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One who worships idols and does not want to fulfill the Seven Commandments of the Sons of Noah, as a resident stranger (is obligated) – all religions permit to cause him bodily harm, and killing him has been even approved by the philosophers who said, “Kill anyone who has no religion.” Similarly, the Torah warned about the idolaters: “You shall not let a soul remain alive” (Deuteronomy 20:16). Now, if one is permitted (to harm) their bodies, all the more so with regard to (appropriating) their possessions, for an idolater is to be killed and not to be spared. – Rabbi Yosef Albo, Sefer Ha-Ikarim, 3:25.
[RU.org acknowledges that the excerpts from Wikipedia are not contained within the original book. They are included here to provide further context and elaboration – Seven Laws of Noah by Wikipedia (Text is available under the Creative Commons Attribution-ShareAlike License 4.0) –
https://en.wikipedia.org/wiki/Seven_Laws_of_Noah
In Judaism, the Seven Laws of Noah (Hebrew: שבע מצוות בני נח, Sheva Mitzvot B’nei Noach), otherwise referred to as the Noahide Laws or the Noachian Laws (from the Hebrew pronunciation of “Noah”), are a set of universal moral laws which, according to the Talmud, were given by God as a covenant with Noah and with the “sons of Noah”—that is, all of humanity. The Seven Laws of Noah include prohibitions against worshipping idols, cursing God, murder, adultery and sexual immorality, theft, eating flesh torn from a living animal, as well as the obligation to establish courts of justice.
According to Jewish law, non-Jews (gentiles) are not obligated to convert to Judaism, but they are required to observe the Seven Laws of Noah to be assured of a place in the World to Come (Olam Ha-Ba), the final reward of the righteous. The non-Jews that choose to follow the Seven Laws of Noah are regarded as “Righteous Gentiles” (Hebrew: חסידי אומות העולם, Chassiddei Umot ha-Olam: “Pious People of the World”).
For this reason you will find that the Noachian and the Mosaic laws, though differing in matters of detail, as we shall see, agree in the general matters which come from the giver. They both existed at the same time. While the Mosaic law existed in Israel, all the other nations had the Noachian law, and the difference was due to geographical diversity, Palestine (i.e. “Eretz Israel” being different from the other lands, and to national diversity, due to difference in ancestry. And there is no doubt that the other nations attained human happiness through the Noachian law, since it is divine; though they could not reach the same degree of happiness as that attained by Israel through the Torah. The Rabbis say: “The pious men of the other nations have a share in the world to come”. This shows that there may be two divine laws existing at the same time among different nations, and that each one leads those who live by it to attain human happiness; though there is a difference in the degree of happiness attainable by the two laws. This difference in the laws can not concern fundamental or derivative principles. Therefore the examination of the law itself is always of the same kind. But the examination relating to the messenger may undergo change. At all events the verification must be direct, though the verification of one religion may be different from that of another. The question whether a given divine law may change for the same people in the same land, we shall examine in the Third Book… — Joseph Albo, Sefer HaIkkarim
The Encyclopedia Talmudit, edited by Rabbi Shlomo Yosef Zevin, states that after the giving of the Torah, the Jewish people were no longer included in the category of the sons of Noah. Maimonides (Mishneh Torah, Hilkhot M’lakhim 9:1) indicates that the seven commandments are also part of the Torah, and the Babylonian Talmud (Sanhedrin 59a, see also Tosafot ad. loc.) states that Jews are obligated in all things that gentiles are obligated in, albeit with some differences in the details. According to the Encyclopedia Talmudit, most medieval Jewish authorities considered that all the seven commandments were given to Adam, although Maimonides (Mishneh Torah, Hilkhot M’lakhim 9:1) considered the dietary law to have been given to Noah. Menachem Mendel Schneerson, the Lubavitcher Rebbe, published and spoke about the Seven Laws of Noah many times. According to Schneerson’s view, based on a detailed reading of Maimonides’ Hilkhot M’lakhim, the Talmud, and the Hebrew Bible, the seven laws originally given to Noah were given yet again, through Moses at Sinai, and it’s exclusively through the giving of the Torah that the seven laws derive their current force. What has changed with the giving of the Torah is that now, it is the duty of the Jewish people to bring the rest of the world to fulfill the Seven Laws of Noah.
Punishment: In practice, Jewish law makes it very difficult to apply the death penalty. No record exists of a gentile having been put to death for violating the seven Noahide laws. Some of the categories of capital punishment recorded in the Talmud are recorded as having never been carried out. It is thought that the rabbis included discussion of them in anticipation of the coming Messianic Age. According Sanhedrin 56a, for Noahides convicted of a capital crime, the only sanctioned method of execution is decapitation, considered one of the lightest capital punishments. Other sources state that the execution is to be by stoning if he has intercourse with a Jewish betrothed woman, or by strangulation if the Jewish woman has completed the marriage ceremonies, but had not yet consummated the marriage. In Jewish law, the only form of blasphemy which is punishable by death is blaspheming the Ineffable Name (Leviticus 24:16). Some Talmudic rabbis held that only those offences for which a Jew would be executed, are forbidden to gentiles. The Talmudic rabbis discuss which offences and sub-offences are capital offences and which are merely forbidden. Maimonides states that anyone who does not accept the seven laws is to be executed, as God compelled the world to follow these laws. For the other prohibitions such as the grafting of trees and bestiality he holds that the sons of Noah are not to be executed. Maimonides adds a universalism lacking from earlier Jewish sources. The Talmud differs from Maimonides in that it considers the seven laws enforceable by Jewish authorities on non-Jews living within a Jewish nation. Nahmanides disagrees with Maimonides’ reasoning. He limits the obligation of enforcing the seven laws to non-Jewish authorities, thus taking the matter out of Jewish hands. The Tosafot seems to agree with Nahmanides reasoning. According to some opinions, punishment is the same whether the individual transgresses with knowledge of the law or is ignorant of the law. Some authorities debate whether non-Jewish societies may decide to modify the Noachide laws of evidence (for example, by requiring more witnesses before punishment, or by permitting circumstantial evidence) if they consider that to be more just. Whilst Jewish law requires two witnesses, Noachide law, as recorded by Rambam, Hilkhot Melakhim 9:14, can accept the testimony of a single eyewitness as sufficient for use of the death penalty. Whilst a confession of guilt is not admissible as evidence before a Jewish court, it is a matter of considerable dispute as to whether or not it constitutes sufficient grounds for conviction in Noachide courts.
A similar ruling appears in Shulhan Arukh: The deviants of Israel – those who worship idols or commit transgressions out of spite, even if (their transgressions) amount (only) to eating non-kosher meat or wearing garments of mixed wool and linen – as well as the heretics who deny (the divine origin of) the Torah or the Israelite prophecy were used to be killed in the Land of Israel. If one has power to kill them with a sword, in public, he should do so. – Yoreh Deah, 158:2.
Heresy in Judaism by Wikipedia https://en.wikipedia.org/wiki/Heresy_in_Judaism
Legal status of heretics The Talmud states that the punishment for some kinds of heretic is to be “lowered into a pit, but not raised out of it”, meaning that there are types of people who may legitimately be killed. The Jerusalem Talmud states that there were, at the time of the destruction of the Temple, no less than twenty-four kinds of minim. Maimonides wrote that “It is a mitzvah, however, to eradicate Jewish traitors, minnim, and apikorsim, and to cause them to descend to the pit of destruction, since they cause difficulty to the Jews and sway the people away from God.” The heretic was excluded from a portion in the world to come; he was consigned to Gehenna, to eternal punishment, but the Jewish courts of justice never attended to cases of heresy; they were left to the judgment of the community. The sentiment against the heretic was much stronger than that against the pagan. While the pagan brought his offerings to the Temple in Jerusalem and the priests accepted them, the sacrifices of the heretic were not accepted. The relatives of the heretic did not observe the laws of mourning after his death, but donned festive garments, and ate and drank and rejoiced. Torah scrolls, tefillin, and mezuzot written by a heretic were burned; and an animal slaughtered by a heretic was forbidden food. Books written by heretics did not render the hands impure; they might not be saved from fire on the Sabbath. A heretic’s testimony was not admitted in evidence in Jewish courts; and if an Israelite found an object belonging to a heretic, he was forbidden to return it to him.
Rejection of Jewish practice
A Jew who rejected Jewish practice could receive a status similar to one who rejected Jewish belief. The mumar le-hachis (one who transgresses out of spite for God), as opposed to the mumar le’teavon (one who transgresses due to his inability to resist the temptation of illicit pleasure), was placed by some of the Rabbis in the same category as the minim. Even if he habitually transgressed one law only (for example, if he defiantly violated one of the dietary laws out of spite for God), he was not allowed to perform any religious function, nor could he testify in a Jewish court because if one denies one divinely ordinated law it is akin to his denial of its godly origin. One who violated the Sabbath publicly or worshiped idols could not participate in the eruv chazerot, nor could he write a bill of divorce. One who would not permit himself to be circumcised could not perform the ceremony on another. While the court could not compel the mumar to divorce his wife, even though she demanded it, they would compel him to support her and her children and to pay her an allowance until he agreed to a divorce. At his death, those who are present need not tear their garments as they would by a fellow Jew. The mumar who repented and desired readmittance into the Jewish community was obliged to take a ritual immersion, the same as the convert. If he claimed to be a good Jew, although he was alleged to have worshiped idols in another town, he was believed when no benefit could have accrued to him from such a course.
