Pre-Sinaitic Jewry

The Talmud teaches[1] that Abraham observed the entire Torah before the Torah was actually given at Mount Sinai because the Torah says, “Since Abraham listened to my voice, and he guarded my watching, my commandments, and my statutes, and Torahs.” The ultimate word teaches that Abraham followed both the Written Torah and the Oral Torah. However, despite this fact, there remains a controversy over the halachik status of Abraham and his family until the Sinaitic Revelation. This controversy discusses whether the pre-Sinai Abrahamic family had the legal statuses of Jews or they were considered Noachides until the acceptance of the Torah at Mount Sinai. Assuming the status undoubtedly either way creates both leniencies and stringencies in the law for Abraham and his early descendents, so some opinions compromise and assume that they had the status of both in order to be stricter.

Rabbi Shmuel ben Yitzchok Yaffe Ashkenazi of Constantinople/Istanbul (1525-1595) seems to understand that from the time that Abraham performed the circumcision on himself, his family lost their status as Noachides and therefore already had the halachik status of Jews, and all the legal leniencies that such a classification causes. Rabbi Ashkenazi proves this from the fact that Jacob was allowed to marry two sisters even though a person is not normally allowed to marry two sisters[2]. He explains that because Abraham’s family were already not mere Noachides but had the status of Jews, Jacob had both Rachel and Leah convert to Judaism, and since a newly converted convert is likened to a newly born baby[3], they did not retain their former relationship as sisters, and Jacob could marry both. Furthermore, he proves that the descendants of Abraham were considered Jewish and not Noachides even before the Revelation at Mount Sinai from various Midrashim[4] which assume that Jacob and Joseph observed Shabbos, despite the Noahidic prohibition of observing Shabbos[5], because they must not have been Noachides[6]. He proves his point from a Midrash[7] that says that when Joseph was claiming that Benjamin stole his goblet, and should be enslaved, Judah countered that Benjamin need only repay him the lost monies, without being enslaved. However, this rule that one need only repay stolen goods is only according to Torah law by which Jews are bound[8], according to Noachide law, if one steals he is immediately subject to the death penalty[9].

However, Rabbi Eliyahu Mizrachi (1455-1526) of Constantinople understood that the family of Abraham had the status of both Noahides and Jews and used whichever status was applicable to be more stringent in their obligations. Accordingly, Jacob’s permission to marry two sisters did not stem from the fact that he was not a Jew nor from the fact that he was not a Noachide, rather there must have been a third reason. Similarly, the ancestors of the Jewish Nation did not keep the Shabbos because they were Jewish, because their Noahide status should also have blocked that; rather there must have been a different reason. This understanding of Rabbi Mizrachi’s opinion explains why he questioned Tziporah’s permission to circumcise her son, Gershon, while traveling[10] despite the danger in doing so and the prohibition of performing Mitzvos in the face of danger[11]. Rabbi Mizrachi felt that even though she was Jewish before the Sinaitic Revelation, and therefore was commanded to circumcise her son[12], she still could not be lenient on her prohibition of performing Mitzvos while in danger, because in regard to that, she was still considered a Noachide and had no commandment to circumcise Gershon.

The Chida, Rabbi Chaim Yoseph Dovid ben Yitzchak Zerachia Azulai (1724–1807) notes[13] that Rabbi Yehuda Roseannes (1657-1727) of Costa, Turkey (author of Mishneh L’Melech on Maimonides) had a third opinion on the subject. Rabbi Roseannes learned[14] that Abraham’s family not only lost their status of Noachides even to create legal leniencies like Rabbi Ashkenazi understood, but that they even lost that status before Abraham’s circumcision. The Abrahamic family had the status of Jews from the time that Abraham recognized HaShem as the monotheistic deity. There is a proof to this opinion: The Talmud understands[15] that Abraham legally acquired the land of Canaan by means of a chazakah (an acquisition of established ownership) by walking its boundaries[16]. However, Maimonides rules[17] that such an action of acquisition is not legally effective if done by a non-Jew. Therefore, it must be that even at that time of Abraham’s cross-country journey, which was before his circumcision, he was already a Jew. Rabbi Akiva Eiger asks[18] as a question on Rabbi Roseannes that is apparently obvious that if Abraham had the legal status of a Jew, it was surely only after his circumcision, and not before so.

