[Avodah] ARe: [Areivim] Tinok Shenishbah today - opinion of Gedolei HaPoskim

[Chana Luntz]

I wrote:
> > In general, as I have said before, the question of tinok
> > shenishbah comes up halacha l'ma'ase most commonly in
> > three situations:
> > a) can a non frum man be counted in a minyan?;
> > b) can a non frum man be given an aliya?; and
> > c) can a non frum kohen duchen?

And RKM replied:

> I'd add a few more:
> 
> d) Can I cook for a non-frum Jew on Yom Tov?
> 
> e) Can I offer food to a Jew who presumably won't make a bracha on it?
> 
> f) IIRC I've seen this question regarding tenants and an Eruv Chatzeros
> 
> AIUI, this question applies to *any* case where a special privilege or
> status is granted to a fellow Jew.

Yes, sorry, what I was trying to say is this is where it is most commonly
discussed in the modern responsa literature.  The question does indeed come
up in many many other areas.  The key text is, inter alia, Shulchan Aruch
Yoreh Deah siman 2 s'if 5:

"A mumar l'hachis even in respect of only one matter or one who is a
mumar for idolatory or who violates the shabbat publically ... Their din
is like a non Jew".

While, as ROY argues in Yabiat Omer chelek 1, Yoreh Deah siman 11 - on
balance this is probably to be understood as a psul d'rabbanan, there is
quite extensive rishonic literature to the effect that in fact it is a psul
d'orita, with the consequence that, even bideved, his kiddushin is not a
kiddushin, a woman who falls in yibum to such a man is in fact mutar l'shuk,
wine he has touched is not just assur to drink but assur b'hana'a etc etc.

And there are some fascinating discussions about whether, for example, you
can lend to him at ribus.

But it just so happens that most of the key modern (by which I mean last 200
years) teshuvos tend to be about situations in shul, and particularly
minyan see eg Mishna Brura in Orech Chaim siman 55 si'if katan 46 "The Pri
Megadim writes this is davka for an averah which he did l'teyavon but
l'hachis even for one matter or a mumar for avodah zara or l'challel shabbas
b'farhesia his din is like a non Jew and he is not counted."

> On the other hand, I have not (or have only rarely) seen cases of treating
> our non-from brothers so harshly. Unless I'm mistaken, this is NOT because
> the halacha allows these things for a sinner -- it is because nowadays we
> do not treat these people as sinners.

Agreed, that is precisely my point.  But in order to halachically not treat
these people as sinners, you have to have some sort of halachic analysis
that permits this.  Otherwise we are all (well most of us anyway) over on
the Shulchan Aruch by treating non Jews (at least rabbinically) as Jews.
Tinok shenishba is the analysis that is used by the majority of modern(ish)
poskim that permits the current normative practice.  

> (PS: Vocabulary note: I have used the word "sinner" here because it is
> deliberately vague. I don't want to get sidetracked into a discussion of
> what kind of sinner is in which category, such as merely "l'tayavon" or
> full-blown "l'hachis". Wherever you want to put that line, I'm simply
> mentioning which mitzvos it will be relevant to.)

Ah but that gets tricky - because while with somebody who acts l'tayavon
there may be a problem vis a vis the particular area in which he has the
tayva, it does not generally disqualify him elsewhere - making the
fundamental issue about l'hachis and the two categories which are deemed to
be so beyond the pale that they operate the same way - avodah zara and
mechalel shabbas b'farhesia.  

> Akiva Miller

Shabbat Shalom

Chana