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הדפסה דוא''ל

The Noahide Universal Law

Nahum Rakover 

The Nuremberg trials in the wake of World War II raised basic questions of law and morality, especially the following: May one commit crimes against humanity simply because he is acting in accordance with the law that mandates them? Can an unjust legal system have validity?

Today, the principle of the "rule of law" is universally recognized, that is, the incumbency of establishing a just legal system, which is applied with fairness and before whom all are equal. A law that violates fundamental human values does not satisfy this concept of the rule of law. Those who follow the dictates of an unjust legal system are held accountable for obeying the law and not resisting it. It was on this basis that war criminals were tried and convicted at the international tribunal in Nuremberg.

The establishment of a just judicial system is recognized by Jewish law as a fundamental obligation, whose incumbency upon all mankind predates the revelation of biblical legislation to the Jewish people. Seven commandments were given to the children of Noah, that is, to all mankind. The great flood reported in the Bible destroyed the entire world; Noah and his children were the only survivors. Therefore, all men and women are descended from Noah and are known in Jewish tradition as the children of Noah or Noahides. One of the seven commandments given to the children of Noah is that of establishing a legal system.[1] Establishment of legally binding norms, however, is not sufficient to fulfill this commandment. Rabbi Moses Isserles (1525-1572) wrote that Noahides are obliged to judge justly between citizens and strangers. Thus, the legal system must be a just system, applied with fairness and equality.

*  *  *

          The obligation to maintain a judicial system is known in talmudic literature as the requirement for dinim (literally, laws). As we saw, this is one of the commandments given to Noah and his descendants (or perhaps even to Adam),[2] and known as "the commandments of the children of Noah."[3] The commandments that are binding upon all mankind are called so, and not "the commandments of the sons of Adam", as R. Ya'akov Anatoli[4] explains:[5] "Since God destroyed all humanity and preserved only Noah, mankind in general became known as the children of Noah. The one exception is the Jewish people, whose members are known as the children of Israel."[6] Furthermore:[7]

Through Noah, God made a covenant with the human race and with the earth, that no destruction would come upon them any more. Thus, all men are under Noah's protection through God's covenant with him.

The Tosefta delineates the Noahide obligations in the following fashion:[8]

To the descendants of Noah, were addressed seven commandments:[9] the  requirement of dinim,[10] the prohibitions of idolatry, blasphemy, sexual offenses, bloodshed, and theft. What is meant by dinim? In the same way that the Jewish people are commanded to establish courts, so too are the descendants of Noah commanded to establish courts.

According to the passage from the Tosefta, the commandment of dinim requires the appointment of permanent judges who will be available to sit in judgment whenever the need arises. This, apparently, is the opinion of Maimonides as well:[11] "What is meant by their commandment of dinim? That they [Noahides] are obliged to appoint judges in every district to adjudicate matters concerned with the other six [Noahide] commandments and caution the people."[12]

          Five of the Noahide commandments, it has been said, could have been discovered by rational inquiry. So the Sifra writes:[13]

"You must keep My laws" (Lev. 18:4) - these are the matters written in the Torah which, had they not been specified, logic would in any event have dictated, namely, theft, sexual offenses, idolatry, blasphemy, and bloodshed.

Highly instructive are the comments of R. Nissim Gaon[14]in his introduction to the Talmud.[15] After showing that God addresses His commands only to those with the mental capacity to relate to them, R. Nissim asks:

Since anyone who is mentally fit is obliged to keep the commandments, why did God single out Israel to receive the Torah..., are not all men equal in their obligation to keep the commandments?

To which he responds:

All men are indeed obliged by all those commandments of the Torah which are discoverable by logic. Since the creation of the first man, all men have been bound by such commandments, and so they will remain for all generations.[16]

 

SOURCES OF THE NOAHIDE LAWS

The Sages found support[17]for the commandment of dinim in the commandment addressed to Adam, "And the Lord God commanded the man, saying: 'Of every tree of the garden you may freely eat; but of the tree of the knowledge of good and evil, you shall not eat...'" (Gen. 2:16-17), and in God's observation regarding Abraham: "For I have known him for the sake that he may command his children and his household after him, that they may keep the way of the Lord, to do righteousness and justice...." (Gen. 18:19): From where is this [requirement of dinim] inferred? R. Yohanan said, "For it is written, 'And the Lord God commanded the man, saying: Of every tree of the garden you may freely eat....'

 

          "'And the Lord God commanded,' this refers to dinim.

          "And it is likewise written, 'For I have known him for the sake that he may command his children and his household after him [to do righteousness and justice].'"[18]

In this same vein, it has been observed that the first commandment in human history requiring man to abstain from some act, the command to abstain from eating of the tree of knowledge, is the source of "moral law for all of humanity."[19]

          It appears that Genesis 2:18 is not the textual source of the commandment of dinim but rather a kind of textual support (asmakhta). In his Kuzari, Yehudah Halevi explains:[20]

They utilized verses in the manner known as asmakhta, in which the verse signifies something already known by oral tradition. So, for instance, the verse, "And the Lord God commanded the man, saying: Of every tree of the garden you may freely eat...," it was explained, suggests the seven Noahide commandments. In the comment, "'And the Lord God commanded...,' this refers to dinim," how distant the conclusion is from the text with which it has been associated! Hence, one must conclude that the Sages had an oral tradition regarding the seven Noahide  commandments and associated it with this verse in order to facilitate recall.

