Follow-up #2

The 2013 SBM Sh’eilah which you received two weeks ago focused on a woman whose Jewishness comes into question as the result of a conversation with her daughter.  It might reasonably be thought that if the mother cannot be declared Jewish, the same is automatically true of the daughter – but such is not the case. Last week we explained how it be halakhically possible to rule that a woman was not Jewish but and simultaneously that her daughter was Jewish, as follows:

If Robin (the mother) is disqualified on the basis of her own testimony, and Catherine (the daughter) would be considered Jewish if we disregard her mother’s testimony, we may well be able to treat Catherine as Jewish even if we treat her mother as not Jewish.

We then added:

In practice, what evidence could Catherine have for her Jewishness other than being Robin’s daughter?  This of course raises the question of how one establishes one’s Jewishness, and whether and under what circumstances there is a presumption of Jewishness.  This discussion as well relates to a dispute between Rabbi Yehudah and his colleagues, as well as a number of fascinating Talmudic narratives, and I look forward to sharing at least some of those with you next week.

Let us move on to that discussion.

On Yevamot 46b-47a the following fascinating but enigmatic beraita appears:

מי שבא ואמר גר אני, יכול נקבלנו?

ת”ל: אתך –

במוחזק לך.

בא ועדיו עמו, מנין?

ת”ל: וכי יגור אתך גר בארצכם.

אין לי אלא בארץ, בח”ל מנין?

תלמוד לומר. אתך

בכל מקום שאתך;

אם כן, מה ת”ל בארץ?

בארץ – צריך להביא ראיה, בח”ל – אין צריך להביא ראיה,

דברי ר’ יהודה;

וחכמים אומרים:

בין בארץ בין בחוצה לארץ – צריך להביא ראיה.

  1. One who comes and says “I am a ger=convert” – one might have thought we accept him –
  2. so Scripture teaches: “with you” –
  3. only if you already presume him to be.
  4. If he comes with his witnesses, from where do we know?
  5. Scripture teaches “If there should gar with you a ger . . . “.
  6. “. . . in your land” –
  7. So far I only know in the land – from where do I know (that this is also true) in the diaspora?
  8. Scripture teaches “with you” –
  9. wherever he is with you.
  10. If so, why does Scripture teach us by saying “in (the) [your] land”?
  11. In the land – he must bring evidence; in the Diaspora – he need not bring evidence,
  12. according to Rabbi Yehudah.
  13. But the Sages say:
  14. Whether in the land or in the diaspora – he must bring evidence.

 

 

We can ask many basic questions about this beraita, such as:

What is the definition, or: what are the boundaries, if any, of the “acceptance” referred to in line 1?

Is the presumption in line 3 of born Jewishness or rather of conversion?

Why do we need a Torah text to teach me that witnesses are believed?

How does ““If there should gar with you a ger . . . “ teach that one believes a claim of conversion supported by witnesses?

What is the basis of the dispute between Rabbi Yehudah and the Sages?

These questions are asked by the Talmud and Rashi, and we may return to them in future weeks.  The question that matters to us this week, however, is this:

The first line, at least in the opinion of the Sages, asserts that a claim to be a convert rather than a Gentile is believed only if there is a prior presumption supporting the claim.  Is this also true of a claim to be a born Jew?

Rabbeinu Tam, as cited in the Tosafot to Yebamot 46b, asserts that the claim to be a born Jew is accepted as is.  He in essence reverses the beraita by arguing that the prior presumption of conversion is necessary only when there is evidence of prior Gentileness; a person with no known background would be believed if they claimed to be Jewish.  Rabbeinu Tam asserts this on the basis of the following beraita from Pesachim 3b.

ההוא ארמאה דהוה סליק ואכיל פסחים בירושלים.

אמר: “כתיב (שמות יב) ‘כל בן נכר לא יאכל בו’, ‘כל ערל לא יאכל בו’, ואנא הא קאכילנא משופרי שופרי!”

אמר ליה רבי יהודה בן בתירא: “מי קא ספו לך מאליה?”

אמר ליה: “לא.”

“כי סלקת להתם, אימא להו: ‘ספו לי מאליה.'”

כי סליק, אמר להו: “מאליה ספו לי.”

אמרו ליה: “אליה לגבוה סלקא!”

אמרו ליה: “מאן אמר לך הכי?”

אמר להו: “רבי יהודה בן בתירא.”

אמרו: מאי האי דקמן?  בדקו בתריה ואשכחוהו דארמאה הוא, וקטלוהו.

שלחו ליה לרבי יהודה בן בתירא: “שלם לך רבי יהודה בן בתירא! דאת בנציבין ומצודתך פרוסה בירושלים.”

A Gentile would go up and eat from Paschal sacrifices in Jerusalem.

He said: “Scripture writes ‘No gentile may eat it”, “No uncircumcised my eat it”, and yet I eat from the best of the best!”

Rabbi Yehudah ben Beteira said to him: “Did they feed you from the tail?”

He replied: “No”.

“When you go up there, say to them: ‘Feed me from the tail.’”

When he went up, he said to them: “Feed me from the tail.”

They said to him: “The tail goes to the Most High!”

They said to him: “Who said this to you?”

He replied: “Rabbi Yehudah ben Beteira.”

