Friday, 27 April 2018

Illegal Immigration


Introduction

The issue of those who have entered the country from Africa seeking economic benefits has been debated by the politicians and media for a while now. I thought it would make sense to try to clarify the Torah perspective on this.[1]

I already wrote in “Torah versus international law” that it is perfectly reasonable to prevent entry of those who do not accept the seven Noachide laws into Eretz Yisrael (and to encourage the exit of those who already are citizens), even under the terms that we are forced to keep to in order to allow the existence of our state. For the moment, let’s pretend that all of these immigrants are willing to accept them.[2]

Although the Supreme Court may not agree, the government certainly is the body that has the authority to make decisions like this.[3] Furthermore, the main debate is not even about removing the illegal immigrants by force (due to impracticality). The disputed law that the government is attempting to reinforce merely takes away the incentives of these immigrants to live here by negating the financial benefits of this.[4]

The question that I am going to address is how we would expect the government to act ideally, from a Torah perspective (although even if they do not act ideally, their decision is binding[5]). The main point that needs to be clarified is how to view sovereign territory, and those who enter it without permission.

Who ‘owns’ the country?

The intuitive view for many of us was presented to me recently by a good friend. He compared the situation to that of a poor man who breaks in to the home of a wealthy man, and starts living in his spare room. Would left-wing activists protest his eviction?

Let’s examine whether this is really a good comparison. First lets assume that the spare room of the wealthy man corresponds to the public areas of a country. Who exactly owns these public areas?

The Rambam writes that anything found in a desert is ownerless (hefker), and whoever gets there first can take possession of it.[6] The clear implication is that the desert itself has no owner. The Tur writes this explicitly, stating that deserts and everything in them are examples of things that never had an owner.[7] As those who infiltrate the country illegally tend to enter through uninhabited areas, this original ‘break-in’ seems to be into an ownerless space.

It is also hard to classify the entry of infiltrators into cities as trespassing, as no law forbids this. And when they buy or rent property and live in it, it certainly cannot be called stealing. If they were to obtain services that they are not entitled to (e.g. subsidised healthcare or free education), that would be stealing. But as far as I am aware, in this country the likelihood of this happening is not great.

Is it racism?

In fact, there is another group of people with an identical legal status as the African immigrants. Foreign yeshiva students often stay in the country well over the limit of their student (or tourist) visa. Some even live here permanently (well over twenty years), not wanting to make official aliyah so that their children will not have to serve in the army. Some are meticulous about arranging the relevant legal documentation, but even those who don’t rarely face any problems.

The reason for this distinction is clear. Generally speaking, yeshiva students and chareidim from abroad blend in to the society they live in, without causing too much disturbance. This is not the case with African immigrants, especially in areas like south Tel-Aviv where they have unquestionably changed the community drastically.

However, this too is not unique in Israel. In the early years of the State, the country struggled to come to terms with absorption of Jews from vastly different cultures. The leaders, almost exclusively from European origins, had to accommodate Jews from Yemen, Iraq and Morocco with varying degrees of success.

More recently, immigration of Jews, non-Jews and those of questionable Jewish status from Russia and Ethiopia has also taken place without any significant protest. Thus to me it is clear that the steps taken to encourage the departure of infiltrators from Eritrea and Sudan are motivated at least partially by factors other than racism.

Crime and national identity

The main claim made by those in favour of deportation is the level of crime in areas with large number of infiltrators. People are understandably upset about their neighbourhood becoming unsafe at night, evident from the huge increase of numbers of policemen on patrol.

However, it is also clear that if this increase in crime had been caused by movement of Israeli citizens from one part of the country to another, deportation would not be an option. This solution is only proposed because we are dealing with foreigners, both legally and inherently.

I believe that at least subconsciously, the heart of this debate is about national identity. Almost everyone agrees that immigration cannot be open to anyone, but there is strong disagreement over who exactly belongs.

The Torah view of this is reasonably clear. Eretz Yisrael is the Jewish homeland, and any Jew has the right to live here.[8] Non-Jews also can live here, as long as they formally accept the basic minimum moral standards expected of them. These are the seven Noachide laws. If we continue pretending that this is the case with the African infiltrators, it is hard to justify their deportation. Theoretically, we should give every one of them the choice between this acceptance and departure.

