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Iyun Masechet Sota: 35b

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This shiur is dedicated to the memory of Rabbi Aaron M. Wise, z"l, whose first Yahrzeit is on Tamuz 21.

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In the context of its discussion of the role of the "Avanim Gedolot," the stones upon which Bnei Yisrael inscribed the Torah and then erected as a monument, the gemara implies that had the Avanim achieved their goal of exposing the Can'anim to Torah and encouraging them to accept its rules, the halakhot mandating total war against them would have been suspended in regard to those who dwelled outside of Eretz Yisrael.  The native Can'anim, though, apparently remain subjected to the guidelines outlined by the Torah in sefer Devarim, including the mitzva of "lo tchayeh kol neshama" that denies them the right of existence in Eretz Yisrael.  Rashi in his commentary to our sugya (s.v. ve-shavita) indeed accepts this at face value and adopts the position that only foreigners living amongst the Cana'anim are included in the Torah's regulations regarding captive non-Jews, since for ethnic Cana'anim captivity, as opposed to denial of life, is a legitimate option.

 

Rashi's position, though, is an isolated one.  All other Rishonim disagree and assert that had the Cana'anim accepted the Torah's conditions, they could have remained in the Land of Israel as subordinate to Am Yisrael.  Tosfot (Sota 35b, Gittin 46a), Ramban (Devarin 20:10, Gittin 46a), Rambam and Ravad (Melachim 6:1-5), although not arriving at a consensus regarding the exact details, unanimously agree about the basic axiom that had the Cna'anim done teshuva and accepted the terms offered them by Yehoshua ben Nun, they would have been granted residency rights in Eretz Yisrael.  Nevertheless, they do disagree as to the details.  Tosfot accept Rashi's interpretation of our sugya and are, therefore, obliged to distinguish between it and the other sources, while the Ramban (either due to a variant reading that omitted the phrase "shebe-chutza la-aretz" from the last line of 35b or to an interpretation that understood this clause as referring only to the opening of the beraita regarding the laws of yephat toar, its purpose being inclusive rather than restrictive so that it expands the scope of yephat toar to chutz la-aretz rather than limiting the option of teshuva to foreign territories) actually quotes our Gemara as a support to his position.  Tosfot distinguishes between acceptance prior to the commencement of hostilities in which case they are granted permission to stay in the Land, and after war has begun, when only non-native Cna'anim are accepted. 

 

In order to understand the disagreement of Rashi and the other Rishonim at the basic level and the logic behind the dual system of Tosfot, we must attempt to analyze the various mitzvot in the Torah that regulate the relationship between Am Yisrael and non-Jews.  The most convenient starting point for this is the issue of intermarriage.  Surprisingly enough, it is not clear at all that there is prohibition against intermarriage in the Torah.  The simple reading of the gemara in Avoda Zara (36b) is that there is a disagreement between R. Shimon and Rabanan regarding this issue.  R. Shimon categorically prohibits all intermarriage, while Rabanan are of the opinion that the Torah's prohibition relates only to members of the seven nations of Cana'an.  [See also Yevamot 76a and Avnei Miluaim 16:1 for a summary and suggested qualifications.]

 

The disagreement between R. Shimon and Rabanan revolves around the dilemma, which of the two elements that separate Am Yisrael from other nations is the decisive one: the religious or the national?  For though the national and religious element are normally intertwined, as Judaism is both a religion and a nationality (basing itself upon the duality of Brit Avot and Brit Sinai), it is nevertheless possible to isolate either of the two elements under certain circumstances and it this issue that R. Shimon and Rabanan are debating.  If we assume that the prohibition of intermarriage is due to the interfaith element, there should obviously be no difference between members of one nationality or another, as none of them practice the Jewish faith.  Therefore, if we do distinguish between different nationalities, our concern is a function of the loss of national identity brought about by the intermarriage rather than the religious threat.  Though it could be argued that the intermingling of any two groups poses a threat to their national identity, Rabanan consider the seven nations of Cana'an to be a greater threat, as they are in direct competition with us on the national level, claiming the same homeland as ours and the Torah accordingly limited the prohibition to them alone.  R. Shimon, however, views the mitzva as relating to the religious element and argues that all religious groups are equally responsible for the religious loss that will result from intermarriage and the prohibition is indiscriminate in its treatment of the status of non-Jews.

 

This religious-national dilemma accompanies all of the mitzvot that deal with Jewish – non-Jewish relationships in Halakha.  A good example of this is the discussion in the Tosfot in Yevamot 23a (s.v. hahu) regarding the issur of entering into a covenant with non-Jews.  The first opinion in Tosfot view it as a religious problem and therefore prohibit only pacts that facilitate idolatry while the other approach claims that it is a national issue that is limited to treaties with the seven nations that restrict our ability to conquer the land.

 

The Rambam consistently interpreted all of these mitzvot as directed at preservation of our religious identity in the struggle against idolatry.  It is, therefore, no surprise that he rules like R. Shimon against Rabanan.  However, if our above logic is correct and the litmus test is whether a particular halakha applies indiscriminately to all non-Jews or is limited to the seven nations, there are a few halakhot that are indisputably limited to the seven nations; amongst these is the mitzva (that our sugya discusses) regarding the obligation to kill all of the inhabitants of Eretz Yisrael.  Thus, this mitzva should be a clear example of a "national" rather than "faith" oriented mitzva.

