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Who is not a Jew?–The Medieval Discussion

Published online by Cambridge University Press:  12 February 2016

Gerald J. Blidstein
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While contemporary Jews debate “Who is a Jew?”, medievals found the question “Who is not a Jew?” much more relevant. Halakhic standards were clear enough on entrance to the community: birth or conversion decided the matter, and the latter provided no more problems than did the average halakhic norm. The institution of conversion was not quite as old as that of birth, but it too had a respectable history of Talmudic discussion and stable international precedent behind it by the start of medieval times, and no Jewry found itself in a quandary on that score. This was not the case regarding Jews who rejected Judaism and left the community. Talmudic discussion is both sparse and incomplete on this issue; and it may not necessarily suit the case of the medieval apostate who exchanges his native fold for an equally possessive faith community. The medievals faced the problem, then, with some Talmudic guidelines but with many open options; yet despite the different opinions that developed, we are able to speak of a medieval concensus. This concensus delivered a legal standard, to be sure; but, as we might expect from an issue of such scope and centrality, the legal concensus was based on a broad understanding of the relation of the Jew to his people and the nature of Jewish peoplehood.

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Israel Law Review , Volume 11 , Issue 3 , July 1976 , pp. 369 - 390
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1976

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References

1 A query of R. Simha of Speyres (12th cent. Germany) in Kupfer, E., ed., Responsa et Decisiones (Jerusalem, 1973, in Hebrew) 295.Google Scholar

2 See Katz, J., “Af Al Pi Shehata, Yisra'el Hu” (1958) 28 Tarbiz 84–85Google Scholar; see also Katz, , Exclusivcness and Tolerance (Oxford U. Press, 1961) 67–76.Google Scholar Medieval scholars were, fundamentally, aware of the dimension added by the character of monotheistic faiths; cf. infra nn. 13, 52, 53. Contemporary halakhists continue to discriminate between apostasy to another faith (invariably Christianity or Islam) and abandonment of Judaism: see Weinberg, R. Yehiel, Responso Seridei Esh (Jerusalem, 1966, in Hebrew) vol. 3, p. 153 ff.Google Scholar The materials considered are concerned almost exclusively with the apostate or meshummad. For the history of the term, cf. Lieberman, S., Tosefta Kifshuta (New York, 1962, in Hebrew) vol. 3, p. 402, n. 45Google Scholar; already implied by 16th cent. Elijah Levita (Bahur) Sefer Tishbi, s.v. shmd, though other criteria—Sabbath violation, especially—occasionally enter the picture.

3 Mishnah Sanhedrin, X, 1.

4 M. Sanhedrin X, 3; compare Tosefta Sanhedrin XIII, 12 (ed. Zukermandel, p. 435). “‘You shall perish among the nations’ (Lev. 26:38)—R. Akiba says: these are the Ten Tribes that were exiled to Media” (Sifra ad loc; ed. Weiss, p. 112b; and see continuation). See also Ekhah Rabbati 1, 3.

5 b. Yevamot 17a. See infra n. 9.

6 Allon, G., Mehkarim BeToledot Yisra'el (Tel-Aviv, 1958, in Hebrew) vol. 2, pp. 1–15Google Scholar presents a wider range of considerations than outlined hereunder, but our basic contention is not affected thereby.

7 p. Gittin 1:4, 43c; b. Kiddushin 75b; b. Sanhedrin 85b; b. Hullin 3b; b. Niddah 56b; b. Baba Kamma 38b; b. Yevamot 24b.

8 p. Avodah Zarah 5:4, 44d; b. Hullin 5b–6a; b. Sanhedrin 85b. For historical backgrounds, see Levine, L., Caesaria Under Roman Rule (Leiden, 1975) 108–112.Google Scholar Our interest lies in the relationship of the two strands described above from the perspective of analytic legal thought; the historian of law might well find other significances in this structure.

