Today is May 25, 2018 / /
The Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah
Two classic categories of a status of disqualification are that of the Shabbat violator and the heretic. Both categories require closer investigation. Shabbat violators have been excluded in the past primarily when their violation was part of a break with the community. Today, besides the arguments for decreased culpability based on tinok she’nishba, this reality does not exist: Shabbat violators do not stand outside the community, and this status of disqualification should not be relevant.
The status of the heretic was an innovation of Rambam, and it appears that even he did not apply it consistently. A close reading indicates that only heresy that leads to transgressive action translates into a status of disqualification. Hazon Ish goes further and implies that even without actual transgression, heretical beliefs can invalidate if it undermines the person’s felt religious reality of being under the “yoke of mitzvot.” In addition to those framings, many argue that tinok she’nishba and decreased culpability applies as much to the issue of heresy as to that of Shabbat violation. Today, another factor is relevant. Given that our beliefs must be affirmed and cannot be taken for granted as they were in the past, one who does not believe has not committed the rebellious act of heresy; he merely does not believe.
We conclude that a status of disqualification applies only in the case of 1) heretical beliefs that 2) translate into transgression 3) such that has the effect of setting a person outside the boundaries of his community. In today’s world, it is very hard to meet the criteria for 1 or 3, as a lack of belief is rarely if ever actual heresy and nonobservance of Shabbat is rarely if ever a full breaking away from the Jewish community. There may still be certain areas where such people cannot play active roles, and these must be explored further, both with regard to the rules that guide this and in looking at case-by-case requirements. As a matter of personal status, however, they would not be disqualified.
Opening: Basis for stam yaynam
Section 1: Status of a Shabbat violator
Part 1: Rishonim and Poskim
Part 2: Historical Development and Conclusion
Section 2: Status of one who does not believe
Part 3: Gemara and Rambam
Part 4: Understanding Rambam
Part 5: Different Types of Heresy and Applications for Today
Section 2: Someone who observes mitzvot but does not believe
2.3.1. Status of disqualification, not mitzvot acts
We now turn to the question of whether someone who does not believe in a core principle of faith—generally referred to as an apikores—has a status of disqualification that would disqualify him as a matter of personal status from playing a role in matters of halakha. Or, to put it in more drastic terms, would he be considered to have a status “like a non-Jew,” and would his wine be stam yaynam?
It needs to be stated at the outset that even if such a person does not have a general status of disqualification, there may still be roles from which he would be excluded. For example, Rambam states that a person who rejects the practice or obligation of the laws of eruv would not be able to participate in a courtyard eruv (Laws of Eruvin, 2:16). This exclusion is based on a requirement known of as being bi’torat, being “in the category.” Thus, even if an apikores is not categorically excluded as a matter of personal status, he might be excluded from certain halakhot that require a person to be bi’torat.
It is a matter of debate what criteria would make someone considered not to be bi’torat: Would they have to be halakhically exempt, or would it even apply to someone who was obligated but rejected his obligation? And if it applies to one who rejects his obligation, does he have to do so in practice, or would it apply even if he rejected it in principle but observed in practice? There is also a serious question what areas of halakha require someone to be bi’torat (regarding both of these questions, see Rambam’s responsa regarding Karaites, responsa 265 and 351, and contrast this to his ruling in Laws of Shechita, 4:16). These issues need to be explored at much greater length before it can be fully determined what roles an apikores can or cannot play.
Similarly, there are other roles that such a person may not be able to play, not because of an issue of status but because his lack of belief makes him unable to perform acts that require a certain intention or state of mind. For example, can one who does not believe in God perform the act of prayer? Can his recitation of the Shema be an act of acceptance of the yoke of heaven? Can he make a blessing thanking God Who created the fruit of the tree? Can he make kiddush if he does not believe that God sanctified the Shabbat? Can someone who does not believe in a divine Torah receive an aliyah to the Torah and make the blessing, “Who has given us the true Torah and chosen us from among the nations”? It is unclear how far to take this. For example, if all positive ritual mitzvot require intent, mitzvot tzrikhot kavanah, then would a person who does not believe in God or in the bindingness of mitzvot be able to have the requisite intent that he is performing a mitzvah?
