The "Rabbis' Letter" and Halakhah

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The "Rabbis' Letter," signed by dozens of community rabbis in Israel in December 2010, asserts that Jewish law forbids the rental and sale of homes in Israel to non-Jews. Is the rental of property to non-Jews indeed forbidden by halakhah? What is the status of non-Jews living as a minority among Jews? Are the Biblical prohibitions cited in the Rabbis' Letter applicable to Arabs in Israel today? In this article, IDI Researcher Dr. Eliezer Hadad surveys opinions by contemporary rabbis who adopted a universalistic approach and found a halakhic basis for the equal rights mandated by both international norms and the Israeli Declaration of Independence.

The "Rabbis' Letter" prohibits the sale and rental of dwellings in the Land of Israel to non-Jews, based on two biblical prohibitions: "lo techonem" (Deut. 7:2), which is interpreted, among other interpretations, as a prohibition against giving non-Jews a place to settle in Israel, and "lo yeshvu be-artzekha" (Exodus 23:33)—the prohibition that "they shall not dwell in your land." The letter signed by Israeli community rabbis links these prohibitions to intermarriage and other transgressions, and has been criticized for its lack of halakhic detail and for not considering broader halakhic principles. Even its authors have admitted the accuracy of some of these criticisms. It appears that the letter's predetermined goal undermined the integrity of halakhah, which is generally responsive to the complexity of prevailing circumstances.

The question of the status of non-Jews in the State of Israel troubled Zionist halakhic scholars even before the establishment of the state. They untiringly searched for a halakhic entry point that would allow non-Jews to settle in the State of Israel, and that would anchor the rights of such residents within Jewish law. From the writings of these scholars it emerges, whether explicitly or implicitly, that in their opinion, in this day and age it is impossible to maintain a Jewish state that does not allow non-Jews to live in it and does not recognize their basic rights. Most of the halakhic authorities who dealt with this issue in contemporary times recognized the need to give halakhic expression to the normative ethical standards that have become universally accepted, particularly the accepted norm of democratic countries to grant residents equal rights without regard to religion or national origin. The question for these authorities was not whether to allow non-Jews to reside in the state, but what halakhic process would allow for their residency. Despite the fact that all of these viewpoints seem to have set out to find a halakhic basis for the situation that prevails in the State of Israel today, several different approaches can be identified within their assertions: some authorities based themselves on the constraints of reality, others found a formal legalistic path, and others anchored their opinions on ethical considerations.

From the writings of the Sages and the Rishonim (rabbinic authorities of the 11th-15th centuries), one can extract two approaches to the status of non-Jews who live among the Jewish people—a "nationalistic approach" and a "universalistic approach."  Both approaches are characterized by tolerance, to a degree, and allow for non-Jews with different national and cultural identities to live among Jews as a ger toshav (literally: a resident stranger), as long as they undertake to observe the "seven Noahide laws." According to the nationalistic approach, the Noahide laws are part of the commandments of the Torah and must be fulfilled by people who wish to live among Jews as an indication that they recognize the Torah of Moses as an authoritative source that is binding upon them as well; according to this approach, by observing these laws, these non-Jews partially become part of the Jewish people. In contrast, according to the universalistic approach, the Noahide laws represent basic human norms and have no semblance of Jewish identification; those who accept these commandments may live in the Land of Israel because they are true to their human responsibility.

Halakhic authorities who tried to base the normative practice of the democratic state of Israel on a halakhic foundation adopted the universalistic approach towards defining the ger toshav. These authorities found no halakhic obstacles that prevented granting non-Jews all the rights customarily granted to residents in democratic regimes, including the right to live in the land of Israel and to own property and houses. According to the universalistic approach, the category of ger toshav can be applied to Muslims and even to Christians, for they are judged not by their closeness to Judaism, but by their distance from idolatry.  From this perspective, both Muslims and Christians are defined as nations that fulfill the seven Noahide laws. The halakhic requirement that the ger toshav must formally accept these commandments before a tribunal is understood only as a requirement that they must indicate their dedication to the Noahide laws, and it is possible to assume that Muslims and Christians are dedicated to these commandments by virtue of their religious codes.

