Part III – Status of Tinok Sh’Nishba (A Captured Child)

 

Tinok Sh’Nishba

 

The level of culpability of a non-observant Jew, whether he is considered deliberate, negligent, or not responsible for his transgressions, will be impacted by his family, schooling, and neighborhood. It also makes a difference why, and how frequently, he commits transgressions.

We learn in the Mishnah (Shabbat 7:1) –

Whoever forgets the ikar (essential aspect) of Shabbat and does many melachot (prohibited activities) on many different Shabbatot is only obligated to bring a single chattat [offering].

Based on the simple wording of the Mishnah, the obligation to bring this [single] chattat [offering] would only be for one who had originally recognized the concept of Shabbat but had then forgotten it. But there would seem to be no obligation of even [this single] chattat [offering] for one who had never recognized or never even known about the concept of Shabbat in the first place, such as a tinok sh’nishba bein ha’amim (infant who had been captured [and then raised] among the non-Jews). Rebbe Yochanan and Reish Lakish, therefore, explain (Gemara Shabbat 68b) that a tinok sh’nishba is not considered to be shogeg (i.e., negligent and required to bring an offering for his non-observance of Shabbat), but rather an onnes (i.e., coerced and fully exempt from the need to bring any offering at all). However, according to Rav and Shmuel, even a tinok sh’nishba who had never recognized the concept of Shabbat, would still be obligated to bring a chattat offering for his violation of Shabbat as a shogeg.

The Rambam paskens according to the words of Rav and Shmuel because of a Braisa which supports Rav. Therefore, according to the Rambam, a tinok sh’nishba has the din of a shogeg, and must bring a single chattat for [violating] Shabbat as well as all other chattat violations. If so, it is obvious that a tinok sh’nishba must do teshuva for whatever he violated, as if he had done them all b’shogeg.

The Acharonim, however, point out that the Rambam seems to have contradicted himself. He writes (Hilchot Mamrim 3:3) that the b’nei Kara’im (children of the Kararites) have the din of a tinok sh’nishba and are k’annusim (i.e., compelled by circumstances).

The Rambam (Hilchot Mamrim 3:3,4) initially addresses the case of one who doesn’t believe in Torah sh’ba’al peh (the Oral Law) and is thereby not included within Yisrael –

Once it is known that one does not believe in Torah sh’ba’al peh (the Oral Law), he is pulled down and not lifted up. He is like all of the apikorsim, those who say the Torah is not from Heaven, the mosrim (those who hand over Jews or their property to the evil authorities), and the mumarim (those who openly ignore one mitzvah or many mitzvot). All of these people are not included within Yisrael. They [therefore] don’t require witnesses, a warning, or judges [to be culpable].

The Rambam continues –

What is this referring to? To a person who denies Torah sh’ba’al peh (the Oral Law) from his own understanding and what [he thinks] makes sense to him. He follows after his weak mind and after his own stubbornness. He, therefore, denies Torah sh’ba’al peh on his own, like Tzadok and Beisos, as well as all of their mistaken disciples. However, the children of those disciples, and their grandchildren, who were misled by their elders, born into heresy, and raised in it, they are like a tinok sh’nishba bein hagoyim – one who was raised by non-Jews within their [non-Jewish] religion. They are not interested in following the path of the mitzvot since they were like one who was forced (k’annus). And even if they hear afterwards that they are Jewish, and they see Jews and Judaism, they are [still] k’annus, since they were raised on these mistakes. This is the situation of those who cling to the mistaken ways of their elders. It is, therefore, fitting to return them in teshuva, and to draw them with words of peace, until they return to the eternal Torah, so people won’t be quick to kill them.

The Rambam also writes (Hilchot Shavuot 1:13) that an omer mutar (one who thinks a particular transgression is permissible) is patur (exempt) from a korban shavuot. Therefore, it seems clear that the din (judgment) of one who had violated Shabbat because he had simply never heard of it, should be an onnes, not a shogeg.