Even if the requirements of being bi’torat and the need to have certain beliefs to perform certain mitzvot would exclude a non-believer in principle, it also remains a question whether they would do so in practice. Perhaps—as we will explore below—a person’s internally held beliefs, when not expressed in action, are not recognized halakhically. Thus, unless someone acts on his beliefs, he would halakhically be defined as being bi’torat and as having the right intent, whatever his internal state of mind might be.
All these questions require further exploration, and we hope to return to them in a later responsum. For our purposes, we will focus on the question at hand, namely, whether the wine becomes un-kosher. This question relates directly to the personal status of someone who does not believe. Does such a person have a categorical status of disqualification? Is such a person considered to be “like a non-Jew”?
2.3.2. Is an apikores categorically excluded according to the Gemara?
The idea that heretical beliefs, when not reflected in practice, can formally change a person’s halakhic status is not found in the Gemara. The Gemara consistently defines such terms as min and mumar on the basis of a person’s actions. For example, the Gemara in Avoda Zara (26b) states:
|איתמר: מומר פליגי רב אחא ורבינא, חד אמר לתיאבון מומר, להכעיס מין הוי וחד אמר אפילו להכעיס נמי מומר, אלא איזהו מין? זה העובד אלילי כוכבים||It has been stated: [In regard to the term] mumar there is a divergence of opinion between R. Aha and Rabina; one says that [he who eats forbidden food] to satisfy his appetite is a mumar, but [he who does it] to provoke [God’s anger] is a min; while the other says that even [one who does it] to provoke is merely a mumar. And who is a min? One who actually worships foreign gods.|
Although the reason for the more severe status of min seems to be based on the heretical or religiously abhorrent beliefs that inform the person’s actions, this status is only conferred based on the person’s real-world actions.
The Shabbat violator is also considered a mumar:
|אמר רב הונא: איזהו ישראל מומר זה המחלל שבתות בפרהסיא||R. Huna stated: Who is regarded as an Israelite mumar? He who desecrates the Sabbath in public (Eruvin, 69a).|
As discussed at length above, Shabbat violation may be significant for the ways in which it positions the person outside of the community. Nevertheless, the more common explanation is that it is treated so severely because it reflects a lack of belief in God as Creator. For example, Rashi (Hullin, 5a, s.v. Ela) states:
|האי תנא חמירא ליה שבת כעבודת כוכבים דהעובד עבודת כוכבים כופר בהקב”ה והמחלל שבת כופר במעשיו ומעיד שקר שלא שבת הקב”ה במעשה בראשית||For this Tanna, Shabbat violation is as severe as idolatry, for one who worships foreign gods denies God, and one who desecrates Shabbat rejects God’s acts and testifies falsely, [saying through his actions] that God did not rest in the creating of the world.|
In a slightly different vein, Rambam emphasizes not Shabbat’s attesting to God as Creator, but to the covenant between God and Israel:
|השבת ועבודה זרה כל אחת משתיהן שקולה כנגד שאר כל מצות התורה, והשבת היא האות שבין הקב”ה ובינינו לעולם, לפיכך כל העובר על שאר המצות הרי הוא בכלל רשעי ישראל, אבל מחלל שבת בפרהסיא הרי הוא כעובד עבודה זרה ושניהם כגוים לכל דבריהם||Shabbat and idolatry each are as weighty as all the mitzvot of the Torah. And Shabbat is the sign between God and us forever. Therefore, a person who transgresses any of the mitzvot of the Torah is included among the wicked of Israel, but one who desecrates the Shabbat in public, behold this person is like one who worshiped foreign gods and both of them are like non-Jews in all respects (Laws of Shabbat, 30:15).|
Rashi and Rambam are both stating that it is the rejection of a principle of faith that lends Shabbat violation such serious consequences for a person’s status. Following this, Rav Moshe Feinstein explains why it would be necessary to violate Shabbat publicly rather than privately to be given a status of disqualification. Private violation, says Rav Moshe, may be due to weakness of will or the need to make a living and may not reflect a principled rejection of a tenet of faith. If, however, a person is brazen enough to violate in public, this could only be because this person truly does not believe (Iggrot Moshe, YD, 2:5).
