When a would-be proselyte seeks to convert, one should stretch out a hand to him to bring him under the wings of the Shekhinah.
VA-YIKRA RABBAH 2:8
In recent years the concern of the Jewish community has been focused upon problems associated with conversion of non-Jews to Judaism. The problems that have gripped the attention of world Jewry almost exclusively involve persons who seek conversion for purposes of marriage and whose commitment to observance of commandments is quite frequently minimal or non-existent. Regardless of the auspices under which such conversions are performed their validity even post factum is a matter of serious doubt and disagreement among rabbinic authorities.1See Contemporary Halakhic Problems, I, 270-296. The policies of some rabbinic practitioners, Orthodox as well as non-Orthodox, notwithstanding, Halakhah certainly does not endorse conversions undertaken for ulterior motives such as facilitating marriage to a Jewish spouse.
In most historical epochs, gerei zedek, observant proselytes who convert to Judaism because of deep and sincere theological conviction have been few and far between. For unknown reasons, or better, for reasons that are shrouded in divine mystery, in recent years, the number of converts who are completely and utterly sincere has grown appreciably. Converts whose sincerity has been demonstrated beyond cavil are of course welcomed without reservation. Frequently, this genre of candidates for conversion does, however, present significant technical problems for rabbinic consideration, but, happily, they present problems that spring from religious zeal rather than the opposite. Judaism places certain restrictions upon the mizvot that a non-Jew is permitted to perform. Understandably, would-be converts whose sincerity is beyond question wish to be fully observant even prior to conversion and are extremely troubled by any limitation placed upon their religious observance.
Such would-be converts experience the most keenly felt disability in the area of Sabbath observance. The Gemara, Sanhedrin 58b, declares that a non-Jew is forbidden to observe Shabbat. Over the course of the last two centuries there have been a significant number of endeavors on the part of rabbinic scholars to devise ways and means to enable such would-be converts to accomplish that which is apparently impossible, viz., both to observe and not observe Shabbat at one and the same time. The impetus for a number of those investigations is associated with an even more unusual situation, namely, the prohibition concerning Sabbath observance as it impacts upon a person who has begun, but who has not completed, the conversion process—a person who has already been circumcised but who has as yet not undergone immersion in a mikveh.
I. Historical Background
In the history of rabbinic scholarship, there have been occasions upon which questions have been posed that, seemingly, are unlikely to arise on future occasions with any degree of frequency but that nevertheless have sparked controversies that reverberate in the annals of Halakhah. On rare occasions, some facet of a seemingly circumscribed problem generates wide-ranging discussion and receives the type of detailed attention that results in illumination of theretofore scantily plumbed areas of Jewish law.
One such event occurred in Jerusalem in 5608 (1848) on a Tuesday, the 23rd of Adar II, 5608. A certain gentile, a Moroccan émigré, underwent circumcision for purposes of conversion in the presence of the Ashkenazic Bet Din of Jerusalem. The incision did not heal as quickly as might have been anticipated and, as a result, the prospective convert was unable to complete the conversion process by immersing himself in a mikveh prior to the ensuing Shabbat. The gentleman in question was meticulously observant of all aspects of Jewish law and, indeed, had been observant for some time prior to commencement of the conversion proceedings. It is reported that despite the absence of any doubt that, on Shabbat, a non-Jew may attend to the needs of a Jew who is ill, the would-be convert refused to permit a gentile to kindle a fire in his home on that Shabbat.2It seems to this writer that even a Jew might properly have directed a gentile to perform such services on behalf of this individual despite the fact that, in actuality, his status was that of a non-Jew. The prohibition against allowing a non-Jew to perform forbidden acts on Shabbat is limited to acts performed on behalf of a Jew. Accordingly, a gentile may be requested to perform such acts on behalf of himself or on behalf of a fellow gentile provided that the acts are performed with materials that do not belong to a Jew. See Ramban, Commentary on the Bible, Exodus 12:16, as well as Shulḥan Arukh and Rema, Oraḥ Ḥayyim 307:21. Accordingly, a Jew might have requested a gentile to perform such services on behalf of the would-be convert even if he were to have been perfectly healthy.
R. Abraham Menachem Steinberg, Teshuvot Maḥazeh Avraham, I, no. 54, tentatively permits a Jew to direct a non-Jew to minister to the needs of a dangerously ill circumcised but unimmersed convert on the ground that the principle “Better to desecrate a single Sabbath in order to observe many Sabbaths” may be relied upon in vitiation of a rabbinic prohibition. [See, however, R. Meir Arak, Teshuvot Imrei Yosher, II, no. 130, who states, albeit somewhat equivocally, that the principle is normative in all cases of otherwise certain loss of life and serves to permit violation even of biblical prohibitions. Cf., however, Teshuvot Ḥelkat Yo’av, II, no. 8. See also R. Eliezer Waldenberg, Ẓiẓ Eli‘ezer, X, no. 25, chap. 2, and R. Mordecai ha-Kohen Deutsch, Birkat Kohen (Jerusalem, 5749), no. 20.] In light of the rule that a gentile may be directed to perform proscribed acts on behalf of another gentile, appeal to the principle “Better to desecrate a single Sabbath in order to observe many Sabbaths” seems to be entirely superfluous.
The Chief Rabbi of the Ashkenazic community at the time of this incident was the renowned R. Shmuel Salant. Rabbi Salant had, however, journeyed to Europe on a fund-raising mission on behalf of the nascent yishuv. Substituting for him as the principal rabbinic authority of the community was one of the members of his Bet Din, R. Asher Lemel. Late on the Shabbat afternoon in question, it was reported to R. Asher Lemel that the sick convert was languishing in cold and damp quarters but refused to allow a gentile to kindle a fire on his behalf. R. Asher Lemel immediately responded that, in his opinion, not only was the would-be convert himself permitted to engage in labor on Shabbat but, moreover, in light of the prohibition posited by the Gemara, Sanhedrin 58b, forbidding a non-Jew to observe the Sabbath, he was obliged to do so since he had not yet completed the conversion process by immersing himself in a mikveh.3Cf. the discussion of R. Aryeh Leib Grossnass, Teshuvot Lev Aryeh, I, no. 33. Without citing any of the sources discusssing this topic, Rabbi Grossnass argues that, the controversy regarding whether a prospective convert may be taught Torah notwithstanding, the prospective convert may certainly be instructed with regard to the halakhic obligations and restrictions that will devolve upon him immediately upon conversion since ignorance of such matters would lead to inadvertent transgression. Similarly, suggests Rabbi Grossnass, he may observe the Sabbath prior to conversion in order to habituate himself to conduct appropriate for the Sabbath. That argument, however, has no bearing upon the issue at hand. Indeed, a non-Jew may, in general, refrain from prohibited activities on Shabbat and a prospective convert should be encouraged to do so precisely for the reason advanced by Rabbi Grossnass. The issue is whether he is required to perform an isolated act of “labor” and thereby negate his observance of Shabbat as a day of rest in its entirety. After minḥah prayers, the individuals to whom R. Asher Lemel had announced his opinion sought out the convert and informed him of R. Asher Lemel's ruling. The convert, who apparently had been scrupulous in observing Shabbat restrictions for a number of years prior to his conversion, complied with that directive, but tears filled his eyes at being compelled to violate the Sabbath. In compliance with R. Asher Lemel's directive he wrote several letters on a piece of paper or, according to another version of this story, he signed his name in the vernacular.
On the morrow, a furor erupted in the city. The Sephardic as well as the Ashkenazic scholars of the city contended that requiring a candidate for conversion who had already been circumcised and who had accepted the yoke of the commandments to desecrate the Sabbath was entirely without precedent. Upon his return to Jerusalem, R. Shmuel Salant sided with those scholars. R. Asher Lemel felt compelled to author a lengthy exposition in defense of his controversial ruling. That material was later published in Shomer Ẓion ha-Ne'eman, a prestigious rabbinic journal edited by R. Jacob Ettlinger.