They said: What is this before us?  They investigated his background and discovered that he was a Gentile, and executed him[1].

They sent to Rabbi Yehudah ben Beteira: “Peace unto you, Rabbi Yehudah ben Beteira!  For you are in Nezivin but your net is spread in Jerusalem.”

 

Here is Rabbeinu Tam’s argument as presented by Tosafot:

תוספות מסכת יבמות דף מז עמוד א

במוחזק לך –

  1. אומר רבינו תם:
  2. דדוקא בדידעינן דהוה עובד כוכבים מעיקרא,
  3. דאי לא הוה ידעינן, מהימן, מגו דאי בעי אמר ‘ישראל אני’, דמהימן,
  4. כדמשמע בריש מסכת פסחים (דף ג: ושם)
  5. גבי ההוא עובד כוכבים דהוה סליק ואכיל פסחים בירושלים.
  6. ואין לומר
  7. שאני התם דהוו סמכי ארובא דהוו ישראל,
  8. דהא בכל מקום נמי איכא רובא, דרוב הבאין לפנינו בתורת יהדות ישראל הם!?
  9. ועוד ראיה משמעתין,
  10. דאמר ליה ר”י אי אתה נאמן לפסול את בניך,
  11. ואיהו גופיה כשר, אלא דשוי נפשיה חתיכה דאיסורא, אבל אם בא על בת כהן – לא פסלה, כדפי’ לעיל.
  12. ומההיא דלעיל (דף מה.) דא”ל זיל גלי אין ראיה,
  13. דשמא לא היו בודקים אלא אם הוא ישראל אם לאו, אבל במשפחתו לא היו בודקין.

“Only if you already presume him to be” –

1. Says Rabbeinu Tam:

2.  (The requirement that a convert have a prior presumption applies) specifically when we knew that he was originally a Gentile,

3. because if we had not known, he would be believed (when he claimed to be a genuine convert), since he has a migo[2] that he could have said ‘I am a Jew’, as someone who makes such a claim is believed,

a. as is implied at the beginning of Pesachim

b. regarding the Gentile who came and ate the Pesach in Jerusalem (that he was initially able to do so suggests that anyone claiming to be Jewish was accepted until counterevidence emerged).

c. and it would be incorrect to (reject Rabbeinu Tam) and say

d. that  because they relied on the majority (of those who presented themselves to eat the Pesach) being Jewish, (whereas our beraita discusses a non-Passover case in which no such majority exists),

e. because everywhere else there is also a majority, (namely) that most of those who come before us בתורת יהדות=presenting themselves as Jews are Jews!?

Rabbeinu Tam argues, as best I can tell, that it is obvious from the story that in previous years no one had investigated whether the Gentile was Jewish before feeding him from the Passover sacrifice, and this indicates that generally a claim to be Jewish was presumed true.

Tosafot then raise a possible objection to the generalization: Perhaps it is not that the claim to be Jewish is believed, but rather that the claim to be eligible to eat the Passover is believed, on the ground that most people making such a claim are telling the truth?  In other words, perhaps there is no general presumption of Jewishness, just a situational probability analysis.

Tosafot’s response is that most people claiming to be Jewish are Jewish, so one does not need the presumption ever.

Here we need to clarify the difference between presumption (חזקה) and probability (רוב).

A presumption can exist without a ground – it can simply be a default setting.  For example, Jews are presumed to be telling the truth when they act as formal witnesses in beit din – they have a chezkat kashrut – simply by being born, even if they are born into a culture that has made lying into a fine art.

A probability, by contrast requires a ground – we need to understand what we are claiming, why we think it is likely true.  Determining the context of the odds is vital.  For example – suppose most of the people in the world are not Jewish, but most of the people claiming to be Jewish are – does the majority support someone’s claim to be Jewish, or oppose it?  Should we seek more precise sociological data – for example, see whether either majority is affected by skin color, age, or level of education?

Note also that handling conflicts between presumption and probability is a massive topic.

Note also that halakhah likely often requires one to investigate ordinary probabilities to see if one can determine the status of a particular case, and allows one to presume that an individual case came from the majority only if either further investigation is impractical, or else if there is a superprobability (likely somewhere between 85 and 95 percent.)

Some practical questions for us then are

1)      If we accept as normative the position of Rabbeinu Tam as recorded by Tosafot – what is the probability today that those who claim to be Jewish actually are Jewish?  Do the percentages vary geographically, eg among Israel, Russia, and the US, in ways that we must account for halakhically?

2)      Does Rabbeinu Tam’s migo argument apply for someone who claims to be a convert and was not previously known to be Gentile, but whose previous Gentileness could be discovered easily, eg. via a Google search?

3)      Does Rabbeinu Tam’s claim that a claim to be Jewish is accepted presumptively apply even if the person making the claim has not previously identified as Jewish, or had previously identified as not Jewish, and so had, before making the claim, been assumed to be not Jewish?

Next  we will discuss Tosafot’s second proof for Rabbeinu Tam, as well as a disproof Tosafot reject.

 


[1] It is not a capital crime for a Gentile to eat the Passover, so presumably there is a backstory about the particular gentile – perhaps he was a spy?

[2] An argument of the form:  If I were lying, I would have made a stronger claim than this, and you would have believed me – so believe me when I make this weaker claim.

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