Maimonides, as well, emphasized that these commandments are known to us by "a tradition that traces back to Moses":[21]

Adam received six commandments: the prohibitions of idolatry, blasphemy, bloodshed, sexual offenses, and theft and the requirement of dinim. Although these commandments are known to us by a tradition that traces back to Moses, as well as being a matter of reason, from the general thrust of the Torah it may be inferred that these are what was commanded. Noah received the additional prohibition against eating the flesh of a living animal [ever min hahai], making a total of seven.

Maimonides, it will be noted, adds two additional sources for the Noahide commandments: 1) reason; 2) "the general thrust of the Torah."[22]

          Regarding this, R. Me'ir Dan Plotzki,[23] an authority of the last generation, remarked,[24] "This is an extremely difficult passage, and although I have studied it long and hard, I cannot say that I understand Maimonides' intent."

          Having posited a tradition that traces back to Moses, reason, and the general thrust of the Torah, as the sources of Noahide commandments, Maimonides rules that one who observes the seven commandments "[purely] by virtue of reason" may not be considered a resident alien (ger toshav) in the Holy Land. "Nor is he considered to be of the righteous non-Jews, but rather of their wise men."[25]

          On the other hand:[26]

One who has accepted the commandments because [he believes that] they were commanded by God in the Torah[27]and that through Moses He informed us of what the descendants of Noah had previously been commanded,[28] is considered to be of the righteous non-Jews, and has a portion in the world to come.

In a similar vein, Mishnat R. Eliezer explains:[29]

The difference between the righteous of Israel and the righteous of the non-Jews is that the righteous of Israel are not considered righteous unless they observe all the commandments of the Torah, whereas non-Jews, once they observe the seven commandments given to the descendants of Noah, in all their detail, are considered righteous by virtue thereof. Under what circumstances is this true? When they observe the commandments and say, "[We observe] because our father Noah has commanded us that which God commanded him." If they do this, they earn a place in the world to come, like Jews, even though they have not kept the Sabbath or the festivals, for they were not commanded concerning these. If, however, they keep the seven commandments and say, "We have heard this from such and such an individual," or they come to them by virtue of their own reasoning..., even if they have observed the entire Torah, they receive their reward in this world only.

While this may, in fact, be the source for Maimonides' ruling, the difference between the words of Mishnat R. Eliezer, "[We observe] because our father Noah has commanded us that which God commanded him," and those of Maimonides, "because [he believes that] they were commanded by God in the Torah, and that through Moses He informed us of what the descendants of Noah had previously been commanded..." requires further study.

          The verse regarding Abraham, "For I have known him for the sake that he may command his children and his household after him, that they may keep the way of the Lord, to do righteousness and justice...," was interpreted by the Sages as applying not only to members of the Jewish people, of whom Abraham was progenitor, but also to all mankind. This is apparent from a question asked by Rav Hamnuna:[30] "Could it be that women, descendants of Noah, are excluded from the commandment of dinim? Surely it is written 'For I have known him... and his household....'"?!

Rav Hamnuna's use of this verse to clarify a point regarding dinim shows the general presumption that although it refers to Abraham and his descendants, the principle established applies to all mankind.

          R. Hamnuna's rhetorical inclusion of women in the commandment of dinim is based upon the known talmudic equation of "household" (beito) with wife. He answers his own question, however, by noting: "'his children' (appearing here in the generic masculine which may be read literally as sons) has reference to justice (i.e., dinim), whilst 'his household' (i.e., his wife, hence women) has reference to righteousness." In other words, his sons are obliged to do justice (dinim), his wife to do righteousness. Accordingly, women are indeed excluded from dinim. This supports Maimonides' opinion that the commandment is to establish courts and appoint judges, for if dinim were taken (as some do) as an obligation to obey civil and criminal law, it is inconceivable that women would be excluded.[31]

          The Noahide obligation of dinim presumes a certain commonality between  Israel and the other nations: both are commanded to appoint judges.[32] If so, it may be asked what the meaning is of the passage in Psalms (147:19-20), "He declares His word to Jacob, His statutes and His ordinances unto Israel. He has not dealt so with any nation; and as for His ordinances, they have not known them." The passage clearly implies some difference between Israel and the nations with regard to law. Midrash Tanhuma[33]explains:

"His word," refers to the words of Torah; "His ordinances," refers to his laws [dinim]. God gave the Torah and its laws to Israel only. How is it known that when a Jew and a non-Jew have a dispute, the Jew may not say to the non-Jew, "Let us resort to your court"? It is written, "He has not dealt so with any nation; and as for His ordinances, they have not known them." Since the nations do have the requirement of dinim as one of the seven Noahide commandments, what is the meaning of "and as for His ordinances, they have not known them"? This refers to the details of judicial procedure [which were given only to Israel].[34]

R. Nissim son of Re'uven Gerondi (Ran),[35] commenting upon the verse (Deut. 16:18), "Judges and officers shall you make in all your gates...; and they shall judge the people with righteous judgment," explains that Israel, in contrast to the other nations, is commanded to render[36] "a truly just judgment," for even if such judgment were in itself not required for the functioning of society and filled no immediate need, by virtue of such just judgment "Divine grace" will be visited upon our people. Thus he explains the difference between Israel and the nations:

And our Torah is differentiated from the practices of the nations in that for them, the only value of just adjudication is the proper functioning of society.

Nevertheless, continues Ran, the Jewish people and the nations do share something in common - the utilitarian need for a judicial system for the continued existence of society.

Mankind needs judges, otherwise men will swallow each other alive and society will be destroyed. Every nation needs some such arrangement.... As a wise man once noted,[37] even among thieves there exists a social contract. In this, Israel does not differ from other nations.

