Halakhah su Genesi 9:5

Under Noachide law, as recorded by Rambam, Hilkhot Melakhim 9:14, the testimony of a single eyewitness is sufficient for conviction and execution of the death penalty. This provision of the Noachide Code is derived by the Gemara, Sanhedrin 57b, from the phraseology employed in Genesis 9:5 which establishes the culpability of Noachides for violations of the Seven Commandments. However, even before Noachide courts, just as in proceedings before Jewish courts, only uncontradicted testimony is acceptable as a basis for punishment, as is demonstrated by the nineteenth-century scholar R. Joseph Babad, Minḥat Hinnukh, no. 26.

A confession of guilt is not admissible as evidence before a Jewish court. Whether or not a confession is admissible and constitutes sufficient grounds for conviction in Noachide courts is a matter of considerable dispute. The thirteenth-century authority, R. Aaron ha-Levi of Barcelona, Sefer ha-Hinnukh, no. 26, rules that a confession of guilt is sufficient for conviction under Noachide law. There is, however, no reference whatsoever to acceptance of a confession of guilt by a Noachide court either in the Talmud or in Rambam's Mishneh Torah.⁶Cf., the interesting comments of R. Yechiel Ya‘akov Weinberg, Seridei Esh, II, no. 104, regarding the possible positions of Rambam and Radbaz. Rashi, in his commentary to II Samuel 1:16, explains that the Amalekite lad who reported that he had killed King Saul was summarily executed because he stood convicted "by his own mouth." Assuming that the term "ger" used in describing the Amalekite lad is, in this instance, to be translated as "stranger" rather than as "proselyte,"⁷See the commentaries of Ralbag and Malbim on II Samuel 1:16; see also Torah Temimah, Genesis 9:5. Cf., Rambam, Hilkhot Sanhedrin 18:6 who expressly refers to the lad as a proselyte. See also the interesting comments of R. Shimon Moshe Diskin, Mas’et ha-Melekh al ha-Rambam (Jerusalem, 5736), no. 273 and idem, Ohel Yehoshu‘a al ha-Torah (Jerusalem, 5738), p. 61, who suggests that the term ger denotes a ger toshav. Citing R. Yitzchak Ze’ev Soloveitchik, Ḥiddushei ha-Riz al ha-Rambam, p. 164, who maintains that a ger toshav who subsequently renounces his acceptance of the Seven Commandments reverts to his former status, Rabbi Diskin asserts that the Amalekite’s declaration that he had slain Saul constituted such a renunciation and hence he reverted to the status of an Amalekite and was put to death on that account. Rashi's comment is in agreement with the position of Sefer ha-Hinnukh. Torah Temimah, Genesis 9:5, finds a source for this position in the Palestinian Talmud, Kiddushin 1:1, but indicates that the meaning of the text is not entirely clear. In his opinion, it is this textual ambiguity which accounts for the conflicting views with regard to the acceptance of a confession by Noachide courts.