Now, close to one hundred and fifty years later, the Kollel Institute of Greater Detroit has performed a valuable service in collecting and reprinting the articles and responsa spawned by this intriguing controversy. The collected material, which appears in a memorial volume titled Yad Shlomoh (New York, 5747), includes the responsum of R. Asher Lemel, reprinted from Shomer Ẓion ha-Ne' eman, nos. 154-158 (Altona, 5613); the rebuttal of R. Jacob Ettlinger, published in the same journal, no. 158, as well as in his Teshuvot Binyan Ẓion, no. 91; the opinion of R. Shmuel Salant, as recorded by R. Yechiel Michal Tucatzinsky and published in R. Aryeh Leib Frumkin, Toledot Hakhmei Yerushalayim, IV, addenda to vol. III, p. 67; the responsum of R. Jehoseph Schwartz, Teshuvot Divrei Yosef, no. 24; and the responsum of the Sephardic scholar and rabbinic authority of Tiberias, R. Jacob Chai Zerichan, Ha-Me'asef, vol. VIII, no. 1.4In addition to the reports in the rabbinic literature, an account of R. Shmuel Salant’s role in this incident appears in Jacob Rimon and Joseph Zundel Wasserman, Rabbi Shmu’el be-Doro (Tel Aviv, 5721), p. 136. The statement in that source that R. Shmuel Salant addressed this issue in “fifteen responsa of which seven were published in Ha-Me’asef” is factually incorrect.
II. Authorities Who Prohibit Sabbath Observance
R. Asher Lemel composed an extensive treatise to bolster a position that, prima facia, is unassailable. The ruling of the Gemara, Sanhedrin 58b, forbidding a non-Jew to observe the Sabbath is unchallenged. Equally incontrovertible is the fact that the Gemara, Yevamot 46b, posits circumcision and immersion as the sine qua non of conversion. Ergo, a candidate for conversion who has as yet not immersed himself in a mikveh remains a non-Jew and, as such, is forbidden to observe the Sabbath.
Furthermore, the conclusion that candidates for conversion retain their status as non-Jews until they have undergone immersion is confirmed by the Gemara, Yevamot 46a and Avodah Zarah 59a. The Gemara relates that R. Hiyya bar Abba visited a certain city and became aware of a number of cases in which Jewish women had been impregnated by "converts who were circumcised but who had not immersed." He reported this situation to R. Yoḥanan who directed him to announce publicly that those children were not of legitimate Jewish parentage.5R. Yoḥanan maintained that the issue of a gentile father and a Jewish mother is a mamzer. The normative rule, however, is that such progeny are both Jewish and legitimate. Nevertheless, R. Dov Berish Weidenfeld, Teshuvot Dovev Meisharim, I, no. 7, advances the rather surprising view that, although the child of a gentile father and a Jewish mother is Jewish, the child of a circumcised but unimmersed father is a gentile. He reasons that the son of a gentile father is Jewish because Halakhah fails to recognize a paternal relationship between the biological father and son and, accordingly, for halakhic purposes, the child has only one parent, viz., its mother. Dovev Meisharim argues that circumcision is sufficient to endow the biological father with the legal capacity to establish a halakhically recognized paternal relationship and hence the child acquires the status of its father, i.e., the child is a gentile. That position is vigorously rebutted by R. Meshullem Roth, Teshuvot Kol Mevaser, I, no. 23. In that context the Gemara expressly declares with regard to the status of such a proselyte, "since he has not undergone immersion he is a gentile." Similarly the Gemara, Berakhot 47b, states that such a convert cannot be counted in the quorum of those required for the blessing of zimun in conjunction with recitation of Grace after Meals. Moreover, the Gemara, Yevamot 47b, indicates that a convert acquires capacity to contract a valid marriage only upon immersion. It may readily be deduced that, were a candidate for conversion to enter into a marriage subsequent to circumcision but prior to immersion, a bill of divorce would not be required to dissolve the union.
The sole area of Halakhah in which, at least according to some authorities, such a convert does not have the status of a gentile is with regard to the permissibility of wine that he has touched.6See, however, R. Zevi Pesach Frank, Mikra’ei Kodesh, I, 12, who cites evidence adduced by R. Isaac ha-Levi Herzog to the effect that such an individual may offer not only an olah, which may be offered by a gentile, but other sacrifices as well. Such wine is forbidden because of a fear that the gentile may have rendered the wine unfit for use by a Jew by virtue of having used it in the performance of an idolatrous act. Tosafot and Rosh, Avodah Zarah 67b, argue that since the convert has already accepted the "yoke of the commandments" there is no basis to fear that he may have intended to perform an idolatrous libation and hence there is no reason for the Sages to have included wine touched by such an individual in their edict prohibiting wine of gentiles. Nevertheless, Rabbenu Nissim, ad locum, disagrees. Pointing out that even the convert's acceptance of the yoke of the commandments is intended as acceptance of such obligations only as of the time of completion of the conversion process, Rabbenu Nissim contends that the Sages had ample reason to include a person of such status in their edict. The ruling of Rabbenu Nissim is accepted and followed by Shulḥan Arukh, Yoreh De 'ah 124:2, while Rema, as understood by Shakh, Yoreh De 'ah 124:4, rules in accordance with the permissive view of Tosafot and Rosh.7R. Judah Shaviv, in a contribution to Barka’i, no. 4 (Spring, 5747), avers that the permissibility of Sabbath observance on the part of a person in this status is contingent upon the conflicting views regarding the permissibility of the wine touched by him since that controversy is, in turn, predicated upon diverse assessments of the nature of the convert’s acceptance of the “yoke of the commandments” at the time of circumcision. The editor of that journal, R. Saul Israeli, rebuts that contention by correctly pointing out that the authorities who permit such wine do so because a person who has begun the conversion procedure and commits himself to subsequent immersion and acceptance of the “yoke of the commandments” has ipso facto renounced idolatry and hence prohibitions predicated upon suspicion of idolatrous practices do not extend to him. There is nothing in that position that yields the inference that circumcision alone entails immediate assumption of an obligation regarding any commandment or that it allows for voluntary assumption of the obligation of Sabbath observance.
III. The Permissive View
There is, however, one early source that appears to contradict this conclusion, at least insofar as observance of Shabbat is concerned. Midrash Rabbah, Deuteronomy 1:18, states:
Said R. Yosi the son of Hanina: A gentile who observes the Sabbath prior to accepting circumcision upon himself is liable to the death penalty. Why? Because he was not commanded concerning it. And what causes you to say that a gentile who observes the Sabbath is liable to the death penalty? Said R. Hiyya the son of Abba in the name of R. Yoḥanan: In the practice of the world [if] a king and a courtesan sit and converse with one another, one who comes and interposes himself between them, is he not liable to the death penalty? So is the Sabbath between Israel and the Holy One, blessed be He, as it is said "between Me and between the children of Israel (Exodus 31:13)." Therefore, a gentile who comes and interposes himself between them prior to accepting circumcision upon himself is liable to the death penalty. The Sages said: Moses said before the Holy One, blessed be He, "Sovereign of the universe! Since gentiles have not been commanded with regard to the Sabbath, if they observe it, will you be gracious unto them?" Said the Holy One, blessed be He, "Of this you are afraid? By your life! Even if they observe all of the commandments of the Torah I will cast them before you."
The clear inference of the phrase "prior to accepting circumcision upon himself' would indicate that the prohibition against observance of Shabbat is suspended not only subsequent to circumcision, even though immersion has not occurred, but even upon mere "acceptance" of circumcision, i.e., upon resolute determination to convert to Judaism.