It was to meet the need of maintaining society that Jewish law also granted judicial powers to the king. Thus, when the maintenance of strict standards of judicial procedure endangers society, such as

when bloodshed becomes rampant and there is no fear of punishment [because the strictness of judicial procedure renders the courts powerless]..., God commanded, for the good of society, the appointment of a king [who is permitted to judge according to more flexible criteria].... Accordingly, the appointment of a king is common to Israel and the nations, both of which require public order, whereas, in the appointment of judges, Israel's requirement has an additional dimension, as is written (Deut. 16:18), "and they shall judge the people with righteous judgment." There is a requirement [independent of societal needs] that the appointed judges render judgments that are just and true.

Rav Kook[38]attempts to show that the Noahide commandments are fundamentally different from Jewish law, that the former are essentially a consequence of nature:[39] "Everything [that the descendants of Noah were commanded] is a matter of common knowledge; the Torah did not require them to study the fine details of the law, 'He declares His word to Jacob, His statutes and His ordinances unto Israel. He has not dealt so with any nation; and as for His ordinances, they have not known them.'" Elsewhere,[40] Rav Kook is quoted as asserting:

"He has not dealt so with any nation; and as for His ordinances, they have not known them," the generalities of the law may be found among the nations, but the details of law were given only to Israel. "All the rivers run into the sea..., Unto the place whither the rivers go, there they go again" (Ecclesiastes 1:7). The sea symbolizes an all-encompassing reality from which all else emerges, the source from which all aspects of Torah branch out and to which all return to draw upon their original source. To Israel was revealed not only the sea, but also all the rivulets that flow into it and flow out again.[41]

According to one view, Israel was commanded regarding dinim prior to the revelation at Sinai. The verse, "There He made for them a statute and an ordinance, and there He tested them" (Exodus 15:25), is cited in a baraita as evidence that Israel was  commanded concerning dinim already at Mara (one of the stops on the way to Sinai):[42] "Israel received ten commandments at Mara: the seven that the descendants of Noah had received and, in addition to these, dinim, the Sabbath, and the honor of[43]parents."[44]

          Why did Israel need to be commanded the seven Noahide laws, by which, as human beings, they were already bound? Rashbash[45] asserts[46] that it was in order to obligate the rest of mankind. If the seven laws had not been expressly repeated to Israel, only Israel would have been bound by them in accordance with the principle articulated in the Talmud: "Every commandment given to the descendants of Noah and not repeated at Sinai was meant for Israel only and not for the descendants of Noah. Those repeated at Sinai, however, were addressed to Israel and the rest of mankind" (Sanhedrin 59a). Thus, concludes Rashbash,

had Israel not been commanded regarding these seven laws, the rest of mankind would have been exempt from them, and only Israel would have been obliged to observe them. The commandments having been repeated to Israel, however, all men are obligated.... [47]

Why was the commandment of dinim given at Mara, prior to the revelation at Sinai? In answering this question, some have suggested that God simply informed the children of Israel there that he would eventually give them these particular commandments.[48] Others have claimed that the commandment of dinim here refers to general norms of behavior and not to laws in the usual sense of the word. So Nahmanides [49] writes:[50]

The plain meaning is... that Moses established customs for them concerning how to regulate their lives and affairs until they might come to an inhabited land. For a custom may be called law or ordinance when it is well established.... And He taught them ordinances whereby they should live: to love one another, to follow the counsel of elders, to be discreet in their tents with respect to women and children, and to deal in a peaceful manner with the strangers that come into the camp to sell them various objects. He also imparted moral instruction, that they not become like bands of marauders in whose camps all abominable things are done without shame....

To buttress this point, it is instructive that the phrase, "and do that which is right in His eyes," appears in close proximity to the words a "statute and an ordinance" (Ex. 15:26).

Nahmanides [51] explains the juxtaposition by quoting the Mekhilta:

"And do that which is right in His eyes" - this refers to business transactions and teaches that one who conducts business honestly and whose behavior is pleasing to his fellow men, is considered to have kept the entire Torah.

In his Guide to the Perplexed, Maimonides explains that the fact that dinim was given prior to the Sinai revelation is an indication of the commandment's importance.[52]

And it is clear both from the biblical text and tradition that the first matter that we were commanded had nothing to do with the sacrificial cult, but rather... concerned the Sabbath and civil laws..., [the latter] to eradicate injustice.

One opinion even holds that chapters 21-24 of Exodus (Parashat Mishpatim) were given at Mara:[53] "R. Yehudah says 'And these are the ordinances' (Exodus 21-24) - at Mara, as is written, 'There He made for them a statute and an ordinance....'"[54]

          The importance of a legal framework, as indicated by the proximity of the contents of Exodus 21-24 to the Decalogue, is noted by R. Ya'akov Anatoli in his Malmad haTalmidim:[55]

And God, in His mercy, when He chose His people Israel, conveyed to them secrets of reality and commandments that preserve the faith, such as the Ten Commandments. And He informed them of the statutes and ordinances necessary for the maintenance of society. Thus He placed the portion Mishpatim ["Ordinances" - Exodus 21-24] next to the Ten Commandments: to demonstrate that the wholeness of man is not a purely theoretical matter. On the contrary, wholeness cannot be attained until men are possessed of regulations to govern social interaction.

Are members of the Jewish people bound by the Noahide laws as commandments given to all mankind, or by virtue of their repetition in the Torah? Maimonides in his commentary on Mishnah Hullin writes:[56]

Note that an important fundamental is enunciated in this mishnah: "It was prohibited at Sinai." Everything we are forbidden or required to do devolves upon us only as a result of God's commandments to Moses; not because God so commanded any previous prophet. For example, we refrain from eating the flesh of a living animal not because this was prohibited to the descendants of Noah, but rather because Moses forbade us to do so as a result of the commandment he received at Sinai which stated that the flesh of a living animal remains forbidden. Similarly, we circumcise our sons not because Abraham circumcised himself and his entire household, but rather because God commanded us through Moses to circumcise as Abraham did. Nor are we subject to the prohibition, placed upon Jacob, against eating the sciatic nerve [gid hanasheh], but rather by the command given to Moses. As they have said, six hundred thirteen commandments were given to Moses at Sinai, and all of these [that we mentioned] are numbered among the six hundred thirteen commandments.

