The Status of the Ethiopian Community

Introduction

For many, one of the triumphs of Zionism was the mass immigration of the Beta Israel community from Ethiopia towards the end of the 20^th century. The ingathering of exiles had extended to those who had been detached from the nucleus of Jewish life for centuries. Some of these groups had yearned for Eretz Yisrael for many years, and that dream was now actualised.

However, while the missions to rescue these people were successful, their integration into Israeli society would prove to be a much harder challenge. Accusations of racism and violent protests have ensued, amidst a general atmosphere of mutual distrust. In this post I will concentrate on the halachic aspect of these communities and not on who is to blame for the social issues, but first I would like to point out that these two aspects are interrelated.

The Beta Israel was not the only group who had difficulties adapting to a more Westernised society. The atrocities committed by the early Israeli governments, attempting to force a new lifestyle on the Yemenite (and to a lesser extent, Moroccan) Jews, are well documented. Yet since then, these communities have integrated far more successfully.

There may be many reasons for this difference. Although Yemen was far from a modernised country, a tradition of scholarship (at least among the privileged minority) existed there for many centuries.[1] Correspondence between the Yemenite Jews and the Rambam, and several others within the rest of the Jewish world, though irregular, existed to a far greater degree than it did with the ancient Ethiopian communities.

The more optimistic might point out that the Yemenite Jews have had more time to acclimatise, and that the same may happen with the Ethiopians in our generation. The critical (or cynical) among us may point to skin colour as a psychological barrier (although Yemenite Jews are also typically darker skinned than Ashkenazim or Sefardim).

The Elephant in the Room

I believe that the major factor here is none of the above. The halachic question as to whether these groups are actually part of the Jewish People sits in the back of the minds of many of us, even among the irreligious. Although some poskim have ruled with certainty that they are Jewish, there is no denying that this is not unanimous. Dismissing all those who doubt the halachic status of the Beta Israel as racist is ridiculous – as with any halachic question we must analyse it intellectually, not allowing emotions to take over.

Before doing this, it is important to point out that the answer to this halachic question says nothing about the quality of character of these individuals. The fact that the Beta Israel resisted persecution and religious pressure for many years, refusing to convert to Christianity, is to be applauded irrespective of whether they are Jewish or not.[2]

Chazaka

The final introduction necessary is the question as to how any of us know that we are Jewish. There is probably no-one in the world who can trace their lineage with certainty back to those from the period of the Tanach, or even to the period of Chazal. How do we know that throughout all the generations, there were no cover-ups and all of our maternal ancestors were Jewish?

The answer is that whenever people are known to the world as having a certain status (chazaka), this can be relied upon until proved otherwise. The gemara tells us that we even administer the death penalty based on such assumptions; if a man, a woman, a boy and a girl lived together as one family, we do not need any further evidence as to their familial relationships. If later, the boy had an incestuous relationship with the woman (his mother) or the man with the girl (his daughter), they can be stoned (in the first case) or burned (in the second case).[3]

Similarly, anyone who was publicly known as a Jew is a Jew, irrespective of his or her religious observance, until proven otherwise. Without reliance on such assumptions, known as chazakot, we simply would not be able to function.

What happens when someone we are unfamiliar with comes to shul, claiming to be Jewish? It will usually be possible to verify this claim subsequently, contacting people within a known Jewish community that he claims to come from. However, the standard practice is to count the newcomer as part of a minyan without making such enquiries. What is the halachic basis for this?

Tosfos write that a person is believed to say that he is Jewish, even in an area where most people are not Jewish, as "most of those who come before us as Jews are (part of) Israel."[4] The underlying principle is that when assessing what is most probable, we need to look at all factors involved. We cannot look at the population as a whole, but at those "who come before us." As it is unlikely that someone would falsely claim to be Jewish, this possibility can be discounted.

Extending this principle, R' Chaim Soloveitchik writes that if the person in front of us does not know Hebrew, we cannot assume that he is Jewish.[5] We can no longer consider all of those "who come before us," but at those who come before us not knowing Hebrew. Obviously, all relevant factors must be taken into account, and sometimes not knowing Hebrew may not be critical.[6]

Communal Application

Applying the principles above to the Beta Israel community as a whole, we have to first ask whether the community was ever known as being Jewish. The earliest testimony to this effect is from the 9^th century traveller Eldad ha-Dani, who claimed that he had come from a Jewish community in Ethiopia, descended from the lost tribe of Dan.

There does not seem to be any reason to doubt the veracity of the main claim of Eldad HaDani about the Jewishness of the community at the time. While there were differences between his tradition and ours, the basics were clearly the same. Moreover, there is no record of any dispute at the time. However, equally it is impossible to rely on testimony from the 9^th century applying to the Beta Israel in the 20^th century, without further evidence that the community was preserved.