The Mishnah l’Melech (Hilchot Malveh v’Loveh 2:5) suggests an answer to this first apparent contradiction within the Rambam. He writes that most texts of the Rambam (Hilchot Mamrim 3:3) say that the Kara’im are “k’anusim, v’ein m’har’rim l’horgam (like they are compelled, and we should not rush to kill them).” In other words, they are only k’annusim in terms of not being killed. That is why we don’t kill them like other kofrim b’Torah (deniers of the Torah). But they are still considered to be shogegim as far as the need to bring a korban chattat. The Maharam Shick (§132) says this as well.

And, in terms of the korban shavuah that an omer mutar is patur from bringing, the Chut HaMeshulash (§13) explains that this is the only korban he is exempt from offering. But a tinok sh’nishba would be chayav to bring a korban chattat, even without a prior awareness of the aveirot. Perhaps the understanding of the Rambam is like that of Rav Elchanan Wasserman, who writes that everyone is capable of discovering the truth if they are intellectually honest.

And if a tinok sh’nishbah is considered to be a shogeg, and obligated to bring a single korban chattat, he must also do a full teshuva (i.e., with viduy and charata – verbalization and regret) for the aveirot he did even before he fully recognized the truth. There would be no difference how serious the aveirot were, since the issue is that he didn’t recognize the Torah. Rav Moshe Sternbuch, therefore, holds that a baal teshuva is chayav to do teshuva as if he had done every aveirah once b’shogeg.

Rav Berkowitz says that this leniency, of only needing to do teshuva for a single aveirah within each category, should be true only for those mitzvot which he would not have been likely to have known about. However, with aveirot like gezel (stealing), mazik (causing damage), and similar ones, one should certainly need to do a full teshuva for each separate violation. Since even our seichel (intelligence) obligates us to not do these aveirot, one who violates them would be considered to be a poshea (fully culpable) on every single violation, independent of fully knowing about the Torah.

It is remarkable that a tinok sh’nishba, who had never heard of the Torah at all, is obligated to do teshuva for the transgressions he had violated, even though he had never actually heard of them, once he recognizes the true religion, as if he had done them b’shogeg. The baal teshuva should not, however, focus on his aveirot of the past, but rather on the positive actions which he will be doing in the future. The concern is that, if he thinks too much about his past actions, this may hurt his spirit and, G-d forbid, cause him to return to his negative behavior.

Radvaz

The Radvaz writes that it appears the Rambam wrote what he said in Hilchot Mamrim (3:3) to try to find a merit for the Kara’im. But the Radvaz himself disagreed –

[The Kara’im] who are found in our days, if we would have the possibility to pull them down, it would be a mitzvah to do so. We are constantly trying to return them to the good, and encourage them to believe in Torah sh’ba’al peh, while they blaspheme and disparage the transmitters of the tradition (i.e., the Sages). We are, therefore, unable to include them within the category of anusim (those that are compelled), but rather as kofrim in Torah sh’ba’al peh.

We see from the words of the Radvaz that whoever mocks the words of those who try to bring them close, are in the category of a mumar. The position of the Radvaz seems to be that the children of the Kara’im have the status of anusim only as long as they are not aware of the Torah and its mitzvot. Once we try to return them to the good and they don’t respond positively, however, they then become minim and mumarim, just as their fathers were.

That sounds like, in today’s world, that whoever rejects the efforts of the various organizations involved in kiruv rechokim (those who try to bring the distant ones closer) would seem to be in the category of a mumar according to the Radvaz.

Rav Eliyahu Mizrachi, however, rejects this stringent approach of the Radvaz. He explains that when the Rambam wrote – “v’lo y’maheir l’hargam – we should not be quick to kill them,” the meaning is simply that there is no more din of moridin – pulling the transgressors down. The Rambam is, therefore, telling us to relate to the children of the Kara’im in a positive manner. Rav Mizrachi proves this from a teshuva (responsa) of the Rambam himself –

Although they have been rebelling and acting badly while we have been trying to correct them for many years, we should still treat them (i.e., the children of the Kara’im) properly, teach them Torah and circumcise their children. They are considered to be anusim and tinokot sh’nish’b’u even though we have been rebuking them.