Nevertheless, R. Yosef Engel,[57] in his Beit haOtzar,[58] attempts to draw the opposite conclusion (regarding the source of Israel's obligation to keep the Noahide laws).

Basing himself on Maimonides' statement,[59] "Adam received six commandments..., and the Torah was completed by Moses," R. Yosef Engel comments:

It is clear from the words of Maimonides that the Noahide commandments as well as the commandment of circumcision and the prohibition of the sciatic nerve remain incumbent upon us based on their obligatory nature from before the Sinai revelation and that the Torah was in fact the completion of the remaining commandments that had not yet been given.[60]

A similar approach is articulated by R. Me'ir Simhah of Dvinsk [61] who explains that [62]

those commandments which were given to the descendants of Noah are obligatory upon Jewish minors once they have attained the mental capacity to understand them..., since regarding the sanctity of the commandments, Israel was certainly bound after the Sinai revelation by that which had been previously commanded.

The only distinction concerns punishment should a Jew actually violate one of these. Here, the Torah took pity upon Israel and provided for more lenient penalties.

Sefer haMiknah,[63] discussing the responsum of Rashbash[64] cited above, comments:

For violation of the seven commandments..., members of the Jewish people are most certainly to be punished, although these biblical prohibitions are not accompanied by a biblical warning. The principle that punishment may be administered only for violation of regulations accompanied by a biblical warning [ein onshin ela im ken maz'hirin] applies only to the "new" commandments given to Israel.[65]

 

 

NOAHIDE LAW AS NATURAL LAW AND EQUITY

Certain evidentiary and judicial guidelines applicable to criminal cases involving the descendants of Noah are discussed in the tractate Sanhedrin.[66]

 

R. Ya'akov bar Aha found written in Sefer Aggadeta deVei Rav: "A descendant of Noah may be put to death on [the ruling of] one judge, on the testimony of one witness, without formal preliminary warning [that his crime is a capital offense], on the evidence of a man, but not of a woman, even if he [the witness] is a relative."

In the name of R. Ishmael, it is said, "A descendant of Noah may be put to death for feticide as well."

The Talmud goes on to inquire into the source for these regulations and to cite the biblical passage, "And surely your blood of your lives will I require; at the hand of every beast will I require it; and at the hand of man, even at the hand of every man's brother, will I require the life of man" (Gen. 9:5). The verse is interpreted in the following fashion:

"And surely your blood of your lives will I require" - even by one judge. "At the hand of every beast" - even without being warned in advance that the crime is a capital offense. "And at the hand of man" - even by the testimony of one witness. "Even at the hand of every man" - man but not woman. "Brother" - even by the testimony of a relative.

          In Genesis Rabbah, we find:[67]

          "He who sheds man's blood, etc." (Gen. 9:6). R. Haninah said, "All of these are addressed to the descendants of Noah - at the testimony of one witness, by the ruling of one judge, without forewarning, by an agent, etc."

Maimonides rules accordingly:[68]

A descendant of Noah is put to death on the testimony of one witness, the ruling of one judge, without forewarning, on the testimony of relatives, but not on the testimony of a woman, and a woman may not preside as judge.

These regulations were understood to be a consequence of human nature. Biblical law as applied to members of the Jewish People added a number of restrictions, such as the requirement that cases be heard by a court of three judges - and in capital cases, 23 judges - and that a verdict be rendered only on the testimony of two witnesses. Natural law, it was held, does not require such restrictions, and consequently the descendants of Noah are not required to institute them.

          Similarly, since those regulations that apply to the Noahide judicial system were all rooted in "common sense," a question which would normally seem to be of only theoretical interest may be seen to have practical implications. Of every regulation it may be asked whether it is derived by application of the standard hermeneutical principles to the biblical text, or founded upon logic. Any regulation that is the result of pure logical analysis ought to apply not only to Jewish courts but to Noahide courts as well.[69]

          According to Rav Kook,[70] the Noahide commandments in general were considered to be "nearer to nature" than the commandments given to Israel which "reflect the holiness of the Torah."[71] Thus, for instance, does Rav Kook [72] explain differences in the determination of family status: Noahides prescribe that matrilineal descent is determinative in all cases, while for Jews, it is recognized only in certain matters.[73] Rav Kook [74] writes:

Common decency, an affinity for justice and honesty in concrete everyday matters, and an abhorrence of blatant evil and injustice are common to all men on earth. The Noahide laws are the basis of natural morality.[75]

An interesting question in this regard arises from the distinction that Maimonides [76]draws between those who observe the Noahide commandments "[purely] by virtue of intellectual conviction" and those who observe them, "because they were commanded by God in the Torah, and through Moses He informed us of what the descendants of Noah had previously been commanded." Only the latter, according to Maimonides, may be considered righteous non-Jews, who have a share in the world to come, while the former are merely wise non-Jews.

          According to Maimonides, then, it appears that observance of the Noahide laws as a result of intellectual conviction is less worthy than their observance "because they were commanded by God in the Torah." Observance of the commandments for reasons of natural morality seems to be inferior to observance by way of religious imperative. This is an apparent contradiction to the perception of the Noahide commandments as natural law.