The next important source is the ruling of the Radvaz in the 16^th century. By then, the community had diverged further from classical Judaism, becoming similar to the Karaites. However, the Radvaz rules that should they wish to return to the fold, they should be accepted as Jews.[7]

As with the testimony of Eldad HaDani, lacking any other information we are forced to accept the ruling of the Radvaz. If at the time he saw enough to establish a chazaka that this Ethiopian community were Jewish, we must assume that this was indeed the case.

The question would not become practical for another 400 years. In 1955 the Israeli Rabbinate, led by R' Yitzchak Herzog, had to decide whether to encourage the immigration of the Beta Israel and what their status was. R' Herzog never wrote a formal responsum on the matter, but in letters he made it clear that he felt it was not possible to decide with any certainty about the ancestry of the Beta Israel. The Rabbinate adopted this position, and due to this doubt they strongly encouraged helping the Beta Israel to immigrate but required them to undergo conversion.[8]

The letters of R' Herzog do not mention the responsum of the Radvaz and why he did not want to rely on it.[9] I can only assume that the reason is as R' Shaul Yisraeli writes- although there is no reason to dispute the ruling of the Radvaz in his day, there certainly is a possibility that subsequently non-Jews were accepted into the community without a halachic conversion process.[10] While we would not have such concerns with a standard Jewish community, with a community that stopped following the rule book so long ago (even if they cannot be held responsible for this), this possibility becomes highly probable.[11]

Either way, it is clear to me that by the early days of the State of Israel, there was no clear chazaka regarding the Jewishness of the Beta Israel. As such, without any conclusive scientific proof, their status prior to conversion remains doubtful. The rule that "most of those who come before us as Jews are part of Israel" also cannot apply to those whose claim to Jewishness is based on being part of this community.

The Mamzerut Issue

Many of the poskim mentioned above point out that the Beta Israel may be far better off if we could assume that they are not Jewish from birth. If this is the case, conversion will allow them to achieve a halachic status almost identical to a regular Jew (one significant exception being that the females cannot marry Kohanim).

If, however, the Beta Israel is a lost Jewish tribe, a far more serious problem may result. It is known that this community did not require the giving of a get for divorce. Thus every time a couple 'divorced' and the wife re-married, the children from the second marriage would be mamzerim. As just one mamzer parent results in all children being mamzerim, the numbers of mamzerim within the community would increase exponentially through the generations. Thus marrying into the Beta Israel raises a serious halachic problem.

The only solution to this problem is if marriage within the Beta Israel was also invalid. Some of the poskim above were not fully aware of the customs of the community; my understanding is that now it has become clear that the marriage ceremony did not include a valid kidushin (betrothal). However, I already wrote in Civil marriage- does it mean anything? that when a couple live together as man and wife, even if the original ceremony was invalid, whether or not they are halachically married is far from straightforward.

Conclusion

Taking all of the above into consideration, it would seem that the original ruling of the Rabbinate was both prudent and halachically sound. After conversion, marrying into the Beta Israel should be permitted due to three possibilities resulting in leniency:

1) They may not have been born as Jews and as such are now fully kosher converts.

2) It is possible that no halachic marriage existed among the Beta Israel and as such there is no mamzerut issue.

3) The specific individual may not be one of the mamzerim.

There is one thing that the overwhelming majority of poskim agree on regarding the Beta Israel – we must do our best to bring them closer to authentic Judaism, out of love and compassion.[12] However, attempting to silence those who raise valid halachic concerns will not help their plight. Until the Sanhedrin is restored and we have a ruling binding on all, we must accept that different views will continue to exist and that tolerance cannot be expected in only one direction.

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[1] To see this, one only has to look at some of the writings of R' Yosef Kapach.

[2] In fact, those who accuse the doubters of racism, reveal their own racist perception that the Jewish People are inherently superior to others. See How are Jews Unique?

[3] Kiddushin 80a

[4] Yevamos 47a (ד"ה במוחזק לך)

[5] Shu"t Chut HaMeshulash 1:5

[6] See Chazon Ish, Hilchos Geirim 158:8

[7] Shu"t Radvaz 7:5, 9

[8] See Techumin volume 8, from page 121 onwards.

[9] R' Ovadya Yosef understood that R' Herzog accepted secular research which concludes that the Beta Israel are not from Jewish ancestry (Yabia Omer 8, Even HaEzer 11). Although this is not at all clear from the writings of R' Herzog himself, it is possible that R' Ovadya had personal knowledge of this at the time. I have written before that in principle I would be happy to use secular research as a basis for halachic decisions, however in this case my impression is that the research itself is far from conclusive (see for example https://en.wikipedia.org/wiki/Beta_Israel#Genetics).

[10] Techumin volume 7, page 321.