 

The Rambam was well aware of these considerations that would seem to contradict his thesis that all of these mitzvot are anti-idolatry at root and, therefore, introduced a new factor into the Halakhic calculus by claiming (in sefer Ha-mitzvot, positive commandment 187) that the seven nations were especially corrupt from a religious standpoint, "the source of all idolatry," and were singled out in special halakhot due to their religious corruption.  Thus, he was able to preserve the concept of faith-oriented mitzvot even in those instances in which the mitzva applies solely to the seven nations.  Nevertheless, this theory/explanation is both logically and historically problematic and at the very least it is clear that Rava's position in Yevamot 76a is that the prohibition regarding intermarriage is limited to the seven nations due to its "national" orientation.

 

[It should be emphasized that the Rambam's position that all of these mitzvot are rooted in the struggle against idolatry and the need to protect Am Yisrael from religious corruption is strongly supported by the texts of the Torah itself.  The following is a sampling of some of them:

"they shall not dwell in your land, lest they cause you to sin against Me"; "lest you make a treaty with the inhabitants of the land for they will whore after their gods, sacrifice to them and invite you to participate in the feast.  And you shall take their daughters as wives for your sons, and they will whore after their false gods and cause your sons to whore after these gods"; "only from the towns of these nations that HaShem your God is granting you...you shall not leave alive any soul...so that they shall not teach you to perform all of their abominations that they have done to their gods and you shall sin to HaShem" (Shemot 23:33, 34:15-16, Devarim 20:16-8, respectively)].

 

It is against this background that we now come to examine our sugya.  If the command to prevent the habitation of Eretz Yisrael by non-Jews is due to the concern that they cause Bnei Yisrael to sin, this constitutes a problem only if the engaged party is idolatrous; therefore, if they recognize the KBH and accept the obligations incumbent upon non-Jews (the seven Noachide laws), there is no problem in permitting their dwelling in the land.  This is the rationale that guided the Tosfot and the Ramban to suspend the prohibition if the local populace accepts the seven mitzvot of Bnei Noach, even if they are inhabitants of the land.

 

The Rambam seems to have a dual track, for he requires that the seven nations both accept the political hegemony of Am Yisrael and observance of the seven mitzvot in order to be allowed to reside in Eretz Yisrael.  The former condition is due to the state of war and the need to conquer the land, while the latter is a function of the religious factor.  Rashi, too, identifies a dual element; the mitzva of "lo tehayeh kol neshama" is focused upon the national element and applies to the Cana'anim that dwell in Israel even if they have accepted the mitzvot (for their acceptance is irrelevant from the perspective of the national struggle) while there is an additional mitzvot not to permit the dwelling of idolatrous groups in Jewish surroundings.  Rashi thereby insists that acceptance of the seven mitzvot is insufficient in Eretz Yisrael, as the crucial issue is their national identity that is in denial of ours, yet even outside the Land of Israel he is willing to accept the "Cana'anim of Chutz La-aretz" only if they have accepted the mitzvot that apply to them.

 

Thus, Rashi disagrees with most Rishonim in regard to the prohibition of "lo tehayeh," perceiving it as a "nationality" focused mitzva rather than a faith oriented mitzva as most Rishonim understood it, yet he also has a requirement that all non-Jews that live in Jewish controlled lands accept the seven mitzvot of Bnei Noach.

 

This brings us, in conclusion, to the Tosfot, who claim that prior to the crossing of the Jordan the option of acceptance was available to the native Cna'anim but was denied to them after Bnei Yisrael entered the Land of Israel.  The logic behind this claim is the dual track that was mentioned above; the "religious" element in the prohibition can be solved by the willingness of the population to recognize the KBH and, therefore, Tosfot disagree with Rashi that the local populace cannot be accepted.  However, all of this constitutes prior to the commencement of the war to conquer the land.  Acceptance at this early stage is withdrawal from the confrontation over the land.  It implies recognition of Am Yisrael's right to the land.  Staying in the land, though, requires their acceptance of the code of seven mitzvot, so that they will not cause us to sin.  All of this, though, is null and void after Am Yisrael entered the land, since the meaning of this is that the war for control of the land has begun and the halakhot relating to a state of war take into account the fact of war and the confrontation over the land.  From this point onwards, the "national" element of the mitzva must also be taken into account and acceptance of the seven mitzvot alone will not suffice.

 

[It should be mentioned that the above account of the Rambam's position regarding the issue of intermarriage was a somewhat preliminary treatment, due to considerations of space; it is actually more subtle and takes into account both the religious and the national element, treating the former as the primary element that has the authority of a negative commandment while the latter is a lesser problem that is not banned by the Torah as a negative commandment but is an act of far reaching negative consequences.  This interpretation of the Rambam's position is based upon the comparison and contrast of his rulings regarding the prohibition of intermarriage with a non-Jew (religious and national) as opposed to his statements regarding marriage with a maidservant (a national but not religious problem, as she has undergone conversion).  Cf. Issuri Biah 12:1-14.]

 

Next Week:

 

     For the purpose of the shiur, we are skipping to the mishna on 37b.  The intervening gemara is all aggadita - interesting in its own right, but not the subject of the shiur.  Either learn it quickly, skip it, or leave if for Shabbat afternoon.

 

1.   Mishna 37b... 38a ("tanya eedach" - at the bottom of the page).

2)   Taanit 26b (bottom of the page, "d'kuli alma")... 27a ("miderabbanan) l'kula").

3)   Tosafot Sota 38a, s.v. "vene-emar," "oh," "harei."

4)   Tosafot Taanit 27a, s.v. "ee."

5)   Rambam, Sefer Ha-mitzvot, pos.26

              Hilkhot Tefila 14-3,7,9,14; 15-3.

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