Part I – Various Groups of Jews                 

 

The Significance of Being a Part of Yisrael         

The starting point in understanding the Torah perspective towards evildoers is the Mishnah (Sanhedrin 10:1), which states –

“All of Yisrael have a portion in Olam Haba – the world to come.”

The Rambam (Hilchot Teshuva 3:5) spells out just how far reaching this is –

All of the wicked, [even those] whose transgressions are greater [than their merits] are judged according to their transgressions, but are granted a portion in Olam Haba, for all of Yisrael have a portion in Olam Haba.

As clear as that sounds, the Mishnah then continues – “And these are the ones who have no portion in Olam Haba…” and proceeds to list those without a portion.

How can that be understood? If, as the Rambam explains, even those whose transgressions are greater than their merits have a portion in Olam Haba, then who could possibly be excluded?

The language of the Mishnah is – “All of Yisrael have a portion in Olam Haba.” “Yisrael” refers to the Jewish nation which has a special quality of connection to both Hashem and Olam Haba. The various cases listed in both the Mishnah and the Rambam (of those without a portion in Olam Haba) are people who have separated themselves from this national and metaphysical entity called “Yisrael.” Many of those are Jews who don’t have a proper belief in the foundations of Judaism. For example, among those who the Rambam (Hilchot Teshuva 3:6) tells us have no portion in Olam Haba, are minim (deniers of some essential aspects of G-d), apikorsim (denying prophesy or G-d’s knowledge of man’s actions), and those who deny the authenticity of the Torah.

The Rambam (Hilchot Shechita 4:14) explains that whoever does not believe in the foundations of Judaism is called an apikores and judged like a non-Jew. This is also the p’sak (ruling) of the Shulchan Aruch (Choshen Mishpat 266:2).

In addition to these non-believers are those whose actions demonstrate their disconnect from the Jewish nation. The main examples of these are mumar l’hach’is, mumar l’kol haTorah, meshumad, and mechalelei Shabbat b’farhesia, all of whom we will define and discuss shortly.

Not only will these non-believers and severe transgressors be limited in terms of Olam Haba, they will also be limited in terms of how the rest of the Jewish community relates to them in this world.

Many of the verses dealing with the interpersonal mitzvot contain the word rei’acha – your friend and neighbor (as in v’ahavta l’rei’acha kamocha – love your neighbor as yourself, amitecha – your nation (as in hoche’ach tochi’ach et amitecha – give correction to your nation), or achicha – your brother (as in lo tisna et achicha bilvavecha – don’t hate your brother in your heart). While these interpersonal obligations still apply even towards many transgressors, some of the more serious categories of transgressors are no longer considered to be rei’acha, amitecha, or achicha in terms of our obligations towards them. These terms are understood specifically in terms of those that are doing mitzvot properly, as in – your brother or nation in regard to mitzvot.

The Rambam concludes this list with a key clarification: One loses his portion in Olam Haba only if he does not do teshuva (spiritual return back to Hashem). If he does do teshuva, however, even in private, then he will have a portion in Olam Haba (Hilchot Teshuva 3:14, 4:6).

Mumar L’hachlis (A Brazen Rebel)

Someone who rejects the Jewish nation, joins an alternative religion, or brazenly violates the mitzvot is defined as a mumar l’hach’is – a deliberate rejector of Hashem and His mitzvot (Rambam Hilchot Teshuva 3:9). So too, someone is considered a mumar if he practices idolatry (Rambam Hilchot Avodat Kochavim 2:5) or consistently violates a particular transgression, not because he has a natural desire for it, but as an act of rebellion (Rambam Hilchot Teshuva 3:9, Biur Halacha 1:39). He may be a Torah believer who could just as easily have done something permissibly, but nevertheless, chose to contemptuously do it in a prohibited fashion. It is as if he says that there are only 612 mitzvot. Since he thereby subjects all the mitzvot to his own judgment, he is effectively denying the Divine origins of the Torah, and is consequently considered to be a mumar l’kol haTorah – an apostate in relation to the entire Torah (Rambam Hilchot Teshuva 3:9).

One would be permitted to speak lashon hara (negative speech) about him, one would not have to return his lost object (Choshen Mishpat 266:2), and seemingly, one would be exempt from the mitzvah of lifnei iver (not to place a stumbling block) towards him (Shach, Yoreh De’ah 151:6). Not only is one not required to love him; it is, in fact, a mitzvah to hate him (Avot d’Rebbe Natan 16:5). Some, however, say that despite this, one is still obligated in the mitzvah of tochacha (correction or rebuke) towards such a person, i.e., to reach out to him if there is a chance that he will respond positively (Tanna d’vei Eliyahu Rabba, chap.18). One is not required to judge him meritoriously (Shaarei Teshuva 3:218), one would not be required to lend him money (Yoreh De’ah 251:1), and if one did so, one would be allowed to charge him interest (Tosfot Avodah Zara 26b). Generally, one is not obligated to give him charity (Tosfot Avodah Zara 26b), and one should not redeem him from captivity (Yoreh De’ah 251:1). Finally, one should not mourn him when he dies (Rambam Hilchot Avel 1:10).

