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The Status of "Chilonim" in Halakha (1)

Rav Chaim Navon
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Dedicated in memory of Jack Stone, and Helen and Benjamin Pearlman, z"l,
and in honor of Mrs. Esther Stone.

By Gary and Ilene Stone of Teaneck, NJ


Dedicated by Aaron and Tzipora Ross and family in memory of their grandparents
Shimon ben Moshe Rosenthal, Shmuel Nachamu ben Shlomo Moshe HaKohen Fredman, and Chaya bat Yitzchak David Fredman,
whose yahrtzeits are this week.









            Shortly following my recruitment into the army, I was left on base for Shabbat with only one other religiously observant soldier. On Shabbat afternoon, when we were returning from Mincha, we were approached by a chiloni soldier who asked to borrow a sewing kit in order to mend his shirt. After my friend told him that this is forbidden on Shabbat, the other soldier objected: "But I will do it, not you!" My friend patiently explained to him that it is also forbidden to help another person desecrate Shabbat. The chiloni soldier thought for a moment, and then went over to the light switch and solemnly announced: "I will turn the light on and off until you give me the sewing kit."


            At that moment I thought that Halakha's attitude toward chilonim was entirely wrong. Trying to relate to them with the usual halakhic categories – "abettor," "setting a stumbling block before a blind person ('lifnei iver')," and the like – seemed absolutely irrelevant, when dealing with a person who consciously and declaratively rejects the yoke of Torah and mitzvot. I did not know how to relate to them; but the inclination to "count transgression" seemed ludicrous, when dealing with a person who is totally outside the system.


            Over time, I changed my mind. Upon reexamination, it seemed to me that relating to a chiloni as someone standing completely outside the halakhic system means capitulation and surrender. In the eyes of Halakha, no Jew is outside the system. Every Jew, even if he views himself as having cast off the yoke of Torah and mitzvot, will be judged for each and every sin that he commits. This approach reflects Halakha's intense refusal to make peace with the abnormal state of chiloniyut.


            I later saw that the Rambam had already voiced such a view in his Iggeret Teiman:


It is the eternally inescapable duty, willy-nilly, of every one belonging to the stock of Jacob to abide by the Law. Nay, he exposes himself to punishment for the violation of each and every positive or negative precept. Let no man conclude that he may freely disregard the less important ceremonies without liability to penalty because he has committed under duress some major sins. For Jeroboam, son of Nebat, may his bones be ground to dust, was chastised not only for the sin of worshipping the calves and inciting Israel to do the same, but also for his failure to construct a booth on the Feast of Tabernacles. This is one of the fundamental principles of our religion. Understand it aright, teach it, and apply the principle widely. (Iggeret Teiman, translated by Boaz Cohen)


            In this shiur, I have no intention of discussing the question of "lifnei iver," which I raised earlier. The objective of this shiur is to explain the fundamental halakhic status of a contemporary chiloni, and in this context the question of "lifnei iver" is somewhat incidental. But I opened the shiur in the way that I did in order to clarify the apparent paradox and the urgent practical need for a firm halakhic stand regarding chilonim. The halakhic system has an integrated attitude toward a person who attempts to cut himself off from the system, and this fact has great conceptual and educational weight. It is impossible to run away from Halakha.


            The anecdote with which I opened this shiur also illustrates the problematic character of a solid halakhic attitude toward the chiloni of our day. Never before in our people's history were we in the situation where the majority of Jews had cast off the yoke of Torah and mitzvot. The classic "sinner" is a person living in the framework of the Jewish community, and accepting its norms, even if he himself fails to practice them. Throughout Jewish history there were individuals who totally abandoned the Jewish framework and rebelled against the norms that it established. But the vast majority of them converted to a different religion, and accordingly their status is entirely different. The Rambam's "Jeroboam" is not at all similar to the modern period's Achad Ha'am. What is more, in earlier times, these unbelievers were isolated individuals, rather than a large group, and certainly not the majority of the people. The elders of eighteenth century Amsterdam would undoubtedly have been astonished had they heard that in another two hundred years the Jewish people would have millions of Spinozas. This quandary is already reflected in the words of Rav Ya'akov Ettlinger (19th century, Germany):


