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Extradition in Jewish Law
Prof. Menachem Elon

Extradition in Jewish Law*

Prof. Menachem Elon

Reprinted with permission from "Crossroads: Halacha and the Modern World, Vol. I," Published by Zomet Institute (Alon Shvut-Gush Etzion, Israel)


  1. Background
  2. Biblical Sources
  3. Talmudic Period
    1. R. Elazar b. R. Shimon (BM 83b)
    2. R. Tarfon (Nida 61a)
    3. "Deliver One of You" (Tosefta Terumot)
  4. Post-Talmudic Period
    1. Delivering a Criminal Who Endangers the Community
    2. The Responsum of the Bach
    3. In Order to Eliminate Evil from our Midst
    4. Honoring the Law of the Land
    5. Summation
    6. Jewish-Gentile Relations After the Emancipation
  5. Conclusion: The Law of Extradition Accords With Jewish Law
  6. Additional Conditions
    1. Danger to the Extradited Criminal
    2. Abandonment of Wife
    3. Delay of Extradition Rather than Annulment
  7. Serving Foreign Sentences in Israel

A. Background

Since Israeli law mandates the inclusion of the principles of justice, freedom, and peace of the Jewish heritage as part of the legal system of the State of Israel, it is worthwhile examining traditional Jewish sources concerning the issue of extradition, especially in regard to the discretionary authority of the executive branch of government. Extradition involves not only the punishment of crime, but impinges on the international relations between states, and hence on the relationship of two different legal systems, as well as the relationship of a state and its citizens. For instance, most contemporary legal systems do not allow extradition for a crime committed elsewhere while the perpetrator was already a citizen of the country of residence; rather, he will be tried in his own country for the crime committed in the other country. The Israeli law was amended in 1978 to include the following: "An Israeli citizen will be extradited only for crimes committed before he became an Israeli citizen."

In Jewish law, throughout history and dispersion. the issue of "extradition" -- delivering a Jewish criminal to the non-Jewish authorities of the host country - was examined from several aspects: justice; the relations of the Jewish community with the non-Jewish host nation; and the relationship of the community with its "citizen", the Jew, whether a member of the local community or not, who had committed the crime. Jewish legal autonomy, which was the rule in all Jewish communities until the end of the eighteenth century, included a measure of authority in criminal matters as well, even at times in capital cases, especially for the crime of informing, as well as, more rarely, murder.1 However, in most cases, the non-Jewish authorities reserved the power to judge serious crimes, such as murder, as well as those of particular interest to the state, such as currency forgery, crimes against the Christian religion, etc.

In this context, the question arose whether to aid the government in apprehending Jewish criminals, to hide them, or to turn them in. The problem is formally based on the fact that the criminal will be judged by the non-Jewish court according to non-Jewish law. In the background lie serious misgivings of the Jewish community concerning the fate of a Jew facing non-Jewish justice, in light of the hatred, persecution, and discrimination which characterized relations between the two groups, as well as the corruption endemic to the non-Jewish courts of those times. We shall trace the development of the Jewish attitude toward this question and examine the conclusions that may be drawn for our own situation today. We shall begin with the basic principle in Jewish law concerning a fugitive from justice and his punishment.

B. Biblical Sources

The basic position of Jewish law on this question is based on two explicit verses~in the Torah. It is not surprising that the seventeenth century father of international law, Hugo Grotius, based the principles of extradition, including his famous saying, "Aut dedere aut punire" (either extradite or punish), on Biblical law.2

First, the Torah states: "Do not deliver to his master a slave who has escaped from his master. He shall dwell in your midst with you, in the place he shall choose in one of your gates, where it is good for him; you shall not oppress him" (Deut. 23,16-17). A person who flees slavery may not be returned to his master, as human freedom is an ultimate value which supersedes any legal claim of enslavement. Thousands of years would pass until this principle of human freedom and the abolishment of slavery would be accepted by the

civilized world. In this case, the only "crime" of the fugitive is his enslavement by another. On the other hand, the Torah states: "If a person shall maliciously kill another with guile, he shall be taken to die (even) from my altar" (Ex. 21,14). The Torah abrogated the rule, widespread in the ancient world, whereby entering sacred grounds protects a criminal from just punishment. The Torah declares that temple sanctity does not suspend sanctity of life.

The Rambam (Moreh Nevuchim 3,39) summarizes these two principles as follows:

It is written: You shall not deliver a slave to his master. Aside from being a matter of mercy, this mitzva has a great utilitarian value, which is to inculcate in us this noble trait; namely, to grant protection to one who requested your protection, to defend him, and not deliver him to he from whom he fled. It is not enough that you grant protection to one who requested your protection, but you are further obligated to care for all his needs and be good to him.... Parallel to this command, (we are commanded) not to give protection to an evil malicious person who asks for our protection. We do not pity him or free him of any guilt, even if he is the greatest and noblest of men. This is as written, "he shall be taken to die from my altar." This person requested protection from Cod, and grasped that object which is dedicated to His name, and Cod did not grant him protection. Rather, He commanded to turn him over to the officer of justice from whom he fled. This is surely so if he requested protection from a mortal man. It is not proper to grant him protection or pity him, for pity for the evil-doing wicked is cruelty to mankind.

Murder is the gravest of offenses: "Nothing is as objectionable to the Torah as bloodshed... which entails the destruction of society" (Rambam, Hilchot Rotzeach 1,4; 4,9).

C. Talmudic Period

1. R. EIazar b. R. Shimon (BM 83b)

In the Talmudic era, under Roman rule, certain sages were highly critical of collaboration with the government in the apprehension of criminals, whereas others not only did not condemn it, but even collaborated themselves. The Talmud (BM 83b) relates that R. Elazar b. R. Shimon (mid second century, after the defeat of the Bar Kochba rebellion) "would seize thieves and robbers" and hand them over to the Roman administration. R. Yehoshua b. Korcha said to him: "Vinegar son of wine, how long will you continue to deliver the people of Cod to death?" The answer of R. Elazar b. R. Shimon was: "I am eliminating weeds (thorns) from the vineyard." R. Yehoshua replied: "Let the owner of the vineyard (God) come and eliminate his weeds." The Talmud tells of another sage, R. Yishmael b. R. Yose, who was appointed by the Romans to apprehend thieves. Eliyahu the prophet asked him: "How long will you continue to deliver the people of God to death?" He replied: "What can I do, it is a royal command?" Eliyahu advised him to move to another district.