However, in any situation where a person’s status as a mumar is in doubt, one would have to be stringent and fulfill all of these interpersonal mitzvot towards this person, since this is a doubt about a Torah-mandated obligation. The status of being a mumar affects many other mitzvot as well.

Mechalelei Shabbat b’Farhesia (A Public Shabbat Desecrator)

One who publicly violates Shabbat is also considered to be like a non-Jew (Tur, Orach Chaim §385) because it is as if he is denying that Hashem created the world. This is tantamount to idolatry (Rambam Hilchot Shabbat 30:15), regardless of whether he actually believes in idolatry or not (Igrot Moshe, Yoreh Deah 2:5) . Since Hashem gave us the Shabbat as a sign and a covenant between us and Him, violating the Shabbat in public is far more consequential than failing to observe any other mitzvah (Rambam, end of Hilchot Shabbat 30:15). Shabbat so strongly identifies the Jewish People, that by defying it, the transgressor has removed himself from the Jewish nation (Chatam Sofer, Choshen Mishpat §195) and denied the fundamentals. As terrible as it is when a person does any other transgression, only violating Shabbat is considered an act of heresy (Igrot Moshe, Yoreh Deah 4:58).

Rav Asher Weiss, therefore, writes –

It seems simple that being mechalel Shabbat b’farhesia – would also forbid one’s shechita (ability to slaughter), wine and eidut (testimony).

It seems that a mechalel Shabbat is compared to a non-Jew and an idolator, not merely because of the stringency of Shabbat, but because this is throwing off the yoke of Heaven, and denying the fundamentals [of Judaism]. There is, therefore, a logic that this should also be the case with a Rabbinical violation of Shabbat. And, in fact, the Chayei Adam writes, “A Jewish mumar or rasha who is mechalel Shabbat b’farhesia, even only Rabbinically, is considered like a non-Jew.”

Most, however, hold that a mechalel Shabbat b’farhesia with Rabbinical prohibitions is not a mumar.

And the Pitchei Teshuva even says that only chilul Shabbat which is chayav kareit (has the penalty of being cut off) would cause one to be considered a mumar.

Why is it necessary that the chilul Shabbat be b’farhesia – i.e., either in front of ten Jews, or where it is clear that it will become publicized?

The Chatam Sofer (Likutim 6:83) quotes others who learn this from the case in the Torah of the one who was killed for gathering wood on Shabbat, which was specifically a public transgression.

In contrast to this, the Igrot Moshe (Orach Chaim 1:33) explains that it is simply more brazen to violate Shabbat publicly.

There are, however, a number of mitigating factors in terms of viewing public violators of Shabbat as non-Jews.

The Baal Ha’Itur (A Daat Yachid – singular opinion) only considered a mechalel Shabbat b’farhesia to be a mumar if it was with agricultural work.

Rebbe Akiva Eiger (Yoreh Deah 264, the beginning of Hilchot Milah), and the sefer Machanei Chaim, both maintain that [one would only be considered to be a mumar] if he was mechalel Shabbat in front of Jews who were themselves shomrei Shabbat (Shabbat observant).

And some say that one would be considered to be a mumar only if people testified about his public chillul Shabbat in front of him in Beit Din.

The Igrot Moshe (Yoreh De’ah 1:70), however, writes that even if one were mechalel Shabbat in front of other mumarim, he would still be considered to be a mumar.

Another exemption is if one would be embarrassed to violate Shabbat in front of a prominent person, even though he would not refrain in front of others. He would then not be judged as a non-Jew, and he would also not be judged as a mumar for the entire Torah (Torat Chaim – Eruvin 69a).

Rav Shlomo Zalman Auerbach (Halichot Shlomo 3:325) writes that this would also be the case if one were embarrassed to violate Shabbat around one’s parents. If, however, one was merely refraining from chilul Shabbat to be polite, and not because of embarrassment, then we might not be able to be lenient.

Rav Aharon Feldman holds that this also applies to any secular Jew who is visiting an observant household. If, while in that house, he would be careful to not deliberately violate Shabbat, then he would not have the status of a deliberate Shabbat violator.

All together, these requirements make it very difficult to declare anyone to be a public Shabbat desecrator as far as considering him to be like a non-Jew.

The most significant change with this entire issue has to do with the enormous shifts within the Jewish (and even non-Jewish) world in the past two centuries. During most of Jewish history, public Shabbat desecration was rare, and was dealt with very severely. This began to change at the beginning of the 1800s, during the Haskalah (Enlightenment). This led to a change in how those who violated Shabbat were viewed, since this was often committed as a result of ignorance or simply due to the difficulty in finding jobs which allowed Shabbat observance. Subsequently, many violated Shabbat simply because they had been brought up with a very limited concept of what Shabbat was.

