Halakhah zu Bereschit 34:34

Jewish thought—and law—is based upon an entirely different set of premises. Man is bound by divinely imposed imperatives which oblige him to be concerned with the needs of his fellow. Some of these obligations are entirely personal. Others either could not possibly be discharged by any person acting independently or, if directed to individuals, would constitute an inordinate burden. Hence such obligations become the responsibility of society at large. According to Nachmanides,¹Commentary on the Bible, Gen. 34:13. the very first divinely commanded system of law, the Noachide Code, contains a single positive commandment, dinim, which translates into a general obligation to promulgate laws and to establish standards regulating the manifold areas of interpersonal intercourse. Jewish law recognizes not only the reciprocal dependency of members of the human race, but also that the human condition requires that the governing authority, acting as the representative of society as a whole, be endowed with the broad powers necessary for the promotion of social welfare.

There are grounds for assuming the existence of an interdiction against intermarriage pre-dating the Sinaitic covenant. This is manifest in the biblical narrative concerning the incident which occurred between Dinah, the daughter of Jacob, and Shechem, the son of Hamor, as well as the subsequent narrative concerning Tamar, the daughter-in-law of Judah. The Torah censures the actions of Shechem in harsh terms: "Ki nevalah asah be-Yisra'el—He has committed a heinous deed in Israel; ve-khen lo ye'aseh—and such a deed cannot be sanctioned" (Genesis 34:7). The Brisker Rav, Rabbi Yitzchak Ze'ev Soloveitchik, examines this verse and offers an illuminating interpretation. Given the structure of society in antiquity, Shechem's action was not entirely unparalleled. It must be remembered that Hamor ruled the area as an absolute monarch. Shechem was a member of the aristocracy, a princeling, and, quite apparently, could do as he wished with any damsel in his father's domain. Why, then, is the deed deemed so heinous? The Brisker Rav points out that the Gemara, Avodah Zarah 36b, declares that at an early point in history, the Court of Shem, the son of Noah, promulgated a decree against intermarriage. When Tamar is found to be with child, Judah passes judgement: "Bring her forth, and let her be burnt." Tamar is condemned to death but her punishment is, in terms of Halakhah, incongruous. She was ostensibly a widow at the time. Fornication is not a capital transgression. The Gemara indicates that Tamar was punished, not for simple harlotry, but for the infraction of having violated the edict of the Bet Din of Shem, i.e., for apparently consorting with a gentile. The Gemara declares that even in the pre-Sinaitic era there existed a prohibition forbidding members of the family group from which stemmed the progenitors of the people destined to become the community of Israel from intermarrying with members of a gentile nation. From the early dawn of history the people of Israel sought to preserve their ethnic purity and legislated against intermarriage.

The Ramban (commentary to Bereishit 34:13 and 49:5-6) strongly disagrees with the Rambam’s opinion. While he believes that Shimon and Levi were justified in killing Shechem and Chamor, he argues that the killing of the other males of Shechem was entirely unjustified. The Ramban presents two basic arguments for his position. Firstly, the residents of Shechem did nothing wrong to Yaakov’s family. The Ramban asserts that the residents of an area do not deserve death for failure to control the evil actions of their leader. He adds that even if the people did in fact deserve to die due to other violations of the Noahide laws, Shimon and Levi were not authorized to execute such punishment.

The obligations and powers of non-Jewish courts are markedly different. Gentiles are not bound by the 613 commandments revealed to Jews at Sinai but are obligated to obey the "Seven Commandments of the Sons of Noah." The Noachide Code is primarily restrictive rather than prescriptive in nature and bans reprehensible activities such as murder, theft, sexual immorality, etc. The last in this series of commandments is known as "dinin." The specific nature of this precept is the subject of disagreement among early rabbinic authorities. Ramban, in his commentary on the Bible, Genesis 34:13, understands this commandment as a general obligation with regard to the establishment of laws and regulations essential to the maintenance of a social order, e.g., laws governing commerce and interpersonal behavior, laws banning theft and fraud, laws regulating payment of wages, bailment, etc.³Teshuvot Rema, no. 10 and Teshuvot Ḥatam Sofer, VI, no. 14, maintain that in these areas Jewish law in all its details is incorporated in the Noachide Code by virtue of the commandment concerning dinin; Ha‘amek She’elah, She’ilta 2:3, asserts that while non-Jews are commanded to establish a system of jurisprudence, the detailed regulations of such a system are left to their discretion. Even he-Azel, Hilkhot Malveh ve-Loveh 27:1 appears to accept the latter view. Rambam understands the substance of this commandment to be significantly different. Rambam, Hilkhot Melakhim 9:14, formulates this obligation as follows:

The Ramban derives support for his opinion from the fact that Yaakov strongly criticized Shimon and Levi’s actions (Bereishit 34:30). The Rambam could counter that the Torah (ibid. 31) records the retort of Shimon and Levi to this criticism, to which Yaakov does not respond. On the other hand, the Ramban could reply that Yaakov further criticized Shimon and Levi on his deathbed (Bereishit 49:5-7). Thus, the Torah gives the last word to Yaakov.

The Maharal (Gur Aryeh to Bereishit 34:13) adopts a compromise approach between the Rambam and the Ramban. On the one hand, he agrees with the Ramban that the people of Shechem cannot be held accountable for the actions of their leader, arguing that their failure to execute dinim was due to coercion by their leaders.

A nochri may be killed for failing to run a just society (dinim). The Rambam (Hilchot Melachim 9:14), on this basis, justifies Shimon and Levi’s assassination of all of the males in Shechem (Breishit 34). The Rambam believes that all of the males in the city were guilty of failing to punish those who kidnapped and imprisoned Dinah. The Ramban (Breishit 34:13 and 49:5-6), who disagrees with the Rambam’s evaluation of this episode, does not criticize the Rambam regarding this particular point.⁴⁹For a more thorough discussion of this topic and its halachic implications, see Gray Matter 3:211-223. It seems that he agrees that a legitimate authority may hold a nochri responsible to do whatever is in his power to help the functioning of a just society, which includes insuring that innocent people are not murdered. Thus, a legitimate authority may torture an individual in order to extract information that will insure justice by preventing murder.

Rabbi Hershler, apparently unaware of this earlier discussion, cites Targum Yonatan as establishing that maternal identity is established by parturition and, indeed, it may be noted that Genesis 34:1 does speak of "Dinah the daughter of Leah." An identical conclusion based upon the comments of Targum Yonatan was earlier reached by R. Zevi Hirsch Friedling, Ha-Be'er, VI (5691), no. 3; and by R. Betzalel Ze'ev Safran, as reported by his son in Ha-Be'er, VII (5692), no. 2, and reprinted in Teshuvot ha-Rabaz, I (Jerusalem, 5722), Teshuvot mi-Ben ha-Meḥaber, no. 5. The diverse conclusions reached on the basis of the same narrative illustrates the cogency of the position of R. Joshua Feigenbaum, author of Teshuvot Meshiv Shalom, expressed in a contribution to Sha'arei Torah, vol. XV, no. 4. In disagreeing with Sha'ar Menasheh, Rabbi Feigenbaum points out that halakhic principles are not derivable from aggadic sources.⁴Maternal identity is also discussed by R. Judah Gershuni, Or ha-Mizraḥ, Nisan-Tammuz 5738, reprinted in Rabbi Gershuni’s collected essays, Kol Ẓofai-yikh (Jerusalem, 5740), pp. 361–367; and by R. Moshe Soloveichik, Or ha-Mizraḥ, Tishri-Tevet 5741 (Gilyon ha-Me’ah), pp. 122–128. See also the unpublished responsum of R. Ovadiah Yosef cited by R. Moshe Drori in Teḥumin, I (Winter, 5740), 287ff.