The root of the argument seems to be that, according to the Radvaz, the b’nei Kara’im would be considered anusim only if they had never been informed about Judaism. However, from when they know about the principles of the Torah and the mitzvot, and they don’t accept tochacha (correction), their din is that of non-Jews and mumarim in every respect. The opinion of those that argue on him, however, is that whoever is raised and educated with kefira remains with the din of a tinok sh’nishba. There is no real substance to the words of rebuke if the transgressors are unable to hear them.

In other words, even after such people are informed about Judaism, their status would not change until they actually come to understand that the Torah is G-d-given and they are obligated to adhere to all its laws. Simply being told about Shabbat, without knowing what it means to experience it, and without recognizing that it is of Divine origin and obligatory, is not considered really knowing about Shabbat. (Rav Shimon Schwab and Rav Isaac Herzog have gone further than this position, stating that even those who, in our times, were brought up in Orthodox homes but are now no longer observant, may be considered to be tinokot shenish’b’u.)

Nimukei Yosef

The Nimukei Yosef also disagrees with the Rambam. He writes –

What is the case of the tinok sh’nishba bein hagoyim? One who never recognizes the Torah of Yisrael. But one who is within Yisrael, but still goes and clings to the principles of the non-Jews, we should pull him down.

The Beit Yosef (Yoreh De’ah §159) quotes the Nimukei Yosef –

Only one who never recognized the Torah of Yisrael is called a tinok sh’nishba. But one who is within Yisrael, but still goes and clings to the principles of the non-Jews, we pull him down.

According to this, the Beit Yosef says that the Kara’im may have the status of m’shumadim, those who converted out. He concludes, however, that

We don’t leave the explicit words of the Rambam because of the words of the Nimukei Yosef.”

This is true despite the Ramban (Baba Metzia 71), as well as the Tashbatz (Responsa 2:139) also following the opinion of the Nimukei Yosef.

According to the simple reading of the Nimukei Yosef, it would seem that today, where there are observant Jews in virtually every country in the world, we would never be able to consider the child of a mumar as a tinok sh’nishba, since there is no situation of Jews being captured and raised exclusively among the non-Jews.

There is, however, an important inference we can draw from the words of the Nimukei Yosef (who lived in the fourteenth and fifteenth centuries) in terms of the Jewish world today. He wrote –

This one (i.e., the ben mumar) is standing among Yisrael, yet he is going and clinging to the chukim of the non-Jews. Therefore, we pull him down.

The main claim against the ben mumar is that, although “he is standing among Yisrael, he is going and clinging to the chukim of the non-Jews.” When he says that this person is “standing among Yisrael,” he seems to be speaking about a time when the majority of Yisrael is following Torah and mitzvot (like, for example the fourteenth and fifteenth centuries). That is why there is such a strong claim against the ben mumar – how could he abandon the Torah of Yisrael and follow after the mistakes of his parents? We certainly can’t compare that to the situation today, where the great majority of Jews are tragically not following Torah and mitzvot, and people frequently speak of those who are following Torah and mitzvot as crazy and irresponsible people. It is difficult to assume that the ben mumar who was raised in this environment today should certainly have recognized the truth on his own. It seems very appropriate, therefore, to give the contemporary ben mumar the din of a tinok sh’nishba, even according to the understanding of the Nimukei Yosef.

And we see a similar inference from the words of the Ramban (Baba Metzia 71b) – “If one knows and abandons the Torah of Yisrael and clings to idolatry and the principles of the non-Jews, he is a meshumad gamur, and we pull him down.”

