are all the proselytes.” All this, however, does not say that the Ger should be circumcised. It merely says that he, after he has become a Ger, has also become an Abrahamite; consequently he has the same duty to have his sons circumcised as the Abrahamite must do: “Chayav adam lamol et beno.” Evidence from the Established Mosaic Commandments The same is evident also from all Rabbinical authorities specifying the six hundred thirteen (or eleven) commandments of the Mosaic law. None of them– neither the followers of Halachot Gedolot, such as Sefer Mitzvot Gadol and Sefer Mitzvot Katan, who count some Rabbinical laws among the six hundred thirteen; nor the followers of Moses Maimonides, such as Nahmanides (with some amendments, hasagot), Aaron Halevy in his Sefer Hachinuch, and down to Moses Galanti’s Eleh Hamitzvot (Amsterdam, 1713) and Israel Landau’s Chok LeYisra-el (Prague, 1798), who count among the six hundred and thirteen only those expressly stated in the Pentateuch, and call all laws contained in the Mishna and Talmud “Rabbinical,” as stated in Maimonides’ Sefer Hamitzvot (2nd kelal) and twice in his responses1–none of them count among the Mosaic commandments any of the initiatory observances for the proselyte as being ordained in the Torah. The former class of authors, indeed, include among the commandatory laws “Mitzvah al Beit Din lamol hagerim shenitgayeru,” to which is added in Sefer Charedim: “Not of the six hundred and thirteen” (p. 29b in the Venice, 1601, edition). In Hirsch Jost’s Kitsur S. Ch. it is added, “Be-Erets Yisra-el” (edition Fuerth, 1849, p. 42). This tells plainly enough that these initiatory observances are Rabbinical ordinances, and according to this it becomes the duty of the Beit Din “in Palestine” (and not outside thereof, having no jurisdiction) to have the Ger circumcised. But the Ger himself, even according to those rigid Rabbinists, has not the duty to be circumcised. All this, we feel convinced, proves beyond doubt that the Torah ordains no initiatory observances for the Ger, and so from this standpoint of canon law the course before us would be decided. But one of the papers before us (Dr. Schwab’s), discussing the matter in an extra-judicial method, is intended to controvert our argument, and must therefore be taken into consideration. Our position, opposite that of Dr. Schwab, is simply this: These initiatory observances for the Ger, in order to be obligatory, must be canon law, and this is with us statutory, i.e., the existence or non-existence of any particular statute must be proved by documentary evidence, and by no other logical or historical argument. Our canon law, according to all Rabbinical authorities, consists of the six hundred thirteen Mosaic commandments. All kinds of proofs attempting to show that such law or custom existed at some time and place amount to a mere probability (and not certainty) of the existence or non-existence of such a statute; hence, it is not canon law. Therefore, the authorities mentioned above accept neither Rabbinical enactment nor deduction or induction from the Torah as canon law. It is the method of Dr. Schwab’s argument in this connection which makes his conclusions illegitimate. We must analyze some of his positions to establish our own.Circumcision Dr. Isaac Schwab (Yearbook, 1891-92, pp. 69-70) states at the outset: “It cannot be questioned that since immemorial antiquity, the initiatory rite [of circumcision] was insisted on in Israel as an indispensable requisite for the complete admission to their community of Gentile aspirants…And it may be safely asserted, too, that from the early period of Jacob’s sons to the latter of Israel’s Second Commonwealth, no Israelitish authority has ever relaxed that stern demand. The insistence of the Abrahamitic rite for the formal entrance into the congregation of Israel– Kahal–was the rule laid down immovably and observed conscientiously throughout all ages by our ancestors of the East, who adhered faithfully to the belief and worship of God.” The position of our learned colleague is definite, clear, and apodictic. No commentary is necessary. However, he maintains in advance that he forms his conclusions “with the aid of historical data” (p. 69), and this is exactly the point which makes his position untenable. For if he did succeed in producing such data, demonstrating the assumption advanced–which he actually did not, as we shall instantly see–it could only prove that at a certain time, in a certain place, and under such and such circumstances, there was insistence upon submission to the Abrahamitic rite by the Gentile aspiring to enter the congregation of Israel. No amount of such data could establish the fact that the Torah, Moses, or the prophets (at any time or anywhere) ordained, commanded, enacted, or in any other manner imposed on Israel such and such initiatory observances for the Gentile convert. As long as this fact is not established, those observances cannot be accepted as Biblical ordinances, as commanded in the Law (mide-oraita); hence, they are not necessarily integral portions of Judaism. The question is not: What have certain persons at certain times done–they may have acted on their own responsibility and been guided by their own convictions or opinions–the question is: What are we as Israelites commanded to do? What is canon law and what is not so? Let us see how the Rabbis of the Talmud reason on this proposition. 