The Talmud[19] entertains the possibility that Esau had the legal status of an apostate Jew. This implies not only that Esau was Jewish[20], but also that there was a legal status of Jewishness even before Matan Torah. The Brisker Rav (1886-1959) explains these two concepts. He says[21] that unlike Ishmael, who was never destined to have any portion of Abraham's inheritance and continue as the spiritual heir to the Abrahamic tradition, Esau was given the option to become a Jew like his brother Jacob became, and to learn the Torah and inherit Mount Seir, just like Jacob inherited the Land of Israel[22]. The Brisker Rav elsewhere[23] assumes for a given that there was a concept of conversion prior to the mass conversion of the Jewish Nation at Mount Sinai. Furthermore, the Brisker Rav maintains that before Mount Sinai, the ancestors of the future Jewish Nation had the Torah in the same state as it was given after Mount Sinai, but they themselves did not have the technical legal status as Jews. His proof to this idea is found in the Talmud[24], which says that the world is destined to exist for only six thousand years, the first of which the world was empty from Torah, the second of which Abraham began spreading Torah, etc… One sees from here that Abraham had the Torah in its present form as the Jews currently do now. He writes that in order for one to join this circle of the Abrahamic family, one needed only to have verbally accepted upon oneself the obligations of the Torah[25].

If the members of the Abrahamic family lost their status as Noahides at any time before the Revelation at Mount Sinai (as Rabbi Ashkenazi and Rabbi Roseannes had understood), then they must have undergone a conversion to Judaism at that time. In fact, the Talmud[26] describes Abraham as the first of converts. If Abraham lost his status as a Noachide at that time of his circumcision, then that circumcision was the act, which sealed his conversion. If he lost his Noahide status before so, when he originally recognized HaShem as the creator of the universe, then according to the Brisker Rav, his conversion was a mere verbal acceptance of the Torah's laws. However, some commentators find such a mere verbal conversion invalid, and feel that there must have been an action to validate the conversions, for in post-Sinaitic conversion, actions are always required, whether circumcision or immersion into a Mikvah. This objection is flawed because the requirements of circumcision and immersion into a Mikvah for a proper conversion are only derived from the fact that the Jews at the mass conversion at Mount Sinai had to do so[27], but cannot be used as criterion for pre-Sinaitic conversion. According to this, Rabbi Aryeh Leib ben Asher Ginsberg of Mitz (1695-1785) asks[28] why Bithiah, the daughter of Pharaoh, had to immerse into the Mikvah as part of her conversion process[29], if her conversion would be valid with a mere verbal acceptance, even without the immersion.

Rabbi Naphtali Trop (1871–1928) explains[30] that one can be a full Jew, but still require a conversion. This is why according to Tosafos[31] a child born of a Jewish mother and gentile father requires conversion, even though such offspring is technically Jewish. He explains that this is because even though such a child is genealogically Jewish, he lacks a certain sanctification found in a Jew, so he requires a type of conversion. There is a quasi-Jewish state[32] where one can be obligated in following the Torah, yet still not have the status of a Jew. After Abraham's verbal acceptance of the Torah, he was such a Jew, and therefore required another conversion by means of his ritual circumcision. Before Abraham's circumcision, there were two types of conversion in the pre-Sinaitic world, a verbal one[33] and an action oriented one. Abraham utilized the former type to be given the status of a Jew[34], and then he was later separately required by HaShem to carry out a circumcision on himself. Subsequently, after his circumcision, it would seem that only the latter existed, and therefore, Bithiah was required to immerse into the ritual bath in order to become a Jew. Nonetheless, Rabbi Avraham Yitzchok ben Baruch Sorotzkin (former Rosh Yeshiva of Yeshivas Telz in Cleveland, Ohio) writes[35] that it can be implied from the words of Targum Yonason[36] that the daughter of Shua only verbally converted in order to marry Yehudah, but did not undergo an active conversion by immersing into the Mikveh.