This controversy is based on an aversion to turn over a Jew to the Roman government, which was suspected of hostility to Jews, persecution of their persons and property, and a lack of commitment to the principle of fair trial.3 The Meiri, commenting on the above passage, writes that a Jew should not accept a police appointment in the service of the non-Jewish government as "one who does so, causes the death of many people according to the law of the land and not in accord with Torah law." Replying to the suggestion that he should only arrest those who would be liable according to Torah law, the Meiri states that this is impossible, as "he would violate the laws and regulations of the land, and this is also prohibited." As a government appointee. he is obligated to act according to government regulations.

2. R. Tarfon (Nida 61a)

An incident concerning R. Tarfon, a member of the San hedrin of Yavne, is extremely interesting for our discussion.

There was a rumor that some Galileans had murdered someone. They came to R. Tarfon and said to him: Hide us. He said to them: What should I do? If I do not hide you, you will be seen; if I hide you - the Sages have said that even though one should not accept an evil rumor (as true), one should nevertheless beware of it. Go hide yourselves.

Why did R. Tarfon refuse to help the suspected criminals? Of what specifically was he suspicious? Rashi explains that R. Tarfon told them, "perhaps you killed, and it is forbidden to save you." Tosafot disagrees, and, citing the She'iltot, explains, "perhaps you killed, and if I hide you. I will forfeit my life to the king." According to this explanation, R. Tarfon's refusal to help them was due to concern for his personal safety rather than moral objections. The Rosh (ad.loc. 9,5) rejects Rashi's explanation for the following reason: "Is it possible that because of a mere rumor that someone sinned it will be forbidden to save his life?" He therefore accepts the explanation of the She'iltot. The Maharshal (ad.loc.), commenting on the She'iltot, writes:

There is no proof here that one should protect a murderer. Even though we do not have the power to try capital cases, nonetheless it is prohibited to save him. "So shall all Your enemies perish, God" (Jud. 6,31), and our hands should not aid them. The reason it was permitted to save them (in the case of R. Tarfon) was because there was a doubt (whether they were guilty) and (we act to save a life if there is even a possibility that it should be saved). Furthermore, each individual is presumed to be innocent until proven guilty, so we can say that he definitely did not murder anyone.

This story, together with all the various commentaries (of which only some have been cited above) embodies the different attitudes toward the question of harboring a murderer. Rashi maintains that it is prohibited, even if there is merely a doubt whether he committed the crime; Tosafot contends that R. Tarfon refused them help because of concern for his own safety and not because it was intrinsically prohibited; the Rosh supports harboring one who is only rumored to have committed a crime; and the Maharshal states unequivocally that one should not help a murderer, except where there is a doubt concerning his guilt, in which case we apply the principle that he retains his presumption of innocence.

3. "Deliver One of You" (Tosefta Terumot)

In this context, it is worth examining the Tosefta in Terumot (7,20):

If a group of people were told by non-Jews: Give us one of you that we may kill him, or else we will kill you all - they should all be killed rather than deliver to them a single Jewish soul. However, if they designated a specific person in the manner that Sheva ben Bichri was designated, they should deliver him to them rather than that all of them be killed... R. Shimon says: This is what she said to them (in order to permit delivering Sheva ben Bichri): One who rebels against the kingdom of David deserves the death penalty.

The Yerushalmi (Ter. 8,4) cites a controversy concerning this passage: "R. Shimon B. Lakish said: This applies if he is deserving death like Sheva ben Bichri. R. Yochanan said: "Even if he was not deserving of death like Sheva ben Bichri."

Sheva ben Bichri (2 Sam. ch.20) revolted against King David. Yoav led the loyalist army and beseiged Sheva at Avel Beit Maacha. The "wise woman" of the city convinced the townspeople to save the city by killing Sheva, who was guilty of a capital crime, and handing over his body to Yoav. This story served as the source for the subsequent halachic discussion whether it is permissible for a group or community to save~itself by sacrificing an individual. The Tosefta establishes the principle that we may not save a community by sacrificing an individual, unless the original demand was for a specified individual. R. Shimon b. Lakish adds the condition that the specified individual be deserving of death because of a crime he committed. There are many different interpretations of the Tosefta and the controversy between R. Shimon b. Lakish and R. Yochanan in the commentaries and codes.4

The case of the Tosefta does not directly pertain to our discussion. The Tosefta refers, not to a case of an individual being sought for trial, but to a terrorist group which threatens to kill many unless an individual is handed over to them. The case is one of extortion. The question is whether, and under what conditions, the lives of many may be saved by sacrificing an individual. Our discussion concerns the delivering of a suspected criminal to the authorities in order to try him for his crime. More germane to our case are those incidents in the Talmud where a government uses threats against the community in order to secure the apprehension of an individual.5 Later commentators derived from this Tosefta and other sources, by analogy and induction, several halachot and principles that are relevant to our case, as we shall see.

D. Post-Talmudic Period

1. Delivering a Criminal Who Endangers the Community

These differing Talmudic opinions recur in the works of post-Talmudic commentators. One school of thought rejects informing or cooperating with the non-Jewish authorities in the apprehension of Jewish criminals, unless the crimes are liable to injure the community and endanger it. In the latter case, the criminal has the status of rodef (one who "pursues" another in order to kill him), and the principle of self-defense permits injuring or even killing him. Many other scholars opposed protecting Jewish criminals from the authorities, not because of the danger to the community from this course, but because the criminal should be punished, especially for a crime as serious as murder. This conclusion was based either on the principles of Jewish law, or because of the principle that the "law of the land is law." We shall examine only the highlights of this extensive literature.

The first opinion is summarized succintly by the Shulchan Aruch (ChM 388):

It is prohibited to deliver a Jew, both his person and his property into the hands of non-Jews even if he was wicked and a criminal, and even if (the criminal) was harassing him (sec. 9). It is permitted to deliver one who harasses6 the community and causes them to suffer into the hands of non-Jews in order to beat, imprison, or fine him, but not one who causes an individual to suffer (sec. 12).

The Rama adds:

If one is engaged in forgery7 or the like, and it is possible that the community will be harmed, he should be warned not to do so; if he does not listen, we can deliver him and say (to the authorities): no one else engages (in forgery) other than he.

The note of the Rama contains a reference to the ruling of the Shulchan Aruch in ChM 425,1:

If one is pursuing (rodef) his fellow in order to kill him, and he has been warned but nonetheless continues to pursue him... every Jew is commanded to save him (through) the limbs of the pursuer. If they can not aim accurately and save him without killing the pursuer, they may kill him even though he has not yet committed murder.

