by Rav Yehuda Rock
Towards the end of Parashat Ekev, Moshe contrasts God’s power and mercy, deriving a moral lesson (10:17-19):
For Lord your God is the God of gods and the Lord of lords: the great, mighty, awesome God, Who does not show favor and does not take bribes; Who executes judgment for the orphan and the widow, and loves the stranger (ger), giving him food and garments. You shall love the stranger, for you were strangers in the land of Egypt.
In the terminology of the Sages, the word “ger,” used alone, means a “ger tzedek” i.e., a proselyte, someone who has joined himself to Am Yisrael (the Jewish people) through circumcision and immersion and has taken upon himself all of the Torah’s commandments. In the Torah, however, we find that the word ger is used to refer to a stranger, a person from a foreign land who is living in Eretz Yisrael, the Land of Israel a land that is foreign to him. This is borne out by the verse cited above: “For you were strangers (gerim) in the land of Egypt.” There is no question of a reference here to any sort of conversion or assumption of a new identity; the term “gerim” simply denotes living amongst a foreign people. There are also several other places in the Torah where Am Yisrael are referred to, during their time in Egypt, as gerim. Examples of the same meaning in different contexts include Avraham’s words to the children of Chet – “I am a stranger and resident (ger ve-toshav) in your midst” (Bereishit 23:4); “He called him Gershom, for he said: ‘I have been a stranger in a foreign land'” (Shemot 2:22). As Rashi (Shemot 22:20) notes, “Wherever the Torah uses the word ‘ger,’ it refers to a person who was not born in that land, but rather comes from some other land to live there.”
On this basis, the simple meaning of the commandment to “love the ger” is that one should love any person who comes to live in Israel. This meaning is connoted most strongly in another place (Vayikra 19:33-34) where the same commandment is reiterated:
If a stranger (ger) lives (yagur) with you in your land, you shall not wrong him. A stranger who lives (ha-gar) with you shall be for you like one born among you, and you shall love him as yourself, for you were strangers in the land of Egypt; I am Lord your God.
In other words, the Torah seems to be saying: if a foreigner comes and lives with you in your land, you must act towards him with love and show him equality.
However, according to Halakha, the commandment to “love the ger” is limited in its application to the ger as referred to in rabbinical literature, a ger tzedek. This we learn from theMekhilta (Nezikin 18):
Beloved are the gerim, concerning whom God adjures in many places, “You shall not oppress a ger” (Shemot 23:9); “You shall not wrong a ger” (ibid. 22:20); “You shall love the ger;“ “For you know the soul of a ger” (Shemot 23:9).
Similarly, the Rambam rules (Hilkhot De’ot 6:4):
Love for a ger who has come under the wings of the Divine Presence (i.e., converted) comprises two positive commandments: one, because he is now among those referred to as “fellow” [as in the commandment, ‘You shall love your fellow as yourself’ (Vayikra19:19)]; and the other, because he is a convert, and the Torah says, “You shall love the ger.”
The same is found Sefer Ha-mitzvot (Positive 207) and among the other codifiers of the mitzvot. Except for the Chafetz Chayyim in his Sefer Ha-mitzvot Ha-katzar, Positive 61, where he includes “anyone who comes to live,” in contrast with the simple meaning of the Mekhilta and the … Continue reading In fact, this is just one of many instances in which the Torah speaks about a ger and Halakha applies the law involved only to a ger tzedek. For this reason, the commentators have generally tended to propose that the word ger has another meaning in the Torah: it can also mean a person who has changed his religion, i.e., converted and become part of Am Yisrael. However, as noted, the Torah offers no clear instance of the word being used in this sense. See Ibn Ezra’s Long Commentary on Shemot 12:49. Furthermore, in some of the instances where it is clear that Halakha applies only to a covert, the verse implies that what characterizes a ger in this context is not his new status as a Jew, but rather the fact that he is living amongst Am Yisrael. Thus, Shemot 12:48-49 equates the law “for the native-born and for the stranger who lives in your midst.” If the ger here referred to someone who is part of Am Yisrael, what would be the significance of the qualification, “who lives in your midst”?
Hence it seems that there is constant discord between many verses in the Torah, on one hand, and Halakha, on the other. This contradiction demands some explanation; first, let us review the areas in which it arises.