The source of the dispute between the Rash Yaffe (Rabbi Ashkenazi) and the Re'em (Rabbi Mizrachi), Rabbi Roseannes writes, can be traced to a dispute between two Amoraic sources: the Talmud and the Midrash. The Talmud[37] says that if a gentile hits a Jew, he is liable for the death penalty, which is why Moses killed an Egyptian man because the man struck a Jewish slave[38]. However, the Midrash explains[39] that he was liable for the death penalty because he hit with intention to kill, not necessarily, because he hit a Jew. The Talmud holds that the pre-Sinaitic Jew had the status of a Jew. Therefore, the Egyptian was liable for the death penalty as a gentile who hits a Jew. At the same time, the Midrash maintains that they did not have the status of Jews, so the Egyptian could only have been liable for the death penalty for intending to kill under the global death penalty for murder, as it says, "And once who hits a man [with intent to kill], shall be killed"[40].

Rabbi Roseannes further writes that even in biblical times, there was a halachik question whether the members of the Abrahamic family were Noahides or Jews. He writes that Jacob himself, the last of the three patriarchs, was unsure whether he himself had the status of a Jew or a Noachide. This explains why the Midrash says upon his deathbed, he was unsure whether to distance himself from (curse) his eldest son, Reuben, or to bring himself closer to (bless) Reuben[41]. According to the simple meaning of the Torah[42], Reuben had relations with Bilhah. If Jacob was a Jew, then Reuben was permitted to have relations with Bilhah because she was only a concubine of his father, and not a wife. This is because the Mishnah[43] rules that one may marry a woman whom his father raped or coaxed into having relations, which includes a concubine[44] who is married without a legal marriage acquisition (Kiddushin)[45]. However, if Jacob was a Noahide, then he and Bilhah were legally married even without the Kiddushin because Noahides are considered married with merely having relations. Since Jacob was unsure whether he was a Jew or Noachide, he was unsure whether his son Reuben had sinned by cohabiting with the wife of his father, because it was debatable whether Bilhah was actually his wife or a mere concubine. Therefore, Jacob neither cursed nor blessed his firstborn son upon his deathbed, but merely stated the facts of what happened[46]. Later, according to Midrash, Moses ruled that the pre-Sinaitic Jews were indeed considered Jews and not Noahides, so Jacob was not married to Bilhah, and therefore Reuben was exonerated from sin by Moses at Moses' deathbed, "And Reuben shall live, and not die.[47]"

When Joseph reported to his father the wrongdoings of his brothers, he told his father Jacob that they were eating from the limbs of live animals which is forbidden to both Noachides and Jews[48]. In reality, explains Rabbi Mizrachi[49], the brothers were eating from animals, which were slaughtered but still convulsed and twitched post-mortem. For a Jew, once an animal is ritually slaughtered it is immediately permitted for consumption. However, says the Talmud[50], for a non-Jew the animal must completely dead for the meat to be allowed to be eaten. In the case of Joseph's brothers, since the animals were still twitching after their slaughtering, their meat would have been forbidden to a Noachide and permitted to a Jew. Therefore, one can argue that that Joseph held that his family was still Noachide and such meat is forbidden, so he informed on his brothers to Jacob. The ten brothers, on the other hand, held that they were legally Jewish already and so such meat was permitted to them. The Rash Yaffe[51] did not agree with this understanding of the Mizrachi because there is a rule that there is nothing which is forbidden to non-Jews and is permitted to Jews (because the Torah laws are more stringent than the Noachide laws), so the brother's position that such meat would have been permitted because they were already Jewish is unfound. Rather he explains that the dispute was not regarding this case of the "chicken-without-a-head" effect, rather it was concerning the embryo inside a slaughtered female animal, which does not require a slaughtering of itself[52]. Rabbi Roseannes explains that Joseph was able to have a legal dispute with his older brothers, even though they had a bigger Beis Din that he was himself, because the Midrash says[53], that Joseph received exactly the entire Masoretic tradition from his father Jacob, so he had equal legal powers to his ten brothers.