To this the Rama adds:

One who endangers the community, e.g., if he engages in forgery in a locality where the authorities forbid it, has the status of a "rodef", and it is permitted to deliver him to the authorities.

Using the argument of rodef, the Maharach Or Zarua (Responsa 142) ruled in the thirteenth century that one

who is going to assault his fellow, and (it is a principle that) a man does not restrain himself in defense of his person, so that it is possible that this will lead to bloodshed... it is permissible for anyone to inform the magistrate, (who will) give an order to arrest him... It is a meritorious mitzva ("mitzva min hamuvchar") for every Jew to inform the judges and rulers and to request that they restrain him, as this can lead to harm to the community. If the community warned him to stop and he paid no heed, they can tell the non-Jews: So-and-so is engaged in these illicit activities. If he did it only once and ceased, it is definitely prohibited to inform.

The Taz (YD 157,8) relying on the principle of rodef and the case of Sheva ben Bichri, concludes:

The example of Sheva ben Bichri is used to teach us that even though he was not guilty of a capital offense according to Torah law, but only according to the law of the land, like Sheva who rebelled against King David, nonetheless he may be handed over if he has been specified. We may conclude that the same applies in our time - one who transgresses and rebels against the local law may be turned in. The same applies to other crimes of which he is guilty, such as forgery or other things which are dangerous - there is no question that he should be delivered, even if he has not been specified, as he is considered a rodef of the other Jews by virtue of the wicked deeds which he willfully commits.

There is here a distinct widening of the principles of the Tosefta in Terumot and that of rodef. The Tosefta speaks of a band of brigands, or the non-Jewish government, which directly threatens the lives of the members of the community if they will not deliver a specified individual. The law of rodef, as well, refers to someone who directly threatens the life of another. Later scholars widened these principles to include permitting the delivery of someone who violates any law of the local authority, if the community is liable to be endangered as a result.

2. The Responsum of the Bach

A different line of reasoning appears in the works of other scholars. They maintain that someone accused of serious crimes can be delivered to the authorities by virtue of the crime itself and not necessarily because of danger to the Jewish community. Let us examine several decisions of this school. First we shall consider the responsum of the Bach (43), which established the general principles of extradition.

The community of Kalisch approached the Bach with the following question. In 1620, a Jew was executed - he "sanctified the name of God" - on the charge of stealing a crucifix. According to the local authorities, before being executed, he managed to pass the crucifix to his father-in-law, who was one of the leaders of the Jewish community. The latter fled and was hiding in the home of another Jew. The comm unitv was asked to deliver him to the authorities in order to stand trial.8

I shall cite the question in its entirety, both because of its historical interest, and in order to clarify the background and reasoning of the Bach's ruling.

Concerning the libel in the city of Kalisch, where a Jew was accused of (a crime concerning) their savior (crucifix), and was arrested. When he was taken away, he passed his bag to a Jew who was (standing) among the mass of non-Jews present when they took him away. Now, after he sanctified the name of God, the accusers have again charged the community with the claim that his father-in-law, who is the sexton of the community, took the bag containing the crucifix from the prisoner. The nobles of the King's court have decided that the leaders (of the community) must produce the sexton for trial before the Wojewoda9, or else they will take his place for any punishment decreed by the King.

The sexton has fled and escaped, and is being concealed by another Jew. If he is brought to trial before them, it is possible that he will be tortured not in accordance with their statutes (illegally), in the same manner as the decree against the community (is illegal), since the community is not subject to trial according to their laws and statutes. Since we see that they do as they wish, illegally, there is mortal danger if he will be brought to trial.

What is the law concerning this man - is it permitted to produce him for trial, or not?

The Bach initially compares this case with the Tosefta. The community is asked to deliver a specific individual or else they will be judged in his place. The Bach, after analyzing the details of the case, concludes that the man accused of taking the crucifix is obligated to appear before the court to stand trial, since he, through his actions, is responsible for the accusation against him.

In regard to our case, it is clear that... whether it is a case of execution, torture and non-capital punishments, or only a monetary fine, if the Jew is liable because of his own actions which he committed against the non-Jews, they may deliver him into the hands of the non-Jews, according to the Rambam's explanation of (the ruling of) Resh Lakish. Since he brought it upon himself through his own actions, we are not responsible for him. Therefore, in our case as well, if the Jewish sexton received the bag in the presence of non-Jews, whether he received it directly from the Jew who was the owner of the bag, or whether he received it through another... in any case we can say that since he brought it upon himself by receiving the bag from the accused Jew in the presence of non-Jews, without considering the chance that they would accuse him as well, he has directly brought upon himself the danger that he would be brought to trial because of the bag he received. Hence, we are permitted to deliver him into their hands for trial, although there is a chance that he will be killed. Since he has been specified and he is liable under their laws, we are not responsible for his life. His blood is on his head as he caused it to himself.

The Bach then refers to the statement of the Rambam (Hilchot Yesodei Ha Torah 5,5) that even when it is technically permitted to deliver an individual in order to save the group, we avoid ruling that way as it is not the way of the pious" (based on the Yerushalmi Terumot 8,4). The Bach states that in the present case, we may rule without reservation (lichatchila) to deliver the accused to the non-Jewish authorities, and this for a very interesting reason.

Only in the case of the Yerushalmi, where they explicitly stated their intention to kill him, should we avoid ruling that it is permitted. In other cases, where it is possible that they will not kill him, (we unreservedly rule that it is permitted). In our case, it is possible that the princes intend to genuinely uncover the truth, and that is why they demanded that the Jew who received the bag should come to court, to be examined and questioned in order to catch him at his word. Alternatively, their intention was to test him - if he is guilty, he will not appear so as not to be accused; if he is innocent, he will have no fear and will come to court. Accordingly, since there is not a certainty of death, they can deliver him and they do not violate "the way of the pious."

The Bach concludes:

We may therefore conclude that there are three possibilities:

One - if he is guilty of a capital offense according to Torah law, like Sheva ben Bichri, it is permitted without reservation.

Two - If he is guilty of a capital offense according to non-Jewish law, but not Torah law, and has been specified to be killed, it is not the "way of the pious" (to deliver him) and we avoid ruling that way.