          Going to considerable lengths in his defense of Maimonides against the attacks of Spinoza[77] on this question, Hermann Kohen[78]felt constrained to ascribe to Maimonides a distinction between the Noahide commandments as natural law on the one hand, and the rights and obligations of the Noahide as ger toshav (resident alien) on the other. In Kohen's view, in order to be considered a ger toshav, a Noahide must

protect himself against the possibility that his reason, his understanding, might one day cause him to decide differently, for instance, with regard to his abstention from idolatry in the Jewish state or from incest. If this decision were left to his own understanding, as his original decision would have been, the state would not be protected from the subjectivity of the individual.

Rav Kook[79] suggests a novel approach, that in fact changes Maimonides' meaning entirely:

It seems to me that in the words "has a portion in the world to come," Maimonides means to denote a very low level of spiritual accomplishment (even though it is, of course, a great reward). Since [the world to come] is attainable by even the evil and ignorant of Israel it can only be considered an inferior level of spirituality, and since Maimonides believes that wisdom advances an individual even more than righteous behavior, he believes a portion in the world to come to be the level reached by those righteous non-Jews who have not acquired wisdom.... However, one who by virtue of intellectual conviction, has come independently to the observance of the Noahide commandments is truly wise-hearted and filled with understanding; he is considered to be a wise non-Jew. Although it goes without saying that such an individual has a portion in the world to come, he deserves a more apt description better suited to his high level of accomplishment.[80]

What must be the content of the laws mandated for the descendants of Noah? Does the simple establishment of legally binding norms qualify as fulfillment of the commandment of dinim? If so, it follows that the citizens of biblical Sodom and those of a modern-day Sodom, such as Nazi Germany, have fulfilled the commandment of dinim simply by transforming their immoral Weltanschauung into legislation![81]

          In the biblical declaration concerning Abraham, "For I have known him to the end that he may command his children and his household after him..., to do righteousness and justice...." (Gen. 18:19), there is a clear link between law and justice, and, as shown, the verse is cited in the tractate Sanhedrin in connection with Genesis 2:16: "And the Lord God commanded the man...." As we have noted,[82] however, Genesis 18:19 is not the source of the Noahide commandment of dinim, but rather a support or warrant for it. It is clear from the opinion of R. Moshe Isserles (Rema),[83] that the purpose of dinim is the establishment of just laws. In explaining the opinion of R. Yohanan who derives the requirement of dinim from Genesis 2:16, Rema writes[84] that, "Noahides are commanded to keep the local conventions and to judge justly between men, between citizen and stranger." In other words, dinim does not entail mere establishment of a legal system but rather, requires the establishment of a just legal system.

          The requirement of a just legal system features in the writings of a number of scholars who have addressed the subject. So, for instance, R. Shelomoh Halma[85] in his Mirkevet haMishneh[86] writes:

The commandment of judges can only mean the appointment of judges who will judge fairly and protect the oppressed from the oppressor. They must be fully conversant with all forms of trickery and fraud so as to know how to pass judgment; ...the aim of the appointment of judges is to inculcate justice, that they enforce honesty and withstand oppression.

Based upon the presumption that non-Jewish laws must be just, a contemporary authority, R. Isser Zalman Meltzer,[87] explains that if local (non-Jewish) law decrees that lost property must be returned even after ye'ush,[88] Jews are bound to comply. Although the Torah does not require return after ye'ush, the non-Jewish regulation does not contradict the Torah, since even under Jewish law, returning the object after ye'ush is considered honest, right and proper. This approach follows logically from the opinion of Rashi who linked dina demalkhuta dina, the requirement of Jews to observe the law of the land, to the dinim requirement of the descendants of Noah.[89] R. Meltzer writes:[90]

It is clear with regard to returning [lost] property after ye'ush, or stolen property sold by the thief after ye'ush [in which case an innocent buyer is not required by Jewish law to return his purchase to the victim of the theft], that the law of the land [dina demalkhuta] applies. The reason is that such a regulation is not contrary to the laws of the Torah, since even according to the Torah, it is desirable to exceed the letter of the law. In such a case, the decree of the king [or legislature] is valid. It is included in the dinim precept, which means that Noahides are commanded to institute fixed regulations that will be just and not extortionate. Since this particular regulation is just, although the Torah ruled that property need not be returned after ye'ush, the regulation, is not overridden by the authority of the Torah. Only in a case where the king's decree does not merely demand going beyond the letter of the Torah's law, but actually goes against it, do we rule that the king's authority does not override the Torah, as when the king's decree is extortionate. In return of property after ye'ush, however, since the regulation is just, it is valid, for it is within the king's legitimate authority to issue decrees for the common good.

As Hazon Ish[91] writes:[92]

The requirement of dinim means that the Noahides became obliged to establish laws of honesty and right behavior; with the exception of those laws which are clearly addressed to them, they are not bound by the laws of the Torah.

The view that the descendants of Noah are bound to observe rational commandments can be found in Meshekh Hokhmah, by R. Me'ir Simhah haKohen of Dvinsk,[93] who holds that descendants of Noah are punished for swearing needlessly or falsely. That the seven Noahide commandments do not contain a proscription of false and needless oaths, means only that Noahides may not be prosecuted for a violation. They do, however, incur divine retribution, since this is a rational commandment.[94]

          Rav Kook[95] emphasizes (in a number of places) the idea of fundamental human honesty, arguing that the Noahide commandments - all of them, not just dinim - are ontologically different from Israel's commandments:

According[96] to the opinion of Nahmanides that the details of Noahide law may certainly be at variance with Jewish law, the laws of Israel are based upon holiness, the holiness of the Torah, while the Noahide laws are based upon fundamental human honesty.