The Ramban is only calling someone a mumar if he “knows and abandons the Torah of Yisrael,” meaning that he recognizes the truth but doesn’t follow it. That is specifically when he would be called a meizid, and not a shogeg.

According to the opinion of the Ramban, therefore, since the majority of Klal Yisrael are not following Torah and mitzvot today, it is difficult to say that one should have obviously gone and clung to the Torah of Yisrael. Even more than this, there are so many different groups and movements today who claim that they are the ones who have the Torah of Yisrael. This confuses masses of people in terms of what is the true Torah of Yisrael.

Since those who do not observe Torah and mitzvot are so widespread throughout Klal Yisrael today, it seems that the claim of the Ramban, Nimukei Yosef, Tashbatz, and other Rishonim is no longer relevant. Since such a large portion of Klal Yisrael are not following the Torah, it is difficult to claim that the ben mumar should certainly have attached himself to Yisrael. Accordingly, there is a strong logic to consider the chilonim (secular Jews) today as tinokot sh’nish’b’u, even according to these Rishonim who argue on the Rambam. And this is what Rav Yitzchak Berkowitz, the current Rosh HaYeshiva of Aish HaTorah, holds.

Rabbi David Tzvi Hoffman (1843-1921) articulates this point (Melamed L’Ho’il §29) –

In our days, no one should be considered a mechalel Shabbat b’farhesia, because the majority are doing it. When most of Yisrael is meritorious and a minority is brazenly doing this prohibition, then they would be [considered] deniers of Torah, doing abominations arrogantly, and separating themselves from the community. Since, as a result of our many transgressions, the majority breach the boundaries, this breakdown has a positive aspect (i.e., in terms of how we view the transgressor) – the individual thinks that this aveirah is not so great and he doesn’t need to violate it only in private. Their “public” is, therefore, really like “private.” Those who are careful are now called perushim and muvdalim (those who have separated), while the transgressors are [seen] as behaving normally. And this is sufficient to not consider the violator to be a mumar.

Rav Yaakov Ettlinger ((1798-1871) Binyan Tzion §23) writes similarly –

The affliction of non-observance is so widespread that most see chilul Shabbat as permissible… And, all the more so, with their children who come after them. They don’t know and haven’t heard the laws of Shabbat, and are just like the Tzedukim who are not considered mumarim, even though they don’t keep Shabbat, since the actions of their fathers is in their hands, and they are like a tinok sh’nishba l’bein hagoyim, as we explained.

And, in terms of the practical halacha, he continues –

It is difficult to know how to judge poshei Yisrael today since chilul Shabbat has become completely permissible for most of them. Some of them daven on Shabbat, make Kiddush and then openly violate Shabbat. One who violates Shabbat is generally considered to be a mumar, because by denying Shabbat he is denying the Creation and the Creator. Yet this person acknowledges them by davening and making Kiddush. And what about their children who come after them, who never saw nor heard the laws of Shabbat? They seem to be exactly like the Tzedukim who were not considered to be mumarim, even though they violated Shabbat. This is because they were simply following the actions of their parents, and were like a tinok sh’nishba among the nations. Therefore, in my humble opinion, one who is machmir to forbid the wine they touched should be blessed. Those that are lenient, however, have a basis, even without investigating whether they know the laws of Shabbat and are being brazen.

We can also add what is written in the Igrot Moshe (Aleph, §33) –

I have explained the distinction within [chilul] Shabbat between private and public with considering one to be like a non-Jew. Seemingly, this isn’t logical, since even private [chillul Shabbat] has the same degree of severity that there is in public, in terms of Shabbat and kefira (denial of G-d). In fact, there is even a bit more kefira with private, as we see in Baba Kama79 between a ganav (stealing privately) and a gazlan (stealing publicly)… It is possible that public could also be considered like private [today] since the onlookers will certainly not say that this is an action of kefira. Rather, one is simply doing the transgression of chilul Shabbat because that is what their parents did.

 

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

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