Three - If they have not explicitly stated whether he will be killed or not, and the request is legal according to their laws, he may be delivered and we rule accordingly without reservation.10

These rules apply only where we have received evidence that the specified person has committed the crime attributed to him, as the Bach concludes:

A rule that applies in this case: If the sexton received the bag in the presence of non-Jews, he himself is the cause of his having to stand trial according to their laws, and we may deliver him. If, however, another man and not the sexton received (it), it is forbidden for us to persuade the sexton or force him to appear in court, since he was not the cause of his having to stand trial according to their laws.

The demand of the authorities to hand over an individual, accompanied by the threat of sanctions against the entire community if the demand is not met, was the subject of discussion in Talmudic sources, as we have seen. The Bach widened and defined the relevant principles. Delivering an individual is permitted if it may be assumed that the court will attempt to determine truthfully whether the accused committed the crime. The Bach was prepared to concede that the court of his time might fulfill that condition. Furthermore, delivery is permitted unreservedly only if a death sentence, although possible, is not a certainty. Finally, it is forbidden to deliver the accused without ostensible proof that he did indeed commit the alleged crime.

3. In Order to Eliminate Evil from Our Midst

From the same period as the Bach, we have a responsum of R. Yair Bachrach (Chavot Yair 146), which is very pertinent to our topic, in regard to both the facts of the case and the author's conclusions.

Two youths in Russia were arguing. One drew his knife in anger and plunged it into the heart of the other, who died. The murderer fled to a different country. At first he wished to repent, but when one of the scholars prescribed for him the proper penance, he rebelled and became the leader of a band of ruffians and robbers. He was (then) caught for stealing in a large community.

One man, who favored the thief for ulterior motives, arose and strenuously attempted to intercede in his behalf. One of the community dignitaries, a scholar, objected (to his actions), saying that it is forbidden to save him from death because of the blood of his fellow Jew whom he had killed. On the contrary if one of the blood-relatives of the murdered Jew was present, he could deliver him to the authorities as a blood-redeemer (goel ha-dam), so why should we try to save him.

A significant portion of this responsum is devoted to the claim that the relatives of the victim have a special status allowing them to deliver the murderer to the non-Jewish court. The Chavot Yair totally rejects this claim. On the other hand, he supports the local scholar's objections to saving the accused from the punishment of the court.

The statement of that scholar that it is forbidden to try and save him is not without basis. The Talmud (Nid. 61a) states: "There was a rumor that some Galileans had murdered someone. They came to R. Tarfon Rashi explains that (R. Tarfon said to them): "Perhaps you killed, and it is forbidden to save you." The Tosafot cite a different interpretation in the name of the She'iltot; however, they do not disagree with Rashi.... Furthermore, one may claim that if someone is arrested for the murder of a Jew, so that if there would be a sanhedrin it would be obligatory for everyone to bring him to court in order to fulfill "and you shall eradicate evil from your midst", today, when we do not have the power (to try him ourselves), we should at least not save him, in line with the statement of the Sages (Mak. 7a): "They were responsible for increasing bloodshed in Israel."

The same source concerning the Galileans and R. Tarfon, cited by the Chavot Yair, served as the source for a similar ruling, even more extreme, of R. Yaacov Emden (She'ilat Yaavetz 2,9).

A scandalous incident occured in a certain community, where two people argued and came to blows. One took a knife and plunged it into the heart of the other and killed him. He was arrested for this according to the non-Jewish law. In the end, he was acquitted by the authorities on the condition that he swear a solemn oath that another person killed (the victim) and ran away, and he was not the murderer. The rabbi ruled that he should save himself from death by swearing falsely.

To this R. Yaacov Emden answered:

I said that he erred... for he is surely liable for the death sentence. Even though we are not empowered to carry out his sentence, the Sages have said that the sentence of death has not been annulled... meaning that even one who would not have received a court ordained death sentence had he been tried in court, is nonetheless not free of punishment (by divine intervention).... How then can we rush to save him, and also permit another grave offense, in addition to his transgression, by saving himself through a false oath.... In my opinion, it is forbidden to save him from death through any means, even one not involving a transgression. This is an explicit passage in the Talmud (Nid. 61a); cf. Rashi (ad.Ioc.). While it is true that according to the Tosafot, this conclusion is not proven, nonetheless, they do not disagree with the conclusion that it is prohibited to save th& life of a murderer of a Jew. This is absolutely obvious (from the passage in the Talmud), as in that case it was only a rumor about them, and it was prohibited to save them even in a permissible manner because of the possibility (that they were murderers).

Rav Shlomo Kluger (nineteenth century) was equivocal on this matter. On one occasion (Responsa Tuv' Taam Va-Daat 1,193) he limited the possibility of delivering a Jew to the non-Jewish authorities to a case where he was "liable legally (midina)", i.e., according to Jewish law, or a rebel against the government; and even in those cases, the principle is that "it is the law, but we avoid ruling that way." On another occasion (Chochrnat Shlomo YD 157,~), he reached a different conclusion.

If, in these times when we do not judge capital cases, someone deserves the death penalty for murder, and the king seeks to kill him, and he fled to the Jews that they should hide him; should a Jew hide him or not? This case is explicated in Nida 61a.... According to the commentary of Rashi there, it is clear that it is forbidden to hide him, while according to Tosafot... but they also agree that there is no obligation to hide him.... This still requires further clarification. See the Rosh ad.loc., that if it is clear (that he is guilty), it is forbidden to save him according to all opinions.

4. Honoring the Law of the Land

Some of the authorities who opposed obstructing the apprehension of criminals by the non-Jewish authorities based their opinion on the legitimate right of local government to enforce its laws, under the halachic principle of "dina d'malchuta dina" ("the law of the land is law"). Let us examine some of these opinions.

In a fascinating and detailed responsum of the Rashba11, we read:

In the law of the land, none of these things matter, as their law is based solely on the determination of the truth. A death verdict under local law can be derived from the testimony of relatives, or even a confession, without prior admonition, and without (a court of) twenty-three, as the local law is based solely on the determination of the truth. If you do not agree to this, but rather insist on applying Torah law, according to the regulations of the sanhedrin, to all matters, the world would be desolate, as murderers and their companions would multiply.... Furthermore, R. Elazar b. R. Shimon would catch robbers and criminals on the authority of the government, and they would be punished and killed. R. Yishmael b. R. Yosi would do the same. Although R. Yehoshua b. Korcha said to him: "Vinegar son of wine etc.," and Eliyahu said the same to R. Yishmael b. R. Yosi, nevertheless, it is not possible that they were completely in error concerning an explicit law. (The criticism was because,) in light of their piety, they should have avoided killing for an offense that does not entail the death penalty according to the Torah. "Vinegar son of wine" means that they were not acting as piously as their fathers. Had they been completely in error and acting illegally, they would not have been called "vinegar son of wine," but rather miscreants and complete evildoers - God forbid (such a thought) concerning such pious and great sages of Israel! Furthermore, you should know that R. Yishmael answered Eliyahu: "What can I do? It is a royal command;" and Eliyahu responded: "Your father fled to Asia (Minor), you should flee to Laodicia." If it were a genuine prohibition, what sort of an answer would it be to say that it is a royal command; he should have died rather than transgress! And Eliyahu should have answered him: How do you know that your blood is redder12? It is clear that it is as we stated - if he is appointed by the king, he acts in these matters according to the law of the realm, for the king establishes stability with these laws.