The original topic concerns the obligation in mitzvot. In many different places, the Torah seems to suggest that the ger a person who has come to live amongst Am Yisrael in their land is obligated to observe the commandments. The most compelling example, from Shemot, we mentioned above:
If a ger lives with you he shall perform the paschal-offering to God. Let all of his males be circumcised, and then he shall come near to perform it, and he shall be like the native-born One law shall there be for the native-born and for the stranger who lives in your midst.
Ibn Ezra, in his Long Commentary, understands the verse not as a commandment, but as a description of a set of circumstances: a ger who comes to live among you and who wishes to perform the paschal-offering must be circumcised. However, aside from the fact that this goes against Halakha (see the Rambam, Hilkhot Korban Pesach 9:7), this interpretation undermines the continuity with the next verse, which sets forth the general rule that “One law shall there be for the native-born and for the ger who lives in your midst.” A simple reading indicates that these verses mean to establish the ger‘s obligation with respect to circumcision, the paschal-offering, and the other commandments (as Rashi explains), and that this includes any ger who lives permanently with Am Yisrael (in contrast to Rashi’s view). Only a “resident or hired laborer” (toshav ve-sakhir) who, accordingly to the literal text, seems not to live in Eretz Yisrael on a permanent basis, but rather dwell temporarily is exempt and excluded from the Pesach sacrifices. Concerning these we are told, “a resident or hired laborer shall not eat of it” (ibid, verse 45).
However, this is not what Halakha teaches. Halakha awards a formal status to a person who comes to live amongst Am Yisrael in Eretz Yisrael: he is known as a ger toshav (literally, and somewhat paradoxically, “resident stranger”). “Concerning everything else he is like a non-Jew” (Avoda Zara 64b), in terms of his personal status, and he may dwell in the land (see the Rambam, Hilkhot Avoda Zara 10:6; Hilkhot Issurei Bia 14:7). Admittedly, a beraita (ibid.) does mention the view of the “Others,” who state that a ger toshav must fulfill all mitzvot save one, We will discuss this dispute at length below. but the halakha follows the majority opinion of the Sages, that he must merely fulfill the seven Noahide laws. All of this contradicts the plain meaning of the verses, instructing us that any gerwho lives amongst Am Yisrael in their land is automatically obligated to perform the commandments, just like a native-born Jew.
Some further examples:
- For anyone who eats leavened food, that soul shall be cut off from the congregation of Israel, whether he is a stranger or native-born. (Shemot 12:19)
- And it shall be a statute for you forever: in the seventh month, on the tenth of the month, you shall afflict your souls, and you shall do no manner of labor, neither the native-born nor the stranger who lives in your midst. (Vayikra 16:29)
There are many more such instances.
The second area in which there is a contradiction between the plain meaning of the verses and Halakha in this regard concerns conduct towards gerim. We have already noted a contradiction between the plain verses and Halakha with regard to the commandment of lovinggerim. Another similar commandment, which appears in several different places in the Torah, prohibits causing anguish to a ger. This prohibition appears in Parashat Mishpatim (Shemot22:20):
You shall not cause anguish to a stranger, nor oppress him, for you were strangers in the land of Egypt.
It appears again in the verses cited above, from Parashat Kedoshim (Vayikra 19:33-34): “You shall not cause him anguish. You shall love him as yourself, for you were strangers in the land of Egypt.” Concerning this prohibition, too, the halakhic midrashim apply the verses to a ger tzedek. It is possible that it is also forbidden, in practice, to cause anguish to a ger toshav, but this is apparently deduced from the verses that speak of a slave. See Arakhin 29a; Rabbeinu Gershom, … Continue reading This is borne out in the beraita in the Mekhilta that we cited above, “Beloved are the gerim.” Likewise, in Torat Kohanim (Kedoshim 8:2), we find the abovementioned verse interpreted to mean: “You shall not say to him, ‘You used to be an idolater, and now you have entered under the wings of the Divine Presence.'” The Rambam rules accordingly (Hilkhot Mekhira 14:15; Sefer Ha-mitzvot, Negative 252), as do other codifiers of the mitzvot.
Thus, in two areas In fact, there is also a third area, gifts to the poor, but we shall not address this here. there is a discrepancy between the Written Law and the Oral Law with respect to this ger, who has come to live among Am Yisrael in their land, but has not converted and become a Jew: the matter of his obligation in mitzvot and the issue of the proper treatment of him.