King David rhetorically asked HaShem how long people are going to continue questioning the legitimacy of his lineage because of the dubious origins of his great-great-great-great-great-great-great-grandfather, Peretz. Perez was born to his father Yehuda and his mother, Yehuda's daughter-in-law, Tamar. Tamar was originally married to Yehuda's son Er, and after his death, Onan. Following Onan's death, Yehuda performed the Levirate marriage on his daughter-in-law and married Tamar; Peretz was born on the resulting union. Normally, one is not allowed to marry his daughter-in-law and the child born of such a marriage is illegitimate. Therefore, David was asking why people complained that he is born of dubious lineage[54]. Rabbi Roseannes justifies this seemingly illegal performance of the Levirate marriage by explaining that Tamar was not really the daughter-in-law of Yehuda. Yehuda's two sons, 'Er and 'Onan only cohabited with Tamar unnaturally (i.e. anally)[55], ands therefore they never consummated their marriages. If the pre-Sinaitic Abrahamic family were indeed Noahides, not Jews, then this type of relations does not create a marriage[56] and so Yehudah was not actually marrying his daughter-in-law[57]. Tamar was the one who realized this reasoning that the Abrahamic family was actually Noahidic not Jewish. She followed the opinion of Joseph in the dispute between Joseph and his brothers. The Ritva explains[58] that this is why Yehuda admitted about Tamar that "she is more righteous than I.[59]" In the end, Yehudah concurred with Joseph's halachik opinion (because of Tamar's righteous actions), that is, their family is Jewish not Noachidic.

The Talmud says[60] that Yehuda's admission caused Reuben to repent. After Yehuda agreed with the collective opinions of Tamar and Joseph, Reuben had to admit his sin. Since Reuben's family was a Noachide family according to their opinion, then Bilhah was actually his father's wife and so he committed a terrible sin by cohabiting with her. This also explains the Midrash[61] says that at the time that Yehuda said Tamar is "more righteous than I", Reuben stood up and admitted that he messed around with his father bed. This follows the reasoning above that Joseph and his brothers were engaged in this dispute regarding the status of the Abrahamic family. However, in the end it was clear that the Abrahamic family were Noachides. This ruling exonerated Yehuda from sinning with Tamar, and implicated the brothers for eating the meat of the animal while it still twitched, and further implicated Reuben for his actions with Bilhah. This change in the opinion of the Ten Tribal patriarchs of the Jewish nation accounts for their reaction to Egyptian Viceroy Joseph's demand to enslave the one who took the goblet. They agreed that the robber should be put to death, because if a Noachide steals any amount he can be put to death[62]. However
, for the rest of them, they did not want to be enslaved because they still felt that they had the status of Jews in some sense.

When Abraham refused to serve idols as a young man, he was brought in front of King Nimrod in Ur Kasdim to be conflagrated to death. However, when Abraham was thrown into the fiery furnace, HaShem performed a miracle and he was therefore miraculously saved from a fiery death. The Talmud[63] says that a Noahide has no obligation to give up his life in order to sanctify the name of HaShem. According to Maimonides,[64] one who gives up his life in a situation when he has no obligation to do so is liable for the death penalty (because he is no different from anyone who commits suicide, which is also a punishable offense). If Abraham was a Noachide, then he would have not had an obligation to be martyred to defend HaShem's honor, and therefore a miracle should not have occurred on his behalf and he should have been killed by the fire as a punishment for needlessly giving up his life. However, this is not necessarily a proof that the Abrahamic family lost their Noahidic status from the moment Abraham recognized the existence of the Creator because indeed Abraham truly deserved to have been killed in the fire. Nonetheless, the Midrash[65] tells that Abraham was saved from his fiery death not in his own merit for sanctifying the name of HaShem, but in the merit of his future grandson, Jacob. Therefore, Abraham could even have been a Noachide, and just as a Noachide can be punished for sins he did not yet commit, but will in the future, a Noachide can be rewarded for good deeds that he did not yet commit, but he or his descendents will in the future.