1. In the Gemara and Kelalei Hagemara it is laid down as an established rule: “Divrei Torah vedivrei kabala la yalfinan,” i.e., “The words of the Law [in Pentateuch] must not be construed by the words of tradition.” The term “Kabala” in this connection includes all post-Mosaic scriptures, as well as all narrative portions in the Mosaic books. No law can be based on or derived from any narrative and dignified as a law of the Torah (mide-oraita), which specifically ordains, “Ye shall not add” (to the Mosaic laws). This rule is certainly a wise one. If it would be considered legitimate to derive from narratives (“historical data”) canon law, commandment, ordinance, or statute–these would become as boundless as all products of fantasy. One would derive from the story of Adam and Eve’s sin and punishment that every sinner must be expelled from house and home, even if it was a paradise. Another would deduce from the story of Noah and his son Ham’s misdeed that in similar cases not only the son but also the grandson must be punished and cursed. Again, another might derive quite a number of ugly laws and ordinances from the narratives in Numbers 31, Joshua 7, Judges 11 or 19, I Samuel 5 and 6, II Samuel 21, I Kings 2, and many more “historical data.” The fact is, no historical data can be turned into Mosaic law. But the question before us is whether the initiatory observances for the proselyte are or are not ordained in the Torah. 2. If Dr. Schwab holds (as one might understand by inference) that whatever follows with logical necessity from historical data or the words of prophets recorded in Holy Writ must have the same canonic force as the commandment of the Torah; if he holds that it is anyhow “Me-ein De-oraita,” i.e., similar to Mosaic law, concerning which it is maintained in the Talmud that “chavivin divrei soferim yoter midivrei Torah” (“The words of the scribes are more precious than the words of the Torah“)–then we can disabuse his mind by first class authority,2 especially by the rule laid down by Moses Maimonides. He advances in his Sefer Hamitzvot fourteen rules, by which to ascertain what is intended in the Pentateuch as canonical law. The second of these rules states literally not to count among the 613 Mosaic laws any derived from the Torah by means of the thirteen hermeneutic rules on which the Rabbinical law is based. He explains this rule at more length in an epistle addressed to Rabbi Pinchas ben Meshulam. He says there that no law or ordinance in Mishna, Baraita, or Talmud–not even the so-called “Halacha leMosheh miSinai–none at all not explicitly stated in the Pentateuch, can be called Din Torah, “canonical law.” These are all divrei soferim, “Rabbinical law,” unless (as is the case in three or four instances only) it is expressly stated in the Talmud that this law is canonical and not Rabbinical (see Igeret Teshuvot by Maimonides, Prague, 1726, Gersoni edition, p. 24b). It is evident, therefore, that the most convincing speculation on historical data or on an expressed law cannot produce for us a canonical law. Hence, the initiatory observances for the proselyte cannot possibly be canonical. But our learned essayist fails to produce historical data to support his position. He begins with pointing to Genesis 34, the story of Shechem and his people, who were massacred by Simeon and Levi after they had submitted to circumcision as the condition for entire parity. This piece of vile strategy–which Jacob upon his death-bed yet denounced (Genesis 49:5-7)–could hardly be accepted as a testimony for anything of a religious or moral character. If Simeon and Levi treacherously said so to the Shechemites, it does not prove that it was so. However, we need not argue from this standpoint to invalidate the demonstrative force of the historical data cited, including Exodus 4:24. In the Gemara and Kelalei Hagemara, the following established rule is laid down: “Ein mevi-in re-aya mimikra shenichtav kodem matan Torah,” “No proof [for a law] can be brought from Scripture written prior to the Sinaic revelation.”3 This story of Shechem is reported to have transpired prior to the Sinaic revelation. It is evident that if it had any demonstrative power (which, prima vista, it does not), it could not prove that we should abide by this rule as a part of the canonic law; or else we could prove from Abraham and Sarah that it is lawful to take in marriage one’s half-sister (Genesis 20:12), or from the case of Jacob that one may take in marriage two sisters simultaneously, or–as from the story of Yehuda and Tamar (Genesis 38)–many other things which the law of Moses prohibits. Dr. Schwab then states: “As far as we can judge from extant history, there never was before the apostle of the Gentiles, Paul, a Jewish authority that doubted the indispensable obligation of the initiatory rite upon any convert from paganism, who wished to become totally assimilated to the Israelites as to all communal and spiritual claims.” This e silentio argument might have some value if it did not stand opposite the stubborn fact that besides Exodus 12:48 and Joshua 5, down to Hyrcan (end of second century B.C.E.), not a word of law, history, or otherwise, exists in all Jewish literature regarding the initiatory rites of a pagan or any other man wishing to embrace Judaism. It is, therefore, just as proper and legitimate to conclude from their complete silence on this point, down to two centuries before the fall of Jerusalem, that no such or other initiatory rites were established or existed at all (we will attempt further on to prove that nothing was fixed in this matter even after the fall of Jerusalem). Anyhow, this argument e silentio is as forcible as Dr. Schwab’s. Paul’s work done among the