An additional factor in the halachic status of unaffiliated Jews is the difference between an environment that is mostly observant and one that is not. Breaking Shabbat is only considered to be an act of rebellion if most people in the community are keeping it. Otherwise, it is the ones that are keeping Shabbat who seem to be separating themselves from the majority.

Independent of all this, the opinion of many Poskim is that the whole concept of viewing mechalelei Shabbat b’farhesia as non-Jews, is only a Rabbinical designation. On a Torah level, they retain the status of a Yisrael gamur (complete Jew) – Mahari Asad, Maharshag, the Tzitz Eliezer, and Rav Ovadia Yosef. There are, however, many who argue on this (Maharsham, Daat Torah, Arugat HaBosem).

It should also be noted that, even when we compare these transgressors to non-Jews, there still exist many differences between them and non-Jews. First of all, they can certainly do teshuva and get rid of that status entirely (Rema, Yoreh Deah 268:12). But even if they don’t do teshuva, we will circumcise their children, even on Shabbat (Shevet Levi 4:134:4). Just as with a mumar l’hach’is, we will break Shabbat to save their lives (Seridei Eish 2:11), and their kiddushin (ability to get married) is valid in every aspect (Tur, Even HaEzer 44, Yabia Omer, aleph, Yoreh Deah 11:4). And, finally, we apply to them the concept – Yisrael, af al pi sh’chata, Yisrael hu – A Jew, even if he transgresses, is always a Jew (Sanhedrin 44a).

Mumar L’tei’avon (One who Rebels from Desire)

A separate category from these particularly severe ones is a mumar l’teiavon. This is one who violates an issur (prohibition) simply because it wasn’t available in a permissible manner. It is an act of desire much more than a sign of rebellion (Rashi – Chulin 3a, Avoda Zara 26b).

A mumar l’tei’avon is someone who transgresses, not out of disbelief, but just to satisfy his own financial, sensual, materialistic desires, or other needs (Biur Halacha §39).

Alternatively, he may opt out of a mitzvah because it poses effort or challenges that he is not willing to deal with (Rashi, Chulin 3a). Such a person is not considered comparable to a non-Jew (Rambam – Hilchot Shechita 4:14). The mitzvah to love one’s fellow Jew will still apply to him (Yad Rama, Sanhedrin 52b). Someone who does not fulfill certain mitzvot simply because he does not care enough would also not be considered to be like a non-Jew. Although we are exempt from some obligations towards a mumar l’teiavon, we are certainly required to save his life and to return his lost articles. It is also forbidden to charge him interest. There is a dispute whether one is obligated to sustain him and to give him charity.

According to Rav Moshe Feinstein, American Jews who violated Shabbat by going to work, but who were otherwise observant, were in this category of mumar l’tei’avon. In the absence of knowing what a person’s motivations are, we presume that they are motivated by non-ideological reasons (making him only a mumar l’tei’avon) and not by a desire to rebel against Hashem (Igrot Moshe – Yoreh Deah 5:5).

The Rambam (Hilchot Shechita 4:14) writes that an expert slaughterer who is a mumar [l’tei’avon]… is fully able to slaughter. The only requirement is that a reliable Jew must check his knife… for it can be presumed that he may not trouble himself to check it.

According to Rav Ovadia Yosef, the wine that was touched by such Jews remains kosher. In fact, the challenge to earn a livelihood is so great that several Rishonim (Ramban, Rabbeinu Yona, and the Rivash) actually consider one who transgresses out of concern for his livelihood to be an onnes (forced by circumstances) (Yabia Omer, aleph, Yoreh Deah 11).

Many of the responsa of Rav Moshe Feinstein dealing with this issue concerned a generation that had come to America from European backgrounds, and had arrived at least nominally Orthodox and Shabbat observant. Today, of course, many Jews are more than one generation removed from their Orthodox roots. This serves as an additional reason to be lenient.

Although the strict principles mentioned previously (that a mumar is considered to be like a non-Jew, etc.) do not apply to a mumar l’teiavon, nevertheless there are other laws which do apply. As we pointed out, the Torah uses the word rei’acha, achicha, or amitecha with respect to various interpersonal mitzvot. The Mishnah Brurah (Siman 608 in the Biur Halacha) is unsure whether a mumar l’tei’avon is included within these various categories.

In general, if we see a Jew violate an issur, like eating non-kosher meat b’meizid (willfully), but we don’t know whether he did this l’hach’is or l’tei’avon, we judge him as a mumar l’teiavon, to establish his chezkat kashrut (presumption of innocence) (Ketav Sofer, Choshen Mishpat §20).

This should be l’zechut ul’iluy nishmat Ruchama Rivka, a”h, bat Asher Zevulun 

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