May I Participate in the Census?

In honor of this week’s Haftarah, I present the following halachic discussion:

Question #1: Counting sheep

Why would someone count sheep when he is trying to stay awake?

Question #2: Counting from a list

Is it permitted to count people from names on a list?

Question #3: Ki Sissa or Hoshea?

The Gemara bases the prohibition to count the Jewish people from the opening words of this week’s Haftarah: And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Why does the Gemara attribute the prohibition to this source in Hoshea, when the prohibition is mentioned in the Torah in the beginning of Parshas Ki Sissa?

Answer: Analyzing the Sources in Chazal

The Mishnah teaches that to determine which kohen would be awarded the mitzvah of removing ashes from the mizbei’ach, a lottery procedure was used, whereby the kohanim interested in performing the mitzvah extended their fingers, which were then counted. The person in charge picked a number much greater than the assembled kohanim, and then counted fingers until they reached that number. The kohen on whom the number landed performed the mitzvah (Rashi ad loc.).

The Gemara asks why they didn’t simply count the kohanim themselves, and answers that it is prohibited to count Jews (Yoma 22b) — counting fingers is permitted, counting people is not (Rambam, Hilchos Temidim Umusafim 4:4). We are aware of one common application of this mitzvah: when counting people for a minyan, one counts words of a ten-word pasuk, rather than counting the people directly (Sefer HaItim #174; Kitzur Shulchan Aruch 15:3).

Here is another application: to determine how many places one needs to set at a table, one should not count heads, but one may count sets of legs (Shu’t Torah Lishmah #386).

The Gemara cites three Biblical sources for this prohibition:

1. When the nation of Ammon threatened the Jewish community of Yaveish-Gilad, Shaul gathered a large Jewish army (Shmuel I 11:8). According to one opinion in the Gemara, Shaul counted the members of his army by having each soldier throw a piece of broken pottery into a pile. Thus, even to fulfill a mitzvah, one may count Jews only in an indirect manner.

2. Before attacking Amalek, Shaul gathered the Jewish people and had each person take a sheep from Shaul’s herds. By counting the sheep, he knew how many soldiers he had (Shmuel I 15:4, see Rashi). Again, we see that he used an indirect method to count them.

3. And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Taking the verse not only as a blessing, but as a commandment, the Gemara derives a prohibition against counting the Jewish people.

Isn’t the Torah a Clearer Source?

The obvious question is, why does the Gemara not quote the pasuk in the Torah as a source for the prohibition?

When you will take the headcount of the children of Israel to determine their numbers, each man should give atonement for his life to Hashem when being counted. Thereby, no plague will result from the counting. This is what whoever is counted should give: a half shekel (Shemos 30:12 -13).

This pasuk implies that the only permitted way to count Jews is indirectly, by having each one donate a half-shekel and then counting the coins. This seems to be the source of Shaul’s knowing to count the Jews indirectly. It is indeed odd that the Gemara quotes Shaul’s practice as the source for the prohibition, rather than Shaul’s own source, the Torah itself!

Before answering this question, I want to analyze a different point that we see in the pasuk. The Torah says: each man should give atonement for his life to Hashem when being counted. Thereby, no plague will result from the counting. In the discussion of no other mitzvah does the Torah say, “fulfill this commandment so that no plague results.” Why, suddenly, does the Torah apply such an expression in this case?

Rabbeinu Bachya (ad loc.) explains that when we count an individual separately, it causes the heavenly tribunal to note all his deeds, and this may result in his being punished for his sins, which otherwise would not be punished now.

Others explain the concern in terms of ayin hora. Abarbanel, for example, explains that counting people by head causes ill to enter through their eyes and mouth into their body, whereas counting fingers does not cause the ayin hora to enter them. I leave to the reader to decide whether he is referring to physical or metaphysical harm.

Why the Prophets?

So, indeed, if we see from the Torah, itself, that counting Jews is prohibited and potentially very harmful, why did the Gemara base its comments on the deeds and words of the Prophets?

The commentaries present several approaches to answer this question. Here is a sample of some answers:

(1) The Gemara is proving that one may not count Jews, even for the purpose of performing a mitzvah, something that the Torah did not expressly say (Sfas Emes to Yoma ad loc.). The practices of Shaul and the verse in Hoshea make clear that one may not count Jews directly, even for the sake of a mitzvah.

(2) The Gemara needs to prove that we may not count even a small group of Jews, whereas the pasuk in Ki Sissa may be prohibiting only counting the entire people (Mizrachi; Sfas Emes).

(3) The verse in Ki Sissa could mean that one may count the Jews in a normal census, but that, afterwards, they all provide a half-shekel as an atonement to make sure that no one suffers (Makom Shmuel, quoted by Shu’t Tzitz Eliezer 7:3). This last approach suggests that the verse When you will take the headcount of the children of Israel according to their numbers be explained in the following manner: When you take a regular census of the children of Israel, each man should give atonement for his life to Hashem when counting them – after you conduct your census, each person should give a half-shekel, to make sure no harm results. Indeed, the census could cause harm, but that does not necessarily mean that the Torah prohibited it. However, the stories of Shaul and the verse in Hoshea prove that the Torah prohibited counting Jews directly, since Shaul counted the people by counting sheep, rather than conducting a census and then having them all donate a half-shekel as atonement.