Gentiles does not concern us here, especially not in regard to the Abrahamitic rite, as he, in the earlier days of his ministry, denounced the entire law and circumcision fiercely, and later on he praised both, and not only ordained the enforcement of the law in a case of adultery, but always argued from it, especially in the case of his son and his assistant’s wages. We only take exception to the conclusion that circumcision of proselytes must have been the common practice among Israelites, because the apostles insisted upon it and Paul opposed it. This rather appears to prove that there was nothing fixed or established in Paul’s time about the initiatory rites of proselytes, and the general difference of opinion in the matter existed also in the apostolic church. Paul was a stern Pharisee and remained steadfastly upon this platform, to which he added but one plank, viz., the Messiah has come, the Last Judgment is at hand, consequently, the laws and commandments are no longer obligatory–just as the Pharisees maintained to be the case le-atid lavo. The next passage to which Dr. Schwab and all others point is Exodus 12:48, where all of them suppose to find an express prohibition for the Ger to eat of the Paschal lamb until circumcised. In the papers before us different arguments, pro and con, are based on this Pentateuchal ordinance which–strange to say–according to Rabbinical interpretation, might be understood to the contrary, viz., that one is a Ger without being circumcised. We point to Mechilta to Exodus 12, Talmud Pesachim 28, Targumim Onkelos and Yerushalmi, and Rashi and Ramban in the same place. According to these expounders of the Law, “bal ben nechar” (in verse 43) signifies that no Hebrew renegade should be permitted to eat the Paschal lamb, and “vechol arel” (in verse 49) that no uncircumcised Hebrew should be permitted to eat of it. So the two mitzvot are invariably stated in “Taryag.” The exclusion in both cases refers to the sons of Abraham only, to those who are commanded in Genesis 17:9-14 to be circumcised. The Rabbis were evidently led to this interpretation of ben nechar and vechol arel by the fact that Milat Gerim is ordained nowhere in the Torah, and by the fact that in Deuteronomy 16:1-8, the whole ordinance of the Passover is repeated with several additions, without any reference to circumcision, so that the passage in Exodus may be understood to refer only to Pesach Mitsrayim. The passage in Exodus, referring literally to the original commandment in Genesis, tells us in verse 44 that this is not a racial or tribal commandment, for the slave bought for money, if circumcised (and thus belonging to the household of the Hebrew as a member thereof), may eat of the Paschal sacrifice. In verse 45 we are informed that the Toshav and the Sachir–the transient aliens (or, according to Ibn Ezra, also the transient Israelites), persons belonging to no Hebrew family (see 12:3)–shall not be permitted to eat of this sacrifice. Verse 47 expresses the commandment that all the congregation “shall make it,” viz., have the duty to make the Paschal sacrifice, while the Eved, Toshav, and Sachir are not commanded to do so. And now in verse 48 we come to the “Ger, who dwells with thee permanently.” He is no Eved, Toshav, or Sachir; he is evidently a real Ger, who has the duty to make the same sacrifice (compare “ya-asu” and “ve-asu”), but he is not circumcised; hence, a man is a Ger even if he is not circumcised. He is not forbidden to eat of this sacrifice as are Eved, Sachir, and Toshav. It is not said of him “Lo yochal bo,” “He should not eat of it.”4 As a Ger, he has the duty not only to make this Paschal sacrifice, but also to have his children, servants, etc., circumcised, as commanded in Genesis 17. If he wants to perform this Paschal duty like the native Israelite, he must do it in his family and household (Exodus 12:3-4). By being himself a Ger, he has not established a family and household in Israel as long as he has not performed his first paternal duty as an Israelite, viz., to circumcise his sons. Therefore, verse 48 says: “And if a Ger dwelleth with thee, and he wisheth to make the Passover [like other Israelites], let all his males be circumcised, and then let him come near to make it, and he will be like the native of the land, although the uncircumcised Israelite dare not eat of it (‘Vechol arla-ei devar Yisra-el,’ Targum Yerushalmi)”. Because that Israelite is commanded and the Ger is not commanded in the Torah to be circumcised, but, being a Ger, he is subject to the same Torah and enjoys the same rights and privileges as the native Israelite (verse 49). Anyhow, no unprejudiced reader of the Pentateuchal passage can get over the plain statement, that one is a genuine Ger before he is circumcised. Dr. Schwab furthermore argues (Yearbook, p. 71), “The statement repeated several times in the Mosaic code, that one law should govern the native and the stranger [Ger], can literally mean nothing else than that a foreigner, settled in a Jewish land, should be bound to live up in all respects to the same laws as the Israelites have to observe.” The two other points which Dr. Schwab makes on the same page have been controverted above. The repetition of the same provision with certain special laws, we think, rather proves on the hermeneutic rule of “shenei ketuvim haba-im be-echad” that this provision applies to these particular laws only, and could not be extended to any other law. If the Torah had intended to ordain that the Ger must observe all laws like the native Israelite, it would have ordained