R. Jehoseph Schwartz bases his opposition to the ruling of R. Asher Lemel upon these midrashic comments. Moreover, contends Rabbi Schwartz, were the convert to have been forbidden to refrain from "labor" on the Sabbath day, he should not have been directed to write on Shabbat but should have been instructed to perform some other act of labor. Rabbi Schwartz advances the novel view that a gentile who performs no forms of "labor" on the Sabbath other than writing is in violation of his obligation to desist from observing the Sabbath as a day of rest. The Gemara, Sanhedrin 58b, derives this prohibition from the verse "day and night shall not cease" (Genesis 8:22) which in talmudic exegesis is rendered "day and night they shall not rest."8For reasons that elude this writer, R. Moses Schick, Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 145, contends that a literal reading of the verse which begins “all the days of the earth” would indicate that the reference is to natural phenomena rather than to human activity and, accordingly, the concluding phrase should be understood as meaning that day and night shall not cease all the days of the earth. However, comments Maharam Schick, if that were the meaning of the verse, the verse should properly read lo yishbetu. Since, however, the verse reads lo yishbotu, Maharam Schick argues that the phrase must be understood as referring to people rather than days even though people are not previously mentioned in the verse, and, accordingly, the verse must be rendered “they shall not cease [from labor].” Noting the context in which the verse appears, Rabbi Schwartz understands the talmudic statement as requiring gentiles to engage in acts contributing to "settlement of the world" every day of the week, i.e., acts relating to agriculture or manufacture that are productive in nature.9This analysis follows Rashi’s interpretation of the talmudic discussion and is an interpretation and refinement of that position. See infra, note 19. In his opinion, acts such as writing, erasing, or even dyeing, do not satisfy that requirement. Thus, according to Rabbi Schwartz, forcing the convert to write on the Sabbath was both unnecessary and, if necessary, of no avail.
In response to the argument based upon the midrashic statement, R. Asher Lemel notes that, apart from the general principle that normative halakhic rulings are not to be derived from aggadic statements, the words of the Midrash are explicitly contradicted by talmudic statements. The prohibition formulated by the Midrash is predicated entirely upon the unique relationship that exists between God, Israel and the Sabbath. However, the Gemara, Sanhedrin 58b, clearly prohibits a non-Jew from observing any day of the week as a day of rest. Moreover, he argues, mere "acceptance" of circumcision does not turn a gentile into a Jew. Hence, logically, such an individual should continue to be categorized as an interloper "between Me and the children of Israel." Accordingly, argues R. Asher Lemel, the term "acceptance," as employed by the Midrash in this context, must be understood as connoting, not merely acceptance of circumcision, but as the carrying out of that acceptance, i.e., actual circumcision followed also by immersion in a mikveh.
Curiously, R. Asher Lemel does not cite the position of Tosafot Yeshanim, Yevamot 48b, which is identical to that of Midrash Rabbah. Tosafot Yeshanim declares that a gentile who has firmly resolved to convert to Judaism may observe Shabbat with impunity. Although this view is rejected by virtually all later authorities, it is apparently accepted by Teshuvot Erez Tovah, no. 2, sec. 3.
An immediate response was published by R. Jacob Ettlinger in Shomer Zion ha-Ne'eman, no. 158. Rabbi Ettlinger, who was also the editor of that journal, candidly concedes that R. Asher Lemel's ruling was "apparently" based upon "foundations of law and truth." Nevertheless, upon further investigation, he discovered that it was never the wont of rabbinic authorities involved in the conversion of proselytes to insist that the candidates for conversion not observe Shabbat prior to immersion.10R. Asher Lemel’s position is echoed in a letter by R. David Schifman of Tiberias to R. Eliyahu Chazan, the chief rabbi of Alexandria, that appears in the latter’s Ta‘alumot Lev, III (Alexandria, 5663), no. 19. Although the responsum, written in ungrammatical rabbinic Hebrew, is somewhat unclear, the author seems to urge the Bet Din of Alexandria to insist that such candidates for conversion perform acts of “labor” on Shabbat and encourages Rabbi Chazan in that regard in stating that “this will be a matter of glory to [you] in Alexandria.” Accordingly, he seeks to uncover a source for that practice. He also points out that the Gemara, Shabbat 132a, describes observance of the Sabbath as a "covenant" and comments that, logically, it would be inappropriate for one who has entered the "covenant" of circumcision to be required to abnegate another "covenant," i.e., the Sabbath.
R. Jacob Ettlinger finds support for the accepted practice in the words of Tosafot, Keritut 9a. Tosafot describe the nature of circumcision as practiced by our ancestors prior to the Exodus from Egypt and remark that they circumcised themselves for the purpose of "entering into the covenant and in order to become separated from other peoples." Through this act of "separation" from other peoples, opines R. Ettlinger, the convert acquires an intermediate status between that of gentile and Jew. The accepted practice is thus apparently based upon a presumption that the prohibition against observance of a day of rest is limited only to gentiles, but not to a candidate for conversion who has undergone circumcision and who has thereby placed himself in this intermediate state between gentile and Jew.
IV. Authorities Who Maintain That Sabbath Observance Is Obligatory
R. Shmuel Salant similarly postulates an intermediate status between that of Jew and gentile and bases that position upon a comment of Rashba, Yevamot 71a. The Gemara notes that, according to R. Akiva, a convert who is circumcised but who has not completed the conversion process by undergoing immersion may not partake of the paschal sacrifice, but only because of an exclusionary pleonasm in the verse restricting participation in the consumption of the paschal sacrifice. Rashba tentatively objects that no specific exclusion should be required since such an individual remains a non-Jew, but immediately counters with the remark that a pleonasm is required since "although he has not completed his conversion, nevertheless, he has already begun and entered somewhat into the Jewish religion (nikhnas kezat be-dat yehudit)." Rabbi Salant further writes, albeit without any specific evidence, that, upon completion of the conversion process by means of immersion in a mikveh, the convert is regarded as having acquired the status of a Jew retroactively from the time of circumcision. He may, of course, abjure the conversion at any time until its completion. The availability of the option of renouncing conversion prior to immersion led Rabbi Salant to a remarkable conclusion: Violation of one of the Sabbath restrictions during this period is tantamount to renunciation of the conversion procedure and serves to negate the act of circumcision with the result that a would-be convert who fails to observe the Sabbath subsequent to conversion cannot be regarded as a Jew even if he subsequently undergoes immersion.11R. Joseph Rosen, Ẓofnat Pa‘aneah, Mahadura Tinyana, Hilkhot Yesodei ha-Torah 5:5 (p. 43a), independently advances the thesis that, upon immersion, the convert acquires the status of a Jew retroactively from the time of circumcision. Ẓofnat Pa ‘aneaḥ, however, makes no statement with regard to whether or not violation of Sabbath restrictions constitutes renunciation of the conversion procedure. If, according to Ẓofnat Pa‘aneaḥ, such an act does not serve to nullify the conversion, that act would retroactively constitute an act of Sabbath desecration on the part of a Jew and would clearly be forbidden. Ẓofnat Pa ‘aneaḥ’s novel view is cited and discussed by R. Isaac ha-Levi Herzog, Heikhal Yiẓḥak, I, no. 17, and R. Meir ha-Levi Steinberg, Likkutei Me’ir (London, 5730), no. 20. Presumably, such an individual retains the option of beginning the process anew by "letting blood of the covenant."
Rashba's comment did not go unnoticed by R. Asher Lemel. He cites Rashba's statement but regards it as merely an analysis of the provisions of Jewish law that would have been applicable in the absence of a verse designed to exclude the unimmersed convert from partaking of the paschal offering. The effect of that exclusion, argues R. Asher Lemel, is to establish that the status of such a convert is identical to that of a non-Jew in every respect. This is presumably the position of Tosafot, Yevamot 46b, who raise the same question as posed by Rashba and declare that the biblical phrase in question serves to establish the principle that there cannot be conversion other than through both circumcision and immersion. R. Asher Lemel cogently argues that Rashba's comment can readily be understood in a similar vein and, accordingly, there is no reason to posit a controversy between these early authorities.