(4) One can interpret the verse in Ki Sissa to mean that the generation of the Desert, who had worshipped the eigel hazahav, the Golden Calf, was at risk, and that counting them might cause a plague (Maharsha to Yoma ad loc.; see also Ohr Hachayim to Shemos 30:2). However, one cannot prove from Ki Sissa that there is an inherent prohibition or risk in counting Jews when they have not violated such a grievous sin. However, the stories of Shaul or the verse in Hoshea prove that one may not count Jews, even when they have not violated serious prohibitions.

Thus, we see several possible ways to interpret why the Gemara did not consider the Torah source as adequate proof to prohibit counting the kohanim in the Beis Hamikdash, but instead rallied proof from later sources. As we will see shortly, there are actual distinctions in practical halacha that result from these diverse explanations. But first, a different question:

Counting from a List

For the purposes of fulfilling a mitzvah, may one count Jews by listing their names and then counting their names? Is this considered counting people indirectly, since one is counting names and not people, or is this considered counting the people themselves?

Advertising Campaigns to Help the Needy

Creative advertising campaigns aimed at generating tzedakah funds did not originate with modern organizations, such as Oorah or Kupat Ha’ir. About 200 years ago, Rav Yisrael of Shklov, a major disciple of the Vilna Gaon and an author of several scholarly Torah works (including Taklin Chadtin on Shekalim and Pe’as Hashulchan on the agricultural mitzvos), was organizing a fundraising campaign for the Yishuv in Eretz Yisrael in which he wanted to link donors to individual beneficiaries by listing the needy of Eretz Yisrael by name. Rav Yisrael held that this fundraising approach =did not violate the prohibition of counting Jews[MSOffice1] , since counting names on a list is an indirect way of counting people, and, furthermore, it was for the sake of fulfilling a mitzvah. He held that this is similar to Shaul’s method of counting his soldiers.

However, the Chasam Sofer disagreed, contending that counting names on a list is considered counting people directly. Even though one is not looking at their faces, counting from a list is considered counting the person and is therefore halachically different from counting fingers, legs, half-shekels, lambs or pottery shards (see Koveitz Teshuvos Chasam Sofer #8; Shu’t Kesav Sofer, Yoreh Deah #106). We will see shortly that this dispute exists to this day.

The Census

Is the State of Israel permitted to conduct a census of its population? Does an individual violate the mitzvah by working as a census taker or by providing the census takers with information?

This question was hotly debated by halachic authorities, even when the pre-state Zionist organizations began counting the Jewish population, and continued with the censuses of the State of Israel. Those who permitted the census provided a variety of reasons to justify it, the primary one was that servicing the medical, educational, economic, and safety needs of a large population requires knowing how many people there are. These authorities accepted that this qualifies as a dvar mitzvah, and that counting by list, or via computer and machine calculation is considered indirect counting (Shu’t Mishpatei Uziel 4:2; Noam XV=).

On the other hand, several prominent poskim prohibited taking the census or participating in it (Shu’t Tzitz Eliezer 7:3). On the 27th of Iyar, 5732 (May 11, ’72), the Steipler Gaon released a letter stating the following:

In the coming days, census takers will be counting the Jewish people. One should be careful not to answer them at all, to inform them that it is forbidden to take a census, and that it is possible that this is a Torah violation, as explained in the Gemara Yoma 22, the Rambam in the fourth chapter of Temidim and Musafim, and the Ramban in Parshas Bamidbar. Furthermore, the Tosafos Rid in Yoma writes that it is prohibited to do so even indirectly, unless one is accomplishing a mitzvah. It is explained in Kesav Sofer… that it is prohibited to do so even through writing. Furthermore, taking a census involves the possibility of danger.

At the same time, the Beis Din of the Eidah Hachareidis also issued a letter prohibiting participating in the census or answering any questions from the census takers, and reiterated that they had banned this ten years before at the previous census.

Subsequent to his publishing a responsum in which he prohibited participating in the census, the Tzitz Eliezer (7:3) was asked whether someone wishing to determine the numbers of people who made aliyah may count how many people there are. He answered that for the purposes of a mitzvah, one may count indirectly. However, we should note that such figures are often counted simply for curiosity or publicity, which the Tzitz Eliezer prohibits (22:13).

In a more recent responsum dated Elul 24, 5755 (September 19, ’95), Rav Vozner (Shu’t Shevet Halevi 9:35) writes that the heter of taking a census because of divrei mitzvah applies only when the statistics are used solely for divrei mitzvah. However, he permits the census for a different reason — because the census counts the entire population of Israel and not specifically Jews. Furthermore, even though the census in Israel includes a breakdown into religious groups, since thousands of those who are listed by the government as Jewish are not, Rav Vozner does not consider this as counting Jews. He adds that since no one is counted by name or family and the data does not correlate at all to the number of Jews, he does have any halachic objection to participating in the census.

On the basis of Rav Vozner’s responsum, there certainly should be no difficulty in participating in the United States census, since this also counts people and not Jews.

Conclusion

As Rav Hirsch points out, the census conducted in this week’s parsha is performed in the desert, demonstrating that its purpose was not for economic or political reasons. Rather, just as last week’s parsha closed with the counting of the flocks by their shepherds, so too, this week’s parsha begins with counting G-d’s flock by its Shepherd. Every individual is counted as an independent member of that flock to demonstrate the importance of his individual commitment and contribution.

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