Heresy in Orthodox Judaism
The definitions of heresy are sometimes different in certain Orthodox Jewish circles. Some Haredim consider many works of Maimonides to be heretical due to his sometimes liberal interpretations of the Torah. That being said, many Orthodox Jews also hold Maimonides’s Mishneh Torah in very high regard. Many Orthodox Jews consider the Conservative, Reconstructionist and Reform, and Open Orthodoxy movements to be heretical due to the concessions and changes they have made relative to so-called traditional Judaism, and even smaller numbers of Hasidic groups, such as the Satmar dynasty and the Neturei Karta, consider the State of Israel to be a heretical institution. Ultimately, the majority of Orthodox Jews consider individual secular Jews; those who drive on the Sabbath; eat non-kosher foods; and in other ways violate the ways of their ancestors to be tinok shenishbim who are not responsible for their actions (as opposed to heretics who purposefully and knowingly deny God).
The tinok shenishba in contemporary society
Tinok shenishba (Hebrew: תינוק שנשבה, literally, “captured infant” [among gentiles]) is a Talmudic term for a Jew who sins inadvertently due to having been raised without an appreciation for the Judaism practiced by their ancestors. As with most instances of Talmudic terminology, derived from a specific scenario but applied to wider metaphorical analogies, an individual does not literally have to have been “captured” as an infant to fall within the definition of a tinok shenishba. This approach is widely held across Orthodox Judaism: they are not accountable for their distance from complete Jewish observance. That it applies to the many unaffiliated and unobservant Jews in contemporary society is the basis for the various Orthodox Jewish outreach professionals and organizations; even non-professionals make efforts to draw them closer.
One expression of this is the halakhic norm stipulating that a woman cannot inherit her father’s property if she has brothers. In modern society, this unequal treatment of heirs is considered unfair – a sentiment shared also by the religious public, in which the custom has become to make ad hoc arrangements allowing women to inherit. Yet, the norms of Jewish law have not been changed accordingly; hence, women have to rely on ad hoc arrangements which ultimately depend on their fathers’ and brothers’ fairness, without legal guarantees of fair treatment insofar as Halakha and religious courts are concerned.
Laws of Succession Ordinances by the Religious Leadership of Sephardi and Moroccan Jewish Communities and Their Economic, Social and Gender Implications by Pinhas Haliwa (MDPI Open Access Study) https://www.mdpi.com/2077-1444/14/7/819
1. Introduction—Ordinances in Jewish Law
As is the case in many legislative systems, the Jewish Halacha can be divided into two main legislation types: supreme legislation and subordinate legislation (Alon 1988). While supreme legislation has a general legislative nature, subordinate legislation consists of detailed rules in specifically defined areas of the law. As in any other legal system, written law is perceived in Jewish Halacha as supreme legislation that is the statute of the Jewish law, while ordinances ruled by community rabbis are seen as subordinate pieces of legislation of Jewish law. As is the case in other legal systems in which the authority of subordinate legislators is exalted from supreme legislation, so does the source of the rabbinical authority—subordinate legislators—in Jewish Halacha come from the written law (Deuteronomy 17:11).
The regulation, being subordinate legislation, operates mainly on two levels:
a. It innovates in areas that did not previously exist, thereby rectifying distortions that grew over time. This is the origin of the Hebrew word ‘Takana’—something that fixes.
b. It amends existing practices and imposes certain obligations, with a tendency towards amendments serving either the public or the individual (Orbach 1996).
This legislative layer in Jewish law enables it to continue achieving the purposes of the law, even when the legislative continuum leads to an undesirable legal effect. Contrary to legislative procedures expressed in ‘Justice, Justice Thou Shalt Pursue’ (Deuteronomy 16:6), ‘A judge has only that which his eyes see’2 or ‘Let justice be done though the heavens fall’,3 all of which focus the judge on the facts of the case at hand, ordinances operate on a more innovative and creative level of Jewish law. The legal scope of the ordinance is derived from Halachic interpretation, the legislator’s intent, and the basic principles of the Torah. Legal norms are interpreted in spirit and not necessarily by the intricacies of their wording, meaning that substance would have preference over form in achieving the aims of the Torah.
The subordinate legislation of community rabbis was expressed in ordinances developed over generations, whose aims changed according to circumstances and timing. Often, the ordinance sets a mode of behavior in a specific Halachic area which is not directly deducted from the written norm, but rather from the laws of the Torah: ‘Do what is right and good’ (Deuteronomy 6:18). Often, the ordinance serves to soften the judicial result of the law while adjusting it to the case in question and to the intent of the supreme legislator.
The legal assumption at the basis of Jewish ordinances is precedence to the nature of the law, rather than to its form or to rules of evidence. The nature of the ordinance in Jewish law is the purpose for which it had been made and therefore sanctifies the means. There are many examples of subordinate legislation in Jewish law, the most prominent of which are ‘Mip’nei tikkun ha-olam’ or ‘Mip’nei darchei shalom’. These regulations aim to cope with the problem of justice in law, their goal being to form a bridge between justice and equity, changing reality, the adversities of the time, and the legal case in question. These legal arrangements preceded British equity laws by thousands of years, although the latter also aim to achieve equity in their own way in cases in which the judicial result of the law may lead to only relative justice, or even to distorting the legislator’s intent.
Jewish law includes many equitable elements emanating from the instrumental status of the law. Its objectives differ from other known legal systems in that it is the means for achieving the purposes of the Torah and the realization of the religious ideal. Jewish law has a religious raison d’être that delineates a suitable way of life required for the proper existence of Jewish society and also human society. This raison d’être is the foundation of the law, and therefore a legal procedure that would lead to an outcome that does not correspond with it would either be rejected or changed by an ordinance. In this way, a negativistic or formalistic approach to the law is prevented in advance, as it may undermine the realization of the religious ideal. Moreover, the law can be adjusted to pressing needs through its equitable components, which are implemented through ordinances.
Legislative authority can also be found in Jewish law among authorities other than Halachic sages, such as the king’s legislative activity in civil and criminal areas, which the rabbinical leadership perceived as existing for the benefit of the public in its entirety, as the saying goes—‘The fate of an entire generation is determined by its leader’.
Takanot HaKahal, or ‘Communal Ordinances’, are rules that originated from the needs of the public and its representatives. The earliest of such ordinances can be found in ancient Hilchot [laws] regarding the ‘Benei Ha’ir’ [townspeople] as well as internal legislation of various professional associations: “The city’s inhabitants mutually compel one another to construct a synagogue and to purchase scrolls of the Torah and the Prophets, the city’s inhabitants are permitted to stipulate the rates (price of wheat and wine) and the measurements and the wages of laborers, and they are entitled to enforce a public fee on public matters.” The main role of Takanot HaKahal was introduced into Jewish law from the tenth century onwards, with the rising power of the Jewish community in the diaspora (Amar 2020a, p. 222).
3. Inheritance Law in Jewish Law
The question of inheritance has been much deliberated in Jewish Halacha throughout history, as it involves not only financial and emotional aspects but also has national implications such as the passing of property from one tribe to another. In fact, the grounds for inheritance laws in the Torah had been to avoid just that—the passing of land from one tribe to another, as stated in the main source for inheritance laws in the Torah:
Say to the Israelites, ‘If a man dies and leaves no son, give his inheritance to his daughter. If he has no daughter, give his inheritance to his brothers. If he has no brothers, give his inheritance to his father’s brothers. If his father had no brothers, give his inheritance to the nearest relative in his clan, that he may possess it. This is to have the force of law for the Israelites, as the Lord commanded Moses.
(Numbers chapter 27, verses 8–11).
The general rule in estate law is that “No inheritance in Israel is to pass from one tribe to another, for every Israelite shall keep the tribal inheritance of their ancestors” (Numbers, chapter 36, verse 7). The order of inheritance, then, is determined by the proximity of the heir to the bequeather. The sages of the Mishna had established their rulings on the final verse of the inheritance laws: “…give his inheritance to the nearest relative in his clan, that he may possess it.” (Numbers chapter 27, verse 11). Accordingly, they ruled that the father’s family is to be considered ‘his relatives’ rather than his mother’s family. This leads to the conclusion that the woman does not inherit from her husband, but if she dies her husband does inherit from her. Despite this discrepancy, the Sages of the Talmud (3rd to 5th centuries) were aware of two possible extreme situations involving inheritance: if the woman does not inherit, she may starve, but on the other hand, if the terms of the Ketubah [Jewish marriage contract] are increased (for instance for the value of the land that had formed collateral for payment of the Ketubah in case of divorce), its financial value may exceed that of the husband’s property, meaning that his heirs would be disinherited after the Ketubah had been repaid. The solution proposed by the Sages of the Talmud to the first situation is that a man may bequeath land to his wife in his will, and this inheritance to his wife would replace payment of the Ketubah. This rule of the Halacha depended upon the wife explicitly or silently agreeing to this while the will was being drafted. The solution for the second situation is that as long as she is a widow, the woman would subsist from her husband’s estate.