The Ritva (BM 83b), a disciple of the Rashba, uses this principle of dina d'malchuta dina to explain the compliance of R. Elazar b. R. Shimon and R. Yishmael b. R. Yosi with the edict appointing them as policemen. R. Shmuel di Modena (Responsa Maharashdam ChM 55) summarizes this principle as follows:

This is what the Raavad wrote in a responsum (612): If the government has the power to enact laws in the city - the law is law, as we accept that the law of the land is the law. The punishment of criminals, such as robbers, thieves, murderers, and the like, is part of the statutes of the kingdom and the realm, and their law in these and similar areas is law.

R. Moshe Schick (Responsa Maharam Schick ChM 50), in an interesting responsum, also utilized this principle of dina d'malchuta dina. A woman, whose husband had died suddenly, was suspected of "having given him poison. There was some circumstantial evidence to this effect, and a partial confession. She was also suspected of (having a relationship with) another man, who apparently had conspired with her in this matter." The Maharam Schick was asked by another scholar why the case had been suppressed and not reported to the authorities. "Why is there silence? In their opinion, it is a mitzva to eradicate evil, and not to protect them. It is written, 'a life for a life,' and 'Whoever sheds man's blood, by man shall his blood be shed."'

The Maharam Schick first addresses the question whether the woman could have been convicted according to Jewish law. His conclusion is that this is uncertain, and therefore he writes: "Since it is prohibited to kill her, we are not permitted to deliver her to non-Jewish justice, which judges and executes on the basis of a confession. So it ostensibly appears." However, he subsequently reaches a different conclusion.

We see that the Ritva (BM 84) demonstrates... that if there is a governmental decree it is permissible, as otherwise it is not understood how R. Elazar b. R. Shimon and R. Yishmael b. R. Yosi delivered them to death, as bloodshed is included in the principle of "die rather than transgress." One must conclude that the king has the right in this (matter) in order to benefit society ("takanat olam"), and his law is law. Similarly the Rashba writes in a responsum, quoted by the Beit Yosef (388), that a royal decree is effective in this respect, and their law is law, as it is necessary for the benefit of society.... In any event, it is clear that there is no difference between a Jewish or non-Jewish king; if the purpose is to benefit society, their law is law....

However, this is all correct only from the strictly legal point of view. But from (the Talmudic source) itself it is clear that great scholars should not make special efforts, as the Rashba wrote in that responsum.... Therefore, while we should not protest against someone else, and whoever makes efforts (to have the suspect arrested) acts legally, as he is supported by many authorities, nevertheless, in any event, great scholars should not endeavor in this (matter), but should do nothing.

We shall return below to the conclusion of this responsum.

5. Summation

In summary: As we have seen, it is indisputable that in principle, just as one should not return a runaway slave who has fled to freedom, so one should not harbor criminals who have fled justice; rather we are obligated to see that they face trial. The source of this double principle is in the Torah itself: "Do not deliver a slave to his master," on the one hand; and "He shall be taken to die from my altar," on the other. The principle of just punishment is especially fundamental in the case of a murderer: "Nothing is as objectionable to the Torah as bloodshed... which entails the destruction of society."

In the historical context of the Jewish people after the loss of self-rule, different opinions arose concerning this principle of bringing the fugitive to justice. As we mentioned at the beginning, the Jews enjoyed a large measure of judicial autonomy in the areas of civil and public law throughout history, in all lands, until the end of the eighteenth century; that is, until the period of emancipation in Europe. In oriental countries, such as Turkey and North Africa, this judicial autonomy was preserved until the nineteenth century, and, in certain cases, such as Morocco, until recently. However, in the area of criminal law, the autonomy of the Jewish community was limited, to one degree or another, depending on the time and place. Those crimes in which the government was not particularly interested, such as crimes against property or physical assault of a minor degree, were left to the jurisdiction of the Jewish court, while more serious crimes, such as murder, as well as crimes which affected the general economy, such as currency fraud, were generally, although not exclusively, tried by the non-Jewish court. This situation gave rise to serious reservations among halachic scholars whether to aid the government in bringing Jewish criminals to justice before non-Jewish courts. These reservations were justified by the nature of Jewish-gentile relations in the medieval world, anti-Jewish discrimination, and corruption and injustice within the non-Jewish courts, especially regarding a Jewish defendant. Hence, some scholars objected to Jews aiding in the apprehension of their coreligionists, arguing that it would be better if "the owner of the vineyard" -God - "would come and eliminate the weeds from the vineyard," rather than delivering the "weeds" to the hands of the non-Jewish authorities who show no regard for the property or persons of Jews, who pervert the law, and are not committed to justice. Other scholars disagreed, and themselves supported the efforts of the government to "eliminate the weeds from the vineyard," especially refusing to harbor accused murderers. They maintained that it is permitted to deliver a particular individual being sought by the authorities if he is guilty of a capital offense, and this only if the government threatens to otherwise injure or punish the community as a whole. Some scholars declared that it is preferable not to follow this course, as it is not "the way of the pious."

In the course of time, even the objectors agreed to hand over without reservation criminals whose actions could lead to injury to the community, using the category of rodef(self-defense). Some scholars supported handing over criminals accused of serious crimes, such as murder, due to the gravity of the crime itself. The Bach was prepared to assume that the non-Jewish court of his time was capable of conducting an honest investigation and reaching a truthful verdict, and ruled that an accused should not be turned in unless proof exists that he committed the crime and there is at least a possibility that the sentence will not be death. Other scholars perceived delivery of criminals as a necessity in order to maintain social order and the rule of law, based on the principle of dina d'malchuta dina.

6. Jewish-Gentile Relations After the Emancipation

It is instructive to note the statements of several great scholars at the end of the nineteenth century and the beginning of the twentieth, in the context of the change in the relations between Jews and non-Jews after the emancipation.