But regarding the sinners of Israel in our time, I do not know how to judge them, since owing to our sins the blight has spread throughout, to the point that the majority view Shabbat desecration as permissible – are they governed by the law of one who thinks that something forbidden is actually permitted, whose transgression is regarded as being only close to intentional. And among them there are those who pray the Shabbat service and recite kiddush, and then afterwards desecrate the Shabbat by performing labors that are forbidden by Torah or rabbinic law. Surely a Shabbat desecrator is only regarded as a heretic because he who denies Shabbat denies the creation and the Creator, but this person admits to them with his prayer and kiddush! And their children who come after them, who never knew or heard of the laws of Shabbat, are just like the Sadducees, who were not regarded as heretics, even though they desecrated the Shabbat, because they continued the practices of their fathers, and they are like a child taken captive by idolaters…. (Responsa Binyan Tziyon ha-Chadashot, no. 23)


            Especially important for our purposes are his opening words: "I do not know how to judge them." Modern chiloniyut presents Halakha with a practical and conceptual challenge.




            In which realms does the definition of the status of a chiloni have significance? Many halakhic realms include special laws regarding a person who does not observe Torah and mitzvot.


            The Rambam rules that all the laws governing the practice of lovingkindness apply only to "your brother in Torah and mitzvot":


There is a positive rabbinic commandment to visit the sick, to comfort the mourners, to participate in the removal of the dead, to arrange a wedding for a bride, to accompany guests [who are leaving the city], and to take care of all the needs of the burial… and similarly to cause the bride and the groom to rejoice, and to furnish them with all their needs. These are the acts of lovingkindness that a person performs with his body and have no measure. Even though all these commandments are rabbinic, they are included in "You shall love your neighbor as yourself" – all the things that you want others to do for you, do for those who are your brother in Torah and mitzvot. (Rambam, Hilkhot Evel 14:1)


            With respect to someone who is removed from the category of "your brother in Torah and mitzvot" there are no special obligations of lovingkindness. What is more, it is permissible to adopt a negative approach towards such a person. In Pesachim 113b it says that while it is generally forbidden to hate a Jew, regarding someone who has transgressed a prohibition, there is a mitzva to hate him:


"If you see the ass of him whom you hate lying under its burden" (Shemot 23:5)… Is it permissible to hate? But surely it is written: "You shall not hate your brother in your heart" (Vayikra 19:17). Rather, where there are witnesses that he violated a prohibition. [If so] everybody hates him! What is special about him? Rather, for example, where he [alone] saw him involved in some misconduct. Rav Nachman bar Yitzchak said: There is a mitzva to hate him, as it is stated: "The fear of the Lord is to hate evil" (Mishlei 8:13). (Pesachim 113b)


            This is also the ruling of the Shulchan Arukh (Choshen Mishpat 272:11). The Posekim add that it is permissible to lend money to an apostate at interest (Shulchan Arukh, Yoreh De'a 159:2), "since we are not commanded to sustain him" (Tur, ad loc.)


            The Gemara in Bava Metzia 59a teaches that someone who is not "with you in Torah and mitzvot" is not included in the prohibition of verbal oppression ("ona'at devarim"):


Rav Chinena the son of Rav Idi said: What is that which is written: "You shall therefore not oppress one another" (Vayikra 25:17) – he who is with you in Torah and mitzvot do not oppress him.


            Not only is there a mitzva to hate a sinner, but there is also an allowance to verbally abuse him. Truth be said, it is permissible to cause him more than mere verbal harm. The Gemara in Avoda Zara says:


Minim, informers and apostates are cast [into a pit] and are not rescued [from it]. (Avoda Zara 26b)


            Following the Gemara, the Rambam also rules:


Minim… and apikorsim… there is a mitzva to kill them; if a person has the power to slay them publicly by the sword, he should do so, and if not, he should plot against them in such a way as to bring about their death. How so? If he saw that one of them had fallen into a well containing a ladder, he should go ahead and remove the ladder, and say to him: I will lower my son from the roof and then return it to you, or the like. (Rambam, Hilkhot Rotze'ach 4:10)


            We spoke above about a person who is not "with you in Torah and mitzvot." This definition seems to focus on the person's day-to-day functioning as an observant Jew. The Gemara and the Rambam add that when we are dealing with a person who falls into the category of "min" or "apikorus," that is to say, a person who in addition to lack of observance maintains faulty beliefs and denies the faith of Israel, it is permissible and even obligatory to cause him bodily harm.