Tosafos asks[66] that if Abraham had a daughter named “Bakol”[67], then why did not Issac, her brother, marry her[68], according to the opinion that a Noahide is allowed to marry his sister[69]. This Tosafos is not necessarily a proof that the opinion of Tosafos is that the Abrahamic family was still considered Noahides until the Sinaitic Revelation because perhaps Abraham did not allow his son Issac to marry his sister because he knew that in the future the Torah was disallow such an incestual marriage[70]. Similarly, writes Tosafos[71] that Lot is considered a sinner because of his actions with his daughters in the cave[72] because in the future there would be a prohibition against marrying one’s daughter(s). The Talmud asks[73] according to Rabbi Akiva, who holds that one can marry his maternal sister, why did Abraham have to point out to Abimelech specifically that Sarah not maternal his sister[74], if a man is allowed to marry his maternal sister. According to Tosafos, there is no question on Rabbi Akiva because Abraham would not have married Sarah had she been his maternal sister because he knew in the future that the Torah would disallow it.
[1] Yoma 28b, Kiddushin 82a
[2] A Jew is not allowed to do so because of Leviticus 18:18 and Noachides are also included in this prohibition according to the Sages of Sanhedrin 57b. (Nonetheless, the Rambam does not rule according to those Sages; see Maimonides, Laws of Kings 9:5.)
[3] Yevamos 22a
[4] Genesis Rabbah 79:6 and 92:4
[5] Sanhedrin 58b
[6] However, there are various ways to answer this proof. See Similarly, one cannot prove from the fact that the Midrash (Genesis Rabbah 94:3) says Jacob and Joseph learned the Laws of the Eglah Arufah (see Deuteronomy 21:1-9), despite a Noahidic ban on learning parts of Torah not applicable to gentiles (Sanhedrin 59a). This is because the prohibition of non-Jews learning Torah is like a prohibition of adultery or stealing, so before the reception of the Torah at Mount Sinai when the Jews did not yet “marry” the Torah or own it, there was no such Noahidic prohibition.
[7] Genesis Rabbah 92:6
[8] See Exodus 22:2
[9] Yevamos 47b
[10] Exodus 4:24 see Mizrachi there.
[11] See Leviticus 18:5 where the Torah says one should “live” through the Mitzvos, not die through them.
[12] See Shiurim Rabbi Dovid Povarsky to Yevamos 81b who proves that when the father is incarcerated (in this case Moses was swallowed by a Serpent), the mother has an obligation to circumcise the baby boy.
[13] Midbar Kedemos §1:4
[14] Parshas Derachim §1 (Many issues discussed in this essay are found in the words of the Mishnah L’Melech there.)
[15] Bava Basra 100a
[16] Genesis 13:17
[17] Maimonides, Laws of Sales 1:17
[18] In his marginal footnotes to Parshas Derachim as recorded in Kesav V'Chosem §60
[19] Kiddushin 18a
[20] Rabbi Menachem Azaria de Fano (1548–1620) writes (Asara Ma'amaros, Ma'amar Chikur Din §2:22) that Esau was surely not Jewish and the Talmud there was not trying to assert he was, it was only a pilpulisitc answer to disprove a proof. However, Rashi there writes that at the time that Esau received Mount Seir, he was still considered Jewish.
[21] Chiddushei HaGriz Al HaTorah to Parshas Toldos
[22] Perhaps this is the explanation behind the idea that Leah was originally destined to marry Esau (Bava Basra 123a, Genesis Rabbah 70:16), and Rachel, Jacob.
[23] Chiddushei HaGriz Al HaTorah to Parshas Bo
[24] Avodah Zarah 9a
[25] However, it is unclear whether a person needed to accept all 613 commandments of the Torah if not all 613 were applicable then, as seen from Maimonides, Laws of Kings 9:1. A present-day convert, must accept all 613 commandments including rabbinic ordinances in order for the conversion to be considered valid.
