Sefer Ha-Hayim Blog
Monday, November 15, 2004
Tinok She-Nishbah
R. Yehuda Henkin, Bnei Banim vol. 4 - $10  buy it now

The status of a non-observant Jew in the worldview of traditional Judaism is complicated by the fact that society has changed so much since the Talmud that finding the proper talmudic category for such people is a complex matter. However, when was the major point of change? Was it the turn of the modern era and the rise of secularism or earlier than that? As we shall see, R. Yehuda Henkin points to nineteenth century Germany as the turning point.

In talmudic times there were certainly Jews who seceded from the community of traditionally observant Jews. However, they were generally either apostates who adopted idolatrous practices or sectarians who actively rejected the dominant form of Judaism.

In the post-talmudic era, communities arose in which the dominant form of Judaism was something considered sectarian by normative Judaism. How does the traditional community - we'll call it Orthodoxy for convenience - relate to Jews who accept the dominant form of Judaism with which they were raised, one that is otherwise considered sectarianism? Are they treated as sectarians, with all the stigma involved, or are they treated otherwise?

For example, a Jew raised in America today is following the majority position if he refrains from attending synagogue or observing the Sabbath. Is that really rejecting traditional Judaism or is it merely mistakenly accepting an incorrect version of it?

Conventional wisdom has it that such people do not fall into the category of sectarians or rejecters of the faith but, rather, tinokos she-nishbu - children who have been captured and raised outside of a Jewish community. In other words, they are not blamed for their lack of adherence to traditional Judaism and do not fall into the talmudic categories of sectarians, apostates or rejecters. This classification has significant halakhic ramifications.

However, the matter is quite complex. While it is an open question why it was not raised during the pre-Tannaitic era regarding those raised in, e.g. Essene communities, the issue was raised during the medieval era about those raised in Karaite communities. Are they sectarians or "captured babes"?

R. Yosef Karo, in his Beis Yosef (Yoreh De'ah 159), quotes two conflicting views regarding whether Karaites have the status of apostates. According to Maimonides, they do not because they are considered tinokos she-nishbu. However, according to the Nimukei Yosef, the status of tinok she-nishbah only applies to someone who is entirely unfamiliar with Judaism but someone who is not, even if he did not receive a conventional Jewish education, is considered a rejecter or apostate. Significantly, R. Karo rules according to Maimonides' view.

However, the debate continued after R. Karo's life. The Radbaz, living in Egypt, was forced to deal with the status of Karaites in his day. He ruled in a long responsum (2:796) that the Karaites, despite being raised in their own community with an anti-rabbinite bias, could not be classified as tinokos she-nishbu despite Maimonides' ruling.

This position of the Radbaz has echoes today. In the early twentieth century, the Minhas Elazar (1:74) issued a similar ruling as the Radbaz's, thereby rendering today's secular Jews ineligible for the category of tinok she-nishbah. Similarly, much more recently the Shevet Ha-Levi (9:198) ruled likewise. This is in contrast with the Hazon Ish (Yoreh De'ah 2:28 ) who ruled that all non-observant Jews today are tinokos she-nishbu, thereby going even farther than Maimonides. Also, R. Yisrael Meir Kagan, the "Hafetz Hayim," reviewed a particular work named Marganisa Tova twice every day. In that work (par. 17), which was appended to R. Kagan's book Ahavas Hesed, the author also writes that non-observant Jews today, like tinokos she-nishbu, fall into the category of accidental sinners and not intentional. This is only a small sample of the halakhic literature on this subject.

Thus, the final halakhah is still a matter of controversy, even if most mainstream halakhists tend to follow the view of the Hazon Ish.

In the forthcoming volume 4 of Bnei Banim, R. Yehuda Henkin adds his voice to this discussion with an essay on this subject (essay no. 7 in PDF format). R. Henkin points out that the application of the status of tinok she-nishbah to secular Jews began in 19th century Germany with the great leaders R. Ya'akov Ettlinger and, somewhat later, R. David Tzvi Hoffmann. This has been the approach accepted by mainstream halakhists, including the author's illustrious grandfather R. Yosef Eliyahu Henkin. However, R. Henkin objects to extending this concept beyond its current application or to using this status as a justification for non-observance. Most importantly, one should never think of himself as a tinok she-nishbah because this only becomes an excuse for sinning.

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