Later Rav Kook states:[97]

Clearly, according to the Torah, the laws that bind the descendants of Noah are only the broad outlines. They are not bound by the details of Torah law, but rather by the decrees that their own judges issue based upon fundamental human honesty.

And elsewhere:[98]

The details of their laws are according to the standards demanded by their judges for the establishment of justice and the functioning of the country. These standards vary according to the situation, and it may certainly be presumed that past judicial ruling need not be taken into account.

With all this in mind, we can understand that there is an exhortation to anyone capable of doing so, to influence a descendant of Noah to observe the seven commandments. This is found in the words of the Lubavitcher Rebbe who declared that whoever has relations with non-Jews (e.g., in business) must utilize every opportunity "to persuade them and explain that God has given them the seven commandments for the purpose of making honesty and justice prevail in the world."[99]



 

[1]              For a more comprehensive treatment of this subject, see N. Rakover, "Law and the Noahides - Law as a Universal Value" (Jerusalem: The Library of Jewish Law, 1998).

[2]           Thus in Genesis Rabbah 16:6.

[3]           The Hebrew term benei Noah, sons or children of Noah, is commonly translated as Noahides, Noahites, or Noachides. The term Noahide is used also as an adjective as in "the seven Noahide commandments." Here, "children of Noah,"  descendants of Noah," and "Noahides" are used interchangeably. A descendant of Noah would be a "Noahide."

[4]           R. Ya'akov, son of R. Abba Mari Anatoli (born ca. 1200), physician, translator, and preacher, was a son-in-law of R. Shemu'el ibn Tibon.

[5]           Malmad haTalmidim (Lyck: Mekitze Nirdamim, 1866), p. 12a.

[6]           See Rashi, Nedarim 31a, s.v. She'eini neheneh livnei Noah: "The entire world is  descended from the children of Noah." See also, A. Kirschenbaum, "haBerit Im Benei Noah Mul haBerit beSinai," Dinei Yisrael, VI (1975), 31-48.

[7]           Hermann Kohen, Religion of Reason, trans. Simon Kaplan (New York, 1972), p. 327.

[8]           Tosefta Avodah Zarah 9:4; for a variant, see Sanhedrin 56a-b.

[9]           Concerning the prohibition of coveting another's property, Sefer haHinnukh 416 (ed. Chavel, Commandment 424), observes: "All men are included in this prohibition, for it is a corollary of the prohibition of theft, which is one of the seven commandments that all mankind was commanded. And make no mistake, my son, concerning the seven Noahide commandments, whose number is well known and appears in the Talmud, for they are in truth broad categories, each containing many particulars...."

[10]          Instead of dinim (laws), Hasdei David, a commentary on the Tosefta in question, reads here dayyanim (judges) and notes that this reading supports Maimonides' definition of the commandment as the appointment of judges. See also R. Me'ir Lerner (head of the rabbinic court of Altona), Resp. Hadar haCarmel, Hoshen Mishpat 2, and D. Frimer (cited below, note 65) p. 99, nt. 55. In any  case, the Tosefta's own explanation of dinim as the appointment of judges supports Maimonides' approach.

[11]          M.T., Melakhim 9:14.

[12]          Further on, Maimonides explains that the residents of Shekhem (see Gen. 34) were deserving of death since "they had witnessed [the incident] and did not sentence him." Are the descendants of Noah to be punished only for failure to try an offender, or also for failure to appoint judges regardless of whether the people try an offender? Hemdat Yisrael, Kuntres Ner Mitzvah, p. 89b, expresses uncertainty.

[13]          Sifra, Aharei 9:10. See also Midrash Lekah Tov, Gen. 2:15, "For all of these are rational commandments, that even if biblical legislation had not been given to the Jewish People, the generations [of man] would have kept on their own." See also Yoma 67b.

[14]          R. Nissim Gaon (d. 1050 CE) of Kairouan was one of the most distinguished Jewish scholars of North Africa.

[15]          Printed in the Vilna edition of the Babylonian Talmud at the beginning of the tractate Berakhot.

[16]          He goes on to assert that God also requires the observance of commandments which do not have their basis in reason but rather in divine decree (mitzvot shimiyot).

[17]          Though not firm textual grounding.

[18]          Sanhedrin 56b.

[19]          See commentary of Samson Raphael Hirsch, Gen. 2:16.

[20]          Kuzari 3:73. For an alternate rendering, see the translation of Hartwig Hirschfeld, Judah Halevi, The Kuzari (New York: Schocken, 1964), pp. 193-194. See also Kesef Mishneh, Hilkhot Melakhim 9:1.

[21]          M.T., Melakhim 9:1.

[22]          See Maharatz Hayyot, Torat haNevi'im, 10, "Mitzvot Benei Noah," in Kol Sifrei Maharatz Hayyot, vol. I, p. 63.

[23]          R. Me'ir Dan Plotzki (1866-1928) served in the rabbinate of Warta and Ostrow, Poland.

[24]          Hemdat Yisrael, op. cit. (note 12 above), p. 86a. See also Torah Shelemah, Millu'im to vol. XVII, p. 119, nt. 1.

[25]          M.T., Melakhim 8:11. The reading, "of their wise men," (ela mihakhmeihem) is to be found only in manuscripts and not in printed editions of M.T.

[26]          M.T., Melakhim 8:11. Concerning this passage, see text to note 77 below. Cf. Resp. Rambam (ed. Blau) 148: "His observance must be accompanied by recognition of the prophecy of Moses, who was so commanded by the transcendent God, and he must believe in this. He should not observe for any other [reason] or on the basis of his own conclusion, as is explained in the baraita of R. Eliezer ben Ya'akov, and as we have explained at the end of our great work [i.e., M.T.]."