9 See the sources listed supra n. 7. The text at Hullin 6a presents a difficulty to this scheme. It is stated that “R. Ammi and R. Assi immediately declared them total gentiles”, which is explained by R. Nahman b. Yitzhak as a disqualification from rabbinic prerogatives in a common court situation (erub). Now, the phrase used for R. Ammi and R. Assi (lo zazu misliam ad shc'asa'um goyyim gemurim) is identical with that used by Samuel, b. Yevamot 17a, to describe the denaturalization of the Ten Tribes. And that was total, extending even to marital status as we have seen. So far as I know, only R. Isaac of Karlin, Keren Orah to Yevamot ad loc., was exercised by this anomaly. The explanation of R. Nahman b. Yitzhak is, moreover, difficult in context (see Nahmanides, , Novellae to Hullin, ed. Reichman, S., p. 17aGoogle Scholar) and almost superfluous. From a critical point of view this comment (inessential to the discussion here) may well be an editorial transfer from either b. Eruvin 69b or b. Avodah Zarah 64b (in both of which cases it plays an essential role). The conclusion generated by all this is that R. Ammi and R. Assi may well have intended a denaturalization of the Samaritans that was total. Yet even if this textual exploration has merit, this denaturalization of the group is not, in fact, referred to in the Talmudic discussions of Samaritan marital status. So the pattern holds. A second point to be noted is Maimonides' treatment of these developments. For Maimonides considered the Samaritans totally outside the Jewish fold, even relieving them of responsibilities under Torah—and not merely rabbinic law (Commentary to Mishnah, Niddah 7:4). We may ask whether this Maimonidean reading (for the difficulties in this position see R. Jacob of Lissa, Havvot Da'at 159:4Google Scholar) is not basically related to Maimonides' general inclination to define Jewishness by religious/ideological commitment. See Ben-Sasson, H. H., in (1971) 2 Peragim 178 ff.Google Scholar For a specifically Talmudic source, see infra n. 10; see also R. Alfas to Gittin, sec. 408.

10 p. A. Z. 5:4, 44d. It would be unfair to read this statement from the medieval perspective that found usury a unique case: see infra. The Talmudic discussion, moreover, then raises the problem of hallah (heave-offering of bread) of Samaritans as implied by the licence on usury (see standard commentaries ad loc).

11 This distinction is explicitly drawn by Nachmanides in a responsum published by Assaf, S., Sifran Shel Rishonim (Jerusalem, 1935) 57Google Scholar, though it may be implicit earlier; see infra n. 49.

12 This is generally a crucial weapon in the armoury of medievals opposed to out-and-out rejection of apostates; see, e.g. R. Yom-Tov b. Ashbili (Ritba) to Yevamot 22a; Sirkis (Bah), R. Joel to Tur, Even HaEzer 44.Google Scholar The tendency to assimilate apostates to the Ten Tribe precedent is found as early as (eighth-century) Halakhot Gedolot (hereafter referred to as H.G.) (repr. Tel-Aviv, 1962) 84a, and reappears frequently (e.g., R. Menahem HaMe'iri to Yevamot, p. 69; R. Simha of Speyers, op. cit.). The analogy of apostate and Samaritans is posited by R. Alfas op. cit. and, it is likely, Maimonides (Code, Laws of Divorce, 3:15), though the scope of the analogy is unclear. In relatively recent times, nineteenth-century R. Zvi Hayyot proposed that Reform Jews be declared “total gentiles” after the fashion of Samaritans and the Ten Tribes (Kol Kitvei Maharaz Hayyot (Jerusalem, 1958) vol. 2, pp. 1009–1012).

13 The sociological significance of this distinction was not lost on Nachmanides, op. cit.

14 Sifra to Lev. 1:2; Hullin 5a; Mekhilta to Exodus 12:43; Horayyot 2a, where it is significant that R. Simeon and the anonymous Tanna disagree as to whether the sin offering of a mumar is rejected on specific substantive grounds or by virtue of his alienation; do we have different historic strata before us? Zeitlin, S., “The Jews—Race, Nation or Religion?” (1935–1936) 26 J.Q.R. 337–343Google Scholar; Finkelstein, L., Mavo LeMassekhot Avot (New York, 1950, in Hebrew) 226 n. 4Google Scholar; Idem, B. de Vries Memorial Volume (Tel-Aviv, 1959, in Hebrew), 46ff. p. Eruvin 6.2, 23b, finally, does class the “brazen apostate” as a “gentile in all respects”, but the context—the common court—ought to be kept in mind.