R. Jacob Ettlinger notes that members of the generation of the Exodus acquired status as Jews by means of circumcision and immersion, i.e., circumcision before their departure from Egypt and immersion immediately prior to the giving of the Torah at Sinai. Hence, at the time of the offering of the first paschal sacrifice on the eve of the Exodus from Egypt, their status was that of circumcised converts who had as yet not undergone immersion. Yet the Gemara, Shabbat 87b, declares that the commandment concerning Sabbath observance was given at Marah, before revelation at Sinai. Indeed, a literal reading of the sequence of events described in Exodus 16:22-30 indicates that our ancestors were commanded to observe the Sabbath prior to experiencing revelation at Mount Sinai.12It should be noted that Rabbi Schwartz remarks parenthetically that, prior to receiving the Torah at Sinai, our ancestors refrained only from the activity expressly proscribed in Exodus 16–29, viz., collecting manna on the Sabbath, but did not refrain from other restricted activities. In a somewhat similar vein, Ḥatam Sofer, Shabbat 87b, cites an earlier authority who maintains that, although commanded at Marah, Sabbath restrictions became binding only at Sinai. Accordingly, argues Rabbi Ettlinger, it may be deduced that the commandment concerning Sabbath observance is binding upon all who enjoy a similar status, i.e., upon converts who have undergone circumcision but who have as yet not undergone immersion. Thus, according to R. Jacob Ettlinger, such individuals are not only permitted to observe the Sabbath but are required to do so. Indeed, he argues, if not for a specific exclusion of the circumcised but unimmersed convert, such an individual would be required to participate in the paschal offering as well, since his status is identical to that of those who offered the first paschal sacrifice.13Cf., Avnei Nezer, Yoreh De’ah, no 351, sec. 4.
Avnei Nezer, Yoreh De'ah, no. 351, also compares the status of an unimmersed convert to that of our ancestors at the time of the giving of the commandment concerning Shabbat at Marah14See also R. Meir Dan Plocki, Klei Ḥemdah al ha-Torah, Parashat Niẓavim, no. 1, sec. 3, as well as the comments of R. Shema‘yah Steinberg appended to R. Abraham Menachem Steinberg’s Teshuvot Maḥazeh Avraham, I, addenda, no. 54. but notes that, although Tosafot, Yevamot 46b, and Rashba, Yevamot 71a, disagree regarding an extraneous matter, both employ language implying that circumcision imposes no obligations upon a candidate for conversion. Avnei Nezer leaves unresolved the question of whether a circumcised but unimmersed convert is bound by Sabbath restrictions.15R. Betzalel Stern, Teshuvot Be-Ẓel ha-Ḥokhmah, 1, no. 52, sec. 4, assumes as a matter of course that a convert becomes obligated with regard to Sabbath observance only upon immersion in a mikveh. Be-Ẓel ha-Ḥokhmah fails to mention any of the earlier discussions of this question.
R. Jacob Chai Zerichan rebuts R. Jacob Ettlinger's arguments in asserting that prior to the giving of the Torah at Sinai "conversion" was effected by means of circumcision alone. In support of that position he argues that even the circumcision referred to by Tosafot, Keritut 9a, is not identical with circumcision as commanded at Sinai. Tosafot, Yevamot 71b, indicates that Abraham and his progeny were commanded only to sever the foreskin. Removal of the pupis, i.e., the membrane under the foreskin (peri'ah), was commanded for the first time at Mount Sinai and hence, even though it is now an integral part of circumcision, peri'ah was not previously practiced. Nevertheless, Tosafot, Keritut 9a, describes circumcision as practiced in Egypt as serving to "separate" Jews from other peoples. This must be, argues R. Zerichan, because, prior to Sinai, severance of the foreskin was itself sufficient to accomplish "conversion."
V. Sabbath Observance by the Patriarchs
Prior to the controversy surrounding the Jerusalem convert, the ambit of the prohibition against Sabbath observance on the part of a non-Jew was the subject of considerable discussion in an entirely different context. The Gemara, Yoma 28b, declares that Abraham observed all the commandments, including rabbinic decrees, despite the fact that the commandments had as yet not been revealed. Thus, Abraham observed the Sabbath. Since our ancestors are depicted by the Gemara, Keritut 9a, as having been "converted" to Judaism at the time of revelation at Sinai, Abraham and his progeny enjoyed the status of Noahides. As such, they were ostensibly bound by the injunction forbidding gentiles to observe Shabbat. How, then, was it possible for Abraham to observe the Torah in its entirety?16Cf., the novel view of R. Zevi Hirsh Chajes, Torat Nevi’im, chap. 11, to the effect that the commandments directed to the Sons of Noah are binding only subsequent to revelation at Sinai but that, prior to that event, they were observed only as salutary customs.
Some latter-day authorities, including Parashat Derakhim, Derush 1, and R. Joseph Engel, Bet ha-Ozar, Ma'arekhet Alef, klal 1, marshal a variety of sources in support of the position that the Patriarchs, although not formally bound by the Sinaitic covenant, nevertheless enjoyed the status of full-fledged Jews for all other purposes.17The Brisker Rav, R. Yiẓḥhak Ze’ev ha-Levi Soloveichik, citing Ramban, Commentary on the Bible, Leviticus 24:10, argues that, since the days of Abraham, our ancestors enjoyed the status of Jews and hence, for them, Sabbath observance was not a “novel” religious observance. Nevertheless, prior to revelation at Sinai, they were not bound by the commandments. See Ḥiddushei Maran ha-Griz ha-Levi al Tanakh ve-Aggada, published in Batei ha-Leviyim (Jerusalem, 5746), no. 13, p. 7. If so, the problem is immediately resolved. However, even those authorities cite midrashic sources that serve to render the issue a matter of doubt or controversy.
Resolution of the problem of Sabbath observance on the part of the Patriarchs has engaged the attention of numerous scholars over the centuries. Renewed discussion of that topic followed in the wake of the Jerusalem controversy. The resolutions of the problem that emerge from those discussions, a number of which will be noted presently, tend to escape between the horns of the dilemma by positing modes of conduct that constitute "labor" insofar as non-Jews are concerned but that nevertheless do not constitute violation of Sabbath restrictions for Jews. R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 126, points to a statement of the Tosefta in a different context in order to show that such a possibility must indeed exist. The Tosefta, Makhshirin 1:7, states that an abandoned child found in a city in which the Jewish and non-Jewish populations are exactly equal must conduct himself in accordance with the stringencies applicable both to Jews and to gentiles. The implication, contends Binyan Zion, is that it is possible simultaneously to follow the stringencies of both a Jew and a gentile with regard to Sabbath observance.18Cf., however, Minḥat Ḥinnukh, no. 32, Kuntres Mosekh ha-Shabbat, who observes that, according to Rambam’s analysis of this prohibition, one who refrains from labor on Shabbat because of fear of possible transgression can hardly be categorized as having devised a new religious observance. Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 154, without citing Binyan Ẓion, observes that “doubtful” fulfillment of a positive commandment takes precedence over “doubtful” violation of a negative commandment. He also reiterates the thesis advanced in an earlier responsum, Oraḥ Ḥayyim, no. 142, to the effect that matters of “doubt” are permitted to Noahides. If such a thesis is accepted, the entire controversy could be skirted by giving the circumcised but unimmersed convert the option of engaging in an act of that nature. The same option might also be offered to a prospective convert who feels uncomfortable engaging in conduct that profanes the Sabbath.
1. Me 'iri
The comments of Me'iri, Sanhedrin 58b, are valuable not only for the intriguing insight presented therein but also for the manner in which they illuminate this issue and suggest a resolution of an entirely different order. Me'iri addresses the underlying rationale of the talmudic ban prohibiting gentiles from engaging in the performance of two specific mizvot, viz., observance of Shabbat and study of Torah. The prohibition against establishing a day of rest, asserts Me'iri, is predicated upon a concern that, in doing so, the non-Jew "would appear as if he is one of our nation and others will learn from him." Similarly, comments Me'iri, if a gentile engages in the study of Torah "he deserves to be punished because people will think he is one of ours for they will see that he is knowledgeable and, following him, they will come to err." Proficiency in Torah and observance of Shabbat are the unique hallmarks of a Jew. According to Me'iri, the fundamental concern underlying this prohibition is that Jews will mistakenly assume that a non-Jew who becomes proficient in Torah or who observes Shabbat is a coreligionist and hence they may seek to emulate his conduct in other areas as well. Since such a person does not conduct himself as a Jew with regard to other matters, those who would pattern their own conduct upon his might easily become enmeshed in activities prohibited to Jews. According to Me'iri, these prohibitions reflect a concern that is germane only in an epoch in which there exist Jews who might be misled. Prior to Sinai, there simply were no Jews to be misled. Moreover, no one could conceivably be misled by a person such as Abraham who observed the Torah in its entirety. Hence, Abraham would have had no cogent reason to refrain from either Torah study or Sabbath observance.