Rambam's position may be understood on the basis of a responsum authored by Rabbi Moses Sofer, Teshuvot Hatam Sofer, Likkutim, no. 14. The primary question addressed by Hatam Sofer in that responsum is whether a non-Jewish judge may accept a bribe. His response is that, although the biblical injunction "Thou shalt not take a bribe"²⁴Deuteronomy 16:19. is addressed to Jews and not to Noahides, nevertheless, a Noahide is commanded to render a true and just verdict and hence he dare not accept a bribe for purposes of subverting justice.²⁵For further discussion of bribery under the Noahide Code see Ramban, Commentary on the Bible, Genesis 34:13; R. Joseph Saul Nathanson, Teshuvot Sho’el u-Meshiv, Mahadura Kamma, I, no. 230; Encyclopedia Talmudit, vol. III, p. 355, note 256; R. Bernard Chavel, Peirush Ramban al ha-Torah, I, 192, s.v. u-be-Yerushalmi; R. Jonathan Eibeschutz, Urim ve-Tumim 9:1; R. Joshua Leib Diskin, Teshuvot Maharil Diskin, II, Kuntres Aḥaron, no. 5, sec. 223. A judge who knowingly renders an unjust judgment, opines Hatam Sofer, is guilty of a capital crime under the Noahide Code. Accordingly, he rules that a Jew who presents a bribe to a non-Jewish judge, not only wrongs his adversary, but is also guilty of "placing a stumbling-block before the blind" in causing the judge to issue an unjust decision. Hatam Sofer then proceeds to distinguish between civil actions and criminal proceedings. Since bribery of a gentile is forbidden only if the bribe is designed to assure a favorable judgment without regard to the merits of the case, a gift designed to assure only impartial deliberation and expeditious disposition of the case is not prohibited.²⁶In contradistinction to the law governing Noahide judges, a Jew may not accept a gift from a litigant even if it is only of trivial value, even if any attempt to influence the verdict is expressly disavowed, and even if gifts of equal value are presented by both parties. See Rambam, Hilkhot Sanhedrin 23:1 and 23:5. Accordingly, rules Hatam Sofer, a bribe designed to assure acquittal in a criminal proceeding cannot be forbidden since

As has been shown earlier, non-Jews may be given instruction with regard to matters pertaining to the Noachide Code.⁴⁰See above, note 6. Rabbi Weinberg rules that lectures before a non-Jewish audience on matters of jurisprudence are unquestionably permissible since non-Jews are bound to fulfill the commandment of dinin, which is one of the Seven Noachide Commandments, and encompasses Torah laws relating to all matters pertaining to ownership of property and financial liability.⁴¹The specific nature of the miẓvah of dinin is the subject of controversy between Rambam and Ramban. Ramban, in his commentary on the Bible, Genesis 34:13, understands the commandment as a general obligation with regard to the establishment of laws and regulations governing commercial and interpersonal behavior essential to the maintenance of a social order, e.g., laws governing theft, fraud, prompt payment of wages, bailment, etc. Teshuvot Rema, no. 10 and Teshuvot Ḥatam Sofer, VI, no. 14, maintain that in these areas Jewish law is incorporated in the Noachide Code in all its details by virtue of the commandment concerning dinin. Rambam understands dinin as binding Noachides to punish transgressors for infractions of the first six Noachide commandments. Nevertheless, Ḥatam Sofer, basing himself upon Teshuvot Rema, avers that Rambam does not reject as binding upon Noachides the obligations recognized by Ramban under the rubric of dinin. Ḥatam Sofer maintains that, according to Rambam, all such matters are subsumed under the commandment banning theft. While Rabbi Weinberg’s reference to dinin is obviously a reference to Ramban’s position as understood by Teshuvot Rema and Teshuvot Ḥatam Sofer, it is also substantively reflective of Ḥatam Sofer’s understanding of Rambam’s position regarding the normative obligations of Noachides, although for Rambam such obligations flow from the prohibition against theft rather than from the miẓvah of dinin. It should, however, be noted that R. Naphtali Zevi Yehudah Berlin, Ha‘amek She’elah, She’ilta 2:3, understands Ramban to be of the opinion that, while non-Jews are commanded to establish a system of jurisprudence and tort liability, the detailed formulation of such a system is left to their discretion and need not reflect the provisions of Torah law which are binding upon Jews. This is also the position of R. Iser Zalman Meltzer, Even he-Azel, Hilkhot Malveh ve-Loveh 27:1.

When a brit milah (circumcision) takes place later than the eighth day of a boy’s life (such as a baby who could not tolerate a brit on the eighth day due to health reasons, or a non-Jew who wishes to convert),⁷Of course, none of these concerns applies when circumcising a baby on the eighth day of his life, as circumcision on the eighth day overrides Shabbat. The Gemara discusses the laws of a circumcision on Shabbat at great length in the nineteenth chapter of Masechet Shabbat. the Tashbetz (1:21) forbids performing it on a Thursday. He notes that on the third day after a brit (including the day of the brit), the baby is presumed to be in tremendous pain (see Bereishit 34:25 and Rashbam ad loc.). Thus, a baby who underwent a brit milah on Thursday may require medical treatment that will entail transgressing Shabbat (see Shabbat 86a). According to the Taz (Yoreh Deah 262:3), this problem exists when circumcising on Friday, too, as the baby suffers pain every day through the third day.⁸The Taz indicates concern for the baby’s pain and suffering per se, not for the desecration of Shabbat that it might necessitate. Apparently, he understands the problem of circumcising close to Shabbat in the same manner that the Rif explains the prohibition against traveling before Shabbat - concern for causing unnecessary discomfort during Shabbat (see Teshuvot Tzitz Eliezer 12:43). The Shach (Yoreh Deah 266:18) notes that some Rishonim do indeed assume that the baby suffers through the third day, but the Tashbetz explicitly permits circumcising on Friday even when it is not the eighth day.⁹See, however, Teshuvot Yabia Omer, Y.D. 5:23.