15 b. A. Z. 26a–b. Surely it is interesting (and perhaps historically significant) that the bulk of Tannaitic midrash disqualifying the apostate occurs in the context of Temple law. For Maimonides, re'a (“neighbour”) becomes a crucial term; see e.g. Code, Ebel, 14:1; Rozeah 4:11. In general, cf. Simon, E., in Fox, M., ed., Modern Jewish Ethics (Ohio U. Press, 1975) 29–57.Google Scholar

16 Tosefta Hullin 2:21 (ed. Zuckermandel, p. 503). Many medievals, interestingly, ruled (with varying rationales) that animals slaughtered by an apostate were to be considered carrion (nebelah) in the full sense of the term; see Maimonides, Code, Laws of Slaughtering, 4:14; R. Asher to Hullin, 1:7 (suggests an analogy to b. Gittin 45b), etc. A minority insisted, however, that the meat was only rabbinically forbidden: see the younger R. Isaiah di Trani (cited by Shiltei Ha-Gibborim, Hullin, Chap. 1, and R. Joel Sirkis Bah to Y.D., chap. 2) who thus remain consistent with their general position on apostates; cf. supra n. 12 and infra n. 70. Note also Nahmanides to Hullin 14a.

17 See also Tosefta Demai 2:4 and Lieberman, S., Tosefta Kifshuta (New York, 1955) vol. 1, p. 212.Google Scholar

18 Exodus Rabba 3:6 (ed. M. Mirkin, pt. i, p. 73).

19 Lichtenstein, A., “Brother Daniel and the Jewish Fraternity” (1963) 12 Judaism 262.Google Scholar This paper remains the most thoughtful discussion of our topic.

20 Mari, R. Isaac b. Abba, Sefer Halttur (repr. N.Y., 1955) pt. ii, p. 78a.Google Scholar This position extrapolates from the disqualification of such apostates from bringing sacrifices, Hullin 5a; With his Talmudic source, he rejects chronic Jewish idolators and/or Sabbath violators as “gentiles in all respects”.

21 Ritba, op. cit., Meiri, op. cit. and p. 91. The latter identifies “some of my teachers” as proponents of this view. See infra at n. 32.

22 Op. cit. The passage bristles with difficulties: “The betrothals of an apostates' child, born of a gentile woman, are invalid. The betrothals of the apostate himself are valid. Why? The apostate may repent, so his betrothals are valid. But the apostate's child, born of a gentile woman, is a gentile, as it says: ‘They have dealt treacherously against the Lord, for they have begotten strange children’ (Hosea 5:7), his betrothals are invalid. And though it is said: ‘They immediately declared them gentiles’ (Yevamot 17a), this refers to their children, not to the apostates themselves”. H. G. apparently rejects here the position—based on Samuel's view of the Ten Tribes—that apostates are forthwith gentiles, and reads the entire pericope as referring to the children of apostates (see infra n. 27). Hosea 5:7 describes the process, it does not explain it. The validity of the apostate's betrothals is posited, curiously enough, on the possibility that he might repent—an idea frequently repeated, despite its conceptual incongruity (cf. n. 26). Sefer Halttur, op. cit. also cites a view that read the betrothals of an apostate as merely constituting “a suspicion of marriage” (hosheshin le-kiddushin), which signals that the marriage has no validity in Torah law and may become a device to free the woman without benefit of divorce. As R. Isaac Mari points out, this cannot be squared with the Talmudic text nor is it the reading of H.G., which does use the phrase to describe the betrothals of a Samaritan. Yet this reading has an ancient pedigree, as it is found in both Sasson, S., ed., Halakhot Pesukot (Jerusalem, 1950) 108Google Scholar and Shlossberg, , ed., Hilkhat Re'u 83Google Scholar, which apparently preceded H.G.; it may be said that by omitting the term hosheshin H.G. rejects this tack. For evidence of the continued vitality of this approach, see n. 25; as late as the 16th century R. David ibn Abu Zimra (Ridbaz) can claim that the betrothals of an apostate merely create “a suspicion of marriage” (Responso, I, 351). Most significantly, H.G. speaks here of an apostate's child born of a gentile woman—yet such a child is a total gentile by Mishnaic law without need of medieval argumentation based on Yevamot 17a. I suspect, therefore, that the phrase “born of a gentile” is a later gloss (though it already appears in Hilkhot Re'u, p. 83) designed to negate the possibility (which we shall in fact encounter further on) that the child of apostates is not Jewish—a view apparently held by H.G. Cf. also Halkhot Pesuqot, op. cit.; R. Mordekhai b. Hillel, Sefer Mordekhai, Yevamot, sec. 39 also, curiously, stresses that the child of an apostate and a gentile mother is not Jewish.