Rabbi Abraham Isaac Kook (1865-1935), the first Ashkenazi Chief Rabbi of (pre-state) Israel, based himself on this approach when he permitted the sale of the land of Israel to Muslims in the sabbatical year, asserting that this does not violate the prohibition of lo techonem. Former Chief Rabbi Isaac Halevi Herzog (1888-1959) adopted this position regarding the status of non-Jews in general, and broadened it to include Christians. Both of these rabbis dealt with Maimonides' position that resident strangers can only be accepted at times when the jubilee year is practiced by adopting the opinions of Rabbi Abraham ben David (the 12th century commentator known as the Raavad) and of the Kessef Mishnah (Rabbi Joseph Karo's 16th century commentary on Maimonides' Mishneh Torah), which hold that the status of ger toshav continues to apply even when the jubilee year is no longer observed. Indeed, Rabbi Dr. Nahum Eliezer Rabinowitz, the head of the Birkat Moshe Hesder Yeshiva and one of the most important interpreters of Maimonides in our generation, derived that even according to Maimonides, the laws of the ger toshav continue to apply today. Thus, those who observe the seven Noahide laws in contemporary times are not subject to the prohibition of lo techonem, and it is both obligatory to save their lives even if it involves desecration of the Sabbath, and permissible for them to settle in the Land of Israel. Furthermore, Muslims and Christians who already live in the land of Israel have the status of ger toshav, and one should a priori desecrate the Sabbath in order to save their lives.

Other rabbis did not suffice with the laws of the ger toshav, and sought other means of resolving this issue. Rabbi Shaul Yisraeli (1909-1995), who served as the head of the Merkaz Harav yeshiva and a member of the Israeli Chief Rabbinate Council, held that Jewish law initially established two modes of relating to non-Jews, which depended on the strength of the Jewish government in the Land of Israel. The stringent requirement that only allows the settlement of non-Jews who completely meet the ger toshav criteria is dependent on the ability of the State of Israel to enforce the aforementioned prohibition of "lo yeshvu be-artzekha" ("they shall not dwell in your land"). In Rabbi Yisraeli's opinion, this prohibition is incumbent only upon the state authorities, and not upon each and every Jew. The prevailing international climate prevents any country from expelling aliens, since doing so would undermine its political and economic stability. Therefore, the halakhic method for defining the relationship to non-Jews in contemporary times would be determined by the law of lo techonem, which applies to situations in which, in his words, "the hand of the state is not strong." According to Rabbi Yisraeli, this prohibition relates only to idolaters, and does not apply to Muslims and Christians, in accordance with the opinion that distinguishes between members of these religions and idolaters. As a result, all of the additional laws that are derived from this prohibition (e.g. the prohibition to sell non-Jews land) are permitted in cases of Muslims and Christians, the needs of Christians and Muslims must be tended to and their rights preserved, and it is clearly forbidden to injure them or cause them financial loss.

Even though Chief Rabbi Herzog adopted the position that views Muslims and Christians as having the status of ger toshav, he strove to broaden this ruling and to provide it with a firm basis. In his opinion, the definition of the State of Israel as a state in which "the hand of the state is not strong" pertains to the time of the founding of the state, but not to Israel's international status today. Since the establishment of the State of Israel was dependent on the agreement of the nations of the world, the strength and authority of the state were tied to that founding moment. The nations consented to the establishment of the State of Israel on the condition that the state would treat all of its citizens—Jewish and non-Jewish—equally. Once the leaders of Israel decided to confirm the establishment of the state under this condition, the condition became binding, and Israel was no longer permitted to diverge from it. In such a situation, halakhic prohibitions regarding non-Jews are not in force, and it becomes possible to implement the democratic requirement of equality between all of citizens of the state, even idolaters. Rabbi Ben Zion Meir Hai Uziel (1880-1953), who served as Israel's Chief Sephardi Rabbi when Rabbi Herzog was Chief Ashkenazi Rabbi, agreed with Rabbi Herzog's determination regarding the unique status of the state as the basis for the equality of non-Jews, but added that, in his opinion, it is unnecessary to discuss the law of the ger toshav and all of its details in the halakhic discourse, since this in itself could cause animosity.