It is certainly arguable, although less convincingly so, that this concern does not pertain in the case of a circumcised but unimmersed convert. Although Me'iri is silent with regard to Sabbath observance, he adopts an even more radical position with regard to Torah study in declaring that a non-Jew, even if he does not contemplate conversion, may engage in Torah study for the purpose of fulfilling the "fundamental commandments" of Judaism. Quite apparently, Me'iri feels that no one will be led astray by such an individual and that such anomalous situations are not encompassed within the formal prohibition. The same would appear to be the case with regard to circumcised but unimmersed converts. Regrettably, since the commentary of Me'iri was published only in recent years,19Me’iri was born in 1249 in Perpignan and died there in 1306. His talmudic commentary, Bet ha-Beḥirah was published on individual tractates on the basis of various manuscripts limited to those tractates. The first volume to appear was Bet ha-Beḥirah on Megillah (Amsterdam, 5529). Me’iri’s commentary on all tractates of the Talmud has been available only since the discovery of the Parma manuscript in the 1920’s. Bet ha-Beḥirah on Sanhedrin was edited and published by Abraham Sofer, Frankfurt am Main, 5690. Me'iri is not cited by the many scholars who have discussed this issue. It is nevertheless clear that many early authorities understand these prohibitions in a manner that is at variance with Me'iri's interpretation.20According to Rambam, Hilkhot Melakhim 10:9, establishment of a day of rest is forbidden because it constitutes the institution of a novel religious observance. Indeed, according to Rambam, the prohibition is not limited to Sabbath observance but serves as a paradigm prohibiting a gentile from devising his own rituals. Thus, Rambam writes, “[We] do not allow him to create a ritual (le-ḥaddesh dat) of his own accord.”
Yad Ramah, Sanhedrin 58b, comments that, according to Rambam, a non-Jew is forbidden to observe Shabbat only when that day is observed as a day of rest out of a sense of religious obligation, either because the non-Jew believes that he is commanded by God to observe Shabbat or because he observes the day of rest as a devotee of a pagan cult. It would appear that, according to Yad Ramah, a non-Jew who recognizes that he has no obligation regarding Shabbat but who wishes nevertheless to observe the Sabbath out of a sense of monotheistic religious fervor incurs no transgression.
R. Meir Dan Plocki, in his discussion of Noahide law, ḥemdat Yisra’el (Pietrkow 5687), Kuntres Ner Miẓvah, p. 227, comments that observance of a ritual is forbidden only (i) if the gentile asserts that he is divinely commanded to do so, or (ii) if he does so in service of a pagan deity. Ḥemdat Yisra’el attributes this position to Yad Ramah. It nevertheless appears to this writer that a novel ritual observance devised by the non-Jew is indeed forbidden to him even though he acknowledges that it is not of divine origin and that a close reading of the text in question indicates that Yad Ramah does not intend to state that such is permitted to him.
Nevertheless, as evidenced by Rambam’s ruling, Hilkhot Melakhim 10:10, a non-Jew who recogonizes that he is under no obligation to observe the commandments of the Torah may nevertheless do so in order to receive reward. If observance of Shabbat and of other commandments are entirely parallel in nature, as Rambam implies, it should follow that voluntary observance of Shabbat by a non-Jew with full recognition that such obligation is not incumbent upon him should be permitted. Cf., Ḥemdat Yisra’el, loc. cit., s.v. u-le-fi zeh. It must, however, be noted that this conclusion does not emerge in any of the latter-day discussions of this prohibition. Ḥemdat Yisra’el does however note that, according to Yad Ramah’s understanding of Rambam, observance of a day of rest for entirely secular and mundane purposes, even on a regular basis, is entirely permissible. Moreover, Radbaz, Hilkhot Melakhim 10:9, appears to be of the opinion that, according to Rambam, intentional observance of a day of rest is forbidden to a non-Jew under any circumstances. According to Radbaz, establishment of an observed day of rest is forbidden even if the observance is undertaken for health, economic or pragmatic reasons. If so, Sabbath observance is not entirely parallel to observance of other commandments insofar as this prohibition is concerned since Rambam certainly permits observance of other commandments on a voluntary basis for purposes of accumulating merit and earning reward. Cf., Ḥemdat Yisra’el, loc. cit.
Rashi maintains that the nature of this prohibition is not at all theological or “religious” in nature but reflects the telos of creation. According to Rashi’s interpretation, just as celestial bodies proceed continuously in their orbits and just as day and night unceasingly succeed one another, so also must non-Jews fulfill their destined role in the created universe on a continual basis. Accordingly, they are forbidden to desist from productive labor over a full twenty-four hour period. Nevertheless, Radbaz, loc. cit., opines that even according to Rashi, a non-Jew is culpable only if he intentionally ordains a given day as a day of rest, but that mere inadvertent or unwitting failure to perform an act of “labor” engenders no guilt.
2. R. Meir Dan Plocki
R. Meir Dan Plocki, Hemdat Yisra 'el (Pietrkow, 5687), Kuntres Ner Mizvah, p. 227, addressing himself to the question of Abraham's observance of the commandments, posits a limitation upon the ambit of the prohibition against Sabbath observance on the part of a non-Jew that would also render the prohibition inoperative insofar as a circumcised convert is concerned. Shabbat constitutes not only a commemoration of God's creation of the universe but also of his ongoing providential guardianship. The people of Israel enjoy a unique relationship with God in that He exercises a direct and individual form of providence over them. In contradistinction, divine guardianship of non-Jews is less direct and is channeled through the stellar constellations or forces of nature. This distinction is paraphrased in the talmudic dictum, Shabbat 156a and Nedarim 32a, "Israel is not governed by the constellations (Ein mazal le-Yisra'el)." Jews, who are under the guardianship of God Himself, are commanded to emulate Him by resting on the seventh day. Non-Jews, whose destiny is regulated by the constellations, must pattern their conduct upon that of the stars, i.e., they dare not desist from labor on any day of the week just as the celestial bodies have not ceased from their divinely ordained tasks since the moment of their creation. Thus the comment of the Midrash describing a non-Jew who observes Shabbat as an interloper interjecting himself into the unique relationship between God and Israel is equally applicable to a situation in which a non-Jew observes any day of the week as a day of rest. In observing any day as a day of rest, the non-Jew, in effect, announces that he does not emulate the celestial bodies because he is not dependent upon them as the conduits of providence but enjoys the unmediated guardianship of God as do the people of Israel.