Obviously, at this point in time this is unrealistic. The law of the land does not even include most of the seven Noachide laws.[9] The absence of Torah as an official national constitution leaves a void which is proving impossible to fill.

In the long term, this void could also threaten our entire hold on Eretz Yisrael. Without the Torah and Hashem’s promises to us, there is no great justification for our control of the country. If we try to substitute the Holocaust and other persecution as our basis,[10] it becomes harder to defend the exclusion of those fleeing persecution elsewhere.[11]

I hope that the questions raised by this issue can help us clarify our fundamentals, and reinforce our awareness of true national identity.


[1] Personally this has caused me to view the issue in a new light, and my conclusion is not the one I expected to arrive at when I started writing.
[2] And that we can get round the problem of accepting gerei toshav nowadays, mentioned in footnote 16 there.
[4] See this explanation (in Hebrew).
[5] We discussed the limits of this in The right to resist the abuse of power.
[6] Hilchos Z’chiya u’Matana 1:1. Although the Ra’avad adds a stipulation to the words of the Rambam, that only members of the tribe whose territory the desert is located in may take possession of its contents, this is not relevant nowadays when the tribes are undefined (see the various commentaries).
[7] Choshen Mishpat 273
[8] In fact, even a non-Jewish slave who undergoes the partial conversion his Jewish master must have him do is included in this. If he flees from his Jewish master to Eretz Yisrael, the Torah forbids returning him to his master. See Gitin 45a.
[9] They are the six prohibitions of idolatry, blasphemy, murder, forbidden marital relationships, theft and eating a limb detached from a live animal, together with the obligation to enforce monetary law. See Sanhedrin 56b.
[10] For example by using Hitler’s definition of who is a Jew for the purposes of the Law of Return.
[11] Sometimes we may be able to dispute whether there is real danger in the origin country, as the government has done in this case (I do not know the exact details, and for the purposes of this post have assumed that the government is correct). However, the reality is that we would not want to grant permanent residency even to those fleeing real persecution. My understanding is that in this case international law would only require us to provide temporary asylum until the persecution is over.

Thursday, 5 April 2018

Brachos on Mitzvos


Introduction

If someone were to ask us which mitzvah or category of mitzvos we perform the most often, my guess would be that most of us would take a while to come up with the answer. I am sure that upon reflection, almost all fully religious Jews would agree that it is saying a bracha.

Chazal tell us that we must say at least a hundred brachos every day.[1] In reality, provided that we keep to halacha this is rarely difficult. Most of the days of the year if we daven three times a day and make the usual brachos before and after food and regular mitzvos, we easily hit the target.

The halachos of brachos are not normally considered to be a particularly difficult area of halacha. However, looking for a deeper understanding of the rules can sometimes be frustrating. Chazal usually told us explicitly each example when a bracha is necessary, but it is very hard to formulate general rules that explain all the examples.

Categorisation

When it comes to brachos on mitzvos, the first question to discuss is why Chazal instituted brachos for some mitzvos but not for others. This question is definitely an example of the difficulty in generalisation, and as the Rashba writes there is no one rule that can explain everything.[2] If we assume that the default is that mitzvos require brachos, the following is a list of categories of mitzvos mentioned by rishonim as being exceptions:

1) Mitzvos dependent on another individual (e.g. tzedaka).[3]
2) Mitzvos that mainly involve thought (e.g. remembering the Exodus from Egypt).[4]
3) Mitzvos that non-Jews are also commanded to do.[5]
4) Mitzvos that do not require any physical action (e.g. Shmita).2
5) Fixing an aveira (e.g. returning something stolen).2
6) Giving something sacred not really owned by the giver for its rightful use (e.g. parts of a korban that are for the kohanim).2
7) Punishments or anything damaging (e.g. the procedure of the sotah).2
8) Constant mitzvos (e.g. fearing G-d).[6]

Some of these categories may be superfluous. Numbers 5 and 7 seem very similar, and number 8 may well be covered by number 2.[7] In addition, there appears to be a problem with category number 1, as we make a bracha on Pidyon HaBen despite needing a Kohen (and a firstborn son).

