Saturday, October 30, 2010

Rights of Non-Jews In Israel: Rabbi Chaim David Halevy's View

There has been a controversy recently in Israel regarding selling homes/land to non-Jews.  A Group of Rabbis in Tzfat have called upon Jews to refrain from selling homes to non-Jews.  Then last Thurs. morning Rabbi Ovadia Yosef in a morning halakhah class was reported as saying that it is forbidden to sell homes to non-Jews in Israel.

Some have written that this is a straight forward law of the Torah with no one disputing it.  When I read this, I recalled the writings of Rabbi Chayim David Halevy who addressed this subject in his responsa Aseh Lecha Rav.

(A little about the relationship between Rabbi Halevy and his bar Plugta (partner in dispute) in this matter Rabbi Ovadia Yosef -- The following is from Rabbi Marc Angel's biography of Rabbi Halevy pg. 27.  "When the term of office of Sephardic Chief Rabbi  of Israel, Rabbi Mordechai Eliyahu, was concluding in the early 1990's, Rabbi Halevy was offered as a candidate by the Mafdal party (Mizrachi).  Rabbi Halevy, though, was not one to engage in political maneuvering or campaigning for office.  Rabbi Ovadya Yosef, although a colleague of Rabbi Halevy's from their days together at Porat Yosef, was interested in having a Sephardic Chief Rabbi affiliated with and loyal to his Shas party. Given Rabbi Yosef's vast influence in the process of selecting the Sephardic Chief Rabbi, it was almost a foregone conclusion that Rabbi Halevy could not win-- unless he became a member of the Shas party.  Having been a longtime member of Mizrachi, and having a general aversion to the ethnic politics of Shas, Rabbi Halevy would not consider sacrificing his principles and integrity to join the Shas bandwagon/  Consequently, he did not win the office of Sephardic Chief Rabbi of Israel; rather the office went to Rabbi Eliyahu Bakshi-Doron, a follower of Rabbi Ovadya Yosef.)

Consistently in this 9 volume collection Rabbi Halevy rules that there is no contemporary prohibition to selling homes to non-Jews.  For the record I want to share his analysis.

In the beginning of chapter 7 of Deuteronomy the Torah states, "When God your Lord brings you to the land you are entering, so that you can occupy it, He will uproot many nations before you--the Hittites, Girgashites, Amorites, Canaanites, Peritiztes, Hivites ad Jebusites-- seven nations more numerous and powerful than you are.  When the Lord your God gives them to you and you smite them, utterly destroy them, do not make any covenant with them and do not show them favor."  The Rabbis of the Talmud interpret "do not show them any favor" to mean do not give them any hold on the land (the Hebrew "techanem" can be read to me give them a camp -- thus do not give them a camp or hold (on the land)). It is this verse with the interpretation that I mentioned on which those who would forbid Jews to sell land to non-Jews base themselves.

What does Rabbi Halevy do with this.  Firstly, he notes that the straightforward read of the Biblical passage seems to refer to the original Canaanite nations and nobody else.  (Aseh Lecha Rav 4:21 page 20-21 8:68 pg 193).  Indeed, he notes that some of the rishonim (post talmudic commentators) limit this prohibition to the original seven Canaanite nations.  However, Maimonides understands this prohibition to apply to all idolaters.  To this, Rabbi Halevy brings the opinion of the Meiri (a fourteenth century scholar from Provence) that prohibitions against idolaters do not apply to contemporary non-Jews.  These prohibitions were directed against the extremely corrupt and violent society of ancient times but have no relevance to the morally restrained societies of today (Aseh Lecha Rav 4:1 pg. 24; 8:68 pg. 194; 9:30 pg 68).  On just these technical grounds R. Halevy claims that nowadays it is absolutely permitted to sell land to non-Jews.

But Rabbi Halevy goes further.  It is not just on the basis of these technicalities that there is no prohibition.  He seems to claim that given the radically different nature of society today there can be no place for discriminatory prohibitions like this.  He notes that Israel's declaration of independence states, "there will be complete social and political equal rights for all of its citizens without regard for religion, race, or gender."  On this basis Rabbi Halevy claims that Israel is obligated to its non-Jewish citizens the same rights that are granted by law to Jews. (Aseh Lecha Rav 9:30 pg. 61)  If the formative document of the modern state of Israel was made with a promise to give equal rights to non-Jews, this promise must be kept.  He further notes that in the western democratic world, in which Israel operates, the basis of society is that every human being has equal rights and there is no place in a democratic state for discrimination on the basis of religion. (ibid pg. 63).  The prohibitions mentioned in the early halakhic literature are based on a totally different political reality and therefore have no relevance in our democratic society.

In Rabbi Angel's biography on page 197, he quotes from Rabbi Halevy's book Bein Yisrael L'Amim, "It is clear that we cannot relate to the minority [Israeli Arabs] with false accusations and the ferocity of hatred.  Who knows better than we the taste of persecutions and racist discrimination that spread hatred and poison in the heart.  Rather, we go upright in the paths of peace and understanding, for they are the way of Torah whose paths are the paths of pleasantness and all its ways are peace.  We must find a just solution in the spirit of the Torah."
What a far cry R. Halevy's position is from what has been said in the name of halakhah in the news lately.  As one who finds both R. Halevy's legal reasoning and his moral intution compelling I felt the need to share this Torah.  Thanks for listening.