Sabbath observance posed no problem for Abraham, asserts Hemdat Yisra'el, because he was commanded by God, "Exit from your stargazing! Israel is not governed by the constellations" (Shabbat 156a and Nedarim 32a). Upon renouncing idolatry, Abraham became the recipient of God's direct providential guardianship and, as such, became entitled to emulate Him in observing Shabbat as well. Hemdat Yisra'el applies the same thesis in elucidating the problematic position of Rashi, Yevamot 48b, who maintains that a resident alien (ger toshav) is obliged to observe Shabbat.21Subsequent commentators found Rashi’s position puzzling and were at a loss to find a talmudic source substantiating that view. It may be the case that, according to Rashi, the obligation is derived from “acceptance” of the status of ger toshav. If so, it may well be argued that a circumcised convert who has accepted the “yoke of the commandments” is similarly bound to observe Shabbat by virtue of his “acceptance” of the “yoke of the commandments” which certainly includes acceptance of the obligations assumed by a ger toshav. [In a similar vein, Sefer Ḥasidim, no. 690, declares that a candidate for conversion “who has accepted the yoke of the commandments” may not be given non-kosher food to eat.] Thus, according to Rashi, a circumcised convert would not only be permitted to observe Shabbat but would be obligated to do so. However, since Rashi’s reasoning is elusive, that conclusion cannot be stated with certainty. Indeed, Rabbenu Nissim, Avodah Zarah 67b, declares that the status of an unimmersed convert is inferior to that of a ger toshav because the former’s acceptance of the “yoke of the commandments” is intended to be binding only upon subsequent immersion. Moreover, the institution of ger toshav as a formal halakhic construct has lapsed with the destruction of the Temple; see Arakhin 29a, and Rambam, Hilkhot Avodah Zarah 10:6, Hilkhot Shabbat 20:14 and Hilkhot Issurei Bi’ah 14:8. Accordingly, a convert who accepts the “yoke of the commandments” cannot ipso facto be assumed to have acquired the status of a ger toshav. Cf., however, Teshuvot Radbaz, III, no. 479, who, in a different context, equates the status of an unimmersed convert with that of a ger toshav. For attempts by contemporary scholars to reconcile Rashi’s position with the talmudic prohibition against Sabbath observance by non-Jews see R. Jacob Kaminetsky, “Be-Inyan Ger Toshav,” Sefer ha-Zikkaron le-Zekher Moreinu ve-Rabbeinu ha-Ga’on R. Rafa’el Barukh Sorotzkin, ed. R. Abraham Shoshanah (n.d.), pp. 198–200, and R. Moshe Sternbuch, Edut, no. 6 (Adar II, 5749), p. 30. The ger toshav, in accepting the Seven Commandments of the Sons of Noah, has renounced idolatry and, asserts Hemdat Yisra'el, thereby acquires a status similar to that of Abraham. It may certainly be argued that a circumcised convert who has accepted the "yoke of the commandments" is similarly no longer bound by the constraint against Sabbath observance on the part of gentiles.22This point is also amplified in this writer’s article, “Sabbath—Prism of Emunah,” Jewish Observer, June, 1970, pp. 19–24.
3. Hatam Sofer
An ingenious solution to the problem of how the Patriarchs licitly observed the Sabbath is recorded in the name of Hatam Sofer by his disciple, R. Moses Schick, Teshuvot Maharam Shik, Oraḥ Hayyim, no. 145.23A similar solution is presented by Teshuvot Ḥeshek Shlomoh (Warsaw, 5648), addenda, p. 151. As evidenced by the ruling of Shulḥan Arukh, Oraḥ Hayyim 13:1, a garment to which zizit have been improperly attached may not be worn in a public thoroughfare (reshut ha-rabbim) on Shabbat, not only because of the abrogation of the commandment concerning zizit, but also because wearing a garment of that nature constitutes "carrying" on Shabbat. Ẓizit are attached to a garment solely for purposes of fulfilling a religious obligation; when that obligation is fulfilled they become an integral part of the garment. However, when the zizit fail to satisfy the stipulated requirements, the mizvah is not fulfilled and, since they serve no purpose, the zizit do not become an integral part of the garment but instead constitute a "burden."
Hatam Sofer argues that the Patriarchs needed only to don a garment to which zizit had been attached and, so attired, walk from a private domain into a public thoroughfare. From a perspective that regards the Patriarchs as Jews intent upon fulfilling the commandment of zizit, no infraction was incurred. For Jews, zizit become an integral part of the garment to which they are attached and garments are not deemed a "burden." However, if the Patriarchs are regarded as Noahides who are under no obligation to affix zizit to their garments, those appendages do not become an integral part of the garment and, accordingly, constitute a "burden." Hence, argues Hatam Sofer, as Noahides, the act of transporting zizit affixed to a garment from a private domain into a public thoroughfare served to nullify their observance of Shabbat.
Hatam Sofer's solution appears to this writer to be problematic. His reasoning is based upon the assumption that zizit do not constitute a burden only because their presence is an absolute requirement. It may well be argued that zizit become an integral part of a garment not only when necessary to discharge an absolute obligation (ḥiyyuv) with regard to a commandment but even when they serve as voluntary fulfillment (kiyyum) of a nonobligatory commandment. As reflected in the plain meaning of Rambam's ruling, Hilkhot Melakhim 10:10, and even more explicitly in one of his responsa,24Teshuvot ha-Rambam, ed. Alfred Freimann (Jerusalem, 5694), no. 124. non-Jews may fulfill mizvot on a voluntary basis for purposes of receiving reward.25Cf., however, R. Moses Feinstein, Iggerot Mosheh, Yoreh De’ah, I, no. 3 and Yoreh De‘ah, II, no. 7. For a fuller discussion of this point see Contemporary Halakhic Problems, I, 317–323. Ẓizit affixed to a garment and worn by a non-Jew for the purpose of fulfilling a mizvah should logically be regarded as an integral part of the garment since they serve a purpose and their permanent attachment is clearly desired by the wearer. Their status should not be inferior to that of decorations permanently affixed to a garment for aesthetic purposes. Such embellishments are deemed to be an integral part of the garment and not a "burden."
R. Jacob Chai Zerichan develops a novel thesis on the basis of which he dismisses the solution offered by Hatam Sofer. Of the thirty-nine forbidden categories of "labor" on Shabbat, thirty-eight are derived from the verse "you shall do no work" (Exodus 20:10). The thirty-ninth, transfer of an object from a private domain to a public thoroughfare or transport of an object over a distance of four cubits in a public thoroughfare, is not derived from that verse but is the subject of a tradition received by Moses at Sinai (halakhah le-Mosheh mi-Sinai). Based upon Rambam's ruling, Hilkhot Melakhim 9:10, it has become a well-established principle that such traditions are directed solely to Jews, but are inapplicable and of no effect insofar as Noahides are concerned.26Cf., however, infra, note 29 and accompanying text. Accordingly, argues Rabbi Zerichan, since "labor" is only that which is defined as such by Scripture, carrying a "burden" in a prohibited area does not constitute a form of "labor" insofar as non-Jews are concerned. Hence performing an act of this nature would not negate the "rest" which is forbidden to non-Jews over a twenty-four hour period.27See also Pirḥei Nisan included by R. Yitzchak Reitbard in his Kehillat Yiẓḥak al ha-Torah (Vilna, 5660), Parashat Toldot. Pirḥei Nisan, discussing the problem of Sabbath observance by the Patriarchs, advances a somewhat modified form of this solution. He assumes that the status of the Patriarchs was “doubtful,” i.e., that it was not clear whether their status was that of Jews or that of Noahides. Accordingly, he indicates that they had the option of wearing a garment with ẓiẓit and making the express stipulation that if their status be that of Jews they don the garment with the intention of fulfilling the commandment, but that if their status be that of Noahides they have no intention to fulfill the commandment.
That discussion suggests an expedient that may readily be utilized by a prospective convert who is discomfited by the prospect of overt violation of Sabbath restrictions. Clearly, when the ẓiẓit are not worn for the purpose of fulfilling a miẓvah they constitute a “burden.” Accordingly, a non-Jew who desires to observe Shabbat might avail himself of the expedient of stipulating categorically that he dons the garment with ẓiẓit with the express intention of not fulfilling the miẓvah. Thus, for him, the ẓiẓit would constitute a burden.
4. R. Pinchas ha-Levi Horowitz
The earliest reference to the desire of a would-be convert to observe all the tenets of Judaism, including Shabbat, and to the attendant problem, is probably that recorded by R. Akiva Eger in the index (apparently compiled by R. Akiva Eger himself) to his responsa collection. The indexed responsum, no. 121, deals with an entirely different problem related to a particular case of conversion. However, in a concluding note inserted in the index to that responsum, R. Akiva Eger states his desire to point out by way of obiter dictum his dissatisfaction with regard to a practice that was apparently not uncommon in his day. He refers disparagingly to householders who maintained in their employ non-Jewish maids who contemplated conversion and conducted themselves as Jews in every regard. R. Akiva Eger censures those householders on the grounds that in countenancing Sabbath observance by their servants they encourage transgression. Accordingly, he counsels that the women in question be restrained from conducting themselves in such a manner and that they be counseled either to undergo immersion for the purpose of conversion or to perform some act of "labor" on Shabbat.