so once and for all, and repeated the same only where some new point in this connection was to be suggested. As the matter stands now, we can only apply it to the particular cases mentioned in the respective law or laws. Besides, it is evident from the Torah that the Ger was not expected to perform all ceremonial laws like the native Israelite. He was not forbidden to eat nevela (Deut. 14:21) or gid hanasheh (Gen. 32:33); therefore, it is stated especially in regard to eating blood, that the Ger, too, shall abstain from blood. If all dietary laws had been intended for the Ger, this particular provision concerning the eating of blood would be entirely superfluous. The Ger is exempted from dwelling in booths during the Feast of Tabernacles. The Torah ordains: “Kol ezrach beYisra-el yeshev basukkot” (Leviticus 23:43). This, however, might lead one to premise that the Ger is exempted also from rejoicing on the festivals; therefore, it is mentioned explicitly (Deut. 15) that this is not the case. It is evident from those very provisions that the Ger was expected to observe all the moral laws like the native Israelite, including all the laws concerning the altar and the sanctuary, Sabbath and Day of Atonement, and all the national holy days. In all other respects, the Torah only commands the Israelite what he should do for the Ger, what privileges are especially granted, and what protection the nation or congregation owes to him–all of which is plainly contained in the main law, “Ye shall love the Ger,” and “Thou shalt love him like thyself.” It is correct, therefore, what is stated in Mechilta and Sifrei: “Ba hakatuv vehishva et hager la-ezrach bechol hamitzvot shebaTorah,” “Scripture declares the equality of the Ger with the native Israelite in all commandments of the Torah.” We must only understand that the actual signification of “hishva” is lizchut and not lechova, viz., the Ger enjoys all rights, privileges, and promises of the Torah without being expected to submit to all ceremonial laws and ordinances as the native Israelite should.5 Aside from all this argument, and independent thereof, Dr. Schwab’s premises bear no relation to the case before us. He discusses the duties of the Ger after he has entered upon that state of obligation, i.e., after he is a Ger he must do so and so. Nobody doubts that with the new faith he embraces, he accepts also new duties. The question before us, however, is of an entirely different nature. We ask: What must a person do, or what must be done for him, to make him a Ger? Must he pass through certain observances or initiatory rites, and is circumcision one of them? It is only after this question is solved that the other comes up, i.e., What must the Ger do as a member of the congregation whose faith he embraced? The answer to our main question is that–according to the Torah, and also as the rabbis of the Talmud and the compilers of the 613 Pentateuchal commandments understand it–no initiatory rites at all are prescribed; hence the decision of Rabbi Elijah Mizrachi: “Umide-oraita sagi bekabalat Torah bifnei beit din, etc.” (“According to the Torah, the main declaration before a college of three to accept the Torah as the canon, suffices for the proselyte [to receive him into the congregation of Israel] also, without circumcision and without the ritual bath.” It must be admitted (leika man defalig) that the initiatory rites in question are not canon law, are ordained nowhere in Holy Writ, and are not mide-oraita. This, as far as the legality of setting aside these rites “Shev ve-al ta-aseh,” is herewith decided for this body, whose declared standpoint is the historical and not the one-sided Rabbinical legalism, especially in the case of “Shev ve-al ta-aseh,” where even the Rabbinical casuists admit that “Beyad beit din la-akor davar min haTorah be’Shev ve-al ta-aseh.”‘It Cannot Properly Be Called Rabbinical Law Still there are two–one by Professor Dr. Melziner, and the otherRabbi Dr. Schwab–from which it appears, although it is not stated expressly, that these initiatory rites are Rabbinical law (miderabanan). On the strength of this, the Amoraim adopted in the Talmud (Shabbat 137b) a passage from the Tosefta demanding of the Ger the blessing “Baruch ata, Adonai Eloheinu, melech ha-olam, asher kideshanu bemitzvotav vetsivanu al milat gerim.” They did so not because it was presumed that God commanded it, but on the basis of “La dela tasur.” The Amoraim did the same with other Rabbinic laws (Mitzvot Derabanan), such as likro Megila, likro et haHalel, lishmoa kol shofar, netilat lulav, kiddush hayom beyom tov sheni, lehadlik ner Chanuka–none of which is commanded in the Torah. This beracha was not accepted in the code before Isaac Alfasi (12th century), because it is evidently a fallacy, as God nowhere commanded the Ger to be circumcised, and those Amoraim would not permit the Israelite who performs the rite to say this beracha. He is only wanted to say “Asher Kideshanu bemitzvotav vetsivanu al hamila.” It is evident, therefore, that those Amoraim, like the Tosefta, held that Milat Gerim is a Rabbinical law just like Milat Avadim. The question concerning “La dela tasur” has not been referred to this committee, consequently we cannot discuss it. In this particular case, however, the Talmud Yerushalmi has already decided (Pe-a 2): “Ein lomedin lo min hahalachot velo mehagadot velo mehatosefta.” Therefore, these berachot, being taken from the Tosefta, are not Rabbinical law.What Is Rabbinical Law? What is Rabbinical law, according to Rabbinical jurisprudence? The usual reply to