The commentators present various approaches to the question of the relationship between the Written Law and rabbinical interpretations as codified in Halakha. The Ibn Ezra consistently takes the approach that Halakha accords with the meaning of the verses, and therefore he always tries to interpret the verses in keeping with Halakha as he knows it. At the opposite end of the spectrum on this question, we find the Rashbam. To his view, it is quite possible for there to be some discrepancy between the Written Law and the Oral Law; for him, this presents no problem. In such instances, the Rashbam does not even address the relationship between the plain meaning of the verses and Halakha.
Somewhere in between these two approaches we find a group of Rishonim, particularly the Rambam and Ramban. These Rishonim unquestionably accept the possibility of some discrepancies between the Written Law and the Oral Law, but they attach importance to the understanding and explaining of these discrepancies. These two dimensions are not identical, but there is a direct relationship and connection between them. Concerning the extent of the discrepancy and the types of relationships between the Written Law and Halakha, there are obviously different possibilities and approaches.
It seems that the principles guiding the deviation of Halakha from the plain meaning of the text fall into three categories: formalization, concretization, and synthesis.
- Formalization: The Written Law formulates laws as instances and actions that have their source in the social reality, or in a manner that expresses and emphasizes the existential significance of the specific halakhic demand. The Oral Law, by contrast, presents clear-cut rules and precise definitions, and it locates their exact fundamental conditions. It turns practical, illustrative descriptions into a formal legal entity.
As an example of formalization in the Oral Law, we may cite the laws of guardians. The Torah, in Shemot 22, describes two instances of guardians who have the deposited item stolen from them. One case is, “If a person gives his fellow money or vessels to watch over, and they are stolen from that person’s house” (v. 6). The other case is, “If a person gives his fellow a donkey or an ox or a sheep or any animal to watch over and if it is stolen from him” (vv. 9-11). In the first instance, the guardian is exempt from payment, while in the second instance he is liable. The Torah’s description focuses on the type of deposit involved: belongings vs. animals. In contrast, Halakha makes the obligation of payment, in the event that the deposit is stolen, dependent on the category of guardianship: a person who is guarding the item for free is exempt, while one who is being paid for his services is liable.
The Rashbam, commenting on these verses, proposes an explanation for the distinction between objects and animals, but he does not bother to propose any bridge between the verses and Halakha of the Oral Law (even though such a bridge could be proposed, on the basis of his explanation). The Ramban, on the other hand, explains that objects are usually taken for safeguarding for free, while animals are given into the care of shepherds who are paid for their efforts. According to this view, the instance of “money or vessels” is depicted within a social context that is familiar as an instance of free guardianship, while the instance of “any type of animal” is depicted as an instance of paid guardianship. In other words, the Torah paints situations that are familiar from the existing social reality, without explicitly noting the relevant legal characteristic of the instances under discussion. The Oral Law, on the other hand, sets the laws upon the relevant formal, legal foundations.
- Concretization: The Written Law presents lofty principles and demands, aspiring to sanctify and elevate the reality of the material world and to implement Divine values. Sometimes, the Torah’s lofty ideal is presented only in the form of general, abstract value-related principles. The Oral Law takes this theoretical aspiration and applies it, in practice, within concrete reality, supplying the law a tangible face.
As an example of halakhic concretization, let us consider the prohibition of erasing God’s Name and of disassembling the Temple and its courtyards. See my essay on Parashat Re’eh for an elaboration on this subject. The Sages deduce these prohibitions from the verse, “You shall not do thus (ken) to Lord your God” (Devarim 12:4), by understanding the word “ken” as referring to the preceding description of eradicating idolatry in verses 2-3 (hence the prohibition of disassembling the Temple and its courtyards); they also explain the phrase, “And you shall erase their name from that place” as referring to a written name. However, as we explained in that shiur (based on the Rambam and Ramban), the command, “You shall not do thus to the Lord your God” simply means not to damage or obstruct God’s Presence and His impression in the world. Nevertheless, Halakha applies this principle to defined, concrete expressions of God’s Name: His Name in writing and the place of the Divine Presence.
By means of these two principles formalization and concretization Halakha preserves and maintains the fundamental, essential character of the theoretical aspiration that is expressed in the Written Law, by altering or elaborating upon its external form.
- Synthesis: The Written Law, in its attempt to present the law in its purest and most refined form, may sometimes disregard other principles and laws which may cause some friction with the law in question when they are applied in reality. The Oral Law creates the bridge between the contradictory principles, awarding each its proper scope and boundaries.
