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Does Jewish Law Permit Taking a Census? Responsa in a Moment: Volume 3, Issue No. 4, December 2008

Israeli Society
Jewish Law
Modern Issues in Jewish Law
Responsa by David Golinkin

Orah Hayyim 55 in Pri Hadash and Kaf Hahayyim

Question: Israel’s sixth population census – the last one took place in 1995 – is taking place between December 28, 2008 and February 28, 2009. 350,000 households with a total of approximately 1,200,000 people will be visited by census-takers who will fill out a questionnaire for each household. Given the Jewish aversion to counting heads, is such a census permissible according to Jewish law?

Responsum: Since this is a complicated topic about which there is a vast literature (see the Bibliography below), we shall answer briefly, with references to previous articles and responsa.

 I) The Biblical Period

 As already pointed out by the midrash (Midrash Tanhuma, Ki Tissa, paragraph 9 and parallels in Torah Shleimah, Vol. 21, p. 5, paragraph 52) they are many censuses mentioned in the bible; most are related to the counting of soldiers.

1. In most cases (Genesis 46:8-27; Exodus 12:37; Numbers Chapter 1, 3:14-51, 4:21-49, Chapter 26; Deut. 10:22; Joshua 8:10; Judges 20:14 ff.; I Samuel 11:8, 15:4; II Samuel 18:1; I Kings 20:15; II Kings 3:6; Ezra 2:64), the Bible simply relates that a census was conducted and/or reports the number of men, people or soldiers. It is not considered a sin and there are no restrictions.

2. In Exodus 30:11-16, God says to Moses:

The Lord spoke to Moses, saying: When you take a census of the Israelite people according to their enrollment, each shall pay the Lord a ransom for himself on being enrolled, that no plague may come upon them through their being enrolled. This is what everyone who is entered in the records shall pay: a half shekel by the sanctuary weight… a half shekel as an offering to the Lord. Everyone who is entered in the records, from the age of twenty years up, shall give the Lord’s offering: the rich shall not pay more and the poor shall not pay less than half a shekel when giving the Lord’s offering as expiation for your persons. You shall take the expiation money from the Israelites and assign it to the service of the Tent of Meeting; it shall serve the Israelites as a reminder before the Lord, as expiation for your persons.

This passage is fraught with difficulties: why is there a kofer or ransom? Why is there a danger of negef or plague? Why is it called kesef hakippurim, expiation money? Why was this census taken in order to raise money for the Tabernacle as opposed to a military census?

Prof. Moshe Weinfeld has explained many of these difficulties by comparing this census to the tebibtum census in Mari and to thelustrum census in Ancient Rome which included counting all soldiers by donating a coin, purification via a sacrifice, and giving the money for a holy purpose such as sacrifices or the Tabernacle.

3. In the third case (II Samuel 24 and I Chronicles 21) Kind David undertakes a census of the entire Jewish people, which his army commander Yoav ben Tzruiah opposes. According to II Samuel, God incited David to do it; according to I Chronicles, Satan incited him to do it. In any case, it is viewed as a serious sin and as a result 70,000 Israelites die of plague.

Many, many explanations have been given as to why Kind David and the Jewish people were punished (see Ben Dov, Bleich, Eisenstein, Ginzberg, Kasher and Lerner for summaries of different opinions). Here is a brief sampling:

a. The Talmud (Berakhot 62b) says that it is because David forgot to count the people using the half shekel as explained in Exodus 30. A similar explanation is given by Rashi and Ramban to Exodus 30.

b. Rabbeinu Bahya (Saragosa, ca. 1291) says in his commentary to Exodus 30:12 that when individuals are counted, each person is judged on his own merits and loses the protection of the many.

c. Nahmanides (Spain and Israel, 1194-1270) to Exodus 30:12 and other commentators say that King David thought that you need to count people via a half shekel only because of the sin of the Golden Calf. He did not know that this was a prohibition for future generations as well.