23 See Katz, Tarbiz, op. cit., at p. 86; Id., Exclusiveness, at p. 73. Although immersion (tevilah) of repentant apostates becomes prevalent at a later period, R. Paltoi Ga'on countenances the practice (B.M. Lewin, ed., Ozar HaGeonim, (=O.H.) VII, pt. i, p. 112, sec. 260) in the ninth century. He explains it as an ad hoc rabbinic requirement, but the responsa of geonim who denied the need for such immersion indicate that the motives underlying the practice often went much deeper.

24 Me'iri, op. cit. The twelfth-century Tosafist R. Isaac b. Samuel (Ri) agreed as to the fact, but drew a more limited conclusion; see infra n. 63.

25 As cited by HaKohen, R. Meir, Teshuvot Maimoniyyot, Ishut, 12.Google Scholar But from Aptowitzer, A., ed., Sefer Rabiah vol. 1, pp. 158–159Google Scholar, it appears that R. Nathan knew of this view but did not necessarily accept it. It is likely that the proponents of this view saw even the betrothals of the apostate as of doubtful validity—cf. supra n. 22; R. Simha, op. cit.; Mordekhai, Yevamot, sec. 107. As Sefer HaIttur, op. cit., points out, this cannot be squared with the Talmudic text. Curiously, Sefer Halttur concedes part of his adversaries' case by allowing the apostate's divorce to be valid only as rabbinic annulment.

26 As given in O.H., Yevamot, pt. i, pp. 197–8. See also Natronai's, R.responsum, O.H., Gittin, pt. i p. 207Google Scholar, sec. 488; from this responsum it appears that the possibility of return to the community via repentance without immersion (see supra n. 23) merely clarifies the apostate's current status— the betrothal does not depend for its validity on actual repentance in the future (see nn. 22, 48).

27 See supra n. 22.

28 HaMe'iri, R. Menahem, Bet HaBehira, Avodah Zarah, p. 61.Google ScholarCf. supra n. 21.

29 R. Jacob b. Habib's responsum is given in Mizrahi, R. Elijah, Responsa (Constantinople, 1560) 47.Google Scholar R. Elijah Mizrahi himself rejects this line of argument, pointing to the significant fact that the repentent apostate need not “convert” back to Judaism in order to return.

30 See supra n. 26. This latter possibility is also reflected of course in R. Nathan of Rome (supra n. 25), and is an option underlying R. Simha's responsum (supra n. 1 ). On the presumed unavailability of apostates, see however, Katz, Exchisiveness, op. cit. at pp. 67 (R. Tam) and 70 (at n. 2) but see also p. 76.

31 R. Paltoi Gaon, in O.H. Yevamot, pt. i, p. 34, sec. 77.

32 This view is given in the name of the eighth century Suran Gaon, R. Yehudai (Sefer Halttur, op. cit.). See also the tenth century Spanish R. Joseph ibn Abitur (O.H., op. cit., p. 37, sec. 87); Meiri, , Yevamot, p. 91.Google Scholar Even the tenth century Pumbeditan R. Sherira, who required halizah, forbade the levirate (yibbum); “the Torah says ‘to raise up a name in Israel for his brother’—and he is neither his brother nor of Israel” (Koronel, N. N., ed., Teshuvot HaGe'onim (repr. Jerusalem, 1967) no. 96, pp. 12–13Google Scholar). See too the view ascribed to R. Moshe Kapsali by Kolon, R. Joseph, Responso Maharik (Warsaw, 1884) 85.Google Scholar