[27]          Cf. Maimonides, M.T., Sefer Torah 10:11: "One who sits before a Torah scroll must conduct himself with respect, fear, and awe; for the Torah is the faithful witness to all mankind, as is written (Deut. 31:26) '...that it be a witness to you.'"

[28]          See Or Same'ah, Hilkhot Melakhim, chp. 10; and Torah Shelemah, Millu'im to vol. XVII, p. 220.

[29]          Mishnat R. Eliezer (ed. Enelow, New York: Bloch, 1933), Parashah 6, p. 121.

[30]          Sanhedrin 57b.

[31]          See Resp. Yehudah Ya'aleh, II:1, s.v. Ibra ff.; Torah Temimah, Gen. 18:19, n. 42; and R. Me'ir Dan Plotzki, Hemdat Yisrael, Kuntres Ner Mitzvah, p. 99a.

[32]          Cf. R. Yosef Albo, Sefer haIkarim 1:25, "You will find that although the law of Moses and Noahide law differ somewhat in their details, their general principles are the same, coming, as they do, from the same source. Moreover, the two exist concurrently: whilst the Jewish People possessed the Mosaic law, the other nations possessed the Noahide law.... There is no doubt that the other nations could achieve human success through Noahide law, since it [too] is divine, though not the same degree of success as the Jewish People, whose existence is based upon the Mosaic law. Our Rabbis have said, 'The righteous of the nations have a place in the world to come.'"

[33]          Midrash Tanhuma, Shofetim 1.

[34]          Cf. Midrash Yelamdenu, Ex. 21:1, which is slightly variant: "Were not the descendants of Noah commanded concerning dinim? They do not have the details, exemplified in the instance in which ben Zakai questioned witnesses on the stems of figs [to identify the scene of a crime]." And in Midrash haGadol (ed. R. Solomon Fisch), Deuteronomy, p. 368: "These are the requirements of investigation and enquiry which were given to the Jewish People only." See also, Yalkut Tehilim 888.

[35]          R. Nissim son of Re'uven Gerondi (d. Barcelona, ca. 1380) was a fourteenth century Spanish rabbinical authority.

[36]          Derashot haRan, Derush 11.

[37]          See Nahum Rakover, Shilton haHok, Section 5, "Ed Medinah," p. 151,  nt. 70.

[38]          R. Avraham Yitzhak haKohen Kook (1865-1935) was the first chief rabbi of Palestine.

[39]          Etz Hadar 38 (ed. R. Yehudah Zoldan) p. 184.

[40]          Tehumin, VII (1986), 275. Cf. Rav Kook's remarks in Arpilei Tohar (Jerusalem: Machon al shem haRav Tzvi Yehudah Kook, 1983), p. 93.

[41]          See also R. Yitzhak Breuer, Sefer Nahli'el (Jerusalem: Mossad haRav Kook, 1982), pp. 313-314.

[42]          Sanhedrin 56b. See also Torah Shelemah, Ex. 21:1 and Millu'im to vol. XVII, p. 17; See also Encyclopedia Talmudit, s.v. Dinim, vol. VII, p. 396.

[43]          See Rashi, Ex. 15:25: "At Mara, He gave them a few passages of the Pentateuch, that they might begin to study them, namely, the Sabbath, the red heifer, and dinim."

[44]          Concerning this baraita, the Talmud, Sanhedrin 56b, raises the obvious question that the descendants of Noah were also commanded regarding dinim, and answers that this particular baraita, according to which it appears as though the descendants of Noah were not given the commandment of dinim, was formulated in accordance with the opinion of R. Menasheh. R. Menasheh accepts a different reckoning of the Noahide commandments, replacing dinim and blasphemy with the prohibitions of mixed species and castration.

[45]          R. Shelomoh son of R. Shimon Duran (1400-ca.1467) served as rabbi of Algiers after the death of his father.

[46]          Resp. Rashbash 543. Maharatz Hayyot, "Kuntres Aharon," Kol Sifrei Maharatz Hayyot, vol. II, p. 1035, asserts that the approach of Rashbash explains the obligation of the descendants of Noah to believe in the prophecy of Moses.

[47]          But see Maimonides, Commentary on the Mishnah, Hullin 6:7, cited below, text to note 56.

[48]          See Rashbam, Ex. 15:25.

[49]          R. Moshe son of Nahman (1194-ca.1270) was one of the outstanding scholars of Spanish Jewry. He helped found the Jewish community of Jerusalem after settling in the Holy Land.

[50]          Nahmanides, Ex. 15:25.

[51]          Nahmanides, Exodus 22:26.

[52]          Guide to the Perplexed III:32.

[53]          Mekhilta, Nezikin, 1.

[54]          Cf. Mishnat R. Eliezer 16. See also Torah Shelemah, Ex. 21:1, nn. 6, 7; and ibid., Millu'im, p. 217.

[55]          Malmad haTalmidim, Parashat Mishpatim, p. 71b. On R. Ya'akov Anatoli, see note 4 above.

[56]          Commentary on the Mishnah (trans. R. Yosef Kapah), Hullin 6:7. See also Mishneh laMelekh, Melakhim 10:7, s.v. veHinei matzanu.

[57]          R. Yosef Engel (1859-1920) served as rabbi of Cracow.

[58]          Beit haOtzar, ma'arekhet alef-bet, ot Zayin, p. 5a.

[59]          M.T., Melakhim 9:1.

[60]          See further, Beit haOtzar, loc. cit. (note 58 above) and p. 8b.