d. Rabbi Moshe ibn Haviv (Salonika 1654-Jerusalem 1696; quoted by Eisenstein, p. 228) says that King David thought that the halfshekel given in Exodus 30 will protect Jews from the danger of all future censuses.

e. Nahmanides (to Numbers 1:3) and Rabbi David Kimhi  (Narbonne, ca. 1160-1235, to I Samuel 15:4) say that King David was punished because he counted the people shelo letzorekh, for no reason. They based themselves on the midrash mentioned above (Tanhuma Ki Tissa, paragraph 9 = Bemidbar Rabbah 2:17 and other parallels).

f. However, the simple reason was already stated by Rashi to Exodus 30: “the evil eye controls something which is counted”. This was repeated by Rabbeinu Bahya cited above and by Rabbi Yitzhak Abarbanel in his commentary to II Samuel 24. It is also evident from Talmudic sources such as Ta’anit 8b = Bava Metzia42a, that God only sends His blessing to something hidden, not to something counted or weighed. It is also evident from three sources (Tosefta Pesahim 4:15, ed. Lieberman, p. 166; Pesahim64b; and cf. Josephus, Wars of the Jews, VI, 9, 3, ed. Simhoni, p. 370). We are told there that when King Agripa wanted to count the Jewish people, he counted the kidneys of the Paschal lambs and multiplied by more than ten, since at least ten people ate every sacrifice.

Indeed, Frazer, Bett, and Gaster have pointed out that most ancient and modern people even up to the twentieth century were afraid to count people or cattle or fruits lest it attract the evil eye and cause death. Even in the 19th century, Africans, Arabs, Canadian Indians, Russians and Englishmen were opposed to censuses and did everything they could to avoid them.

In other words, Berakhot 62b is correct. Counting people is dangerous and King David was punished because he did not take the precaution of counting objects instead of people as explained in Exodus 30.

II) Halakhic Sources and Customs

 1. In Yoma 22b, Rabbi Yitzhak said:

It is forbidden to count the people of Israel, even for amitzvah…”And Saul heard the people and he counted them by using lambs” (batla’im; see I Samuel 15:4). Rabbi Elazar said: whoever counts Israel transgresses a negative commandment, as it is written: “The number of the people of Israel shall be like that of the sands of the sea, which cannot be measured”. Rav Nahman bar Yitzhak said: he transgresses two negative commandments, as it is written “which cannot be measured or counted”.

2.The Rambam (Hilkhot Temidin Umasafin 4:4) codified part of this passage: And why are the Kohanim in the Temple “counted by their raised fingers and not by counting the people themselves? Because it is forbidden to count Jews except by counting something else, as it is written ‘and he counted them by using lambs’ “.

3. The fear of counting Jews influenced medieval rabbis as well. Rav Hai Gaon (d. 1038) wrote a lengthy responsum regardingYoma 22b (Teshuvot Hage’onim, ed. Harkavy, Berlin, 1887, No. 330, p. 157 = Otzar Hage’onim to Yoma 22b-23a, No. 18, p. 9 and cf. Sefer Ha’itim, ed. Schor, Cracow, 1903, paragraph 174, p. 253). He relates there as follows: “as people are used to now when the congregation gathers and they need to see if they have ten” for the prayers which require a minyan (see Mishnah Megillah 4:3) “or not, they do not count one and two but they use a verse such as“Va’ani b’rov hasdekha avo veitekha, eshtahaveh el heikhal kodshekha b’yiratekha” (Psalms 5:8) which has ten words to count heads for the minyan. After quoting Rav Hai Gaon, Rabbi Yehudah Albartziloni adds (Barcelona, 11th-12th centuries, Sefer Ha’itim, pp. 253-254 and cf. Sefer Ha’oreh, ed. Buber, p. 43): “And we have seen that that this custom is an excellent custom” and he recommends that when a group gathers in the synagogue and they are not sure that they have a minyan, “the first says ‘va’ani’, his friend‘b’rov’, the third ‘hasdekha’, the fourth ‘avo’, the fifth‘beitekha’ and so on, and when they finish this verse… they know that they have a minyan“.