33 Me'iri, Yevamot, p. 69; Ritba, op. cit.

34 Silberg, M., Talmudic Law and the Modern State (N.Y., 1974)Google Scholar, Chap. V; Elon, M., HaMishpat Ha'Ivri (Jerusalem, 1973) 239 ff. and 326 ff.Google Scholar

35 Sherira, R. and Hai, R. (O.H., Yevamot, pt. i, p. 34 sec. 78)Google Scholar had already pointed to M. Yevamot 1, 4, which states that all biological brothers enter the levirate situation save a brother born of a gentile mother, as decisive for our case. So far as I can see, the analogy of apostate with the Ten Tribes is used by H.G., was not developed by the geonim (who rely on the midrash described above), and is found in Europe at a later period.

36 The topic sparked a number of personal exchanges in addition to the general debate. See for example Trani, R. Isaiah di, Wertheimer, A., ed., Teshuvot Rid (Jerusalem, 1967) nos. 64 and 99Google Scholar, which according to Wertheimer were sent to R. Isaac of Vienna; R. Joseph Kolon, Responso, op. cit. (to R. Moses Kapsali); the R. Jacob ibn Habib—R. Elijah Mizrahi correspondence, op. cit.; etc. For the contemporary continuation, see infra n. 43.

37 Ginzberg, L., Ginzei Schechter (N.Y., 1929, in Hebrew) vol. 2, p. 168Google Scholar, advanced the thesis of a Suran-Pumbedithan clash on the issue. But this split is not as neat as one might wish: Ginzberg's reconstruction notwithstanding, H.G. requires halizah (O.H., op. cit., p. 36); so did R. Natronai (Resp. Sha'arei Zedek 3. 1. 28 (repr. Jerusalem 1966) p. 10) though his son R. Hilai did not; so too did the Suran R. Sar Shalom, predecessor of R. Natronai (R. Me'ir of Rothenburg, Responso (Prague ed.) no. 164; cf. Weinberg, R., Teshuvot Rav Sar Shalom (Jerusalem, 1975) p. 7Google Scholar, n. 1).

38 O.H., op. cit., pp. 36–37; R. Abraham is cited in Shiltei HaGibborim to Mor-dekhai, Yevamot, sec. 29.

39 O.H., op. cit. The implications of this restriction are not quite as innocent as Ginzberg, op. cit., p. 172, n. 12, claims. To add to the difficulties, the Talmudic pericope itself (Yevamot 13a)—objectively of dubious relevance, as Rashi was to show—concludes that the moment of death is itself decisive. (Lewin's citation of R. Hananel, op. cit., p. 37 sec. 85, is a misreading of his source.).

40 See supra nn. 32 and 38.

41 Eideiberg, S., ed., Responso of R. Gershom (N.Y., 1956) 118Google Scholar; Elfenbein, I., ed., Responso of Rashi (N.Y., 1943) 193Google Scholar (but cf. the text at p. 194, n. 101); Maimonides, Code, Laws of Levirate, 1:6.

42 Moshe, R. Isaac b., Or Zaru'a (Zhitomir, 1862) vol. 1, sec. 405.Google Scholar The quirks in R. Isaac's defence were laid bare in the fifteenth century by R. Israel Isserlein, Resp. Terumat HaDeshen, no. 219; for a contemporary reaction, see supra n. 36.

43 Cited in Mordekhai, Yevamot, sec. 29. This decision was entered by R. Moses Isserles, Ramah to Shulhan Arukh, Even Ha-Ezer, 157:4. But when the chips are down, many contemporary halakhists reject this doctrine and rule consistently with Rashi, as the reaction to R. Yehiel Weinberg's Isserlean decision (op. cit., pp. 152–165) showed.

44 Mordekhai, op. cit., Resp. Terumat HaDeshen, op. cit., Shulhan Arukh, op. cit.

45 Op. cit. supra n. 42.

46 O.H., Yevamot, pt. i, p. 197.

47 The questioner assumed that the apostate's possible repentance was the factor that might preserve his status. We have already encountered this idea in H.G. (supra, n. 22); cf. also R. Sar Shalom Gaon, op. cit. R. Sa'adiah will reject the idea briskly; yet it was to persist—see R. Samson, cited in Mordekhai, Yevamot, sec. 107.