  1. Thanks for posting this, Ross. I appreciate having a foundation to support my arguments. For some reason, it's really ineffective to say, "um, just because!"

  2. Dear Ross,

    Perhaps you could clarify a few points for me. Since when is the Israeli Declaration of Independence a halachic work or the basis for halachic rulings? Besides which, the document blatantly contradicts itself by on the one hand, declaring a "Jewish State for the Jewish people" and on the other hand, granting full political rights to Non-Jews. I know of only one rabbi and former Knesset member-Rav Meir Kahane זצ"ל who faced the contradiction head on and took a side, favoring the Jewish State and willing to forego aspects of democracy in the modern sense. Most Israelis find this subject taboo and pretend that the contradiction does not exist. Can we correctly infer that Rav Halevy has chosen to forego the Jewish State in favor of the Democratic State of Israel? What ever happened to "לזרעך נתתי את הארץ הזאת"(בראשית ט"ו, י"ח
    and "בראשית כ"א, י"ב)"כי ביצחק יקרא לך זרע)"?

    Yitz Gabay

  3. Dear Yitz,
    I think your question about the place of Israel's declaration of Independence in a halakhic text is a good one! I too was struck by the quote. I believe its halakhic weight comes from the prohibition against echad bapeh vechad balev. The representatives of nearly all Jewish sub-communities in Israel signed on to this document. We have a requirement to live up to what we said we would do.
    You suggest that living up to this declaration is problematic because the declaration is self contradictory. On the one hand its declares a "Jewish state for the Jewish people" and on the other grants full political rights to non-Jews. I have a few points of disagreement with you. Firstly I don't see where the declaration says a "Jewish state for the Jewish people.” It only declares a Jewish state that will be open to Jewish immigration but not a state that will serve only Jews. Secondly the declaration does not give full political rights to non-Jews. It gives full political rights to non-Jewish citizens. These seemingly small points make a big difference and I believe undermine your suggestion that the document is self contradictory. Our "founding fathers" declared a state that would welcome Jewish immigrants from around the world into the state while guaranteeing the rights of non-Jewish citizens already living in the country.
    So now we should ask: Is that the full extent of the Jewish character of the state we can expect? Its just a place that Jews can immigrate with nothing else Jewish about it? I think the answer is obviously not. The state of Israel can be and is Jewish in the following crucial ways -- its calendar, its symbols, its language, its national parks, its education ministry, its legal system etc etc. I don't think that having a state that is Jewish in all of those ways precludes protecting the civil rights of non-Jews who live here as citizens.
    Perhaps I have convinced you that the declaration is not self contradictory. But maybe you still think it contradicts another foundational document -- our Torah. I have no doubt that R. Kahane indeed saw a contradiction between granting rights to non-Jews in Israel and the Torah. Seems to me that part and parcel of R. Kahane's Torah is the need to give preference to the Jew over the gentile. Well if that indeed is a fundamental principle of Torah then it does contradict the declaration. However, R Halevy doesn't believe that preferential treatment of Jews over non-Jews is a fundamental precept of Torah life. In fact he believes that a central tenet of the Torah is the sanctity of every human being and the incumbent respect due them based on that sanctity. So, a Jewish state according to R. Halevy MUST defend the civil rights of its non-Jewish citizens. You certainly are entitled to disagree with R. Halevy. But he definitely has strong sources and sound halakhic reasoning to back him up.
    So in answer to the question, "Can we correctly infer that Rav Halevy has chosen to forgo the Jewish State in favor of the Democratic State?" I must answer NO. In granting rights to Arab citizens of Israel, he didn't feel he was giving up one iota of its Jewishness.

  4. continued...

    Finally your last point about the verse in Genesis is an intriguing one. If I understand you correctly you are suggesting that God says in Gen 15 that he is giving the land to his seed and according to Gen. 21:12 only Isaac and not Yishmael is called his seed. Ergo the land belongs only to Yitzchak's decedents and not to Yishmael's Very interesting. I must tell you that I have never seen this used in classical halakhic literature to justify sale of land in Israel to non-Jews. As far as I can tell this is quite an innovative suggestion you are making. Why did no one use it before? Here are two suggestions. First of all, just because God gave the land to Abraham's decedents does not mean they can't choose to sell it to a non-Jew. #2 Perhpas the intent of the verse in Gen 15 is a gift to the collective and not to the individuals. That would mean that the Jewish people as a whole has a claim on the land but as individuals its a different story.
    Whatever the reason may be, those verses to the best of my knowledge were never used to prohibit sale of land to non-Jews or to deny them rights in Eretz Yisrael.
    I hope this clarified the points you were asking about.

    Kol Tuv,

  5. coninued again... A third reason that I should have included above why those verses haven't been used for a prohibition is that they are not halakhic. They are part of the narrative of Torah not its legal decrees.