According to the Talmudic Halacha as described by Rambam:
a. As a rule, women do not inherit.
b. Laws regulating a man inheriting his wife are considered ‘Derabbanan’ (Aramaic: ‘of our rabbis’), meaning that they originate from a Halacha ruled by sages, rather than directly from the law of the Torah.
c. If the wife dies, the husband inherits all her property, whether they be ‘Melog’ or ‘Tzon Barzel’ assets, and he has precedence over any other person.
d. This law is valid also in cases in which his wife was prohibited to him by the laws of the Torah, as the marriage had not been conducted according to the Halacha. For instance, a widow marrying a Cohen Gadol (high priest), a divorced woman marrying a layman Cohen (who is not a Cohen Gadol), and even if she is young (below marriageable age, which is 12 years), and even if the husband is deaf (and therefore according to Jewish law legally unfit to accumulate assets), he inherits from his wife.
However, restrictions were also defined for this Halacha:
a. The husband can only inherit assets that had belonged to his wife at the time of her death, and not future ones, such as an inheritance due to her from her father.
b. If they were divorced, the husband has no right to her assets.
c. The Halacha does not oppose prenuptial agreements, in which case the woman is entitled to stipulate in her Ketubah that if she has no sons when she dies, all her property would return to her father’s house, as this is a prenuptial condition, and prenuptial conditions are permitted.
The Halachic key to changes in this Halacha over generations, and to the ordinances made on this matter by community rabbis, consists of two central rules. The first—‘Hefker beth-din hefker’ (‘That which is declared by a court ownerless property is forthwith accounted ownerless property’): relying on the Torah, the Sages of the Talmud determined that the court may make ownerless the assets of a person if there is reason to do so. Rabbi Yitzhak found reference to this in the book of Ezra: ‘Anyone who failed to appear within three days would forfeit all his property, in accordance with the decision of the officials and elders, and would himself be expelled from the assembly of the exiles.’ (Ezra, chapter 10, verse 8). Rabbi Eliezer based this on the following from the book of Joshua: ‘These are the inheritances which Eleazar the priest, and Joshua the son of Nun, and the heads of the fathers of the tribes of the children of Israel, divided for an inheritance by lot in Shiloh before the Lord, at the entrance of the Tent of Meeting. So they finished dividing up the land.’ (Joshua, chapter 19, verse 51). Rabbi Elazar explained: ‘What do heads have to do with fathers? Only to tell you: Just as fathers bequeath to their sons anything they want to, so too, the heads, the leaders of the people, bequeath to the people anything they want to’ (Joshua, chapter 19, verse 51).
The second rule is ‘The custom of the State’—as it is permitted to stipulate upon the ruling of the Torah in inheritance laws, many Jewish laws in this area are based on local custom, and here, too, Rambam ruled: ‘When a man marries a woman without specifying any conditions, he should write her a ketubah, giving her a sum that is customarily given in that locale…In this and in all similar matters, local custom is a fundamental principle, and it is used as a basis for judgment, provided that the custom is commonly accepted in the locale’.
Community leaders, ruling on the basis of the Halacha throughout the generations following Rambam, found it difficult to keep this specific rule in force, especially if the wife died shortly after marriage and the husband inherited all assets that she had brought with her to the matrimony. In fact, this difficulty had already been raised among the sages of the Midrash in their interpretation of the following phrase from the Torah: ‘Your strength will be spent in vain’ (Leviticus 26, verse 20), and the sages explained: ‘If a man gives his daughter in matrimony and sends her off with much capital and his daughter died even before the seven days of merriment have passed, he finds himself burying his daughter while also losing his capital’.
4. Women’s Inheritance Ordinances in Various Ashkenazi Jewish Communities following the ‘Schum’ and Rabbeinu Tam’s Ordinances in Comparison with the Tulitula Ordinance
In the beginning of the 12th century and well into the 13th century, Ashkenazi rabbis of the communities of Speyer, Mains and Worms (towns on the bank of the Rhine in Germany), legislated ordinances known as ‘Schum’. These ordinances had been legislated in three separate conventions held by the rabbis of the region and accepted as binding. Some of them had even been included in the ‘Shulchan Aruch’ (a book of Jewish law compiled in the 16th century by Rabbi Joseph Karo, which became part of the Halachic corpus of the People of Israel). The ordinances included monetary laws, legal procedure, levirate marriage (Yibbum, Halizah) and more. The most widely known of these ordinances is the dowry ordinance legislated by Rabbi Yakov Ben Meir also known as Rabbeinu Tam (1100–1171). The background for this ordinance is a reality of which the rabbis of Ashkenaz became aware in various cases involving a woman dying within a year of her marriage, and her husband inheriting from her. Rabbeinu Tam established his ruling on the interpretation offered by Chazal (Sages of Blessed Memory) to the biblical law: “If a man married a woman and she died within 12 months without leaving a viable offspring… he should return the entire dowry, and what remains in his possession which he had not taken from the dowry, and what she had not used, he should not deceive by using it… and what remains would be returned within thirty days…”.
During that period, the vast majority of members of the communities were poor. Often involving much difficulty, fathers used to raise dowries to marry off their daughters, and in many cases took loans from family members to enable this. If the daughter died shortly after her marriage, the husband would inherit from his new wife based on the Halacha that is based on the Torah. This resulted in the father losing not only his daughter but also his money, which he now still had to return to his lenders, even though his daughter was no longer alive. Rabbeinu Tam’s ordinance was bold because it amended a decree of the Torah that states that a daughter does not inherit, only sons do, and that a wife does not inherit, only husbands do. The Torah’s explanation for this decree is that it prevents a family’s estate from passing from one tribe to another—which in turn risks undermining the tribal division of the Land of Israel as decreed in the Torah prior to entering the land of Canaan. The history of Halacha usually shows us that adjudicators changed or innovated Hilchot that required change because of changing circumstances, but very few of them dared change an explicit ‘d’var Torah’ (word of the Torah). The danger in such cases is that innovative and daring rulings would not gain legitimacy among community members, and the adjudicator would thereby lose his position as such.
Rabbeinu Tam later retracted this ordinance, although by then it had spread among some Ashkenazi communities. According to M. Amar, his decision to retract the ordinance aimed to avoid cancellation of d’var Torah by a court that has no such authority. In order to change an explicit d’var Torah, the Halacha requires two conditions: first, the revising court—which must be a high court (‘Bet Din Gadol’ or ‘Great Sanhedrin’) —must be of a high authority having an identical position to that of the Amoraim Jewish scholars Rabbi Ammi and Rabbi Assi. The second condition is that the majority opinion be accepted by the minority. If the minority did not agree or did not participate in the discussion, the majority may not coerce its opinion. According to the wording of the ordinance, the minority was only informed of its contents, but their consent had not been requested. This right to enforce the law on the minority is reserved, as aforesaid, to a high court that is authorized to coerce the public and forfeit its property, but a normal court must obtain the consent of the minority, and therefore Rabbeinu Tam concluded that the ruling of the Torah should remain in force (Amar 2020a, p. 218).
During the same period, in the 12th and 13th centuries, even more innovative and bold ordinances were introduced, which reduced the husband’s right to the inheritance even if children remained, and without limitation of time following the wife’s death.
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8. Discussion and Conclusions
Women’s inheritance is a heavy matter in Jewish Halacha, having vast financial, social and gendered implications. According to the Halacha derived from the written scriptures, the wife does not inherit from her husband. The reason behind this was to prevent the passing of land from one tribe to another, so as to maintain in place the division of the land into estates as had been defined in the Torah and upon entrance into the land of Israel in the times of Yehoshua bin Nun. Despite this clear-cut rule, the sages were well aware of the problematic nature of this rule as far back as the Talmudic era. Their apprehensions were based on cases in which the wife would be left with nothing if she did not inherit from her husband, particularly when the husband married more than one woman and his heirs were not her sons. This problem also exists in case of divorce, when the husband is penniless and unable to pay the wife’s Ketubah. The wife may remain in great poverty and without the ability to inherit from the husband when he dies. The danger in such cases is not only starvation, but also a social danger of undermining woman’s honor and increasing her dependence on others who may take advantage of her plight. The Talmudic sages proposed a number of solutions for protecting a woman’s honor. One solution required the husband to provide a guarantee for payment of the Ketubah in the form of a plot of land that was kept for that purpose. The second solution is that the woman would live off her husband’s estate for the rest of her life, as long as she did not remarry. However, despite these solutions, the problem of inheritance remained a complex one, especially in the harsh reality caused by exile in various areas of the world.