Yet another theory explaining the principle dina de-malkhuta dina is advanced by Rashi in his commentary on Gittin 9b. The Mishnah declares that all civil instruments executed by non-Jewish courts are valid for purposes of Jewish law even though the attesting witnesses are gentiles. Included in that category are deeds to real property that serve to give legal effect to the transfer and which, ostensively, must be signed by competent Jewish witnesses to do so. Bills of divorce similarly executed are explicitly declared by the Mishnah to be invalid, presumably because of the absence of qualified attesting witnesses. Rashi endeavors to resolve the problem by indicating that, although gentiles are not subject to the provisions of biblical law concerning divorce, they are bound by the Noahide Code which includes a commandment concerning "dinin." Rambam, Hilkhot Melakhim 9:14, defines dinin as an obligation to enforce the other provisions of the Noahide Code by appointing judges and other law enforcement officials while Ramban, Commentary on the Bible, Genesis 34:13, defines "dinin" as commanding the establishment of an ordered system of jurisprudence for the governance of financial, commercial and interpersonal relationships.

Rabad disagrees with Rambam regarding the above case and states that the slave is to be sold to a non-Jew but is not to be executed. Rabbi Joseph Rosen, in his commentary on the Rambam, Ẓafnat Pa'aneaḥ, explains Rabad's position in the following manner: with the lapse of the Sanhedrin and the abrogation of capital punishment among Jews, Jews can no longer impose capital punishment upon non-Jews, even though the latter remain obligated to do so in administering their own system of law. Moreover, Ramban, in his commentary on Genesis 34:13, disagrees with Rambam and states that there is no statutory obligation requiring non-Jews to impose punishment upon transgressors. Imposition of capital punishment, he maintains, is discretionary under the Noachide Code. The injunction, "Thou shall not stand in fear of a man," does forbid a member of the Bet Din to refuse to sit in judgment; however this admonition applies only to instances when the defendant is a Jew. Since in Ramban's opinion a non-Jew, if he so desires, may decline to sit in judgment, it follows, according to this view, that Jewish courts have the same prerogative.

See also R. Ovadiah Yosef, Yabi'a Omer, II, Yoreh De'ah, no. 17, sec. 2, who maintains that the culpability of minors is a matter of dispute between Rosh and Rashi: Teshuvot ha-Rosh, klal 16, no. 1, states that the age of legal capacity is a matter of halakhah le-Mosheh me-Sinai, i.e., transmitted orally to Moses on Mt. Sinai as one of the many shi'urim or specifications of quantity and size with regard to precepts and transgressions, all of which were transmitted in this manner. Rambam, Hilkhot Melakhim 5:10, states that such shi'urim pertain only to commandments binding upon Jews but not to Noachide obligations. Thus Noachides are culpable for eating even a minute particle of flesh torn from a living animal while Jews are culpable only upon consumption of a quantity of food equal to the size of an olive. [Cf., however, Maharit Algazi, Kehillat Ya'akov, s.v. ḥazi shi'ur, who maintains that Tosafot disagrees with this ruling.] Rashi, Avot 5:21 and Nazir 29b, however, states that the age of religious majority is rooted upon the principle that a person is not a "man" until he reaches the age of thirteen as evidenced by the scriptural description, "And the two sons of Jacob, Simon and Levi, took each man his sword" (Genesis 34:25). Levi, at the time, was thirteen years old. The definition of the term "man" is a concept applicable to Noachides as well as to Jews. Rambam exempts Noachide minors from punishment, argues Rabbi Yosef, because he is in agreement with Rashi that exclusion of minors from culpability is a matter of definition rather than of shi'ur.