The first two principles (formalization and concretization) are enlisted from time to time by the Ramban and other commentators. The third principle synthesis was invoked by my rabbi and teacher, Rabbi Mordekhai Breuer, z”l, in various contexts. See, for instance, his article about the Jewish maidservant in Megadim 16.
For the purposes of our discussion, it would seem that the principles of formalization and concretization offer only a partial solution. After all, Halakha does recognize the concept of a ger toshav. Thus, the category of ger toshav someone who may live in Eretz Yisrael, amongst Am Yisrael, and towards whom our attitude is basically favorable, is well-defined, with certain practical obligations, as set forth by the Tanna’im mentioned above. Since this formal category exists, and its laws point in the same general direction that is required in our case, it would seem that in our case, too, even after formalization and concretization, the laws that we are discussing should apply to a ger toshav. Therefore, it appears that the solution must be sought within the realm of contradiction and synthesis. For this purpose, we must locate in Scripture some source that is at odds with the Torah’s own general attitude towards the ger and then try to understand how Halakha bridges this contradiction.
The Sanctity of Israel
It seems that the Torah presents a different attitude towards a ger in the same place from which (according to one view) we learn the requirements for a ger toshav. The beraita (Avoda Zara 64b) teaches:
Who is a ger toshav? “Anyone who has accepted upon himself, before three members, that he will not worship idolatry” these are the words of Rabbi Me’ir; but the Sages maintain: “Anyone who has accepted upon himself the seven commandments that were accepted by the children of Noach.” Others say: “Neither of the above is considered a ger toshav. Who is a ger toshav? A ger who eats carcasses, who has accepted upon himself to fulfill all of the commandments of the Torah, except for the prohibition of carcasses.”
The last opinion, that of the “Others,” is surprising. What does this specific prohibition, of eating the meat of an animal that has been killed in a way other than halakhic slaughter, have to do with the definition of a ger toshav? It seems that the connection is to be found in Devarim14:21:
You shall not eat any carcass. You shall give it to the stranger who lives within your gates so he shall eat it, or sell it to a foreigner, for you are a holy nation to Lord your God.
The verse states clearly that there is a ger who is permitted to each such meat. This verse, then, serves as the source for the status of a ger toshav as one “who lives within your gates,” but is nevertheless permitted to eat carcasses. It appears further that in this regard the Tanna’im are unanimous. There is only one point of debate: according to the view of the “Others,” a ger toshav is exempt only from this prohibition, while according to the majority opinion of the Sages, he is exempt from the commandments in general, and the sole condition for his residence in Eretz Yisrael is that he accept upon himself the seven Noahide laws or, according to Rabbi Me’ir, only the prohibition of worshipping idols.
Thus, on the level of the plain text, there is a fundamental contradiction between the verses that we have seen above, obligating any ger who lives in Eretz Yisrael to fulfill all of the commandments, and this verse, which exempts him (from just one commandment, according to the “Others”; from most of the commandments, according to his disputants and as codified in Halakha). Halakha bridges this contradiction by creating two types of gerim: there is a ger tzedek, who is obligated with regard to the commandments; and there is a ger toshav, who is exempt from the commandments (other than those which apply to all non-Jews).
What is the significance of this contradiction? The verses that obligate gerim to observe the commandments look towards a unification of all residents of the land, making the Torah incumbent upon all of them, as the law of the God of the land, “for the stranger and for the native-born alike.” Cf. Melakhim II 17:24-41. In Devarim, however, the law appears within a context that emphasizes the sanctity and special quality of Am Yisrael; not only does that very verse end with a declaration that “You are a holy nation to Lord your God,” the chapter opens with the same phrase, stressing that the Jews are God’s children “and God has chosen you to be a special nation for Him, from all of the nations upon the face of the earth.”
There is tension between two conflicting values: on one hand, there is the ideal of all the inhabitants of Eretz Yisrael, God’s land, being servants of God and sharing in Am Yisrael‘s obligations towards God and the Torah. This value is especially emphasized in the paschal-offering, which symbolizes abandoning idolatry and committing to God’s service. On the other hand, there is the ideal of God’s relationship with Am Yisrael, His children, which is expressed in the uniqueness and sanctity of Israel and the separation between Israel and the nations.
As stated, the Oral Law forges a solution by defining two distinct tracks. All inhabitants of the land are obligated in mitzvot at some level; a person who is unwilling to accept even this most basic level should not be permitted to dwell in the land (Rambam, Hilkhot Avodat Kokhavim10:6). The other commandments, however, apply only within the context of the sanctity of Israel, and the sanctity of Am Yisrael does not necessarily include everyone who lives in the land. It extends only to the native-born and to those who have undergone a process of sanctification (expressed mainly in the act of immersion) and entry into the covenant of Israel.