The present paper presented different approaches to women’s inheritance among Ashkenazi and Spanish community leaders in the 12th and 13th centuries, against the backdrop of a strict traditional Halacha and local influences. The Ashkenazi sages were confronted by inheritance issues in extreme cases such as in the case of a woman who died shortly after her marriage. In such a case, the Halachic tradition ruled that the husband inherited from his wife. The legal outcome created a twisted justice and an absurd situation in which the husband inherited from his wife shortly after they were married, while her parents not only lost their daughter but also the money that they had invested in her dowry.
This extreme situation led Rabbeinu Tam, the greatest of Ashkenazi adjudicators in the 12th century, to introduce an ordinance that in such a case the wife’s dowry would be granted to her relatives, but then he retracted his ruling a year later. The idea to present an ordinance that perceives the wife’s relatives as her heirs attests to the fortitude of Rabbeinu Tam as a leader and adjudicator, and yet his retraction points to the type of leadership that characterized him and most other Ashkenazi sages in exile—a traditionalist leadership that perceived its role as dedicated to passing on tradition from one generation to the next (Weber 1968). This is a style of leadership that worked to maintain tradition as had been done by all adjudicators in the past, finding it difficult to deviate and change laws and practices that had been established many generations before. The Ashkenazi sages, led by Rabbeinu Tam, saw their religious leadership role as a tool for maintaining Halachic tradition and perceived change or innovation as a danger to Halacha and tradition. This leadership opted to protect Halachic tradition even when complex realities dictated new needs and confronted situations that did not exist in the past.
The great difference between Ashkenazi and Sephardic leadership in terms of women’s inheritance and their status can be noted upon the arrival of Rabbi Asher ben Jehiel (‘the Rosh’) in Spain from Ashkenaz in 1304. When he was required to present his opinion on the women’s inheritance ordinance that had been previously issued in Spain, he deliberated at length with local Dayanim and refused to recognize the interpretation granting inheritance rights to the wife similar to her husband’s right to inherit. His was a traditional leadership style characteristic of Ashkenazi leaders. His years of religious and rabbinical formation were spent in Ashkenaz, under the patronage of the greatest adjudicator of the time, Maharam of Rothenburg. As a leader who studied with the traditional leaders of Ashkenaz, Rosh found it difficult to agree with interpretations presented to the local Dayan Rabbi Israel Ben Yosef to the Tulitula ordinance of the previous generation. Granting inheritance rights to women was in stark contrast to traditional Halacha. As noted, even when Rabbeinu Tam exceptionally adjudicated on the return of the dowry to the relatives of a woman who died shortly after her marriage, he had no intention of granting the wife land inheritance rights, but simply returning her dowry to her relatives to prevent injustice.
Rosh was unwilling to accept an interpretation of the Tulitula ordinance that granted women the same property inheritance rights as their husbands. It never occurred to him that the creators of the ordinance intended to rule in stark contrast to the Halacha. When the local Dayan Rabbi Israel Ben Yosef presented to him what had been written by one of the adjudicators of the previous generation, Rabbi Yaacov Even Shoshan, he explained that the ancient sage had been extremely old at the time and moreover was influenced by the laws of the kingdom.
As aforesaid, the leadership of Rosh pertains to Weber’s first leadership model, as does that of Rabbeinu Tam. This type of leadership is characterized by protecting the Halachic tradition and the avoidance of change, even when the local custom dictates otherwise. The authorities of Rosh were extensive, as the Rabbi of the city of Toledo as well as through his political authority that gave him free reign. Even when the laws of the kingdom and society in Spain gave women similar inheritance rights as their husbands, Rosh refused to recognize such equality or consider the social and legislative reality that existed in the kingdoms. His stark opposition was even more pronounced in view of the general Halachic rule by which the custom of the place shall prevail, and the fact that local custom may even overrule the Halacha itself when it comes to civil law.
Contrary to the leadership of the Ashkenazi sages, the Spanish sages and Dayanim deliberated these issues in the 12th century and later on. As early as the beginning of the 12th century, the sages of Spain introduced the Tulitula ordinance that granted wives nearly equal inheritance rights as their husbands. Community leaders in Spain and specifically the issuers of the ordinance enjoyed religious and social freedom. This leadership had been highly influential in the Jewish world, as the center of Judaism had transferred from Babylon in the period of the Geonim to Spain in its Golden Age. Spain produced venerable Jewish scholars, well-known adjudicators and rabbis, scientists, philosophers, poets, linguists, physicians and more. The sages of Spain saw themselves as leaders of the Jewish world and as ones who were able to present innovations without concern of opposition from other adjudicators. Social reality in Spain and Portugal also influenced Jewish community leaders in terms of their Halachic approaches to women and their social status. Women of Sephardi descent generally enjoyed a more advanced status compared to the women of Ashkenaz.
In this context, the Spanish sages can be characterized as charismatic and rational, based on Weber’s models. The first adjudicator who marked the turning point in relation to women’s inheritance in Spain had been Ramah—the greatest adjudicator of his generation in Spain. His counterparts at court were Rabbi Yitzhak Meir Even Migash, the son of Rabbi Yosef Even Migash, the teacher of the father of Rambam and whom Rambam had viewed as his teacher although he did not actually study with him. To understand his position and Halachic authority, it would suffice to note that Ramban (Rabbi Moshe Ben Nachman) was among those who turned to him with questions. Ramah’s revolutionary nature included his open recognition of the right to stipulate property relations between spouses on a d’var Torah. This Halachic rule was not foreign to the Halacha, but few used it. The second thing he did was grant Halachic recognition to treating women’s inheritance as did the local custom, and only if there was no local custom should the Halacha then be consulted. Women’s inheritance is a financial matter, and therefore rulings on this matter may deviate from the writings of the Torah. Moreover, if the local custom stipulates otherwise, it should be followed. In this regard, he followed in the footsteps of the greatest adjudicator of all times and the greatest of Spain’s sages—Rambam himself, who ruled for financial stipulation on a possible d’var Torah, provided that the custom is widespread in the region.
As aforesaid, Sephardi leadership shows a combination of charisma relying on the status of the sages of Spain throughout the Jewish world and a rationality relying on national arrangements and the wish to adjust the Halacha to changing circumstances. The Dayanim of Spain and its leaders were elected by their communities, and their authority was granted to them by the State. Their job was to ensure organizational and social order among their communities, and therefore this type of leadership can be characterized as rational (Oliver-Lumerman et al. 2018).
The inheritance rights of women emigrated with the expelled Jews from Spain and Portugal to Morocco and to the city of Fez. The expulsion had been traumatic for the Jews of Spain, creating a harsh reality which the sages of the expelled communities had never before experienced. Broken communities shattered into fragments, traveling from the Spanish countries and bringing with them difficult problems in many areas of life, and particularly in family law. The expulsion crisis forced the sages of expelled communities, who had gone into exile in Fez with some of their community members, to act quickly and authoritatively in reorganizing their communities. Although the Dayanim held onto Halachic authority from Spain and charismatic leadership is ingrained in religious communities, they were redefined as leaders of the communities and in a short time formed the community in Fez. This leadership gained the trust of their community members immediately upon their arrival at Fez, as they possessed the three essential components for leadership success (Maccoby 2009; Klein and House 1995):
a. The group to be led—the community members that exiled with them from Spain and Portugal—were in a traumatic state, confused and in need of leadership.
b. Supportive environment—the local king of Morocco took the expelled Jews under his auspices and gave them a sense of security. These auspices included authority granted to the Dayanim to rule on behalf of community members on many issues.
c. The leaders—the city’s Dayanim enjoyed wide religious authority, and their power as religious leaders was clear to all in a community composed solely of religious members. This community aspired to return to the values of Judaism as it had existed in Spain. In this crisis situation, leaders gave hope to their communities by providing a vision of values (Popper 2002; Weber 1968; Castelnovo et al. 2017) that would return them to those of the Jewish religion and tradition as had been the custom in Spain.
The Dayanim and leaders of the community in Fez used ordinances to reinstate community life to its previous state, but the harsh reality following the expulsion and the customs among the expelled led them to improve the original inheritance ordinances of Tulitula and Valladolid by benefiting women more than had been the intention in the original Tulitula ordinance. The inheritance ordinance issued in Fez spread quickly to many cities in Morocco and became the custom for 250 years. The ordinance changed the status of women, with its impact extending beyond financial matters of inheritance, also to stipulations in the Ketubah on the prohibition to marry a further wife—a condition that is included by the wife in the Ketubah. This custom, too, had spread in many cities in Morocco.
With the establishment of the State of Israel and transfer of the authority on marriage and divorce to the rabbinical court, the Tulitula ordinance was seen as binding in matters involving inheritance between couples who were descendants of Spain and Morocco. The women’s inheritance ordinance that had been issued in Morocco granted wives equal property rights as husbands, and in this the rabbis of Morocco preceded the ‘presumption of community property’ introduced by the Israeli Supreme Court following the legislation of the Women’s Equal Rights Law in 1951. The court’s innovation was that the wife’s inheritance rights would also apply to couples married before that year, pursuant to the ‘presumption of community property’ originating in an implied contract, and in fact had existed in the inheritance ordinances issued in Morocco as of the 14th century onwards.