Subsequently, R. Akiva Eger had occasion to qualify and defend his exhortation. In a short item included in a series of addenda appended to later editions of his responsa collection, R. Akiva Eger, addendum to responsum no. 121, reports that "a long time" after his original note was published there appeared in print the work of R. Pinchas ha-Levi Horowitz on the Pentateuch, Panim Yafot. In a comment on Parashat Noaḥ, that scholar remarks that the "day" which a non-Jew is forbidden to observe as a day of rest is not a "day" of the Jewish calendar which begins in the evening and ends the following evening but consists of a twenty-four hour period beginning and ending at daybreak as indicated by the order of the words of the verse "day and night shall not cease" (Genesis 8:22). Panim Yafot elaborates upon this thesis in explaining that the "day" of the pre-Sinaitic era referred to in early sections of the Bible is consistently a day beginning with daybreak and concluding with the ensuing night. The identical thesis is reiterated by R. Pinchas ha-Levi Horowitz in his talmudic commentary, Ha-Makneh, Kiddushin 37b. Accordingly, the talmudic rendition of the verse "day and night they shall not rest" should similarly be understood as positing a prohibition against observance of a twenty-four hour period of rest beginning with daybreak. Since Sabbath restrictions commence on Sabbath eve and continue until the next evening, a non-Jew who performs an act of "labor" during daylight hours on Friday and also on Saturday after nightfall has refrained from desecration of the Sabbath without violating the admonition not to rest for the span of an entire "day." If this thesis is accepted, observes R. Akiva Eger, it follows that his earlier admonition regarding Sabbath observance by non-Jewish maids was misplaced.
R. Akiva Eger, however, rejects Panim Yafot's definition of a "day" for purposes of this prohibition on the basis of a comment of Tosafot, Sanhedrin 59a. Tosafot remark that, subsequent to receiving the Torah at Mount Sinai, Jews are not bound by the prohibition against refraining from labor for the period of a full day only because they were subsequently explicitly commanded to the contrary. Panim Yafot himself cites Tosafot's comment in his own discussion and points out that, if his position is correct, there is no inherent contradiction between a commandment to observe the Sabbath from Friday evening until Saturday night and a prohibition against refraining from work during a twenty-four hour period beginning and ending at daybreak. Tosafot, who posit a contradiction, must then have regarded the "day" on which rest is forbidden as coextensive with the "day" on which the Sabbath is to be observed. Panim Yafot dismisses that objection with the observation that since, technically, Yom Kippur may fall on a Friday or a Sunday, situations may well arise in which a Jew is commanded to abstain from all labor for a consecutive forty-eight hour period. Therefore, argues Panim Yafot, Tosafot regard the commandments concerning Shabbat and Yom Kippur as abrogating the prohibition against resting from labor for an entire day.
R. Akiva Eger refutes that argument in a rather ingenious way. In a talmudic controversy between himself and R. Yochanan, Resh Lakish maintains that any act that goes unpunished because the infraction involves a measure or quantity below the limit for which punishment is stipulated (ḥazi shi 'ur) is biblically permissible and forbidden only by virtue of rabbinic edict. Indeed, Mishneh le-Melekh, Hilkhot Shabbat 18:1, asserts that, insofar as Sabbath restrictions are concerned, Resh Lakish's position is undisputed.28See also Teshuvot Ḥakham Ẓevi, no. 86; Teshuvot Torat Ḥesed, Oraḥ Ḥayyim, no. 44; and Pri Megadim, introduction to Hilkhot Shabbat. If so, notes R. Akiva Eger, it is entirely possible to observe both Shabbat and Yom Kippur and yet not rest for an entire twenty-four hour period. If Yom Kippur occurs on Sunday it is possible, for example, to harvest half of the proscribed quantity of produce on the Sabbath and again to harvest half of the proscribed quantity on Saturday night after the conclusion of Shabbat, i.e., on Yom Kippur eve. Since the "labor" is not completed on either Shabbat or Yom Kippur there is no biblical violation of the sanctity of either day whereas, insofar as the prohibition "day and night they shall not work" is concerned, an act of labor has been performed in its entirety on a single "day," i.e., within the span of a twenty-four hour period measured from daybreak to daybreak. The result, argues R. Akiva Eger, is that observance of both Shabbat and Yom Kippur on consecutive days is possible without "resting" on a single "day" as the latter term is defined for purposes of the prohibition of enjoyment of a complete "day" of rest. Since Tosafot does posit a contradiction, argues R. Akiva Eger, Tosafot must reject Panim Yafot's thesis regarding the definition of a "day" in the pre-Sinaitic era.29A thesis identical to that of Panim Yafot is also cited in the name of an anonymous rabbi by Ḥeker Halakhah, no. 15 and rebutted by the latter authority. R. Joseph Saul Nathanson, Yad Sha’ul, Yoreh De ‘ah 293:4 (pp. 72b-73a), similarly cites this thesis but rebuts it on the basis of the fact that a verse describing an event prior to the Exodus is cited by the Gemara, Rosh ha-Shanah 20b, in establishing that festivals commence in the evenings. R. Jacob Chai Zerichan dismisses that argument on the contention that the verse in question is designed to establish post-Sinaitic regulations. Teshuvot Torat Ḥesed, no. 25, advances a similar objection based upon a statement of the Palestinian Talmud, Ḥalah 2:1, that impliedly regards the commencement of the day prior to revelation at Sinai as occurring in the same manner as in the post-Sinaitic era. Similarly, Teshuvot Binyan Ẓion, no. 126, cites Ḥullin 83a in pointing out that the day is regarded as commencing with nightfall on the basis of verses describing creation. Although those arguments may be cogent with regard to the determination of other issues, it seems to this writer that they are not applicable to the particular question of the delineation of the twenty-four hour period during which “rest” is forbidden to a Noahide. That issue does not necessarily involve the general question of when a day was regarded as having begun prior to Sinai; it involves only the explication of the meaning of the phrase “day and night shall not cease.” In that context, although perhaps in no other, “day” precedes “night” in the Scriptural phrase and thereby indicates that the twenty-four hour period commences with daybreak. Binyan Ẓion, however, dismisses the argument that the phrase “day and night shall not cease” establishes a different definition of the day for purposes of the prohibition concerning observance of a day of rest by a Noahide. See also the rebuttal of that argument by R. Joseph Patzanovski, Pardes Yosef, Parashat Noah, sec. 22.
It may also be argued that Panim Yafot’s thesis is not necessarily contradicted by Tosafot since Tosafot may maintain that, although the pre-Sinaitic commandment is binding upon Jews, its parameters are determined by general post-Sinaitic canons. Cf. R. Shimon Moshe Diskin, Mas’et ha-Melekh, Ḥullin 100b. Nevertheless, as noted above, in this case, it is not the post-Sinaitic definition of “day” that may serve to determine the issue but the meaning of the phrase “day and night shall not cease” which is not necessarily related to the definition of “day” in other contexts.
5. R. Jacob Ettlinger and Minḥat Hinnukh
R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 126, points out that a facile solution to this problem may be found in the fact that Jews are culpable for Sabbath violation only if a specified measure of "labor" is performed. Rambam, Hilkhot Melakhim 9:10, declares that minimum quantities (shi'urim) with regard to violation of biblical commandments are stipulated only with regard to commandments directed to Jews. The Gemara, Sukkah 6a, indicates that the concept of a minimum quantity is rooted in a halakhah le-Mosheh mi-Sinai, an oral tradition transmitted to Moses at Sinai. According to Rambam, those traditions were transmitted only to Jews, but not to non-Jews, with the result that there is no concept of a minimum quantity with regard to any rule of law addressed to Noahides.30Rambam’s position is however disputed by Tosafot, Ḥullin 33a. See also Sedei Ḥemed, Kelalim, Erekh Gimel, sec. 46. Accordingly, a non-Jew might harvest less than the forbidden quantity of produce (ḥazi shi 'ur) and thereby have refrained from "rest" as that concept applies to non-Jews since even minimal labor constitutes labor for Noahides, but nevertheless not have breached the sanctity of the Sabbath as that concept is defined for Jews. Binyan Ẓion offers this suggestion only according to the talmudic opinion that regards ḥazi shi 'ur as not only excluded from punishment but as entirely permitted.