48 R. Sa'adiah's examples seemingly present a rabbinic disqualification—Torah disqualification profile. But he does not draw this distinction explicitly; moreover, the area of personal status is singled out, suggesting that the apostate might be considered a gentile even for aspects of Torah law. R. Sa'adiah's distinction is restated in a query to R. Hai, who supports its implications (infra n. 54).

49 b. Kiddushin, 18a.

50 Elon, M., HaMishpat Ha'ivri, op. cit., at pp. 158 ff., 414 ff., 574 ff.Google Scholar; Cohn, H., “Confiscation”, Encyclopedia Judaica, vol. 5, cols. 880–882.Google Scholar

51 O.H., Kiddushin, pt. i, pp. 30–37.

52 Op. cit., at p. 31, sec. 82.

53 Genesis Rabbah 82:13 (ed. Theodore-Albeck, II, p. 992).

54 Op. cit., p. 35, sec. 88, and p. 200; p. 30, sec. 81; Maimonides, Code, Laws of Inheritance, 6:12; Maimonides, , Responso (ed. Blau, J., Jerusalem, 1958) vol. 2, p. 657Google Scholar; R. Eliezer b. Joel HaLevi (Rabiah), cited in Mordekhai, Kiddushin, sec. 492; R. Asher b. Yehiel, Responso, 17:10. The anonymous European respondent (O.H., p. 30 sec. 81) objects, symptomatically, to the geonic midrash. See also R. Me'ir of Rothenburg, Responso (Prague), no. 928–929. For a survey of Muslim law on denial of inheritance to apostates, see Coulson, N., Succession in the Muslim Family (Cambridge U. Press, 1971) 188 ff.CrossRefGoogle Scholar Note as well the special rules for apostasy by mates, which constitutes immediate divorce.

55 R. Meshullam b. Kalonymos of Lucca (Italy, tenth century) and R. Gershom are cited as proponents of the geonic view, O.H., op. cit., p. 33, sec. 84–85.

56 R. Amram, O.H., op. cit., p. 35, sec. 89, (small type); cf. the responsum attributed to R. Hai (parallel), and p. 200; R. Zemah, op. cit., p. 36, sec. 90. R. Amram and Zemah apply the Talmudic rule, “the estate of the gentile is (hejker—res nullius) like the desert, and belongs to whoever seizes it” (Baba Bathera, 54b), to the property of a wife who apostasizes. (The query to R. Hai implies that some applied this source to all apostates.) R. Natronai's responsum on this question (O.H., Ketubot, pt. i, p. 356, sec. 790) is consistent with his general position on inheritance, though he denies the husband (and not the father) the right to inherit from his apostate wife; here too he utilizes midrash.

57 Responsa, op. cit., p. 195. See also R. Hai, op. cit.

58 Op. cit., p. 196. Another responsum of Rashi (if genuine) indeed attributes the view that one may take interest from an apostate to “my masters”: op. cit., p. 198. This view is found, moreover, in citations of contemporary R. Nathan of Rome, op. cit. Cf. Katz, Exclusiveness, op. cit. at p. 71 n. 5, who overlooks Rashi's hint of his opponents' midrash. (Teshuvoth HaGeonim, ed. Mantua, is not available to me.) Indeed, the responsum of Rav Sar Shalom Ga'on of Sura (cited supra n. 37) indicates that the view was known in geonic times, and may even suggest that Deut. 23:20 was already crucial.

59 Deut. 23:20–21; Lev. 25:35–37.

60 Most of Rashi's supporters were his near contemporaries: Nathan, R. Eleazar b., Sefer Ra'aban (ed. Ehrenreich, S., repr. N.Y., 1958) vol. 2, p. 204Google Scholar; R. Eliezer b. Solomon (the contemporary of R. Tarn?), Mordekhai, A.Z., sec. 814; R. Isaiah di Trani the Elder, Tosafot Rid, A. Z. 26b; R. Samson (of Sens?), Mordekhai, Yevamot, sec. 107; R. Samuel b. Solomon (of Falaise), as late as the 13th century, cited in Teshuvot Maimoniyyot, op. cit. Not all these figures ruled with Rashi for his reasons, as the impact of Tosafist argumentation was already felt by some—but that is another story.