[11] R' Moshe Feinstein also says that it is difficult to rely on the testimony of the Radvaz, in an article in volume 12 of Techumin. He explains that it is not clear both whether the Radvaz was aware of the real facts in his time (it is unclear to me why he casts such an aspersion) and whether anything has changed since then.

[12] The same position is not so unanimous regarding the Falash Mura, an offshoot of the Beta Israel community who converted to Christianity but now see themselves as Jewish. Recently, some Ethiopians who have no connection to the Beta Israel community have also started to jump on the bandwagon claiming Right of Return, and we cannot afford to open the gates to everyone.

Burden of Proof & Status Quo

Introduction

The rule of המוציא מחברו עליו הראיה (the burden of proof is on the claimant) is reasonably well known. The basic idea is rather simple and is not dependent on the Torah. The gemara says that no source is necessary to derive the rule from, as it is obvious – "Only the one who is pained has to go to the doctor" (i.e. only the one who is seeking to change the current situation has to prove his point).[1]

That being said, those who have a reasonable background in Torah learning will know that the rules of muchzakut (status quo ownership) can be complicated. Entire books have been written on this subject, and I certainly cannot give a comprehensive explanation in one post (or even in several). Instead, I will make one general observation and then deal with a less well known application.

Does muchzakut prove anything?

The logic given by the gemara above does not say anything about the likelihood of the truth of a claim. Even if in our judgment, both litigants have equal chances of being in the right, we cannot ask the muchzak (status quo owner) to pay without proof.[2]

A good example of this is a case in the Mishna where two people trade a cow for a donkey and subsequently realise that the cow gave birth. They debate whether the calf was born before the sale (in which case the calf belongs to the seller) or afterwards (in which case it belongs to the buyer). The gemara says that if the calf is currently on the property of one of them we do not take it away from him. If it is on ownerless land, we give it to the seller as he was the status quo owner of the mother.[3]

In the case above, despite there being no indication whatsoever of what the truth is, it is still completely logical to leave the calf with the muchzak. However, it is certainly true that in many cases, it is also more likely that the muchzak is the one telling the truth. In general, if a person claims that an item in another person's home belongs to him, but cannot produce any evidence to this, it is fair to say that it is more likely that the claim is false.[4]

It is also true that sometimes the likelihood of one side being right will influence how we decide who the muchzak is. Although usually the muchzak is the one holding an item even if we know that it previously belonged to someone else, this is not true regarding things that can easily get into another person's hands. Examples include animals that may wander,[5] or things that are designated to be lent out.[6]

Opposing Chazakos

There can be other factors that make deciding who the muchzak and who the motzi (the one challenging the status quo) is even more complex. The first example of this that I would like to discuss appears in the Mishna and is subject to further discussion in the gemara. A person rents a bathhouse and stipulates with the landlord that he will pay "twelve gold coins for a year, one per month."

This seemingly simple agreement then runs into a complication when the Sanhedrin decided to declare a leap year, resulting in a year of 13 months. Who has the right to use the bathhouse during the 13^th month, and if the renter uses it does he have to pay a 13^th gold coin?

Different opinions and rationales are given by the tana'im and amora'im. The view of Shmuel is that if the landlord comes at the beginning of the 13^th month to evict the renter, he is within his rights. Rashi explains that this is because when it comes to land, the muchzak is the owner and not the one currently using it.[7]

The Ran points out that the gemara does not specify whether the renter already paid the 12 gold coins. The implication is that even if he has not, the landlord can force him to do so as well as evicting him for the 13^th month, despite the fact that the renter is the muchzak with respect to the money. He explains that this is because the renter's obligation to pay 12 gold coins is undisputed. As the only question is about the control of the bathhouse for the 13^th month, the relevant chazaka (status quo ownership) is the one on the bathhouse and not the one on the money.

A Dissenting Opinion?

The problem with this is that elsewhere, Tosfos seem to say the opposite. The gemara discusses a case where some people use the words כד (jug) and חבית (barrel) interchangeably and as a result there was a misunderstanding between a buyer who wanted to buy a barrel and a seller who wanted to sell a jug. Even if the majority of people use the relevant word in a particular way, this is not sufficient to allow Beis Din to take something away from the muchzak.[8]

Tosfos write that in this case, if the buyer has not yet paid, he has the right to refuse to do so unless he receives the barrel he expected. This does not seem to be consistent with the logic of the Ran above. As the price was agreed upon and the only dispute was about the item being purchased, the seller should be able to collect his payment and only provide the jug.