Although the key concern expressed here is the rejection of a core principle of belief, it must be underscored that a person’s status is only changed when that rejection is demonstrated through the person’s actions.
This stands to reason, since as a legal system, halakha is much more inclined to define something in real-world, measurable ways. A person’s beliefs, thoughts, and intentions, according to halakha, can only be really known and demonstrated through his actions. Relevant concepts here are ein adam meisim atzmo rasha, a person cannot incriminate himself, and devarim she’bi’lev einam devarim, matters that are in one’s heart are inconsequential.
Beyond these principles, which may or may not be strictly relevant, when it comes to religious beliefs, the need for a demonstrable measure is even greater. Religious belief is notoriously difficult to define and measure. Many people have contradictory beliefs, dominant and less dominant beliefs, what they think they believe and what they deep down believe, what they believe today and what they will believe tomorrow, and so on. Thus, even if it is belief per se that determines a person’s inclusion or exclusion—and this is not a foregone conclusion—halakha measures and determines this belief through a person’s actions. This would be true even for the person him- or herself. Whatever he or she may be thinking and knows him- or herself to be thinking, such belief has no halakhic significance until it manifests itself in action.
Rav Moshe Sternbuch, in a teshuva which we will explore in greater length below, makes this point quite strongly:
|והאמת שאם באנו לפסול מי שדיעותיו מקולקלות אין ביכולתינו לבדוק מטמוניות של חבירו, ואף אם מסית כ”כ ומפרסם דיעותיו, לא זהו סיבת הפסול שיהא כעכו”ם||In truth, were we to attempt to invalidate someone who has corrupt beliefs, we would not be able to inspect the inner recesses of another person’s heart. Even a person who was a serious enticer and one who publicizes his [heretical] opinions, this is not a reason to invalidate him like a non-Jew (Teshuvot vi’Hanhagot 1, no. 413).|
We should also remember that all these actions—idol worship, sinning to provoke God, and public Shabbat violation—may not confer the status they do solely because they reflect heretical beliefs. As we saw above in the responsa of Rav Ettlinger and Rav David Zvi Hoffmann, it is possible that the halakhic status of min and mumar, in particular in the case of Shabbat violation, mirror the real-world ways such actions set a person outside the community. This would explain the criterion of public Shabbat violation at a time when all communities were Shabbat observant: only such actions make the statement that the person has no respect for communal norms and sees himself, and is thus seen by others, as standing outside the community. It is not heretical beliefs alone, and not even heretical beliefs as expressed through actions, which confer a status of disqualification. According to this approach, such a status is conferred only through a tripartite combination: 1) heretical beliefs translated into 2) transgression 3) of a nature capable of setting a person outside the boundaries of the community.
2.3.3. The status of an apikores according to Rambam
Rambam was the first to introduce the idea that heresy, even when not reflected in action, defines someone as an apikores or a min (a term which Rambam uses to refer to a heretic, not a sectarian), and that such a person has a status of disqualification and is considered “even worse than a non-Jew” (Laws of Testimony, 11:10). His first ruling in this regard appears in his Commentary to the Mishna (Sanhedrin 10, Mishna 1), supported by the statement that the apikores has no portion in the World to Come. This statement, however, does not indicate the halakhic status of such a person. As Hazon Ish states:
|ולא נזכר זה בגמרא… והנה הוזכר שם אפיקורס בר”פ חלק שאין להם חלק לעוה”ב אבל הרבה נמנין באלו שאין להם חלק לעוה”ב ולא הזכירן הר”מ שיהו בכלל מורידים או ששחיטתן נבלה||This ruling [that an apikores is included among the moridim (see below) and that he is invalid as a shochet] is not stated in the Gemara….Now, ‘apikores’ is mentioned in the beginning of Helek (Sanhedrin, chapter 10) where it states that he does not have a portion in the World to Come, but there are many types of people listed there among those who have no portion in the World to Come, and Rambam did not mention any of these among the moridim or those whose shechita would be invalid (Hazon Ish, Yoreh Deah, 2.18),|
Hazon Ish points out that Rambam’s ruling is not based on a Gemara, nor is it consistent with the list in the Mishna in Sanhedrin, as Rambam only applies this status of disqualification to the apikores and not to the many others listed in the Mishna. We may also add that, unlike Rambam’s use of the term, apikores in the Mishna does not refer to heretics in general, as is clear from the Gemara’s following discussion (Sanhedrin, 99b).