The bottom line is what Sefer HaPardes says in the name of the Rashba: The rules above are ‘stones of Tohu upon stones of Vohu’ (generously translated as not overly useful). Rather, when we know clearly that Chazal instituted a bracha we make it, and when not not.

This does not mean that Chazal instituted brachos randomly. As with many areas of halacha, Chazal worked by comparison and intuition. It would be convenient to formulate rules, but often it just doesn’t work.

Minhagim

One question that comes up a lot is when, if at all, we are supposed to make brachos on minhagim (customs). The gemara says explicitly that we do make brachos on rabbinic mitzvos, as we are told to follow and not to deviate from the instructions of the Sanhedrin (see How does halacha work?). Since there is a source for them in the Torah, the language ‘vetzivanu’ (you have commanded us) is appropriate.[8]

However, it is also explicit in the gemara that we do not make a bracha on banging the arava (willow) on Succos, as it is merely a minhag initiated by the prophets.[9] Before we discuss whether we can extrapolate from here to other minhagim, it is important to understand what the gemara means here.

Rashi explains that minhagim are not included in the command not to deviate.[10] The simple understanding of this is that there is no technical obligation to adhere to a minhag. Although the entire fourth chapter of Pesachim is devoted to the rules of minhagim, according to Rashi it seems that these rules are mere recommendations.

The Rambam disagrees with this, writing that minhagim are also included in the positive command to follow the instructions of Sanhedrin, and the negative command not to deviate.[11] If this is the case, why can we not make a bracha describing it as a commandment?

The Rambam writes that the Sanhedrin would discuss whether or not a custom that developed should remain in place, and vote on this.[12] One can suggest that brachos were only instituted on practices that started as commandments, either from the Torah or the instructions of the Chachamim. When a practice started as a mere custom of the people, even though this custom later received the approbation of the Chachamim and became mandatory, a bracha with the language ‘vetzivanu’ is not appropriate.[13]

Seemingly, either of these two approaches should lead to the conclusion that brachos should not be made on any minhagim. This is corroborated by the stated position of both Rashi and the Rambam, not to make a bracha on the reciting of Hallel on Rosh Chodesh.[14]

Rabeinu Tam has a third approach. He notes that the gemara regarding banging the arava did not say that the lack of a bracha is an automatic corollary of the fact that the banging is a minhag. Rather, the gemara observed that R’ Elazar bar Tzadok did not make a bracha, and concludes from this that it must be a minhag. Had it been an institution of the nevi’im he would certainly have made a bracha, but not every minhag is exempt from a bracha.

Furthermore, the observance of a second day of Yom Tov is based on minhag,[15] and this does not stop us from making brachos on all the mitzvos that are performed.[16] Only when it comes to banging the arava, a minhag entailing ‘mere moving,’ a bracha is not required.[17]

Extensions of Mitzvos

The truth is that even if we accept the explanation of Rashi or of the Rambam for not making a bracha on banging the arava, the extrapolation to minhagim like Hallel on Rosh Chodesh is not automatic. Rabeinu Yeshaya d’Trani (Torino, 1180-1260) suggests that although a bracha is never appropriate on something which is only a minhag, if a mitzvah is extended by minhag then we should make a bracha. Thus second day Yom Tov requires brachos as an extension of the first day, and Hallel on Rosh Chodesh requires a bracha as an extension of the original cases of Hallel.[18]

The Meiri (Provence, 1249-1315) explains that the term ‘minhag of the prophets’ describes a minhag that the prophets never intended everyone to do. The prophets did it themselves, and it happened that everyone followed. By contrast, second day Yom Tov and Hallel on Rosh Chodesh were minhagim established by way of institution, and warrant brachos.[19]

How to decide

Historically, in the majority of the Diaspora a bracha was said on Hallel on Rosh Chodesh.[20] Communities in Eretz Yisrael and surrounding countries (i.e. Egypt, Syria, Yemen, Bavel and Persia) followed the Rambam and did not say a bracha.[21] Rav Ovadya Yosef writes that all Sefardim in Eretz Yisrael should adopt this minhag of the place they have come to, even those who came from Morocco, Tunisia and Algeria where a bracha was said.[22]

Disagreement over when to say a bracha is not limited to minhagim. Brachos on rhe second and fourth cup of wine (and after eating karpas) at the Seder, Tefilin Shel Rosh, reading Megilos (other than Esther) and Shehechiyanu on Megilas Esther in the morning are all subjects of debate. When we are not sure what to do, the solution used to be to follow the minhag of the place,[23] which often was different in Ashkenaz and Sfarad.