Already in the thirteenth century, the Meiri, a resident of Perpignan in Provence, proposed a novel approach to the problem of Jewish-gentile relations in his period. The Meiri, referring to many Talmudic laws which discriminate between Jews and non-Jews, distinguished between Talmudic times, when "those nations were idolaters, and were sullied in their actions and vile in their ways", "were not bound by religious norms and ordinances," and did not fulfill the seven Noachide laws; and his own times, when the non-Jews were "bound by religious norms and ordinances and are free of those vile practices," fulfill the seven Noachide laws, and are not, therefore, bound by the Talmudic restrictions.12 However, even the Meiri, who was in any event alone in his opinion in his own time, opposes cooperation with the non-Jewish government in the apprehension of Jewish criminals, although his opposition is somewhat muted (see Meiri, BM 83b).

In the middle of the nineteenth century, we find the following statement by R. Yechiel Michel Epstein (Aruch HaShulchan ChM 388,7):

Everyone who is familiar with history knows that in ancient times, in distant lands, no man was safe in his person or property from robbers and extortioners, even if they bore an official title, as is known even today in some lands in Africa, where the government officials commit robbery and theft. We commend the kings of Europe, especially our Master His Royal Highness the Czar, his ancestors the czars, and the kings of Britain, who extended the rule of their governments over distant lands in order that each and every man be secure in his person and property, so that the rich need not conceal themselves in order that their property not be taken and they be killed. All the laws of informers and delivery (of Jews and their property to non-Jews) in the Talmud and the codes which we shall presently explicate revolve around this point, as one who informs on his fellow and delivers him into the hands of these robbers is pursuing him in his person and property, and therefore we save him (at the expense of) the life (of the pursuer).

This statement of the Aruch HaShulchan appears in the same section of the Shulchan Aruch in which the statements of Rav Yosef Karo and the Rama prohibiting delivery of a criminal to the non-Jewish authorities, which we cited earlier, appear. The Aruch HaShulchan considered the monarchies of Europe in his time to be governments which guarantee to all their inhabitants, including the Jews, security in person and property, and hence he ruled that the laws of informing and delivery, which were formulated against ancient governments characterized by "robbery and extortion", do not apply. His optimism seems exaggerated regarding several European governments, especially in the period of the Holocaust and immediately afterwards. However, in principle, the approach of this great Torah scholar to our problem and his bold, explicit reasoning is very important.

A similar approach to an analogous problem is found in a later Polish scholar, Rav Meir Dan Plotzky. The topic is the prohibition of having recourse to a non-Jewish court. After a lengthy analysis of this prohibition, observed throughout the history of Jewish autonomy (and a very important factor in maintaining that autonomy), he states:

There is, however, no practical application of this law, as it does not apply to the judges of our time, who are not, God forbid, idolaters.... It is evident that we should litigate before them, because of dina d'malchuta dina. I outlined (the laws) only in order to apply them to those distant lands, such as China and Japan, where they worship idols and their courts (are forbidden).

E. Conclusion: The Law of Extradition Accords With Jewish Law

What conclusion may be drawn from our discussion of the issue of delivery to a non-Jewish authority in Jewish law, to the status today of the extradition law and its application?

There are two conditions for the extradition of a resident of the State of Israel to another country: One - the existence of a mutual extradition treaty between the two states; Two - the alleged offense is a crime under the laws of Israel, is included in the list of crimes appended to the extradition law, and is not of a political nature. Extradition is therefore not a unilateral demand of one state of another, but is a mutual agreement, contracted freely by the two parties.

An additional requirement of the law is that no one shall be extradited to a country where he will face the possibility of a death sentence, if the crime does not bear a death sentence in Israel. Hence, a person will not be extradited for murder to a country where the death penalty is in force. Finally, proof sufficient to base an Israeli indictment for the alleged crime must be brought before the Israeli court.

These regulations accord completely with the categorical stand of Jewish law against the possibility that a criminal will evade punishment, especially if the crime is murder, and in favor of bringing him before the proper legal jurisdiction to stand trial.

As we have seen, many Torah scholars approved of cooperation with non-Jewish courts, even where this was coerced on the Jewish community by the non-Jewish authorities, as in the rulings of the Bach, Chavot Yair, and R. Yaacov Emden, which were based on Jewish law itself, or the opinions of the Rashba, the Ritva, and the Maharashdam, based on the principle of dina d'malchuta dina, in order to establish social order and the rule of law.

Extradition is all the more justified when it is executed freely by a sovereign Jewish state, equal in rights to the state requesting the extradition, under the conditions of the law of extradition as detailed above, where the accused cannot be tried in Israel. The Bach was willing to rely on the integrity of the judicial system of his day in Poland, which was not subject, of course, to any supervision whatsoever by the Jewish community. This surely can be assumed in regard to a country whose judicial system can be monitored by observers sent from Israel. Moreover, according to the extradition law, a person cannot be extradited at all for a crime where he may face the death penalty, whereas the Bach accepted the possibility that there would not be a death sentence as sufficient to allow extradition.

It would appear that if we were asked to extradite someone for the crime described in the responsum of the Bach - stealing a crucifix - in all probability the request would be denied, because of the religious nature of the crime (section 4 of the French-Israeli extradition treaty). Even those authorities who opposed cooperation with non-Jewish courts unless the crime posed a danger to the Jewish community as a whole, because they weighed the possibility of a miscarriage of justice as greater than the need to punish the criminal, would not object to extradition performed by a sovereign Jewish state, able to observe and verify the nature of the legal system in the other country, both before the signing of the extradition treaty and afterward. Compare this to the similar reasoning of the Meiri (BM 83b) cited above, concerning the "weeding of the vineyard," from which it follows that a suspect can be extradited if he would have to stand trial under Israeli law for the alleged crime, and there is an evidential basis, according to Israeli rules of evidence, for the indictment.

F. Additional Conditions

1. Danger to the Extradited Criminal

In my opinion, if the life of the accused would be in danger in a foreign jail, there is no need to prove a high probability of danger (as was claimed by my colleague, the Chief Justice). A reasonable degree of danger is sufficient to prevent the extradition. It is a basic principle of Jewish law that the possibility of danger suspends laws and mitzvot of the Torah. In our case, a reasonable degree of danger, demonstrated through verified, objective evidence, may serve as a contraindication to extradition.