As historically there has been a tremendous amount written about the general topic of chazakos, it was surprising to me to find that few acharonim deal with this difficulty. Out of those who do, the Kuntras HaSfeikos (R' Yehuda Kahane Heller, 1740-1819, Eastern Europe) concludes that Tosfos disagree with the Ran, without offering any reconciliation of the gemara according to Tosfos.[9]

R' Shimon Shkop (1860-1939, Lithuania) firmly rejects the understanding of the Kuntras HaSfeikos. Instead, he points out the following difference between the two cases. In the case of the rental, we have only one question – what is the halacha in general when language used turns out to be contradictory. We are not sure whether to follow the first expression used (in our case "twelve gold coins for a year") or the last ("one per month"). Either way, the same rule is true for all cases, irrespective of what the specific litigants had in mind.[10]

The case of the barrel and the jug is more complex. Here, as we are dealing with the meaning of a specific word, there is no general rule to follow. Thus we have to ask two questions – what did the seller mean and what did the buyer mean? If they both meant the same thing, the sale stands and the buyer now owns either the jug or the barrel. If, however, the buyer meant to buy the barrel and the seller meant to sell the jug, such a misunderstanding invalidates the transaction entirely. Due to this possibility, we cannot force the buyer to pay.

This distinction is far from straightforward. While I agree that Chazal did not write a dictionary to define the meaning of specific words, I do not see why this lack of official definition should necessitate the evaluation of each person's intention separately. It should be sufficient to judge what the general meaning of the word is (or to decide that there is no conclusive meaning) – if one individual claims that he is different he will need to provide evidence that this is true and that the other litigant should have realised.[11]

The only resolution that I can suggest for the position of Tosfos regarding the jug and the barrel is that they are dealing with a case where the seller did not have a barrel to sell. Thus the claim of the buyer is only that the sale of the jug was invalid and there is therefore no reason for him to pay.[12] The dispute is over the money, and as this is in the hands of the buyer, it will stay there unless there is some decisive proof.

The precedent for this in the gemara is a case where a person bought an ox in order to plough with, but without specifying this purpose to the seller. It then transpired that this ox was crazy and perpetually intent on goring people (or other oxen) and the buyer asked for his money back. The seller replied that he assumed that the buyer wanted to slaughter the ox for its meat, a purpose for which it was perfectly suited.

In this case, the buyer had already paid for the ox and the halacha follows the view of Shmuel that even if the majority buy oxen for ploughing, this is not sufficient for the buyer to force the seller to return his money.[13] However, had the transaction been completed without payment having been made, the seller could not force the buyer to pay.[14]

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[1] Bava Kama 46b. The concept is also widely accepted in the non-Jewish world, albeit with slightly different definitions. See https://en.wikipedia.org/wiki/Burden_of_proof_(law).

[2] In fact, the halacha is that this is true even it is more likely that the claimant is right, as we will see later.

[3] Bava Metsia 100a.

[4] If the claim is that the item was stolen, the gemara tells us that "we do not assume that people are thieves" (Shevuos 46b). Even if the claim is that the object was lent to the muchzak, in most circumstances, if we had to bet on who was telling the truth we would side with the one currently holding it (see gemara there; Rambam Hilchos To'en v'Nitan 8:9-11 and Ra'avad there).

[5] Bava Basra 36a.

[6] Shevuos 46b.

[7] Bava Metsia 102a-b. While Shmuel holds that the chazaka only has effect regarding future usage, the final halacha is in accordance with the view of R' Nachman, that even after another person has used it, the chazaka allows us to retrospectively assume that this use was illegitimate. Thus even if the landlord only comes after the full 13 months to claim an extra gold coin, the renter must pay it.

[8] Bava Kama 27a-b. The springboard for this post is a recent correspondence with a friend who teaches gemara to high school children. While researching the subject matter that he is teaching, he came across a ruling given by a dayan in a real dispute involving a youth group who ordered equipment including a "professional casino table" for an evening. When it arrived, they were greatly disappointed as the table was considerably smaller than the standard size. The provider countered that the quality and function of the table was professional and as no size was specified, they were not bound to providing a table of 'professional' dimensions.

My conclusion here regarding muchzakus is different to what both the dayan and my friend assumed (the full ruling can be seen here). However, I also feel that this discussion is not entirely pertinent to the casino table case, as there nothing was purchased and even the rental of the table was not a significant part of the costs involved. The main expense was paying for the transportation of the equipment, and the halachic questions arising are different.

[9] Klal 7, siman 6.

[10] Once there is a general rule about what language will be taken to mean (or even if Chazal decided that there is an objective doubt as to what such language means), no-one is believed to say that he meant something else if he did not specify. This is one application of the rule "דברים שבלב אינם דברים" – words kept in the heart are not considered words.

[11] Otherwise, his private thoughts remain דברים שבלב.

[12] The difficulty with this explanation (and an additional difficulty with the explanation of R' Shimon Shkop) is that Tosfos say only that the buyer can refuse to pay unless the seller gives him a barrel. If my resolution (or that of R' Shimon) is correct, the buyer could in fact back out from the sale entirely.

[13] Bava Kama 46a-b.

[14] The general consensus is that this is true even if the majority of ox buyers buy for slaughter. See Nesivos HaMishpat 232:12.