Although the Talmudic basis for this ruling remains unclear, Rambam’s ruling that heresy alone confers a status of disqualification—like Rambam’s ruling that a Shabbat violator is “like a non-Jew”—was influential in later psak. So, for example, Shulkhan Arukh’s rulings regarding an apikores parallel those of Rambam (see YD 158:2 and HM 425:5; HM 266:2; and HM 34:22). It is thus according to this approach of Rambam that the question of the status of wine touched by someone who does not believe in God needs to be addressed.
To answer this question, we must first take a closer look at Rambam’s rulings about heretics and those who do not believe. In Laws of Repentance (3:7–9), he delineates multiple categories of heresy, and following his interpretation of the Mishna in Sanhedrin, states that such people do not have a portion in the World to Come. This, however, tells us nothing of their standing in halakha.
In Laws of Idolatry (10:1), Laws of Murder (4:10), and Laws of Rebels (3:2–3), Rambam applies the ruling in Avoda Zara (26b) regarding certain classes of people of whom it is stated מורידין ולא מעלין, we should lower them down a pit and not raise them from it. It is questionable whether the Gemara meant this as anything more than rhetoric, but Rambam certainly understood it literally (see his Commentary to Mishna, Hullin, 1:2). This passage, however, lists only minim, mesorot, and mumarim (in other texts: meshumadim)—sectarians, informers, and the alienated violators—and the Talmud actually takes mumarim off the list. These are not heretics; they are people who have transgressed in action, and, more than mere transgressors, they actually present a live threat to the Jewish community. Rambam, by adding apikorsim to this list, was stating that heretics present an equal if not greater threat to the community and were thus implicitly understood to be included in the list (see also Laws of Idolatry, 2:5). Less drastically, Rambam also rules that one does not return the lost objects of heretics (Laws of Lost Objects, 11:2). This would seem to follow a fortiori from his ruling that we try to bring about their demise.
However, even this ruling of moridin is mostly a matter of policy and self-protection and is not strictly relevant to a heretic’s actual halakhic status in other areas. In fact, Hazon Ish has famously written that such harsh and violent methods in times such as ours, when many are lacking in faith, are counterproductive. According to him, our obligation is להחזירם בעבתות אהבה, to draw them close with cords of love (Hazon Ish, Yoreh Deah, 2.16). This is a matter of policy, not strict halakha, and thus we should be guided not by the dictum of moridin but by the goal that stands behind such a statement.
In all of Rambam’s writings, to my knowledge, there are only two places where he rules that one’s status as a heretic or non-believer actually disqualifies him halakhically as a matter of personal status (as opposed to not being able to perform a certain role due to more local concerns): an apikores may not be a witness, and an apikores may not be a shochet.
In regards to testimony, Rambam rules:
|המוסרין והאפיקורוסין והמינים והמשומדים לא הצריכו חכמים למנותן בכלל פסולי עדות שלא מנו אלא רשעי ישראל, אבל אלו המורדין הכופרין פחותין הן מן הגוים, שהגוים לא מעלין ולא מורידין ויש לחסידיהן חלק לעולם הבא, ואלו מורידין ולא מעלין ואין להן חלק לעולם הבא||The informers and the apikorsim and the minim and the apostates, the Rabbis did not need to list these among those that are invalid as witnesses, for they only listed the wicked Israelites. But these people who rebel and reject faith are worse than non-Jews. For regarding a non-Jew, one does not save him from death but does not bring about his death either, and the righteous among them have a share in the World to Come. But as for these, we are to lower them into the pit and not raise them from it, and they have no share in the World to Come (Laws of Testimony, 11:10).|
This ruling is of great importance halakhically, as it has been used by Rav Moshe Feinstein and other poskim to deal with cases of mamzerut in which there were children of a second marriage and no gett had been given after the first. Rav Moshe ruled that when the witnesses for the first marriage could be categorized as non-believers, the first marriage could be ruled void and the children of the second marriage would thus not be mamzerim (see, for example, Iggrot Moshe, Even Ha’Ezer, 2:17).