this query is that it is law not stated expressly in Holy Writ, but ordained in the so-called Oral Law, Torah Shebe-al Peh. Here the question arises: Where is the origin and authority of this law, or these laws? The answer is this: 1. In takanot and gezerot, i.e., ordinances (commendatory or prohibitory) ordained by any lawful Sanhedrin or any other authoritative body, or by any teacher high in authority, such as Ezra and his successors. In this latter case, it is most always added “uveit dino,” “and his court,” telling indirectly that no one person was vested with the authority to enact or ordain such law. The case before us is entirely excluded from this kind of Oral Law. For, in all collections before us–down to the works of Zachary Frankel, Jacob Bruell, Isaac Hirsch Weiss, and all the others who wrote on the subject–there is no record that at any time a takana or gezera was ordained concerning the initiatory rites of proselytes. 2. In “Halacha leMosheh miSinai”–i.e., a law or rule which is supposed to have been given orally to Moses from Sinai, or rather a custom, the origin of which is unknown and is not premised in the Torah. From Maimonides down to the author of Shenei Luchot Haberit, down to the Yalkut Shim-oni and to Dr. Herzfeld and to all authorities that have written on this point–there is no mention of such a Halacha concerning these initiatory rites. 3. In the Kabbala (“the tradition”). Here it is said in general and without any qualification: “Im kabala hi, nekabel.” 4. In laws based on the Torah by means of the hermeneutic rules (“Shelosh esreh midot”), thirteen of which were fixed by Rabbi Ishmael, to which was added Mi-ut Veribui. If there is anywhere in the Talmud such a kabbala or such a derasha as named in 3 and 4 above, it has not been pointed out in the papers before us, and we–with all our industrious research–found none referring to the origin of these initiatory rites. It is, therefore, no matter of surprise to us. (Supposed exceptions will be noticed below.) Rabbi Yehuda Hanasi in his entire Mishna laid down no rule, ordinance, or direction concerning the initiatory rites of the proselyte. This must be a matter of surprise to those who consider those rites Rabbinical law. Once in the Mishna (Keritot 2.1) there is inserted contrary to Rabbi Yehuda’s setam mishna (evidently an interpolation) a dictum of Rabbi Eliezer ben Jacob: “Ger mechusar kapara ad sheyizarek alav hadam,” “The Ger is not fully atoned [to eat of the sacrifices] till the blood [of his sacrifice] is sprinkled upon the altar for him or in his name.” It is from this passage of doubtful authenticity that the Talmud learns that the Ger must make a sacrifice as an initiatory rite. But this was certainly not the opinion of the author of the Mishna. If it had been, he must at least have given a name to the Ger’s sacrifice (to be Ola, Chatat, or Asham), which he does nowhere, not even in “Eizehu mekomo” (Zevachim 5). The passage in Keritot 9a proves that Rabbi Yehuda Hanasi did not consider the initiatory rites as Rabbinical law. It says there as a baraita: “Rabbi omer, ‘Kachem ka-avoteichem; ma avoteihem lo nichnesu laberit ela bemila utevila vehartsa-at damim, af hem lo yikanesu laberit ela bemila utevila vehartsa-at damim.”‘ This was certainly not intended to be Halacha, Rabbinical law, or else the Rabbi must have stated it in the Mishna. Besides this, the derasha is not one of Halacha. It is evidently a reminiscence from the school chats on “Kachem hager.” It is based on no commandment of the Torah and no tradition; it is a personal and unsupported opinion of Rabbi, which never was intended to be a law, and was therefore not placed in the Mishna. This is provided that Rabbi Yehuda is indeed the author of this passage, which is at least doubtful, as the hartsa-at damim is contrary to Rabbi’s Setam Mishna, and reads as if it was said by Rabbi Eliezer ben Jacob instead of plain Rabbi (the Talmud, further on, refers to him with “Amar Mar,” which is not the usual way of referring to Rabbi Yehuda Hanasi). This silence of the Mishna is to us a proof e silentio that the author of the Mishna did not consider those initiatory rites Rabbinical law. When Professor Dr. Mielziner points to Beit Hillel’s (or, according to another version, Rabbi Akiva’s) “Haporesh min ha-orla keforesh min hakever,” which occurs twice in the Mishna in Pesachim and in Eduyot, without having become a law anywhere in regard to the purification of the Ger, he does not state that it was Halacha or a moral opinion, or that the Mishna takes any further notice of it. And we–with our limited knowledge of Rabbincal law–cannot see how any rite could be called Rabbinical law if it is not based upon any of the above four points, and has not the sanction of the author of the Mishna. That the Baraita and the older Tannaim had knowledge of said rites, and yet the Mishna had nothing to say about them, can only prove that two different opinions on these rites then prevailed, pro and con, as is evident also from the disagreement of Rabbis Joshua and Eliezer on Mila and Tevila, to which we will refer again after we have cast a glance on history. Here we will but call attention to Yerushalmi. Pe-a II, as quoted in Sefer Keritot 4.14John Hyrcan and His Successor’s Conversions From the days of Joshua (Joshua 5) to the time of John Hyrcan, High Priest and Prince in Judea (134-107 B.C.E.), no record whatever exists of the practice in accepting proselytes. Like Holy Writ and the Aprocrypha, so all other records extant from that long period of history furnish not the least information as to the existence or nature of such initiatory rites. Moses himself, we are told in Deuteronomy 29 (we refer to this as an offset to the Rabbi’s derasha on “Kachem kaavoteichem”) made the covenant at the plain of Moab with an uncircumcised generation (comp. Joshua 5), among whom was also the Ger (Deuteronomy 29:10), who was certainly not circumcised. This covenant was made so “that He may establish thee today for a people unto Himself, and He may be unto thee a God, as He has said unto thee [including the Ger] and He has sworn unto thy fathers” (verse 12), after He had said, ‘This day art thou become the people of the Lord, thy God.”