61 Shlesinger, S., ed., Sefer HaYashar LeRabbenu Tarn, Hiddushim (Jerusalem, 1959) 434, sec. 743.Google Scholar

62 Thus most modern translators of Lev. 25:35 prefer some form of what Cohen, , (Religion of Reason Out Of The Sources of Judaism (New York, 1972) 126)Google Scholar attacked as ‘a senseless and deplorable mistake … about the original nature of monotheism’. See also Rashi, ibn Ezra, Nahmanides, and B.M. 71a.

63 Citations follow the ms. responsum published by Urbach, E. E., The Tosafists (Jerusalem, 1955, in Hebrew) 204.Google Scholar

64 The rhetorical, non-legal use of terms is common in discussions of our topic. Thus R. Natronai writes of a goy (gentile) son of an Israelite, where goy refers to the apostate but is hardly adequate halakhically (O.H., Kiddushin, op. cit., and cf. the slight variation in sec. 83. R. Amram (Teshuvot Maimoniyyot, I shut, 12) distinguishes between a normal Jew, called: ‘yisra'el yehudi” (Jewish Israelite) and the apostate, called, “yisra'el mumar” (an apostate Israelite); yehudi describes the commitment—Israelite, the nationality. This usage—many more examples could be given—is very revealing, but one must be careful in the kind of generalizations drawn.

65 Cf. Tosafot, A.Z. 26b, s.v. 'ani.

66 Cf. R. Eliezer b. Joel (Rabiah) as cited in Teshuvot Maimoniyyot, Mishpatim, no. 36. Rabiah is thus consistent with his rationale on disinheritance of apostates, supra n. 54. A different way around the problem is suggested by Nahmanides supra n. 11, who accepts the Tosafist midrash.

67 R. Eliezer of Metz, a disciple of Tam, R., in Schiff, A., ed., Sefer Yera'im (Vilna, 1901) 74aGoogle Scholar; Mordekhai, Yevamot, sec. 107.

68 Cf. supra nn. 41, 57, 58.

69 Katz, supra n. 2. Rabbi Isaac Herzog had also noted Rashi's appropriation and re-interpretation of the Talmudic phrase but his responsum apparently remained unpublished until 1966 (Weinberg, op. cit., p. 51a). The overall thesis rides on the claim that Rashi, and not someone else someplace else, renewed the Talmudic phrase; thus Katz must so vigorously dispute the attribution of the notion to R. Nathan of Rome (p. 79). Prof. David HaLivni has recently pointed to the presence of the phrase in its renewed form in Midrash Aggadah (Meqorot U-Mesorot, Nashim (Tel Aviv, 1968) 67, n. 3), but it must be admitted that both the date of the midrash and the possibility that the sentence in question is a later comment upon the basic position, prevent us from establishing a pre-Rashi dating; cf. Elon, , Ha'Mishpat Ha'Ivri, op. cit., at p. 145 ff.Google Scholar

70 The di Trani family of Italian Rabbis continue to maintain Rashi's position uncompromisingly: see supra nn. 16, 36, 60, and Shiltei HaGibborim to A.Z. 26a (ed. Vilna, p. 8a, para. a).

71 Baron, S., Social and Religious History of the Jews (Philadelphia, 1957) vol. 3, pp. 111–113.Google Scholar Inasmuch as the reality of apostasy was the background for the opposing views of geonim and Rashi alike, we cannot construct a “covering law” out of this historical factor.

72 See at nn. 9 and 16.

73 See at nn. 14 and 16.

74 I would not want to claim that midrash is never in these sources as literary cover; R. Sherira (supra n. 32) perhaps provides an example. But it is hazardous to dismiss all the geonic midrash in this fashion.

75 See Lichtenstein (supra n. 19); in essence, the thrust of his paper returns us to the geonic attitude described above.

76 See supra n. 2, and Lichtenstein, op. cit., at pp. 268, 274–276. It is interesting to compare Lichtenstein's focus on kedushat Yisra'el (the sanctity of Israel) with the language of R. Natronai, supra n. 53.