However, the fact that Rambam rules that such people are invalid witnesses is not a basis to assume that they would be invalid in other spheres as well. There are many people who may not serve as witnesses who are not invalid to serve in other halakhic capacities. Those who cannot be witnesses include anyone who has transgressed a negative prohibition deserving of lashes, an unlearned person, and an uncultured person (see Rambam, Laws of Testimony, chapters 9–11). Similarly, based on the principle of tinok she’nishba, Rav Moshe Feinstein rules that a Shabbat violator might not have a status of disqualification in general but that, nevertheless, such a person would be invalid as a witness. In Rav Moshe’s words, he may not be a Shabbat violator, but neither is he a Shabbat observer (Iggrot Moshe, Even ha’Ezer, 1:82). To be a kosher witness, one needs to be a member of the community in good standing, not simply someone who has not been rejected.
Tellingly, when Rambam rules that the apikores may not serve as a witness, he also states that an informer is invalid and connects this to the ruling of moridim. The point is clear: these people are threats to the community. There is no way that they can be valid as witnesses, a role reserved for the upstanding members of the community.
There is thus no reason to think that the apikores would have a status of disqualification in any halakhic realm outside of being a witness. In fact, there is evidence that in other realms heretics do not have such a status. In Laws of Eruvin (2:16), Rambam writes:
|ישראל שהוא מחלל שבת בפרהסיא או שהוא עובד עבודה זרה הרי הוא כגוי לכל דבריו, ואין מערבין עמו ואינו מבטל רשות אלא שוכרין ממנו כגוי, אבל אם היה מן המינים שאין עובדין עבודה זרה ואין מחללין שבת כגון צדוקין וביתוסין וכל הכופרים בתורה שבעל פה, כללו של דבר כל מי שאינו מודה במצות עירוב, אין מערבין עמו לפי שאינו מודה בעירוב, ואין שוכרין ממנו לפי שאינו כגוי||A Jew who violates Shabbat publicly or who worships foreign gods, behold he is like a non-Jew in all respects, and one cannot make an eruv with him, and he cannot nullify his domain, but one rents from him as one would from a non-Jew. But if he were one of the heretics that do not worship foreign gods and that do not violate Shabbat, like the Sadducees and the Beitusim, and all those who reject the Oral Torah, or generally speaking, anyone who does not believe in the mitzvah of eruv, then one cannot make an eruv with them, because they do not believe in it, but one can also not rent from them, because they are not like a non-Jew.|
Rambam is very clear here. If a person is a heretic but this heresy does not bring about Shabbat violation or idolatry, then such a person is still halakhically considered a Jew for all respects. He may not be able to participate in an eruv because he rejects the laws of eruv, but this is a local concern and not a categorical invalidity. It seems clear that even according to Rambam, a non-believer does not have a categorical status of disqualification merely due to his heretical beliefs.
Even the determination of whether a person is doing a sin to provoke or because he cannot control his desires is done not by guessing he is thinking or by looking at what he is saying but by the type of act that he is doing. See Tosefta Horiyot, 1:5, and Avoda Zara, 26b.
The rule that one cannot incriminate himself is said primarily in regards to court-imposed punishments (Ketuvot, 18b), and in fact, we find that a person is believed to invalidate his own status: נאמן אתה לפסול את עצמך ואי אתה נאמן לפסול את בניך, “You are believed to invalidate yourself, but you are not believed to invalidate your children” (Yevamot 47a). Devarim she’be’lev einam devarim may only apply to two-sided transactions, where the one side cannot be held to the assumptions of the other side. One-sided transactions, and thus issues such as mitzvot and halakhic status, may be different. See Rambam, Laws of Sale, 11:9, and Laws of Marriage, 8:2, compared with Laws Acquisitions and Gifts, 6:1.
It is worth noting that, in Mishne Torah, the law regarding the apikores and the informer follow the law regarding those who are invalid because they are unlearned or uncultured, and in a chapter focusing on those who are Rabbinically invalid. It would seem from the context that the invalidity of the apikores and informer is only rabbinic, although this is certainly not the understanding of Rav Moshe Feinstien and many other poskim.