[26] Chagigah 3a
[27] Yevamos 46a-b
[28] Turei Even to Megillah 13a
[29] Sotah 12b
[30] Chiddushei HaGraNaT to Kesubos §28
[31] To Yevamos 16b
[32] "half-Jewish" as certain liberal Jews would call it, although for a different reason
[33] Those "souls which Abraham made in Haran" before his circumcision, whom, according Rashi to Genesis 12:5, Abraham and Sarah proselytized only underwent a verbal conversion, not the action one. Therefore, they did not have the Kedushas Yisroel to pass on their obligations to the Torah's laws to their children, but they were themselves obligated to follow the Torah.
[34] See responsa of Rabbi Jacob Toledano (1697-1771), Teshuvas Maharit Volume 2, §6
[35] Gevuras Yitzchak on the holiday of Shavuos, §8
[36] To Genesis 38:2
[37] Sanhedrin 58b
[38] Exodus 2:12, See Rashi there
[39] Exodus Rabbah 1:28
[40] Leviticus 24:21
[41] Genesis Rabbah 98:4
[42] This episode is described in Genesis 35:22. Rabbi Roseannes ignores the explanation of the Talmud (Shabbos 55b) which says that Reuben merely moved his father's bed from Bilhah's tent to his mother, Leah's tent.
[43] Yevamos 97a
[44] However, see Genesis Rabbah 38:1 which says regarding Samuel 2 16:21 that Achitophel caused Absalom to sin by taking his father's concubine. Although, that situation can be different because it is always forbidden to marry someone whom a Jewish King had consorted with, but Absalom was not necessarily sinning there because she was his father's wife.
[45] Sanhedrin 21a
[46] Genesis 49:4
[47] Deuteronomy 33:6
[48] Genesis Rabbah 84:7
[49] To Genesis 37:2
[50] Chullin 33a
[51] See Kuntres Parshas Derachim §1 written by the author of the Pri Megadim and Shoshanas HaAmukim, Rabbi Yosef ben-Meir Teomim (1727-1792).
[52] See Chullin 68a. The Parshas Derachim does not like this understanding of the Rash Yaffe for various reasons.
[53] Genesis Rabbah 84:8, based on Genesis 37:3
[54] End of Ruth Rabbasi
[55] Yevamos 34b
[56] Sanhedrin 58b
[57] On the opposite side, if they were not Noahides, one of the various other explanations should be used to explain Yehuda's actions.
[58] To Kiddushin 9b
[59] Genesis 38:26
[60] Sotah 7b
[61] Midrash Tanchuma to Genesis 38:26
[62] Yevamos 47b
[63] Sanhedrin 74b
[64] Maimonides, Laws of Foundation of the Torah 5:1
[65] Genesis Rabbah 63:2
[66] To Bava Basra 145a
[67] This is exegetically understood from Genesis 24:1 which says that HaShem blessed Abraham with Bakol. Chagigah 3a refers to a daughter of Abraham named "Nediv", however that "daughter" is an allegorical reference to the Jewish Nation on their thrice-yearly pilgrimages to Jerusalem (see Song of Songs 7:2).
[68] And thereby not require Abraham to have sent Eliezer abroad in search of a match for Issac because all the local girls in Canaan were licentious and perverted
[69] Sanhedrin 58b
[70] Therefore, to explain how Tosafos understood how Jacob was able to marry two sisters, one must say that Tosafos answered like Nachmanides who said that the forefather only observed the Torah whilst in the Holy Land, but outside of the Land, they did not necessarily keep the laws. Or we can answer that the two sisters converted to Judaism and a newly converted convert is like a newly born baby and does not retain previous relations (Yevamos 22a), so Leah and Rachel were not sisters. Issac, who never left the land of Israel, must have always kept the laws and, therefore, could not have married his sister Bakol. (The Midrash, Genesis Rabbah 64:3, understands based on Genesis 26:5 that Issac was considered like a Burnt Offering (Korban Olah) which cannot be brought out of the Land of Israel.)
[71] To Sanhedrin 57b
[72] Genesis 19:30-38
[73] Sanhedrin 58a
[74] Genesis 20:12