Although the Israeli legislature chose not to include the provisions of the Tulitula ordinance and its more advanced version in Fez in the State’s Inheritance law, the reason was not that it did not accept it, but rather the assumption that certain communities had not. Extensive references are made to the ordinances in discussions regarding women’s inheritance rights. The approach that casts doubt on the legal status of the Ketubah or the position by which its values should be left to the civil law were not accepted. The legal explanations for this fact were based on the Women’s Equal Rights Law and the Inheritance Law, as well as on their counterparts in Jewish law—the Spain and Fez ordinances which granted women equal inheritance rights. This was made possible due to the interpretative ways of Israeli courts in their adoption of a practical approach to legal documents, the tendency of the court to seek harmonization of the law, and the fact that there is no clear ruling in religious law on this matter. This freedom of action enables Israeli law to absorb into it the religious law that is closest to its approach. In this regard, religious law ruled by the custom of Ashkenaz in inheritance laws had been rejected, while the improved Spanish version as introduced in Spain and amended in Fez (with far-reaching changes in inheritance laws) had been accepted.
The ordinances issued by the expelled Jews in Fez granted women equal inheritance rights over their husbands’ entire estate, without stipulations pertaining to the existence of sons or length of the marriage. Their influence on the Halacha can be noted to this day in Israel’s customary law as well as in further ordinances such as those granting equal inheritance rights to daughters and sons and ordinances obligating men to compensate women for un unrealized promise of marriage, while women in Morocco had been exempt from a parallel obligation.
Inheritance by Wikipedia https://en.wikipedia.org/wiki/Inheritance#Jewish_laws
Religious laws about inheritance
Jewish laws
The inheritance is patrimonial. The father —that is, the owner of the land— bequeaths only to his male descendants, so the Promised Land passes from one Jewish father to his sons. According to the Law of Moses, the firstborn son was entitled to receive twice as much of his father’s inheritance as the other sons (Deuteronomy 21:15–17).
If there were no living sons and no descendants of any previously living sons, daughters inherit. In Numbers 27, the five daughters of Zelophehad come to Moses and ask for their father’s inheritance, as they have no brothers. The order of inheritance is set out: a man’s sons inherit first, daughters if no sons, brothers if he has no children, and so on.
Later, in Numbers 36, some of the heads of the families of the tribe of Manasseh come to Moses and point out that, if a daughter inherits and then marries a man not from her paternal tribe, her land will pass from her birth-tribe’s inheritance into her marriage-tribe’s. So a further rule is laid down: if a daughter inherits land, she must marry someone within her father’s tribe. (The daughters of Zelophehad marry the sons’ of their father’s brothers. There is no indication that this was not their choice.)
The laws of Jewish inheritance are discussed in the Talmud, in the Mishneh Torah and by Saadiah ben Joseph among other sources. All these sources agree that the firstborn son is entitled to a double portion of his father’s estate. This means that, for example, if a father left five sons, the firstborn receives a third of the estate and each of the other four receives a sixth. If he left nine sons, the firstborn receives a fifth and each of the other eight receive a tenth. If the eldest surviving son is not the firstborn son, he is not entitled to the double portion.
Philo of Alexandria and Josephus also comment on the Jewish laws of inheritance, praising them above other law codes of their time. They also agreed that the firstborn son must receive a double portion of his father’s estate.
Inheritance and wealth among Jewish women in the ghettos of north-central Italy (17th-18th centuries) by Michaël Gasperoni
To speak of female or Jewish inheritance beyond dowries is not a simple task since scholars have generally attributed fundamental importance to the connection between dowry and inheritance in Jewish societies. In addressing the management of dowries and wealth in premodern times, past scholarly literature has stressed that Jewish women enjoyed substantial autonomy when compared to their Christian counterparts. In this respect, scholars have likewise pointed out how even within the same Jewish group differences existed between Ashkenazi and «Italian» or Sephardic women. But medievalists and modernists agree on the importance, if not the centrality, of dowries to both single families, and the Jewish group as a whole. So much so, that drawing from these general considerations and on the basis of the case of Turin in the 18th century, Luciano Allegra has recognized a specific and uniquely distinctive «model of Jewish devolution».
…For example, the fact that a Jewish man could marry his own cousin or niece, or a widower his deceased wife’s sister (in the case of a sororate), or that a widow could marry her deceased husband’s brother (in the case of a levirate), had certain implications that were unknown or unthinkable to Christians. These implications did not only regard the ideas they had of family and incest, but also of inheritance. Consequently, the «game» of patrimonial redistribution in Jewish communities should be considered and addressed on the basis of the range of marriage possibilities. This was broader than in Christian society but, at the same time, much more confined, in that the choice was often made within the family unit and the marriage market was sometimes very limited, particularly in small communities. In fact, it is likely that the specific Jewish matrimonial system that allowed marriages between close relatives was one of the keys to local Jewish continuity, especially in very confined settlements with few families.
Even within the small Jewish world, membership to different groups (Italian, Ashkenazi or Sephardic) could have substantial effects on marriage (and therefore on inheritance) practices: for example, while the Sephardi valued marriages between close relatives, this was not the case among the Ashkenazi.8 An individual’s place within a family, the actual or symbolic plays of power among kin, and consequently the mechanisms of inheritance, must also be considered in light of the special system of Jewish kinship. To give another example, the simple fact that a Jewish man could marry his niece or cousin meant that his own brother or sister, or his uncle and aunt, could become his parents-in-law. This could direct the inheritance towards certain lines of descent and could also determine this orientation based on affective or hierarchical criteria within families. Here we must also take into account the fact that Jewish populations lived in a context of juridical and institutional pluralism, which they knew how to turn to their own advantage. Membership – understood as a position or status defined by legal norms – could vary from one State to another or, within the same State, even from city to city. This either interfered with or overlapped rules deriving from Roman law, but also with rules within the same Jewish world. If, for example, we consider the counter-dowry (tosefet in Hebrew) in the Papal States, it amounted to 25% of the dowry in Rome (called the quarto dotale in the statutes of Rome), 17% in Senigallia, 12% in Urbino and Pesaro and 10% in Lugo. Likewise it amounted to 10% in Florence, while in the Sephardi communities it was equal to 50% of the dowry, a significant proportion when we consider that amounts given in dowry were often high and that the cash was immediately invested in family businesses. The transfer of assets through the dowry could therefore go in the opposite direction, that is, from the husband’s family to the wife, especially in cases of premature death. In marriages between close agnatic relatives, the dowry reinforced the group of unilineal descent, concentrating agnatic wealth through the women. Not only did this allow families to extend the lifetime of their businesses, whose capital was intertwined bilaterally, but it also allowed them (and especially the more affluent families of the ghetto) to avoid portioning out their houses, thereby keeping them undivided within the same kin group.
…The gender criterion was therefore essential in inheritance. This was already perceivable in Biblical transmission rules, which favoured male and agnatic primogeniture, to then be re-equilibrated by the Talmudic tradition, giving women the chance to inherit through the dowry. There are plenty of studies, a few of which comparative, on Jewish dowries for the 17th and 18th centuries. They allow for a more general reflection on the question of male and female wealth in the ghettos of various places in north-central Italy.
The Inheritance Rights of Women Under Jewish and Islamic Law Mary F. Radford
Mary F. Radford, The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. Int’l & Comp. L. Rev. 135 (2000),
As noted, the Biblical inheritance laws are vague, derived more from Biblical references and illustrations than from explicit directions. The Biblical passages focus often on the necessity of retaining the stability of the tribes of IsraelI by maintaining property within the tribe via the patrililleallille.I80 The text of Numbers 27:8-11, which is cited as the seminal Biblical source of the laws of succession, provides as follows: If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter. And if he have no daughter, then ye shall give his inheritance unto his brethren. And if he have no brethren, then ye shall give his inheritance unto his father’s brethren. And if his father have no brethren, then ye shall give his inheritance unto his kinsman that IS next to him of his family and he shall possess it. This passage contains a number of clear rules. First, at the father’s death, the sons, if any, received his estate.I82 If there were no sons, the property passed to his daughters. If there were no daughters, the property passed to the decedent’s brothers and, if none, to his uncles. The passage seems to exclude female heirs (other than daughters), the mother’s family, and even the male ancestors of the decedent.
The passage also does not explicitly include the issue of the decedent’s children or the issue of the decedent’s brethren. This Biblical passage is the subject of the eighth and ninth chapters of Baba Bathra, the tractate of the Mishnah that deals with the ownership of property. The Baba Bathra interprets the passage so as to include issue and to fill in certain other gaps in the order of succession. It provides in part as follows: the son precedes the daughter, and all the son’s offspring precede the daughter; the daughter precedes the brothers and the daughter’s offspring precede the brothers; brothers precede the father’s brothers and the brothers’ offspring precede the father’s brothers. This is the general rule: whosoever has precedence in inheritance, his offspring have also precedence. The father has precedence over all his offspring.