A similar line of reasoning is presented by Minḥat Hinnukh, no. 32, toward the end of his Kuntres Mosekh ha-Shabbat. Minḥat Hinnukh adds that, granted that an act involving less than the culpable measure or quantity is biblically forbidden even with regard to Sabbath prohibitions, nevertheless, a gentile who performs an act of that nature in order not to transgress the biblical commandment prohibiting rest for an entire day would not be in violation of Sabbath regulations. Those who maintain that even acts involving minimal quantities are biblically forbidden regard such actions as forbidden because of the fact that, when additional quantities are added, the aggregate constitutes a biblical prohibition. Thus, for example, it is forbidden to write a single letter because subsequent writing of a second letter results in culpability. Since there could be no culpability without the writing of the first letter, it follows that the writing of the first letter must also have been biblically forbidden. Minḥat Hinnukh argues that this reasoning is cogent only in a situation in which the first act may potentially be combined with a second in a manner that would lead to culpability. However, an individual who desires to observe the Sabbath but who performs an act involving less than the culpable quantity in order not to be guilty of a transgression will assuredly not repeat the act in a manner that will render him culpable for transgression of the Sabbath. Hence, argues Minḥat Hinnukh, since there will never be an aggregate quantity for which the individual would be culpable, an act involving a lesser quantity is not biblically proscribed.
6. R. Jacob Ettlinger's Second Approach
An entirely different solution is advanced in the same responsum by Binyan Ẓion, no. 126. As noted earlier, shi'urim were transmitted to Moses at Mount Sinai. Prohibitions addressed to Noahides at an earlier time were not predicated upon particular shi 'urim. Since, as Rambam maintains, those prohibitions were not modified at Sinai they remain in effect precisely as they were originally instituted. Similarly, argues Binyan Ẓion, since the thirty-nine categories of forbidden labor were formulated only at Sinai, the concept of "rest" forbidden to Noahides at an earlier time could not have been defined in terms of "rest" from those thirty-nine categories of labor. The definition of "work" or "labor" must have been a colloquial one, i.e., any activity requiring exertion or travail. The concept of "labor" as delineated by the thirty-nine categories of labor prohibited to Jews on Shabbat is entirely divorced from the colloquial meaning of that term. Thus, transporting a needle in a public thoroughfare or striking a match is a form of "labor" forbidden on Shabbat, whereas carrying a heavy burden in a private domain is not at all a form of "labor" that is forbidden on the Sabbath. However, argues Binyan Ẓion, since the Noahide prohibition against "resting" for an entire day is to be defined colloquially, a non-Jew who transports a needle in a public thoroughfare, but refrains from all other forms of labor, remains in violation of the Noahide prohibition against "resting." Conversely, a non-Jew who carries a heavy burden in a private domain has not "rested" on the Sabbath even though, for a Jew, such an act does not constitute an act of "labor." Accordingly, a non-Jew who engages in an activity of that nature, i.e., carrying a heavy burden in a private domain, has observed the Sabbath without violating the admonition "day and night they shall not rest."
7. Pardes Yosef
R. Joseph Patzanovski, Pardes Yosef, Parashat Noah, sec. 22, offers an additional solution to this problem on the basis of the statement of the Gemara, Shabbat 75b, indicating that an individual who transports an object from which it is forbidden to derive any benefit is not culpable. Accordingly, Pardes Yosef argues that the Patriarchs simply had to transport some object from which it is forbidden to derive benefit, e.g., an item utilized for purposes of idol worship. If the Patriarchs enjoyed the status of Jews, no violation of Sabbath restrictions was incurred. Non-Jews, however, are permitted to derive benefit from such objects. Since he may derive benefit from such objects, a non-Jew who transports such an object on Shabbat has not "rested" from labor. Accordingly, if the Patriarchs are to be regarded as Noahides, transportation of such objects by them would have constituted an act of labor and would have sufficed to bring them into compliance with the command "day and night they shall not rest."
It would seem that this solution is viable only if it is assumed that the status of the Patriarchs was "doubtful" but that it would not serve to solve the problem of a non-Jew who clearly enjoys the status of a Noahide but wishes to observe the Sabbath. Since such a person may derive benefit from such an object if he so chooses, it stands to reason that, objectively, the item must be regarded to be a burden.31Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 245, employs a similar line of reasoning in dismissing the notion that the Patriarchs observed Shabbat as Jews while desecrating it as Noahides by separating food forbidden to Noahides (viz., mefarkeset), but not to Jews, from other food in a manner forbidden on Shabbat (borer). Maharam Shik cogently argues that, since such food was objectively forbidden to the Patriarchs, they could not have sorted such food in this manner while observing Shabbat as Jews. Nevertheless, it may serve to meet the psychological needs of a prospective convert who may be concerned with practice or habituation in the observance of mizvot rather than with technical halakhic considerations.
8. R. Jacob Chai Zerichan
R. Jacob Chai Zerichan assumes as axiomatic that a non-Jew who refrains from labor without the intent to observe the day as a day of rest, but simply out of laziness or because of a desire for relaxation without intending to celebrate the day as a day of religious observance, is not in violation of the biblical prohibition. 32Cf., the opinion of Radbaz cited supra, note 17. Accordingly, he advises that a non-Jew may refrain from violation of Sabbath prohibitions simply upon the mental determination that he refrains from activity prohibited to Jews, not for purposes of religious observance, but solely because he has no desire to perform such actions. Rabbi Zerichan's solution is problematic, to say the least. The non-Jew who conducts himself in this manner is obviously motivated by religious considerations and would candidly concede that it is such motivations which prompt him to seek ways and means of refraining from acts of labor on the Sabbath. It is precisely a religious consideration that causes such a non-Jew to observe Shabbat as a day of rest and relaxation. Under such circumstances it appears quite doubtful that a mere mental resolution to observe the day as a day of rest and relaxation is sufficient to negate the religious connotations of rest on the seventh day of the week.
9. Maharam Schick
R. Moses Schick, Teshuvot Maharam Shik, Oraḥ Hayyim, no. 145, advances a solution to this problem based upon the position advanced by Magen Avraham, Oraḥ Hayyim 448:4. Magen Avraham maintains that, although there is no halakhic concept of agency with regard to acts performed by a gentile on behalf of a Jew or, vice versa, nevertheless agency does exist as a halakhic construct with regard to acts performed by a gentile at the behest of another gentile. Maharam Shik contends that, since (at least according to Rashi) the prohibition "day and night they shall not rest" requires the performance of some constructive act designed to promote the development of a settled and developed universe,33See supra, note 19. such an act need not be performed personally but may be performed by an agent. The concern, contends Maharam Shik, is not the physical act per se but its teleological effect. Accordingly, argues Maharam Shik, the obligation can be discharged by employment of an agent to perform an act having the requisite effect. Accordingly, the Patriarchs might have availed themselves of the expedient of directing a gentile to perform such an act on their behalf. As Noahides, they would have been credited with performing an act of labor as a result of an act performed on their behalf by their designated agent; as Jews, designation of a non-Jew as an agent would have been of no effect and hence the agent's act would have been of no significance for the principal. Hence, as Jews, the act of the putative agent would not have constituted a violation of Sabbath restrictions on the part of the principal.34See also additional solutions advanced by Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 145, and R. Joseph Engel, Bet ha-Oẓar, Ma ‘arekhet Alef sec. 14. Numerous other attempts to resolve this problem can best be described as homiletical endeavors falling short of the standards of halakhic dialectic.