Interestingly enough, Frazer (pp. 558-559) = Gaster (p. 485) quote similar customs among Muslims in Algeria and Palestine ca. 1906-1908.

4. Sefer Hassidim, written by R. Judah Hehassid (d. 1217) inAshkenaz, says (ed. Wistinetzki, paragraph 534, p. 150): “When a group of Jews goes together to a wedding or a funeral or when leaving a synagogue, a person should not look up to see if they are many – so that the evil eye should not control them”.

5. Rabbi Abraham Gumbiner (Poland, d. 1683) ruled (Orah Hayyim 156, subparagraph 2) that “it is forbidden to count Jews even if he does not intend to count but just to draw lots even for amitzvah, rather they hold up their fingers and they count their fingers (Yoma 22b)”.

6. Rabbi Hizkiya da Silva (Italy and Jerusalem, 1659-1698) ruled (Pri Hadash to Orah Hayyim 55:1) that “One must be careful not to count Jews by the head to see if there is a minyan or not, for we say in Yoma… ‘it is forbidden to count Jews even for a mitzvah…’ “. (also see Kaf Hahayyim to Orah Hayyim 55, paragraph 11 for other Sephardic authorities who agreed).

7. R. Shlomo Ganzfried (Hungary, 1804-1886, Kitzur Shulhan Arukh 15:3) quotes the Pri Hadash and adds: “And it is customary to count them by saying the verse ‘Hoshi’a et amekha’ etc. (Psalms 28:9), which contains ten words”.

III) The Census in the State of Israel

Thus, a rabbi who wants to oppose the census can quote some of the sources in paragraph II. Indeed, Rabbis Kanievsky and Weiss simply list a few sources and rule that it is forbidden to participate in the Israeli census.

However, most rabbis who have written on this issue have ruled that it is permissible. The following is a composite list of some of their reasons:

1. Despite the two statements in Yoma 22b, counting Jews is not a negative commandment, since no verse is quoted from the Torah and since none of the lists of the 613 commandments – including that of Maimonides – list this mitzvah.

2. The census-takers do not directly count people. They write down information and then count from the forms, using computers. This is similar to indirect counting such as using the half shekel(Exodus 30), lambs or fingers (I Samuel 15:4, Yoma 22b and Maimonides), or paschal lambs (Tosefta Pesahim 4:15) .

3. As we have seen, many sources say that it is permissible to count Jews l’zorekh, for good reason. A modern census is a good reason which helps and benefits the State of Israel and its citizens.

4. The prohibition is to count the entire Jewish people, but the census only counts Israeli Jews. In any case, this year the census will only count selected households in Israel.

In conclusion, it is permissible to count or be counted in the Israeli census. May we soon be privileged to fulfill the verse in Hosea (2:1): “The number of the people of Israel shall be like that of the sands of the sea, which cannot be measured or counted”.