Richard H. Hiers, Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition, 10 J. L. & Religion 121 (1993), available at http://scholarship.law.ufl.edu/facultypub/737
It appears that in early times the norm was that sons inherited their fathers’ property upon the latter’s demise. The brief account in Joshua 17:3-6 concerning the daughters of Zelophehad clearly presumes that a father’s property would normally pass to his sons. Zelophehad had no sons; so, apparently after his death, his daughters contended that they should be given their father’s inheritance, and it was so ordered.
The law of intestate succession in Numbers 27:8 provides that if a man has no son, “his inheritance [shall] pass to his daughter.” Reference to “his daughter” might be read to mean that only one daughter, perhaps the older or oldest, would inherit. However, the accompanying narrative, Numbers 27:1-7, and also Joshua 17:3-6, make it clear that all five of the daughters of Zelophehad were to, and did inherit their father’s property. Read in this context, Numbers 27:8 therefore probably should be understood to refer to daughter or daughters, if more than one.
Rabbi Yaakov Goldstein:
Can a father disinherit his firstborn son or give him an equal portion in the inheritance? So in a previous halacha we discussed the double portion that the Torah mandated for a father or the estate to inherit to his firstborn son and the conditions in which that double portion is received and now we will discuss if it is permitted or is there any legal loophole in how to disinherit the son or equalizes portion to that of the other brothers. So we have a general rule in the laws of yerusha (inheritance) is brought in Choshen Mishpat chapter 281, halacha 1, Rambam Nechalos 6:3 based on the mishna in Bava Basra 130A that a person may not change or alter the laws of inheritance. He cannot inherit to an heir who according to halacha is not an heir, he cannot disinherit to a child or an individual who is a rightful heir. In other words what the Torah said, that’s what remains and as much as he may dislike it he can’t do anything about it legally. This halacha applies whether the father is sick or healthy, whether he makes the changes orally or puts it in writing in a will, in all cases it’s worthless, it makes no legal change and has no legal standing in halacha. So if his father said, ‘My son, my firstborn will not inherit a double portion,’ his words are meaningless, we ignore him and the firstborn gets a double portion. So is the clear ruling in all the sources we mentioned. Likewise if the father began allocating certain amount of assets to all of his children for the inheritance which is permitted, if by doing so he has infringed on the double portion of the firstborn meaning that the firstborn son will now not get a double portion because of this allocation, then once again his words are meaningless. And as the Rama concludes in 281:4 that even in areas where the custom is not to give the bachur a double portion, this custom is to be ignored as it contradicts the biblical law and there is no such custom according to halacha. Nonetheless despite these very strong and firm words of the ruling that invalidates any manoeuvring of the inheritance, there are legal loopholes of bypassing the above prohibition or invalidation and actually achieving that the firstborn will not get a double portion and in a way that is halachically binding, so how does one do so? So within the previous law that we mentioned that invalidates a swerve or change of inheritance laws there’s the following qualification: that inability only applies when one desires to change inheritance of his assets to an unrightful heir or to remove a rightful heir from the inheritance. If however the father already pre-allocates his assets as a present [gift] to his children to be in effect right before his death then it is halachically binding as in essence he has not changed any inheritance laws, he has simply distributed his assets before his passing and when you’re distributing your assets when you’re alive you can give to whomever you want, however much you want. And whatever is left, if anything, will then follow the biblical law of inheritance. This is called the melacha kinyan matana so if the father writes a shtar a will of Matana which is in essence a gift and not a will maintaining that the children will get this and this amount right before he passes away and it is halachically binding and he can in that way circumvent the need to give a double portion to his child, to the firstborn. There’s also another method of how to circumvent the giving of a double portion to the firstborn and that is called the Shtar Chatzi Zachar and this is the more popular and more commonly used method amongst estate planning attorneys who follow the guidelines of halacha. This method is called Shtar Chatzi Zachar which is an essence in IOU addendum to the will meaning the father writes his will whatever he wants to inherit to whomever he wants, however much he wants which obviously may not follow the biblical law. And how does he place that will which is ineffective halachically into effect? He writes an IOU saying the following: I hereby proclaim that if my children or any my heirs do not abide by the secular will that I wrote then I am indebting my estate to these and these individuals, to such and such a sum of money, that must be paid to them from the estate. A practical example, if for whatever reason the father wants to equalize inheritance of all of his children, even include daughters, which halachically do not inherit in face of sons, he’ll write the will the way he wants it and to make it halachically into effect write an IOU saying: that if my son to inherit do not give my daughter an equal share or whatever share I establish and if they give my firstborn son a double share then I am in hereby indebting my estate to pay my daughter or my other non-firstborn sons a much larger amount than the worth of the estate, hence leaving nothing for the inheritance at all. This method is written in the Rama Choshen Mishpat 281:7 regarding inheriting to daughters and it may also be used regarding circumventing the firstborn double portion. Despite all this and all the legal loopholes that are available to legalize the equalization of inheritance of the firstborn, the chachamim were unhappy with one who does so and finds legal loopholes to uproot the Torah and biblical right of the firstborn son. So writes the Michaber 282:1 and therefore one should maintain the status quo of giving the firstborn son a double portion. The very least and so is accustomed today to be done the estate planning attorney will arrange that some assets even according to the secular will in the IOU addendum will be given to the firstborn son as a double portion, it’s just that not all the assets will be distributed in that fashion due to the legal loophole of the IOU.
Rabbi Doniel Neustadt:
Children: According to civil law, all children — sons and daughters, adopted or natural — inherit equally. According to halachah, if there are natural sons, daughters and adopted sons do not inherit the estate at all.
ChatGPT 4:
Jewish inheritance laws, rooted in Biblical and Rabbinic texts, establish specific guidelines for how property is distributed among the deceased’s heirs. These laws are detailed mainly in the Torah, specifically in the Book of Numbers (27:1-11) and Deuteronomy (21:15-17). Understanding these laws involves considering both the Biblical directives and their Rabbinic interpretations and modifications over time.
Biblical Inheritance Laws
For Sons: The Biblical law of inheritance primarily favors sons, who are the principal heirs to their father’s estate. Deuteronomy 21:15-17 specifically stipulates that the firstborn son receives a double portion of the estate. This law applies regardless of the firstborn son’s maternal lineage, meaning even if he is the firstborn from a less favored wife, he still receives this double portion.
For Daughters: Initially, daughters did not inherit if there were sons. This rule is exemplified in the case where only daughters would inherit if there were no sons, as seen in the story of Zelophehad’s daughters in Numbers 27:1-11. In this instance, Moses brought their case before God when they argued that they should inherit their father’s estate, as he had no sons. God affirmed their right to inherit, establishing the principle that daughters could inherit in the absence of sons. This was a significant departure from the prevailing norms of the time.
Rabbinic Modifications
Over time, Rabbinic Judaism, which developed after the destruction of the Second Temple in 70 CE, began to interpret and sometimes modify these Biblical laws to suit new realities and ethical considerations.
Equal Treatment of Sons: The Rabbinic tradition maintains the practice of the firstborn son receiving a double portion; however, it also imposes moral obligations on how the estate is managed, emphasizing fairness and the well-being of all family members.
Daughters’ Rights Strengthened: In Rabbinic law, further protections and considerations were offered to daughters. For example, while daughters do not inherit if there are sons, they are entitled to be supported and provided for by the estate until they marry. This was part of the broader Rabbinic effort to ensure that daughters were not left destitute.
Sons as Primary Heirs: Rabbinic law continued to prioritize sons as heirs, maintaining that daughters would inherit only in the absence of sons. This position reflects a continuity with Biblical principles but adapted to more contemporary situations where moral and ethical considerations could require different applications and interpretations.
Impact and Contemporary Applications
The impact of these laws is significant in terms of how they shape family dynamics and societal structures. The preferential treatment of sons in inheritance laws has historically reinforced a patriarchal structure within Jewish communities. Meanwhile, the protections afforded to daughters, though progressive at the time, still reflect a secondary status in inheritance.
In modern contexts, these laws are interpreted variously across different Jewish communities, ranging from Orthodox to Reform, with some communities choosing to apply these laws more symbolically or adapting them to reflect contemporary values of gender equality.
Thus, Jewish inheritance laws offer a fascinating example of how religious laws evolve and are adapted over time, balancing tradition with changing moral and ethical standards.
In the ancient world, including within the context of Jewish society, the practice of giving a double portion of inheritance to the firstborn son and the general priority of male inheritance were rooted in social, economic, and cultural frameworks that saw these practices as beneficial and necessary for maintaining stability and continuity within the family and the broader community.
Benefits of the Double Portion for the Firstborn
1. Leadership and Responsibility: The firstborn son, by virtue of receiving a double portion, was often expected to take on the role of the head of the family upon the father’s death. This extra share was not just a privilege but came with the responsibility of caring for younger siblings, the widow, or other dependent family members. It was a practical means to ensure that there was a designated leader who had the resources necessary to sustain the family unit.
2. Continuity of Family Business or Farm: In agrarian and pastoral societies, maintaining the family land or business intact was crucial. By providing the firstborn with a double portion, families could ensure that their primary economic foundation—often land—remained under consolidated control, thus safeguarding the family’s economic stability and preventing the fragmentation of resources.