[61]          R. Me'ir Simhah haKohen (1843-1926) served as rabbi of Dvinsk, Latvia.

[62]          Or Same'ah, Hilkhot Issurei Bi'ah 3:2.

[63]          R. Zussman Eliezer Sofer, Sefer haMiknah I, 8:5.

[64]          Resp. Rashbash 543, quoted above, text to note 47.

[65]          See Encyclopedia Talmudit, s.v. Ein lemedim mikodem matan Torah, vol. I, p. 635. See also suggestions of D. Frimer, "Israel, the Noahide Laws, and Maimonides: Jewish-Gentile Legal Relations in Maimonidean Thought," Jewish Law Association Studies, II (1986), 89ff and particularly 92ff.

[66]          Sanhedrin 57b.

[67]          Genesis Rabbah 34.

[68]          M.T., Melakhim 9:14.

[69]          See text to note 94 below and note 94 below; concerning various legal matters dictated by "common sense."

[70]          On Rav Kook, see note 38 above.

[71]          Etz Hadar (Jerusalem, 1907; republished with explanations and sources supplied by Yehudah Zoldan, Jerusalem: Machon al shem haRav Tzvi Yehudah Kook, 1986), chapter 1 and n. 8.

[72]          Ibid. See also his other proofs, ad loc. See also R. Reuven Margaliyot, Tal Tehiyah, Mishpetei Ger Toshav, p. 73. These points are expanded by Rav. Y. Shtiglitz, "Mitzvot Benei Noah," Kovetz Matatyah, pp. 85-100.

[73]          See Yevamot 54b: "The family of the father is defined as a family; the family of the mother is not defined as a family."

[74]          Hevesh Pe'er, Ein Ayah 16, p. 44a. See also ibid., Derushim, derush 3, p. 29b.

[75]          See also R. Samson Raphael Hirsch, Gen. 2:16 (text to note 19 above), to the effect that the seven Noahide commandments are "the moral law of all mankind." See also haKetav vehaKabbalah, Deut. 20:10; Torah Temimah, Gen. 2, n. 39, and Ex. 21, n. 277; and S. Atlas, "Ma'amado haMishpati Shel Ben Noah uMitzvotav," in Netivim baMishpat haIvri (New York: American Academy of Jewish Studies, 1979), pp. 21-40.

[76]          M.T., Melakhim 8:11; see above, text to note 25.

[77]          B. Spinoza, Theologico-Political Treatise in R. H. M. Elwes trans., The Chief Works of Benedict De Spinoza (New York: Dover, 1951), pp. 10, 79-80.

[78]          Hermann Kohen, op. cit. (note 7 above), p. 332.

[79]          Iggerot haRe'ayah I:89, p. 100.

[80]          That which remains uncertain to Hermann Kohen, "whether [according to Maimonides] a wise man is assured of a place in the world to come," is a certainty to Rav Kook.

[81]          Nahum Rakover, Shilton haHok (Jerusalem: The Library of Jewish Law, 1989), Section 2, "Al Shiton haHok," ch. 1, "Mavo," pp. 63-65.

[82]          Text to note 20 above.

[83]          R. Moshe Isserles (1525-1572) wrote the gloss on Shulhan Arukh, known as Mapah.

[84]          Resp. Rema, 10.

[85]          R. Shelomoh Halma (1717-1781) served as rabbi of Helm (Poland) and Lvov (Galicia).

[86]          Mirkevet haMishneh, Melakhim 9:14.

[87]          R. Isser Zalman Meltzer (1870-1954) served as head of Yeshivat Slobodka, head of the Yeshivah of Slutzk, and head of Yeshivat Etz Hayyim in Jerusalem.

[88]          Ye'ush is the owner's abandonment of the prospect of finding his lost property. According to Jewish law, ye'ush exempts the finder from the requirement of return.

[89]          Rashi, Gittin 9b, s.v. Kesherin.

[90]          Even haEzel, Hilkhot Nizkei Mamon 8:5.

[91]          Hazon Ish, R. Avraham Yishayahu Karelitz (1878-1953) was one of the most distinguished rabbinic authorities of the last generation.

[92]          Hazon Ish, Baba Kama 10:3.

[93]          Meshekh Hokhmah, Ex. 20:7. On the author of Meshekh Hokhmah, R. Me'ir Simhah haKohen, see note 61 above.

[94]          He also cites Mishneh laMelekh, Melakhim 10:7, s.v. Shuv ra'iti: "And certainly swearing is a rational commandment, that is, not to swear falsely by His name." Regarding the opinion of Mishneh laMelekh, see also Sedei Hemed, Pe'at haSadeh, ma'arekhet gimel, 6:30.

[95]          On Rav Kook, see note 38 above.

[96]          Etz Hadar, chp. 40, text to n. 11.

[97]          Ibid., text to n. 16.

[98]          Ibid., chp. 42, text to n. 7. See also his remarks in Resp. Orah Mishpat, Hoshen Mishpat 4: "And in our time, when the laws of the Torah are not upheld - for the halakhic authorities of today are deemed hedyotot [not qualified in certain areas] - still it seems that the principles of equity apply by force of biblical law on the basis of the dinim of the descendants of Noah, since we are no worse than they [in this respect]. Thus, wherever a judge sees an injustice that needs to be rectified, a situation dictated by common sense and the honor of God, consistent with the state of the generation, he must act according to the wisdom of his heart."

[99]          See Admor of Lubavitch, R. Menahem Mendel Schneersohn, "Sheva Mitzvot Benei Noah" haPardes LIX:9 (Sivan, 1985), 7-11, see p. 11. The passage is cited also in S. T. Stern, Resp. Shavit VII, p. 4.