2. Abandonment of Wife

The wife of the accused argued that the state of abandonment (igun) to which she would be subject is a sufficient reason not to extradite. In my opinion, this argument is not sufficient to cancel the extradition, under section 18 of the law, but it could serve to delay the extradition, under section 20, "special circumstances which defer execution of extradition." I shall explain.

The accused's wife, because of the danger of igun, has sued for divorce in the rabbinic court, and has obtained a writ preventing exit from the country. What is the nature of this danger? In order to understand this, we must examine divorce in Jewish law, which is completely different than divorce in other legal systems. Divorce in the Halacha is effectuated by the husband giving a writ of divorce (get) to the wife. The decision of the court does not effectuate the divorce, as in other systems. In other words, it is not constitutive, but declarative; that is, it announces the obligation of the couple to divorce, while the execution of the divorce must be performed by the husband. If the get is not given by the husband to the wife, the couple remains married. Therefore, if a man refuses to give a get (or if he is legally incapable), his wife cannot remarry, even though a court has ruled that a get should be given. (The same situation can result if a husband disappears, and his death cannot be proven.)

The consequences of abandonment for a woman led, since the earliest halachic times, to efforts by the sages to expedite proof of death in order to permit a woman whose husband has disappeared to remarry. The basic judicial principle is that the judge is obligated to do his utmost to free the woman from the bonds of igun.

In the sixteenth century, R. Shlomo b. Shimon Duran of Algiers received the following question. A man, who had abandoned his wife, appeared in another city. The local court wished to obligate him to issue a get, although the wife, who presumably did not know where her husband was, had not sued for a divorce. Since it is a principle of Halacha that a court does not deal with a case without a plea from the affected party, the court asked R. Shlomo Duran for guidance (Responsa Rash bash 46). His answer was: "In my opinion, the court is qualified to do so, even though she has not sued him, as all Israel are (qualified) litigants because of igun."

Does this consideration of preventing igun serve in principle as a sufficient and justified reason for the Minister of Justice to decide, under section 18 of the extradition law, not to extradite someone? At first glance, the answer appears to be affirmative. The reasons for nonexecution of a judicial extradition order by the Minister of Justice are first and foremost humanitarian, "extra-normative (considerations), which the judiciary is not qualified to consider,"13 such as:

Critical disease, early childhood or advanced age, or similar personal situations, because of which extradition is likely to cause very serious harm to the accused....

Under these conditions, extradition is inhumane. Rather than public approval of the extradition procedure, we will endure public repugnance, even though the accused is a criminal.14

There is no hint in the extradition law that the humanitarian consideration applies only to the accused himself. On the contrary, common sense dictates that serious humanitarian injury to someone else, who is not a criminal, ensuing necessarily from the extradition, will surely result in "public repugnance," and therefore should be a proper consideration for the Minister of Justice according to section 18.

The halachic laws relevant to freeing a woman from igun are part of the Israeli legal system, in which laws of marriage and divorce are governed by Jewish law. The special sensitivity of the legislator to the problems of igun is reflected, among other places, in section 6 of the law of the rabbinic courts, which empowers a district court to imprison a man in order to compel compliance with a divorce decree of a rabbinic court. It is well-known that the object of this regulation is to free a woman from igun by compelling her husband, on pain of imprisonment, to grant her a divorce. It therefore appears only reasonable that the Minister of Justice, when considering humanitarian reasons to disallow an extradition, should consider the problem of the igun of a woman whose husband will serve a prison sentence outside of Israel. The importance of having the husband remain in Israel consists in allowing the rabbinic court to exercise its authority to compel him to give a get. Only in Israel does a rabbinic court have the legal authority to do so, as recognized by Israeli law. In the country of extradition, a rabbinic court has no legal standing and cannot compel the husband to appear before it or obey its decisions.

Since freeing the woman from the bonds of igun is a humanitarian value of the highest degree in Judaism and in the legal system of the State of Israel, "a decision not to extradite the accused, despite the fulfillment of all the conditions of extradition, should not be understood as an affront to the state (which requested the extradition) or as a breach of the unconditional international obligation between the two countries to extradite, if and when these conditions are fulfilled."15

I agree with my fellow justices that the suffering of the accused as a result of the separation from his wife due to the extradition cannot serve as a reason not to extradite, especially if the marriage was contracted subsequent to his flight from justice in his previous country. The suffering of his wife, however, who has committed no crime, is completely different. The fact that she was aware of her husband's deeds prior to the marriage is irrelevant to this conclusion, as she was surely not aware that as a result of an extradition procedure she was liable to find herself in a situation of igun.

3. Delay of Extradition Rather than Annulment

On further examination, it appears to me that the need to free a woman from igun can justify, in the present case, a delay for some specified period of time in the execution of the extradition notice, but not the annulment of the extradition. The need to free the woman mandates that the husband remain in Israel for the time necessary to arrange a divorce. It may be assumed that this period of time, taking into account all sorts of delays, persuasions, and other customary problems, is limited. There is no justification, nor is it reasonable, 'for the Minister of Justice to totally annul the extradition of the accused in order to realize this goal. The extradition of the accused fulfills both the goal of having him stand trial for his serious crime in the country where it was committed, and the obligation which the state has accepted in respect to the foreign state requesting the extradition. These both are worthy goals, which should be furthered and fostered; and there is a disproportionality between the annulment of these two goals and the need for the accused to remain in Israel, for a limited period of time, even in order to free his wife from a state of igun. There is definitely no justification to cancel the extradition, if as a result he will not stand trial, either here or in the foreign country. Furthermore, and this point is conclusive: The goal of freeing the woman from igun can be met through another means recognized by the extradition law, and hence there is no need to cancel the extradition entirely.

What other means are there? Section 20 of the extradition law reads as follows:

If, before the cessation of the order, the attorney-general or the prosecutor-general shall request an extension, the court whose decision gave the order final standing is empowered to extend the period of the order, if there exist special circumstances which hamper the execution of the extradition, for a period of time which the court will decide according to the proven circumstances.

This section includes all that is necessary to free the woman from igun. An extension is possible if there are "special circumstances", which undoubtedly includes the prevention of igun. The law leaves the determination of the duration of the extension to the judgment of the court, that is, the amount of time necessary to bring a divorce hearing to a successful conclusion. It is reasonable to assume that the time necessary, including all possible delays, will not exceed one year. If the granting of a divorce - or alternatively, a waiver of the divorce petition by the wife - does not occur within a year, it is reasonable to assume that it will not occur in the near future. In such a, case, the obligation to execute the extradition will revive. It is possible that it will not be necessary to grant an immediate extension of a year; instead shorter periods can be granted, according to the specifics of the case. There is no limit in the law to the number of extensions that can be granted. I would also like to add that during the period of the extension the accused will remain in jail, as a valid outstanding extradition order against him remains in force.