3. Social Order and Stability: From a societal viewpoint, these inheritance laws helped maintain a structured social order. Clear inheritance rules minimized disputes over property after the death of a family member, thereby contributing to broader social stability.
Benefits of Inheriting Mostly to Men
1. Patriarchal Societal Structure: Ancient societies were predominantly patriarchal, with men having legal and social authority. Inheritance laws that favored men were aligned with these societal structures, where men were typically responsible for public affairs and economic transactions.
2. Marriage Arrangements: Women’s economic security was often arranged through dowries at the time of marriage rather than through direct inheritance of family property. This system was designed to integrate women into their husband’s family unit, whereas men were expected to continue the lineage and legacy of their birth family.
3. Military and Protection Roles: Men, particularly in tribal societies, were often responsible for the protection of the community and family. Ownership of land and other substantial resources supported their role as protectors and providers, equipping them with the means to fulfill these duties.
Contemporary Reflections
While these practices had certain practical and social benefits in the ancient context, they also reflected and reinforced gender inequalities. The prioritization of male heirs often marginalized women, limiting their economic independence and reinforcing their secondary status in society.
In modern times, many of these rationales no longer hold the same weight due to changes in social structures, economic independence, gender roles, and legal frameworks. Contemporary legal systems in many parts of the world, including among many Jewish communities, strive for more equitable distribution of inheritance to reflect modern values of fairness and gender equality. Nonetheless, the historical context of these practices provides important insights into how ancient societies operated and the values they held.
Distributing inheritance equally among children is a practice that has become more common in modern times, reflecting shifts in societal values towards greater equality and fairness. This approach to inheritance can have several significant benefits for both the individual family members and the family as a whole. Here are some of the key advantages:
Reduces Resentment and Family Conflict
One of the most immediate benefits of equal distribution is the reduction in potential resentment and conflict among siblings. When all children feel they have been treated fairly and equitably, there’s a lesser likelihood of disputes and long-standing grievances that can fracture family relationships. This harmonious approach can help maintain strong family bonds and unity after the parents’ passing.
Promotes Gender Equality
Equal inheritance is a powerful tool for promoting gender equality within the family. It sends a clear message that daughters and sons are valued equally, both in the eyes of their parents and in terms of their legal and moral rights. This can empower all children, regardless of gender, to pursue their aspirations without feeling marginalized or less valued by their family.
Encourages Individual Responsibility
When children know that they will receive an equal share of the inheritance, it can motivate each child to pursue their own path and responsibilities, knowing they have the support to back their personal and professional endeavors. This sense of security may encourage them to take calculated risks, such as starting a business or investing in further education.
Facilitates Social Mobility
Equal inheritance can provide all children with the resources or capital necessary to improve their personal economic situation. By having access to funds, property, or other assets, children may have more opportunities to invest in their futures, whether that means buying a home, pursuing higher education, or starting a new business venture.
Simplifies Legal Processes
An equal distribution plan can also simplify the legal processes associated with executing a will or estate plan. When the terms of inheritance are clear and equal, it reduces the potential for legal challenges and the complexities that can arise when trying to interpret more subjective or unequal distribution plans.
Supports Modern Family Structures
Modern families often include stepchildren, adopted children, and children from multiple partnerships. Equal inheritance can affirm the value and importance of each child in these blended families, promoting inclusivity and fairness, and recognizing all children as deserving equal consideration, irrespective of their biological or legal relationships.
Enhances Psychological Well-being
Children who feel that they have been treated equally by their parents often experience higher levels of psychological well-being. This perception of fairness can contribute to stronger self-esteem and better mental health, as they feel valued and respected within their most important social group—their family.
In conclusion, distributing inheritance equally among children can help foster a sense of fairness, reduce potential conflicts, and promote more positive relationships within a family. It aligns with contemporary values of equality and reflects a progressive approach to family dynamics and societal norms.
The verse from Job 42:15 in the New International Version of the Bible provides an interesting example that somewhat diverges from the typical practices outlined in traditional Jewish inheritance laws. Here’s the verse for context:
Job 42:15: “Nowhere in all the land were there found women as beautiful as Job’s daughters, and their father granted them an inheritance along with their brothers.”
Context in Jewish Inheritance Laws
As previously discussed, traditional Jewish inheritance laws primarily dictated that sons, especially the firstborn, were the main inheritors of their father’s estate. Daughters typically received an inheritance only in the absence of sons, as exemplified by the case of Zelophehad’s daughters in the Book of Numbers. This ensured that the family wealth stayed within the male line of the family, which was crucial for maintaining economic stability and continuity.
Analysis of Job 42:15
The Book of Job, while part of the Hebrew Bible, is often interpreted as a text that deals more with theological and philosophical questions about human suffering, justice, and divine sovereignty rather than as a legal text. Job granting his daughters an inheritance alongside their brothers is significant for several reasons:
1. Equitable Treatment: This act by Job can be seen as a demonstration of fairness and love for his children, regardless of their gender. It might suggest that he viewed his sons and daughters as deserving equal respect and rights within his family. This is notable, especially considering that such practices were not typical in ancient societies.
2. Symbolic Restoration and Blessing: The context of this verse is also important—it comes after Job has been restored to health and prosperity after a long period of suffering and loss. His act of giving his daughters an inheritance alongside their brothers might symbolize a restoration and blessing not just to him but to his entire family, including his daughters.
3. Literary and Theological Implications: From a literary and theological perspective, this verse may serve to underscore the completeness of Job’s restoration and the extent of God’s blessings upon him. By including his daughters in the distribution of his estate, Job’s actions go beyond the conventional expectations of his time and culture, highlighting the thorough and inclusive nature of his divine restitution.
Conclusion
In summary, Job 42:15 fits within the broader biblical narrative as an example of an exceptional case rather than a standard legal practice in Jewish inheritance laws. It illustrates a departure from the norm, emphasizing themes of fairness, restoration, and divine blessing that transcend typical legal conventions of the time. This act by Job might not reflect standard legal practice, but it does highlight a moral and ethical ideal, promoting a sense of equality and justice within the family.
Africa Bible Commentary p 603
The naming and special attention given to Job’s daughters is quite unusual. Although the writer may not have intended to communicate anything by the names of the three daughters (42:14), what follows appears to take the restoration of Job to new levels. Nowhere in all the land were there found women as beautiful as Job’s daughters, and their father granted them an inheritance along with their brothers (42:15). Nothing similar is said about the first set of daughters, none of whose names are known. The naming, their unsurpassed beauty and the inheritance along with their brothers mark them off as remarkable women. In granting them an inheritance, Job was doing something unheard of at that time and in his culture. ‘Due, in the absence of living male heirs, daughters were allowed to inherit (Num 27:1-11). But daughters inheriting along with their brothers was quite unique. Simundson comments: ‘In our day, it is tempting to look at a passage like this and see it as an early glimmer of hope for equal rights for women — certainly not the common practice, but a reminder that sex roles are not as stereotyped in the Bible as we might think’ McKenna goes further: ‘Why then does Job break with tradition … his daughters neither expect an inheritance nor, according to tradition, deserve one. Grace has to be the answer. As God has blessed Job with double wealth that he doesn’t expect or deserve, he in gratitude shares his fortune with all whom he loves’ (CC).
Numbers (Jacob Milgrom) p 484:
Strikingly, the Karaites permitted daughters to inherit equally with sons. They reached this conclusion on the basis of the assumption—clearly, a correct one—that the law of succession deriving from the case of Zelophehad’s daughters applied only to the ancestral property in the promised land but not to any other property, either real or movable)* It is difficult to determine why the rabbis did not employ the same scriptural exegesis, given their indisputable anguish concerning the disinherited daughter. They were, moreover, well aware that “the wise men of the nations have declared that a son and daughter are equal (in regard to inheritance)” (TJ BB 16a) and that this practice was actually followed in their own country before the Maccabean uprising when Hellenistic law was in force (Meg. Ta’an. 33). That they resisted both the practice of the outside world and the moral urgings of conscience can only mean that they were convinced that inheritance by agnates was an immutable postulate of the Torah.’
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Maimonides ruled similarly: “Women are unacceptable as witnesses according to the Torah, as it says, ‘On the testimony of two witnesses’ (Deuteronomy 17:6) – in masculine, not in feminine.”
Women in Judaism by Wikipedia https://en.wikipedia.org/wiki/Women_in_Judaism
Women as witnesses
Traditionally, women are not generally permitted to serve as witnesses in an Orthodox Beit Din (rabbinical court), although they have recently been permitted to serve as toanot (advocates) in those courts. Women are also permitted to provide evidence under oath, and their statements are considered to be fully credible in ritual matters. The exclusion of women as witnesses has exceptions which have required exploration under rabbinic law, as the role of women in society and the obligations of religious groups under external civil law have been subject to increasing recent scrutiny.