In order properly to understand the consideration underlying the requirement of the urim ve-tumim as a necessary condition of halakhically sanctioned warfare, a somewhat extraneous matter which is nevertheless germane to this topic must be examined. The categories of milḥemet mizvah and milḥemet reshut pertain only to wars fought by Jews. Other than in the context of war, self-defense or execution of transgressors convicted of capital offenses, the taking of human life is forbidden to both Jew and gentile alike. Since, insofar as non-Jews are concerned, there are no biblically sanctioned modes of war analogous to war for the conquest of the land of Canaan or the war against Amalek, it might well be presumed that non-Jews may not legitimately engage in warfare other than for the strictly limited purpose of self-defense. Indeed, a number of eminent authorities, including R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 11, and R. Menachem Ziemba, Zera Avraham, no. 24, adduce explicit talmudic authority in ruling that non-Jews are prohibited from engaging in war.⁵³See Contemporary Halakhic Problems, II, 165. Nevertheless, an opposing view is found in the writings of one noted authority.⁵⁴A similar view, albeit not based on the same line of reasoning, is espoused by Maharal of Prague in his supercommentary on Rashi, Gur Aryeh, Parshat Va-Yishlah, s.v. she-ha-umot. In explaining the action taken by the sons of Jacob against the inhabitants of Shechem, Maharal states that the family of Jacob constituted a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Bible, Ha'amek Davar, Genesis 9:5, finds justification for the view that the taking of human life in the course of war does not constitute culpable homicide.⁵⁵This view is also expressed in Ha’amek Davar, Deuteronomy 20:8. See also Amud ha-Yemini, no. 16, chap. 5, secs. 8-24. The verse "But your blood of your lives will I require; from the hand of every beast will I require it; and from the hand of man, from the hand of a person's brother, will I require the life of man" (Genesis 9:5) contains one phrase that is an apparent redundancy. The phrase, "from the hand of man … will I require the life of man" pronounces man culpable for the murder of his fellow. To what point, then, is it necessary for Scripture to reiterate "from the hand of a person's brother will I require the life of man?" Fratricide is certainly no less heinous a crime than ordinary homicide. Ha'amek Davar understands this phrase as placing a limitation upon the nature of culpable homicide. The taking of human life constitutes homicide only when the relationship between the parties is analogous to that which exists between a man and his brother, i.e., during periods in which harmony and brotherly love may be anticipated to reign between them. War, however, is the antithesis of brotherhood. Under such conditions, maintains Ha'amek Davar, there is no punishment for taking human life. Since this verse occurs in the context of the prohibition against homicide as it pertains to Noachides, Ha'amek Davar concludes that gentiles are not culpable for the taking of human life within the context of warfare.

As noted earlier, Ha'amek Davar's position vis-a-vis the legitimacy of war on the part of non-Jews is contradicted by numerous authorities. Nevertheless, the verse cited by Ha'amek Davar might well be interpreted in a similar manner even by those authorities who maintain that non-Jews have no dispensation to engage in wars of aggression under any circumstances. According to those authorities, the biblical categories of war are limited to Jews exclusively. However, it is not illogical to interpret Genesis 9:5 as excluding from the halakhic prohibition against homicide the shedding of blood within the context of warfare provided that the war itself is legitimately undertaken, i.e., in situations in which the bonds of brotherhood have been severed in a manner sanctioned by Halakhah. In theory, such exclusion is all-inclusive in nature and pertains to any legitimate military activity, whether undertaken by Jew or by gentile. In practice, according to these authorities, the exclusion is applicable solely to Jews since it is established on other grounds that non-Jews may not legitimately engage in any war of aggression. The taking of any life when incidental to biblically sanctioned warfare does not constitute homicide because at such times the relationship between the parties is not analogous to the relationship between man and his brother. It is, however, logical to assume that military action leading to civilian casualties may be regarded as legitimate on this basis only when the loss of civilian life is incidental to military purposes, but not when wantonly undertaken as an end in itself.⁵⁶See Amud ha-Yemini, no. 16, chap. 5, sec. 32.

One latter-day authority does find grounds upon which to rule that non-Jews who engage in war are not guilty of murder. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Pentateuch, Ha'amek Davar, Genesis 9:5, finds dispensation for warfare in the very verse which prohibits homicide to the Sons of Noah: "And surely your blood of your lives will I require … and at the hand of man, at the hand of every man's brother, will I require the life of man." The phrase "at the hand of every man's brother" appears to be entirely redundant since it adds nothing to the preceding phrase "at the hand of man." Ha'amek Davar understands this phrase as a limiting clause: "When is man punished? [If he commits homicide] when it is proper to behave in a brotherly manner." However, in time of war when animosity reigns among nations the taking of life in the course of military activity is not punishable. Again, in Ha'amek Davar, Deuteronomy 20:8, this authority states that "even" a Jewish monarch may engage in battle, thereby implying that gentiles are certainly not prohibited from doing so. Earlier, Maharal of Prague, in his commentary on the Bible, Gur Aryeh, Parshat Va-Yishlaḥ, speaking of the action taken by the sons of Jacob against the inhabitants of Shechem, states that the family of Jacob constituted, in effect, a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. This position is, however, contradicted by a number of other authorities. R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, declares wars of aggression to be forbidden to Noachides under all circumstances. In support of his position, Hatam Sofer cites the discussion found in Sanhedrin 59a. The Gemara declares that non-Jews do not enjoy legal prerogatives of conquest (lav benei kibush ninahu). Hatam Sofer demonstrates that the Gemara, Gittin 38a, does indeed affirm that non-Jews may acquire title to lands captured in wars by virtue of conquest. The phrase "lav benei kibush" must then be understood, argues Hatam Sofer, as meaning that non-Jews have no right to engage in war for purposes of conquest even though post factum they may acquire title in this manner. The identical argument is advanced by R. Abraham Dov Ber Kahane, Dvar Avraham, I, no. 11 and by R. Menachem Ziemba, Zera Avraham, no. 24. These authorities are in agreement with Hatam Sofer's view that non-Jews may not engage in a war of aggression under any circumstances.