Nowadays most communities in Eretz Yisrael comprise families originating from many different places in the world. In such a situation it is hard to justify everyone following the minhag of the community that his ancestors came from, as usually there is no intention to return there (in many cases the community doesn’t even exist anymore).[24]

New communities established by people from different backgrounds have only one rule to follow in situation of doubt- to be lenient and not make a bracha. This rule was established by later authorities (it does not appear in the gemara or Rishonim), based on the fact that almost all brachos are rabbinic and making an unnecessary bracha is a severe violation.

However, this solution is far from ideal. As the Rambam writes, although a person is supposed to be careful not to make unnecessary brachos, one should make necessary brachos abundantly.[25] If the result of every debate is not making a bracha, we will soon be left with far fewer brachos than necessary. It is the responsibility of every posek to learn the subject matter in depth, and come to his conclusions in each case to the best of his ability.[26]


[1] Menachos 43b
[2] Shut HaRashba 1:18
[3] Itur, Hilchos Tzitzis page 76c
[4] Shut HaRosh 24:2
[5] Rokeach, Hilchos Brachos siman 366
[6] Or Zarua, Hilchos Bircas Hamotzi siman 140
[7] Although the Or Zarua gives some examples that are not covered by 2, like burying the dead, it is also not clear to me how they are covered by number 8.
[8] Shabbos 23a
[9] Sukkah 44b
[10] Ibid. 44a (ד"ה יסוד)
[11] Hilchos Mamrim 1:2
[12] Ibid. 1:3. When it comes to minhagim that developed after the times of the sealing of the Talmud Bavli (Chazal until then have the status of the Sanhedrin, see How does halacha work?), it is possible that the Rambam would agree to Rashi that they are not mandatory.
[13] For an alternative approach, see Chidushei HaGriz to Hilchos Brachos, 11:16.
[14] Machzor Vitri siman 227 (in the name of Rashi), Rambam Hilchos Brachos 11:16. The Rambam adds that the explanation that we do not even make a bracha on a minhag instituted by the nevi’im like banging the arava, so certainly we should not make a bracha on Hallel on Rosh Chodesh which is just a minhag of the Chachamim (the fact that this Hallel is a minhag is explicit in Ta’anis 28b).
[15] See Beitza 4b
[16] The Rambam in his responsa (siman 333) deflects this argument by saying that the observance of the second day of Yom Tov is in fact a rabbinic mitzvah (and not just a minhag). Although in Hilchos Yom Tov 1:21 he does say that it is a minhag, all he means is that nowadays there is no doubt as to the correct day. He clarifies this in Hilchos Kiddush HaChodesh 5:5-6, that Chazal instituted that we must continue the old custom of keeping two days, despite the fact that there is no longer any doubt. This is not considered a mitzvah that started through minhag, as the reason for the original minhag no longer exists.
[17] Sefer HaYashar, Chidushim siman 537. Also quoted by Tosfos in Sukkah 44b, and many other Rishonim.
[18] Tosfos Rid, Sukka 44b
[19] Beis HaBchira, Sukka 44a. Although it is clear in the gemara in Ta’anis 28b that Hallel was only said on Rosh Chodesh in Bavel (and not in Eretz Yisrael), at least in the place where the minhag did exist it was intended for everyone.
[20] This is explicit in Machzor Vitri (despite Rashi’s ruling) and the Rosh )Brachos 2:5) regarding Ashkenaz, and the Ran )Rif Shabbos 11b) and Rivash (siman 111) regarding S’farad.
[21] Shulchan Aruch, Orach Chaim 422:2
[22] Yechave Da’as 4:31
[23] See Yerushalmi Peah 7:5
[24] See Pesachim 51a
[25] Hilchos Brachos 11:16