Similarly, Rabbi Yehudah Amital, the late head of the Har Etzion Yeshiva, saw the Israeli Declaration of Independence as the halakhic basis for determining the relationship to non-Jews in the State of Israel. He based this view on the ruling of Maimonides that it is forbidden to abrogate agreements made with non-Jews because that will cause a desecration of God's name (chillul Hashem). Thus, the State of Israel's declaration that it "will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex" has binding halakhic authority.

Former Chief Rabbi Isser Yehuda Unterman (1886-1976) found the basis for adhering to international norms of equality in the darkhei noam ("ways of pleasantness") that  characterize the Torah, and in Rabbinic decrees enacted mipnei darkhei shalom—in order to promote peace between Jews and non-Jews. In his opinion, decrees that were enacted mipnei darkhei shalom were not enacted merely for pragmatic reasons, but as a moral principle that recognizes that the general goal of the Torah is to foster peace between people. Rabbi Unterman based himself on the view of Maimonides, who identified the Torah's penchant for peace as the basis for these Rabbinic decrees. Thus, in Rabbi Unterman's opinion, the permissibility to desecrate the Sabbath in order to save the life of a non-Jew derives not based on a utilitarian approach, but rather on a genuine recognition of the value of peace.

In the same spirit, Rabbi Naftali Bar-Ilan (b. 1942), author of a vast compendium on regime and state in Israel according to the Torah, brought numerous proofs that the justification "in order to promote peace" only allows for inequality between Jews and non-Jews when the non-Jews knowingly agree to such inequality. While in the past, such understanding and agreement existed, since non-Jews treated Jews with inequality in many countries, in our times, democratic nations extend equality to all of their citizens, and there is, therefore, no knowing acceptance of inequality. Rabbi Bar-Ilan contended, therefore, that it is appropriate today to enact egalitarian halakhic rulings that are consistent with contemporary international norms.

Rabbi Haim David Halevi (1924-1998), the Sephardi Chief Rabbi of Tel Aviv-Jaffa and author of the Shulchan Arukh Mekor Chayim, presented a more radical halakhic approach.  In his opinion, an essential halakhic revitalization is required in this area because the development of humanistic norms among the nations of the world necessitates a comprehensive revision of Jewish attitudes towards non-Jews. In his view, all of the laws pertaining to non-Jews that were legislated in the past pertained to people whose idolatrous beliefs led to immoral behavior. These rulings, therefore, are not relevant to non-Jews in our times, who adhere to moral religious viewpoints. (In making this assertion, Rabbi Halevi continues the approach of Rabbi Menachem Meiri, the 13th century author of the Beit HaBechirah commentary on the Talmud, whom he frequently cites as the source of his positions.) According to Rabbi Halevi, therefore, the relationship between Jews and non-Jews today must be built upon humanistic morality, which is reflected well in the Israeli Declaration of Independence.

Almost all of the approaches presented above internalized the international norms that demand equal rights for all citizens of a state, and found a halakhic anchor for these norms. The approach that views non-Jews in the State of Israel as citizens with equal rights has become fixed in the halakhah. This, however, does not negate the right and obligation of the State of Israel to find ways to preserve its national identity within these norms. 

Dr. Eliezer Hadad is a researcher at the Israel Democracy Institute and an instructor of Bible and Jewish Philosophy at Lifshitz College and Herzog College. An extensive discussion of the ideas in this article can be found in the IDI Policy Paper Mi-utim BeMedina Yehudit: Hebetim Hilchati-im (The Status of Minorities in the Jewish State: Halakhic Aspects), which he authored under the supervision of Yedidia Z. Stern.