‘ It is evident that, according to this part of history, circumcision is not required of the Ger in order to enter the covenant of God. After this, all history, down to John Hyrcan, is entirely silent on this topic. In his reign, we are told in Josephus, John Hyrcan vanquished the Idumeans, and forced upon them the faith of Judea and circumcision. The same was done by his successors to other conquered tribes. These facts, however, prove nothing in regard to proselytes, for all these conquered nationalities or tribes were of the seed of Abraham (on the one side of the country, by Ishmael and Esau, and on the other side, by the sons of Keturah, Abraham’s second wife [Genesis 28:1-6]). Being of the seed of Abraham, they were commanded to be circumcised. This is acknowledged in the Talmud (Sanhedrin 59b) in regard to the sons of Keturah, but not in regard to the sons of Ishmael and Esau, who–it is maintained there– were not included in the commandment given to Abraham and his seed after him. The passage in Sanhedrin reads thus: “Mila me-ikara le-Avraham hu, deka mazher leih Rachamana, ‘Ve-ata et beriti tishmor, ata vezar-acha achareicha ledorotam.’ Ata vezar-acha–in; enash acharina–la. Ela me-ata benei Yishma-el lichayevu. ‘Ki beYitschak yikare lecha zara.’ Benei Esav lichayevu. ‘BeYitschakr–vela kol Yitschak. Matkif leh Rav Oshaya: ‘Ela me-ata benei Ketura dela lichayevu?’ Ha-amar Rabbi Yosei bar Avin ve-iteima Rabbi Yosei bar Chanina: ‘Et beriti hefar–lerabot benei Ketura.”‘ This very piece of exegetic nicety in the Talmud, which was without any practical use in that time, is a fragment from the time of John Hyrcan, and tells one of the objections of the Pharisees to the arbitrary doings of John Hyrcan (who became in his advanced years a Sadducee). He decreed a circumcision of Edomites and Ishmaelites, contrary to the will and traditions of the Pharisees. John Hyrcan had no right to expound the law or to enact one. He possessed the executive power, but the judiciary and legislative powers were in the hands of the Sanhedrin, and this body was Pharisaean in his time (under Joshua ben Perachia and Nittai of Arbella). Therefore, there is no proof for the lawful existence of those initiatory rites to be derived from the doings of John Hyrcan and his successors. They forced circumcision upon the seed of Abraham, and applied it to Ishmaelites and Edomites, contrary to the then existing highest authority of the law. But the latter was done by the mandate of the sovereign or the supreme executive, which the Pharisees never acknowledged as a law. No decree of any king ever was considered law in Israel. Herod and his family, however, were obliged to uphold that mandate of John Hyrcan as established law (to the best of our knowledge nobody else did) because firstly, it had become tradition of the court, and secondly, the Jewish citizenship of Herod and his family depended on the legality of John Hyrcan’s decree concerning the Edomites. Therefore, some of the Herodian princesses would not marry uncircumcised men. With them this was perhaps a condition sine qua non, but this does not say by any means that it was law or common custom in Israel. We are entitled to the opinion that it was not, because of the numerous cases of Roman Gerim mentioned in the Talmud; the Yir-ei Adonai mentioned in the later psalms (who were neither Israelites, nor Levites, nor Aaronites), who feared the Lord and were identical with the “devout Gentiles” of the New Testament; and the Roman soldiers that embraced Judaism in Palestine. In all the proselyte stories abounding in Talmud and Midrash, no initiatory rites are even hinted at. Why? We say, because none were established. The story of King Izates plainly shows that there prevailed different opinions in his time on this question, as one advised him to submit to the Abrahamitic rite and the other advised him not to do so (and both were Israelites, believers in the Law). Besides, with Izates it was a personal question of conscience (and not of formality or law) to be acknowledged as a believer in Judaism by the congregation. The same is the case with Antonius and Rabbi Yehuda Hanasi. “Some say Antonius was and some say he was not proselytized,” viz., without circumcision. The same uncertainty is most strikingly illustrated in the pelugta between Rabbi Eliezer and Rabbi Joshua: One maintains that Mila alone, and the other maintains that Tevila alone suffices to make one a Ger; and according to another version both agree on Tevila as the condition sine qua non (see Yearbook, Mielziner quotation, p. 97). How could those two pillars of traditional law dispute on what was then law and custom in Israel, at a time when the proselytes were so numerous in Israel that a prayer for them was included in the daily eighteen benedictions (“Ve-al gerei hatsedek”)? There was nothing certain about the matter–as said–even when the Mishna was written. The whole question, it