[The laws of] Shabbos are suspended¹דְחוּיָה = suspended. More literally the word דְחוּיָה means “pushed aside,” as opposed to הוּתְּרָה —“made permissible.” There is great controversy among the poskim as to the attitude we take in permitting the transgression of Shabbos to save a life, whether it is דְחוּיָה or הוּתְּרָה. Shulchan Aruch Harav 328: 13 and this author maintain that it is דְחוּיָה and, therefore, if a method can possibly be found to minimize the transgression, such as doing the melachah with a שִׁינוּי, i.e. in an unusual manner, then that is preferable (see Sho’el U’maishiv 41, 42). Tzemach Tzedek (o.c. 38), Tashbatz (III: 37), Magein Avraham (328: 17) etc. hold הוּתְּרָה and there is no need to seek ways of minimizing the transgression. Chelkas Yoav (o.c. 14) writes that where a definite danger exists it is הוּתְּרָה, but where there is doubt as to whether the situation is life-threatening, it is דְחוּיָה. [See also Kovetz Shiurim, Kesubos paragraph 13; Biur Halacha 278: 1] where there is a life-threatening situation, as are all mitzvos in the Torah. Therefore, one who is dangerously ill and he is an observant person, though he occasionally transgresses a law because of temptation,²Either due to lack of self-control or to inconveniences. This is as opposed to one who transgresses spitefully, who, having done so twice, may not be saved if desecrating the Shabbos is necessary. and even for a day-old child,³Desecrating the Shabbos is permitted to save an unborn fetus. [Ritva, Maseches Niddah 44; B’hag; Tur 617; see also Rosh, Maseches Yoma 8: 13; Peri Megadim 328: 1; Biur Halacha 330] it is a mitzvah to violate the Shabbos to save him. [Even] if the patient refuses, we force him to accept help. It is a grave sin to carry piety to the point of idiocy, and refuse treatment because it would violate a law. About such a person is it said:⁴Genesis 9: 5. "Only of the blood of your lives will I demand an account." One who is quick to desecrate the Shabbos for the sake of a critically ill person, deserves praise. Even if a non-Jew is present, [every] effort should be made that a Jew do [what is necessary].⁵This is a matter of controversy among the poskim. Rosh, Shulchan Aruch (328: 12), Taz (ibid.) and Mishnah Berurah rule that a Jew is preferable. Rema and Shulchan Aruch Harav prefer that it be done by a non-Jew if one is available. The author agrees with the former. Any person that desecrates Shabbos for the sake of a critically ill person, even if it was found later to be unnecessary, will be rewarded. For example, if the doctor said: "This patient requires one dried fig [for cure]" and ten people ran and plucked one fig each and brought it, they all will be well rewarded by Hashem, blessed be His Name, even if the patient was cured [as a result of] the first [fig]. Similarly, in any life-threatening situation, even when the threat to life is uncertain,⁶V. paragraph 3. it is a mitzvah to desecrate Shabbos for him, and to do any and all d'oraisa prohibitions for him, because there is not a thing that stands in the way of a life-threatening situation. The Torah was given only for the purpose of [bringing] life, as it is said: "That man shall do them and live through them," and [the Sages] inferred: "Live through them but not to die on account of them." This holds true except for the laws concerning idolatry, illicit sexual relations and murder, where one must die rather than transgress.⁷V. Yoreh Dei’ah 157.