This explains the position of Halakha with regard to what the ger must do, but what about our behavior towards him?
As we have seen, there is a distinction in the Torah between a ger and a toshav. According to the plain text, a ger is someone who comes to dwell permanently in the land, while a toshav is a temporary resident. A ger is obligated with regard to the commandments (Shemot12:48-49, Vayikra 16:29, et al.), while a toshav is exempt (Shemot 12:44). When it comes to the commandment of loving the ger and the prohibition against causing him anguish, the Torah mentions only the ger although from the point of view of identification with the weak, with a stranger in a land foreign to him, it would seem that this should apply no less and perhaps even more to a toshav. Apparently, although the Torah demands identification with and love towards a stranger who comes from a different land, the formal obligation to show such fraternity applies only when the stranger concerned shares the obligation of the commandments. The Written Law, based on the assumption that a ger who lives in the land is obligated in mitzvot, mentions with respect to him the requirement of loving him and the prohibition against vexing him. However, according to Halakha, since this ger is not obligated to observe the commandments, the requirement to love him and the prohibition against vexing him do not apply. Their application is limited to gerim who are obligated in mitzvot i.e., converts.
Whatever the Torah requires of us with regard to a toshav, however, does apply, according to Halakha, to a ger toshav. As opposed to the stricter requirement of “love”—which the Written Law applies to any ger living in the land but which Halakha restricts to converts—concerning a ger toshav, Halakha states, “You are commanded to sustain him” (Pesachim 21b).
The substance of this requirement is a matter of debate among the Rishonim. According to the Ramban (Gloss to Sefer Ha-mitzvot, Positive 16; Commentary, Vayikra 25:35), it refers to saving his life along the lines of “You shall not stand by the blood of your fellow” (Vayikra 19:16). The Rambam views this requirement as the provision of support i.e., communal responsibility that facilitates the conduct of life, including also basic manners and acts of kindness (Hilkhot Melakhim 10:12). The Gemara does not state explicitly the source for this command “to sustain him,” but the Rishonim (Rashi, ad loc; Rambam, Hilkhot Zekhiyya 3:11; Ramban, ibid.) point to a verse in Parashat Behar (Vayikra 25:35): “If your brother grows poor, and his means fail with you, you shall support him a stranger (ger) or a resident (toshav) that he may survive with you.” The structure of this verse is somewhat opaque, but the message seems to be that the command to support and sustain a brother extends to include a “ger or toshav.” The Sages explain (Torat Kohanim, ad loc), “‘Ger‘ this means a ger tzedek; ‘toshav‘ this means a ger who eats carcasses.” In other words, the ger mentioned in the verse is a convert, as the word is usually used by the Sages; the toshav mentioned in the verse is actually a ger toshav. Concerning the term “ger who eats carcasses,” cf. Avoda Zara 64b. This, then, is the source of the requirement to support and sustain even a ger toshav.
This essay originally appeared on Yeshivat Har Etzion’s Israel Koschitzky Virtual Beit Midrash and is republished here with permission. Translated by Kaeren Fish
|↑1||Except for the Chafetz Chayyim in his Sefer Ha-mitzvot Ha-katzar, Positive 61, where he includes “anyone who comes to live,” in contrast with the simple meaning of the Mekhilta and the accepted view among the Rishonim.|
|↑2||See Ibn Ezra’s Long Commentary on Shemot 12:49.|
|↑3||We will discuss this dispute at length below.|
|↑4||It is possible that it is also forbidden, in practice, to cause anguish to a ger toshav, but this is apparently deduced from the verses that speak of a slave. See Arakhin 29a; Rabbeinu Gershom, ad loc.; Yerushalmi Yevamot 8:1. In any event, the verses that directly prohibit vexing the ger are interpreted as applying to a convert.|
|↑5||In fact, there is also a third area, gifts to the poor, but we shall not address this here.|
|↑6||See my essay on Parashat Re’eh for an elaboration on this subject.|
|↑7||See, for instance, his article about the Jewish maidservant in Megadim 16.|
|↑8||Cf. Melakhim II 17:24-41.|
|↑9||Concerning the term “ger who eats carcasses,” cf. Avoda Zara 64b.|