appears, originated with John Hyrcan’s conversion in Idumea.The Origin of the Initiatory Rites It appears, therefore, that it was an ancient custom–by no means a law–that the proselyte offer up a sacrifice (Asham) in the Temple of Jerusalem to atone for his past sins of idolatry, as a token of his repentance and a solemn declaration of his loyalty to Israel’s monotheism and canon. This sacrifice might have been a pair of young pigeons or a little flour (Leviticus 5:14), which–it seems–could be made by proxy or by another gift to the Temple. Foreign proselytes, also from Rome–we know–sent gifts to the Temple. This was by no means insisted upon in all cases, as Rabbi Elijah Mizrachi and others maintain that according to the Law of Moses a confession before a college of three suffices. With the sacrifice (Korban) there came naturally Tevila, the ritual bath. As the unclean could not approach the altar, he had to cleanse his body first before he offered up his sacrifice. Another kind of ritual bath or baptism is unknown in the laws of Moses and the Rabbis, except “Tevilat Ba-alei Teshuva” (“The bath of the penitent sinner”), and this–it appears–has its origin in the cleansing ordinances for him who was to make a sin offering or a trespass offering. When the sacrifice itself was abolished, the preparatory bath remained for the penitent, as was the practice among the Essenes, who made no sacrifices, but observed scrupulously the Levitical cleansing prescriptions connected with it. After the destruction of the altar, the question arose, what should replace the sacrifices to make atonement for man’s sins. The enlightened Rabbis of that age of distress and despair–among whom Rabbi Joshua ben Chananiah may be counted–taught the people that substitutes for the sacrifices may be repentance of sin, prayer, alms-giving, acts of charity, the study of the law, conscientious righteousness, and similar practices of piety and humanity, which, they maintained, were more acceptable to God than all sacrifices. With them, the bath of repentance and the confession sufficed to accept the Ger into the fold of Judaism. The more rigorous Rabbis of those days, however, were not satisfied with those mild substitutes for the sacrifices, and resorted to the harsher means of asceticism and self-sacrifice. To them–and Rabbi Eliezer was one of them–the mere bath of repentance did not suffice for the proselyte. They demanded a bodily sacrifice, and found this already in the opinion of the followers of the John Hyrcan decree; and so they demanded also Mila as a substitute for the proselyte’s sacrifice. The custom, however, of demanding both Mila and Tevila was certainly not generally established till late in the Amoraim period, and never was a Rabbinical law, as no one could make one when the Sanhedrin and Tannaim were no more. It was all a matter of custom–established by the schools and scholastic wisdom–without any foundation in Scripture or by enactments of the Scribes, Tannaim, or any other authoritative body. If anybody holds that we, in this 19th century, are bound to uphold, as a matter of religion, customs so and then originated, without any basis in the Torah or even in Rabbinical law, he must be opposed to the abolition of those initiatory rites. Those, however, who think that customs of that kind are not obligatory for us now, and consider it proper and advisable to dispense with them, have undoubtedly the right to say so and do so, when an authoritative body declares so, without endangering the union of Israel and the unity of Judaism.(Vol. III, 1893, pp. 94-95) Your committee maintains to have established: 1. That there are known in history three initiatory rites for the proselyte to Judaism, viz., the Sacrificial Rite, the Ritual Bath, and Circumcision. 2. None of these three initiatory rites for the proselyte is ordained or otherwise suggested in the Torah, Prophets, and Hagiography. 3. They appear not in history and literature prior to the conquest of Idumea by John Hyrcan, who decreed circumcision on the Edomites, contrary to law and custom. 4. From and after that time, initiatory rites for the proselyte became customary, but never became canon law, not even Rabbinical law proper, and have therefore found no place in the Mishna; nor were, generally, all three rites considered necessary to every one proselyte; there existed a difference of opinion, as to which rite was necessary, down to the last of the Tannaim. 5. After all legislative authority had been defunct, in the time of the Amoraim, without any lawful enactment, the two rites–the sacrifice having been abolished–were considered necessary to make a proselyte, but this never did and never could become canon law. It always remained custom (minhag) without foundation in the Torah, brought about as “Davar Shebeminyan,” and the Rabbinical rule concerning such custom is: “Davar shebeminyan, tsarich minyan acher lehatiro,” “What was prohibited [or ordained] by a vote [not by legislative authority] must be revoked by a vote,” viz., when the cause of its existence has ceased.Therefore be it resolved: That the Central Conference of American Rabbis, assembled this day in this city of New York, considers it lawful and proper for any officiating rabbi, assisted by no less than two associates, to accept into the sacred covenant of Israel and declare fully affiliated to the congregation (davar shebikdusha) any honorable and intelligent person, who desires such affiliation, without any initiatory rite, ceremony, or observance whatever; provided, such person be sufficiently acquainted with the