David Golinkin

Jerusalem

8 Tevet 5769


Bibliography

 I. Modern Critical Studies

1. Henry Bett, Nursery Rhymes and Tales: Their Origin and History. second edition, London, 1924, 19682, pp. 55-56

2. Umberto Cassuto, A Commentary on the Book of Exodus, Jerusalem, 1967, pp. 328 ff.

3. Roland De Vaux, Ancient Israel, Vol. 1, New York and Toronto, 1961, pp. 65-67

4. James George Frazer, Folk-Lore in the Old Testament, Vol. II, London, 1918, Chapter IX

5. Theodore Gaster, Myth, Legend and Custom in the Old Testament, New York, 1969, pp. 483-488, 548-549

6. Louis Ginzberg, Legends of the Jews, Philadelphia, 1936, Vol. IV, pp. 111-113; Vol. VI, pp. 270-271

7. M. B. Lerner, Mahanayim 70 (5722), pp. 118-121

8. Rabbi David Lieber, Encyclopaedia Judaica, Vol. 5, cols. 281-283

9. S. A. Lowenstamm, Entziklopedia Mikra’it, Vol. 5, cols. 218-221

10. Ernest Neufeld, Judaism 43/2 (Spring 1994), pp. 196-204

11. Rabbi W. Gunther Plaut, The Torah: a Modern Commentary, New York, 1981, pp. 632, 1034-1036

12. Nahum Sarna, The JPS Torah Commentary: Exodus, Philadelphia, 1991, pp. 195, 260

13. Moshe Weinfeld, Tziyon 56/3 (5751) pp. 233-238

II. General Halakhic Studies

1. Moshe Ben Dov, Sinai 119 (5757), pp. 187-191

2. R. J. David Bleich, Journal of Halacha and Contemporary Society, VIII (Fall 1984), pp. 62-86 = Contemporary Halakhic Problems, Vol. III, New York, 1989, Chapter XIII

3. L. Eisenstein, Sinai 121 (5758) pp. 225-230

4. R. Yosef Kafah, Ketavim, Vol. 1, Jerusalem, 5749, pp. 62-63

5. R. Yohai Barukh Rudik, Tehumin 4 (5743), pp. 327-338 (includes Bibliography)

6. R. Moshe Sofer and R. Yisrael of Shklov, in Sefer Hayovel L’B”M Levine, Jerusalem, 1940 = Kovetz She’elot U’teshuvot Hatam Sofer,Jerusalem, 5733, No. 8

III. Responsa

A) Permissive Rulings

1. R. Natan Zvi Friedman, Noam 16 (5733), pp. 84-89

2. R. Yehudah Gershoni, Barkai 3 (5746) pp. 114-121 = Kol Yehudah, Jerusalem, 5750, pp. 451-460

3. R. Hayyim David Halevi, Aseh Lekha Rav, Vol. 6, No. 96, p. 378

4. R. Menahem M. Kasher, Noam 16 (5733), pp. 90-106 = Torah Shleimah, Vol. 21, pp. 161-168 = Divrey Menahem, Vol. 1, No. 36

5. R. Mordechai Yehudah Leib Sachs, Hatorah V’hamedinah 11-13 (5720-5722), pp. 432-435

6. R. Isser Yehudah Unterman, Tehumin 4 (5743), p. 335

7. R. Ben Zion Meir Hai Uziel, Mishpitey UzielHoshen Mishpat, Inyanim Klaliyim, No. 2 = Piskey Uziel, Jerusalem, 1977, No. 40

8. R. Eliezer Waldenberg, Tzitz Eliezer, Vol. 22, No. 13 (for Jews abroad who want to make Aliyah)

9. R. Yehiel Ya’akov Weinberg, Sridey Eish, Vol. 2, No. 48

10. R. Shaul Yisraeli, Shanah B’shanah 5722 = Amud Hayemini, Jerusalem, 5752, No. 13

B) Strict Rulings

1. R. Shlomo Goren, Torat Hamedinah, Jerusalem, 5756, Chapter 20

2. R. Ya’akov Kanievsky, Noam 16 (5733), p. 89

3. R. Hayyim Kanievsky, Tehumin 4 (5743), p. 335

4. R. Eliezer Waldenberg, Tzitz Eliezer, Vol. 7, No. 3

5. R. Yitzhak Ya’akov Weiss, Noam 16 (5733), p. 89


Prof. David Golinkin is President of the Schechter Institute of Jewish Studies in Jerusalem. Feel free to reprint this article in its entirety. If you wish to abbreviate it, please contact Rabbi Golinkin at golinkin@schechter.ac.il.  The opinions expressed here are the author’s and in no way reflect an official policy of the Schechter Institute.

David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.

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