G. Serving Foreign Sentences in Israel

Aside from all the reasons we have listed, there exists in the case before us an additional, compelling principle. Non-extradition of the accused in this case entails his escaping all punishment for the crime of which he has been charged, as there is no possibility of trying him in Israel for a crime committed in a foreign country during a time when he was not an Israeli citizen. Releasing him from the obligation to stand trial and allowing him to go free would constitute a grave offense against the principle of Jewish law that criminals should be tried and punished, especially when the crime is murder. The Torah objected to this crime, which takes the life of another and undermines society, more than any other. In this context it is worth mentioning the proposal of the Minister of Justice to allow a criminal sentenced by a foreign court to serve his sentence in an Israeli jail. Such an arrangement is practiced in a majority of the democratic countries of the world. The reason for this arrangement is simple. Serving a prison term in a foreign jail constitutes, aside from the limitation on liberty, an additional punishment of having to spend time in an environment whose customs and language are foreign. Additional suffering is imposed on the family of the prisoner, above and beyond the suffering inherent in having a family member in prison.

Such an arrangement is generally conditional on the agreement of the country in which the trial was held, the country in which he is to serve his sentence, and the criminal himself. In my opinion, it would be desirable to enact a law in Israel which would allow such an arrangement to exist here.


* Since the establishment of the State of Israel and the signing of extradition treaties with other states, there have been repeated requests to extradite Jews from Israel to countries where they are accused of crimes. This topic has been discussed from the perspective of Jewish law several times; cf. Rav Binyamin Rabinowitz-Teomim in Noam 7:336-360); Rav Yehuda Gershuni in Or HaMizrach (21 :69-78) and in Torah She-b'aI Peh (14:79-88). In 1986. the problem arose once again in the case of William Nakash, who was wanted in France for murder. William Nakash's brother, who operated a nightclub in the town of Besancon in France, was being bothered by an Arab, who did not pay for his drinks, etc. He asked his brother William to come from Paris to help him, William arrived with two Arab friends, ambushed the victim as he left the nightclub, pursued him, and finally shot and killed him. Nakash then fled France and arrived in Israel. Israel and France signed a treaty of extradition iii 1958. whereby a criminal can be extradited after a judicial hearing. An Israeli court found Nakash to be extraditable. The claim that the crime was political and therefore excluded from the extradition treaty was rejected by the court.

The Minister of Justice has the final say whether to carry out the extradition. In this case, he declined to do so, citing fears concerning the physical safety of Nakash in a French jail. Several MP's and jurists appealed the decision to the High Court of Justice, which decided to overturn the decision of the minister, because it had been based on inadequate investigation of the facts. The court ruled that the minister's authority to rescind an extradition order is limited to certain extraordinary cases.

Justice Menachem Flon, in a minority opinion, rejected the appeal due to lack of standing of the appellants. If his opinion would not be accepted, he suggested delaying execution of the extradition order for a year, in order to devise in the meanwhile a solution for the abandonment of Nakash's wife that would result from his being imprisoned in France. In principle, he agreed with the majority opinion that the extradition order was valid. Inter alia, he reviewed the attitude of Jewish law to extradition, and concluded that it is possible to extradite a criminal to a foreign government.

Unlike the majority opinion, which required a great likelihood of mortal danger in order to defer an extradition, Justice Elon ruled that a reasonable doubt concerning the criminal's safety is sufficient. He also suggested that the government pass a law whereby an Israeli citizen convicted in a foreign court could serve his sentence in Israel, even if the crime was committed before he became an Israeli citizen. The entire decision was published in the Decisions of the Israeli High Court of Justice, v.41, part 2. p.1ff . Justice Elon's opinion appears on pp.65-99.

We are publishing an edited translation of Prof. Elon's review, together with a response by Rav Shaul Yisraeli, without reference to the particular details of the Nakash case. - ed.

1. See Menachem Elon, HaMishpat Halvri, v.1, p.11; p.36; ibid. n.112; v.2, p.647.

2. See H. Grotius, De jure Belli Ac Pacis Libri Tres, translated by F.W. Kelsey, New York and London, 1964, pp.522-545.

3. Cf. BK 11 7a: "If the property of a Jew falls into the hands of a gentile, they have no mercy on him": also Taz, YD 157,8.

4. See Rambam, Hilchot Yesodei Ha Torah 5,5, and commentaries ad.loc.: Shulchan Aruch YD 157.1. and commentaries ad.loc.: Yad Ramma and Meiri. San. 72a-b; Ritva and Maharam Chalava. Pes. 25a-b: Ran (on the Rif) Yoma 82a: Chazon Ish ChM. San. 25: Rashi and the Radak. 2 Sam 20.22: Tosefta Kifshuta. Ter. p. 420-42 3: cf. D. Taube. Collaboration with Tyranny in Jewish Law, Oxford, 1965.

5. Cf. Yerushalmi. ibid., the case of Ulla b. Kushbi: Bereishit Rabba 94: and the debate between Nevuchadnetzar and the sanhedrin concerning the handing over of King Yehoyakim.

6. This is the correct reading. and not "who informs"; cf. Shach ibid., 19.

7. The reference is to currency fraud or debasement.

8. The responsum appears in the Frankfurt edition (1697) and was generally excised from later editions by the censor. It has recently been reprinted, together with an extensive discussion. In E.J. Shochet. A Responsum of Surrender; Translation and Analysis. Los Angeles (1975).

9. The district governor. who was the government representative in the district capital.

10. This conclusion, without the responsum. is cited in the Bach. YD 157.

11. The responsum is cited by the Beit Yosef, ChM 388, Koenigsburg edition, but was omitted in later editions. It is also not found in the various collections of the responsa of the Rashba. It was printed by Kaufman in Jewish Quarterly Review. v.8 (1896), p.228.

12. Meiri (Beit HaBech ira) AZ 22a; BK 37b; and elsewhere; cf. Y. Katz, "Sovlanut Dat it". in Y. Katz. Halacha Ve-Kabbala. 1984, p.29 1ff.

13. S.Z. Feller. Dinei HaHasgara (The Harry Sacher Institute of Legislative Research and Comparative Law, 1980). p.445.

14. ibid. p.154.

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