            In addition to what we have seen above, there are also limitations on the way a non-observant Jew can function within the halakhic system. The Rambam rules, in the wake of the Gemara in Sanhedrin, that anyone who violates a prohibition that is punishable by flogging is disqualified from giving testimony:


The wicked are ineligible as witnesses by biblical law… Who is wicked? Whoever violates a negative commandment carrying with it the penalty of flogging is wicked and therefore ineligible. (Rambam, Hilkhot Edut 10:1-2)


            The Rambam adds that anyone "who has no inkling of Bible and Mishnah, nor of civilized standards of conduct ('derekh eretz')" (Hilkhot Edut 11:1) is incompetent to testify. He further writes:


As to informers, apikorsim, and apostates, the Rabbis did not deem it necessary to include them among the ineligibles, because they enumerated only the wicked among the Israelites. But these rebellious disbelievers are on a lower level than heathens. In the case of heathens, we are bound neither to rescue them [from the pit] nor cast them [into it], and the pious among them are assured of a portion in the world-to-come. The above mentioned, however, are to be cast into the pit, but not rescued, and they have no portion in the world to come. (Rambam, Hilkhot Edut 11:10)


            Accordingly, there are three reasons to disqualify the typical chiloni from testifying:  because of prohibitions that he violates, because of his ignorance in Bible and Mishna (though there is room to discuss the meaning of "derekh eretz" in this context), and because of his denial of the foundations of the Jewish faith, which would seem to put him into the category of apikorus.


            The Rambam writes in a responsum that it is forbidden to count Karaites in a prayer quorum ("minyan"), "because they do not recognize this obligation" (Responsa ha-Rambam, ed. Blau, no. 265). The Rambam relates to the Gemara that states that any eruv set by someone who does not recognize the obligation of eruv is not a valid eruv; and he extends this to other areas of law. Accordingly, counting chilonim for a prayer quorum is problematic. The Peri Megadim proposes another reason to disqualify such a person: According to him, a person who sins out of spite or desecrates Shabbat is treated like a heathen, and is therefore fundamentally disqualified from being counted toward a minyan![1]


            The Shulchan Arukh rules (Yoreh De'a 2:5) regarding a person who sins out of spite (le-hakh'is) or publicly desecrates Shabbat that his ritual slaughter is regarded as unfit. The Mishna Berura (Orach Chayyim 39:6) adds that the tefilin that such a person writes are also disqualified. The Mishna Berura writes further that a person who desecrates Shabbat in public may not recite the priestly benediction (Orach Chayyim 128:134).[2] In these realms there may be limitations on the way a chiloni can function within the halakhic system.


            The status of a chiloni may have yet another ramification. The Geonim ruled that if a man died without children, and his brother is an apostate, the widow of the deceased is exempt from levirate marriage and chalitza. The Chazon Ish argues that fundamentally this law applies to anyone who is regarded as a "min" regarding ritual slaughter (Chazon Ish, Yibbum, 118, 6). It may further be added that the Bet Yosef writes in the name of the Rashba regarding a person who desecrates Shabbat in public that his wine is treated as yein nesekh (Bet Yosef, Yoreh De'a 119).[3]


            In this chapter we surveyed the various realms regarding which a chiloni may have a special standing. A chiloni's halakhic status will affect the laws governing him in all these realms. In our discussion of the various realms we saw several criteria that may be relevant to a chiloni: 1) one who is not "with you (or: your brother) in Torah and mitzvot"; 2) "one who does not recognize this obligation"; 3) one who transgresses prohibitions out of spite (lehakh'is); 4) one who desecrates Shabbat in public; 5) an apikorus. Determining the halakhic status of a chiloni will clarify whether he meets these criteria. Our discussion in the rest of the shiur will focus on the approach of modern authorities regarding the degree to which the present-day chiloni can be defined as an apikorus or public Shabbat desecrator, or the like.



To be continued next week.


(Translated by David Strauss)

[1] Rav Moshe Feinstein (Iggerot Moshe, Orach Chayyim, II, no. 19) argues that they cannot be counted toward a minyan regarding Shemoneh Esreh, but they can be counted for kaddish and kedusha.

[2] It should be noted that Rav Moshe Feinstein disagrees on this point (Iggerot Moshe, Orach Chayyim, I, no. 33).

[3] The Chazon Ish, however, disagrees on this point (Chazon Ish, Shechita 2, 23).

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