The recent case of Rabbi Mordecai Tendler, the first rabbi to be expelled from the Rabbinical Council of America following allegations of sexual harassment, illustrated the importance of clarification of Orthodox halakha in this area. Rabbi Tendler claimed that the tradition of exclusion of women’s testimony should compel the RCA to disregard the allegations. He argued that since the testimony of a woman could not be admitted in Rabbinical court, there were no valid witnesses against him, and hence, the case for his expulsion had to be thrown out for lack of evidence. In a ruling of importance for Orthodox women’s capacity for legal self-protection under Jewish law, Haredi Rabbi Benzion Wosner, writing on behalf of the Shevet Levi Beit Din (Rabbinical court) of Monsey, New York, identified sexual harassment cases as coming under a class of exceptions to the traditional exclusion, under which “even children or women” have not only a right, but an obligation, to testify, and can be relied upon by a rabbinical court as valid witnesses:
The Ramah in Choshen Mishpat (Siman 35, 14) rules that in a case where only women congregate, or in a case where only women could possibly testify (in this case, the alleged harassment occurred behind closed doors), they can, and should, certainly testify. (Terumas Hadeshen Siman 353 and Agudah Perek 10, Yochasin)
This is also the ruling of the Maharik, Radvaz, and the Mahar”i of Minz. Even those Poskim that would normally not rely on women witnesses, they would certainly agree that in our case … where there is ample evidence that this Rabbi violated Torah precepts, then even children or women can certainly be kosher as witnesses, as the Chasam Sofer pointed out in his sefer (monograph) (Orach Chaim T’shuvah 11)
The Rabbinical Council of America, while initially relying on its own investigation, chose to rely on the Halakhic ruling of the Haredi Rabbinical body as authoritative in the situation
Testimony in Jewish law by Wikipedia https://en.wikipedia.org/wiki/Testimony_in_Jewish_law
Testimony in Jewish law consists of testimony by eligible witnesses to a Beit Din (court) authorized to render decisions according to halakhah (Jewish law). Eligible witnesses must in almost all cases be free men who are not deaf, mentally or morally unsuitable, or too young for Bar Mitzvah; in particular, women are in most cases not eligible. The principles of testimony in halakhah have been applied to Mishpat Ivri (Hebrew jurisprudence).
Criteria for valid testimony
A valid witness to an event in halakhah must have seen the event with his eyes or heard it with his ears. Generally hearsay from another person is inadmissible, except in rare cases such as confirming that a missing husband has died (see Agunah). A Beit Din may accept testimony only from a witness who speaks directly to the judges, not from a written deposition. A witness may not recant his testimony.
Two witnesses
The Torah says (Deuteronomy 19:15): “One witness shall not arise against a man for any sin or guilt that he may commit; according to two witnesses or according to three witnesses a matter shall stand.” Thus, two witnesses provide conclusive proof of reality, but one witness does not. (However, the testimony of one witness can require a defendant to swear to his innocence or else pay the debt alleged against him.)
In monetary law two witnesses may absolutely require someone to pay a debt or absolve them from that obligation. In capital cases two witnesses may testify that a person has committed a crime punishable by the death penalty in Jewish law, and the Sanhedrin may execute the person on their word; however capital punishment is no longer applied.
The testimony of two witnesses is equal in its force to the testimony of three or more witnesses. Thus if two witnesses say an event occurred, and one hundred witnesses say it did not occur, the groups of witnesses are considered to contradict one another, but no more weight is given to the larger group; other evidence is needed to reach a judgment. If one of the witnesses is disqualified, his entire group is disqualified, even if the other witnesses are themselves qualified and could present a valid testimony without his assistance. (Source: Makkot chapter 1.)
In monetary law examination of witnesses is less stringent than in capital law, and testimony is accepted even despite minor contradictions that may exist in the testimony of two separate witnesses. (If one witness says a defendant owes 100, and the other says the sum is 200, the judges accept that both witnesses agree to the existence of a 100 lien, even though only one witness testifies to each individual lien. Similarly, if one witness says a defendant owes 100 based on a loan granted on Monday, and another witness says the debt is 100 based on a loan granted on Thursday, the defendant is considered to owe 100 by the combined testimony of the two witnesses even though they disagree as to the source of the obligation.) In contrast, in capital cases the judges threaten the witnesses by warning of the consequences of perjury (source: Mishnah Sanhedrin chapter 4), and they ask many questions and will invalidate testimony even for minor inconsistencies, even if the contradiction seems substantively irrelevant to the case at hand. The purpose of these stringencies is to prevent the killing of an innocent defendant.
Ceremonial versus evidentiary witnesses
In some instances two witnesses are required to perform a certain action, such as kiddushin (betrothal). If there are not two valid witnesses, the kiddushin does not take effect. These are ceremonial witnesses (Hebrew: eidei kiyum). Likewise, a shtar requires two witnesses, and in particular a get requires two witnesses to sign the document or see the delivery.
Witnesses in monetary cases are evidentiary: even if they do not witness a robbery, the robber is still obligated to compensate the owner for damages. Evidentiary witnesses are known in Hebrew as eidei beirur.
Invalidation of a pair of witnesses
A pair of witnesses may be invalidated if:
• Two other witnesses directly contradict their testimony. (In Hebrew, this is hakchasha, הכחשה.)
• Two other witnesses testify that at the moment the original witnesses claim they saw the incident, those witnesses were with them and could not have witnessed an event elsewhere. The second pair of witnesses knows nothing about the substance of the matter, but rather undermines the standing of the first pair of witnesses to claim they saw the incident. This undermining is called hazama, הזמה. Witnesses found to have lied under this provision are punished with whatever punishment would have befallen their intended victim. Thus, if they plotted to make a victim suffer capital punishment, the witnesses themselves must suffer capital punishment.
• Blood relatives are not allowed to be witnesses or judges in the same case (Sanhedrin chapter 3 lists which blood relatives are included). This is a fundamental exclusion, without regard to the specific nature of a possible conflict of interest in a particular case.
• Any witness who is established by other witnesses as a liar or robber or other miscreant is invalid. There is a general rule that if one person among a group of witnesses is disqualified, they are all disqualified, even if the original disqualification does not question the truthfulness of the disqualified witness, and even if there remain two other witnesses (Makkot chapter 1).
Powers of a lone witness
A lone witness cannot give testimony in capital cases. His testimony is useless unless there is a second witness to join him. In monetary cases a lone witness has limited powers. He can require a defendant to take an oath stating that the defendant is in the right, and if the defendant refuses to take the oath he must pay instead[clarification needed]. (In most cases, it is at the defendant’s discretion whether to swear but, in rare instances, the court may require the defendant to pay without the option of swearing [Shevu’ot chapter 7].)
In the case of a classical Agunah, a woman whose husband has disappeared and it is not known whether the husband is still alive, a single witness (even a woman or slave, normally invalid as witnesses) may testify that the husband has died, and on that basis the woman may remarry.
Testimony of a deaf, mentally incompetent or young person (before Bar Mitzvah) is excluded. Testimony from women is also generally excluded.[1] Anyone who is caught guilty of a sin which demonstrates greed, i.e. who sins in order to acquire money, is also disqualified.
Tractate Sanhedrin lists other categories of witnesses who are disqualified.
The Talmud, in the third chapter of Sanhedrin, delineates the rules governing who may provide written or oral testimony. A valid witness in a Jewish Beit Din must be an adult (see Bar Mitzvah) free man, not a woman or a slave, and not be related to any of the other witnesses or judges. The witness must be an honest person who can be trusted not to lie.
The Mishnah (Sanhedrin 24b) states: “The following people are disqualified: a gambler with dice, a lender who collects interest, a chaser of doves, and a merchant who profits from produce of Shemittah.” The Talmud explains that each of these four activities falls within an expanded definition of theft because people who violate Torah laws or social norms in pursuit of money cannot be trusted to tell the truth. “Chasers of doves” are those training them for races (or to lure other people’s birds away), as well as those who bet on them; it includes pigeons, and by extension the use and luring of any animals in such fashion, domesticated or otherwise.
Additionally, “one who eats in the street is comparable to a dog, and there are those who say that he is disqualified from serving as a witness.” (Talmud, Kiddushin 40b)
Reinstatement
However, anyone who has engaged in these forbidden activities may be reinstated upon undertaking a complete reversal to demonstrate especially honest conduct by renouncing a permitted activity.
• Gamblers with dice…when are they reinstated? When they destroy their dice and completely reverse themselves, so that they do not play even for free.
• Lenders who collect interest…when are they reinstated? When they tear up their promissory notes and completely reverse themselves, so that they do not collect interest even from a non-Jewish lender.
• Chasers of doves…when are they reinstated? When they destroy their tools for chasing and completely reverse themselves, so that they do not chase doves even in the desert [where there is nobody from whom to steal].
• Merchants who profit from produce of Shemittah…when are they reinstated? When the next Shemittah year arrives [seven years later] and they withdraw.
o Rabbi Nehemiah said: They required not only a reversal of words, but also a reversal of money. How so? A person proclaims, “I, John Doe, profited 200 Zuz from selling fruits of Shemittah, and I am now giving this money to charity.” (Sanhedrin 25b)
