- Question: [Wednesday, 3rd Teves 5783]
I was recently told that if a baby is found abandoned without any records of his identity, then the determination of his identity, whether Jew or Gentile is determined by the identity of the majority of the people in the area. Is this correct?
This is accurate. The Talmud and Shulchan Aruch rule that an abandoned baby which was found in a city has his identity determined based on the majority of the city inhabitants. If the city has a majority gentile population and minority Jewish population, then he is considered a gentile regarding most matters. [i.e. One may feed him non-Kosher food and there is no obligation to return his Aveida, and according to some opinions it is forbidden to save his life on Shabbos just like a Gentile, although regarding marriage we are stringent due to the severity of Eishes Ish to require a Jewish woman to get a Get from him if there are some Jews who live in the city. Furthermore, if there are some Jews who live in the city some Poskim rule that one may even discrete Shabbos on his behalf.] If, however, the city contains majority Jews then he is considered like a Jew, and one may desecrate Shabbos on his behalf according to all opinions, and must return his lost objects.
Explanation: A general rule in Jewish law is that we always follow the majority, and hence whether or not an abandoned child is determined to be Jewish is dependent on the majority of the city inhabitants. Nonetheless, regarding marriage we are stringent not to follow the majority and to always give the child a status of the doubt due to the severity of Eishes Ish. Likewise, regarding the laws of Shabbos, some say that we do not follow the majority regarding the allowance to discrete Shabbos on his behalf. Also, some say that regarding marriage and Shabbos we view all Jews in the city as Kavua, and hence it is viewed as 50-50 ratio of Jews to Gentile.
Sources: See Encyclopedia Talmudit Erech Asufi; See regarding determining his Jewish identity based on majority: Michaber Even Haezer 4:33 [is safek regarding marriage]; 34 [regarding eating non-Kosher, and returning Aveida]; Rambam Issureiy Biyah 15:25-26; Mishneh Machshrin 2:7; Beir Hagoleh ibid; Pischeiy Teshuvah ibid; Taz ibid See regarding desecrating Shabbos on his behalf: Admur 329:2; Michaber O.C. 329:2; E.H. 4:34; Rama E.H. 4:34; Yuma Mishneh 83a and Gemara 84b; M”A 329:2; Even Haezer 4:34; M”B 329:6; Mishneh Machshirin 2