faith, doctrine, and canon of Israel; that nothing derogatory to such person’s moral and mental character is suspected; that it is his or her free will and choice to embrace the cause of Judaism; and that he or she declare verbally and in a document signed and sealed before such officiating rabbi and his associates his or her intention and firm resolve: (1) to worship the One, Sole, and Eternal God, and none besides Him; (2) to be conscientiously governed in his or her doings and omissions in life by God’s laws ordained for the child and image of the Maker and Father of all, the sanctified son or daughter of the divine covenant; (3) to adhere in life and death, actively and faithfully, to the sacred cause and mission of Israel, as marked out in Holy Writ.Be it furthermore resolved: That a committee of three be appointed to report to this conference formulas of the two documents, viz., one to be signed by the proselyte and witnesses, to remain in the hands of the officiating rabbi, and another to be signed by the officiating rabbi and his associates, to be delivered to the proselyte.NOTE: The two other members of the committee, viz., the Rev. Dr. Landsberg, of Rochester, New York, and the Rev. Dr. Adolph Moses, of Louisville, Kentucky, being temporarily absent from the country, in full agreement on this subject with the chairman, authorized him to write and report this document to the Central Conference.I.M.W.1. Igeret Teshuvot HaRambam, Gersoni edition, Prague, 1726, p. 24b; also Pe-er Hador, Responsum 144, Amsterdam edition. 2. For instance, “Ein oneshin min hadin”; or in Sifrei, Shofetim 154, “Ein chayavin mita al divrei soferim.” 3 See also Tosafot in Mo-ed Katan 20a, and Yerushalmi, ibid., 111.5: “Ulemedim davar kodem lematan Torah bitmiha”; ibid., in Pe-a 2: “Hakol modin she-ein lomedin minhama-aseh”; see also Sefer Keritot 4.14. 4. “Rabbi Yochanan amar [in Yalkut, it is Rabbi Akiva]: ‘Ein milat zecharim me-akavto mile-echol befesach”‘ (Mechilta, loc. cit.). 5. See also Ibn Ezra to Leviticus 19:1. See also:S.B. Freehof, “Circumcision of Proselytes,” Reform Responsa for Our Time, pp. 71ff.

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NARR 151-153

CCAR RESPONSA

New American Reform Responsa

94. A Berit For a Child of an Unmarried Mother

QUESTION: A Jewish man and a non-Jewish woman, who have no intention of being married, have had a child. They have asked the rabbi to preside at the berit. Is it appropriate for him to do so? (Rabbi Theodore S. Levy, Syracuse NY)ANSWER: Let us view this question through the eyes of tradition and then seek a modern approach to it. Tradition would not recognize the sexual relations of a Jewish man with a non-Jewish woman. Even if the couple were married civilly or by common law the marriage would not be considered qidushin (Yad Hil Ishut 115; Shulhan Arukh Even Haezer 154.23). Jewish recognition of marriage to non-Jews in a limited non-religious way was provided by the Napoleonic Sanhedrin of 1807 (N. D. Tama (ed) Kirwan (tr) Transactions of the Parisian Sanhedrin Kirwan p 155). We should remember that such marriages were not recognized by the various Christian churches in earlier periods either. The child of such a union is, of course, traditionally not considered Jewish (Kid 68b; Yeb 23a; Shulhan Arukh Even Haezer 4.5 ff). Such a non-Jewish child may then be converted by a bet din and would be accepted as any other infant who was converted to Judaism (Ket 11a; Shulhan Arukh Yoreh Deah 268.7; Shelomo Kluger Tuv Taam Vedaat II 111). We should note that the famous last century controversy (1864) between Rabbi Bernard Illowy and Rabbi Azriel Hildesheimer against Rabbi Tzvi Hirsch Kalischer centered around this matter. Rabbi Illowy of New Orleans felt that a child in that isolated, small Jewish community would probably not be raised as a Jew and might be mistaken as a Jew because of his circumcision. Subsequent discussions inquired whether the conversion actually benefitted the child; some traditional authorities felt that this would only be true if the child were raised in a traditionally observant household. This consideration, however, represented only a recent modern restriction. The general consensus moved in the direction of permitting such a circumcision. That also was the decision of Moses Sofer (Hatam Sofer Yoreh Deah #253). We should note Maimonides’ decision about Jewish soldiers who cohabited with non-Jewish women during wartime. If these women converted they would, of course, be considered Jews; they could then be married by the soldiers and their offsprings would be Jewish. If, however, a woman decided not to marry her Jewish soldier and continued to live with the soldier for as long as a year, then any child from such a union could be converted by a bet din (Yad Hil Melakhim 8.1-8). These traditional answers indicated that under a variety of circumstances it would be perfectly possible to have a berit for an infant child whose father was Jewish and whose mother is not Jewish. The berit would be for the sake of conversion and so it should be with us as our resolution on patrilineal descent deals with mixed marriage. It assumes marriage, a stable family and a Jewish education for the child. In this instance we seem to have some assurance that the child will be raised as a Jew. We should, of course, encourage the mother and father to marry, however, our primary concern here is with the child and not with the status of the parents.May 1988

If needed, please consult Abbreviations used in CCAR Responsa.

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