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The Non-Jew in Jewish Law

Rabbinic authorities have used different arguments to redress inequities in the way halakhah treats non-Jews.

The Talmud reports the following story:

The Roman government sent two officers to the sages of Israel to learn the Torah. They read it, they read it again, and then a third time. As they left they said, ‘We have studied all of your Torah carefully, and found it to be the truth, with this exception: if a Jew’s ox gores a gentile’s ox, there is no liability, but if a gentile’s ox gores a Jew’s ox, whether the ox has a history of goring or not, full compensation has to be paid…

Bava Kamma 38a

The story of Romans visiting the Jewish sages is a typical narrative device designed to present how the Talmudic authors felt they ought to be seen by outsiders. In this story, the Roman officers see Jewish law as generally fair. The Talmud, however, places a sharp criticism into the mouths of the Romans. The Torah says, “If one man’s ox gores his neighbor’s and it dies…” (Exodus 21:35). The Romans argue:

If the word ‘neighbor’ excludes gentiles, then when a gentile’s ox gores a Jew’s ox, he should be exempt from damages. If ‘neighbor’ includes gentiles, then the Jew should be obligated to pay damages when his ox gores one belonging to a gentile.

In a parallel story in the Talmud Yerushalmi, Rabban Gamaliel responds to the criticism (there concerning whether property stolen from a non-Jew could be used) by reversing the law — and forbidding the use of an object stolen from a gentile — lest the law cause God’s name to be profaned (Talmud Yerushalmi Bava Kamma 4:3, 2c).

In general, when the Torah states a law applying to one’s “neighbor,” the rabbis understand the law as applying to Jews and not to non-Jews. This, then, is the underlying question: when do Jews relate to non-Jews as neighbors, and when do they not?

Laws to Separate Jews from Idolatry

Jewish law tries to separate Jews from gentiles, in order to prevent Jews from adopting idolatrous behaviors. Extensions of the dietary laws limited social interactions. Jews are not allowed to leave their wine with idolaters, lest it be used for idolatry (Shulhan Arukh Yoreh Deah 128:1), and food cooked by non-Jews is also prohibited (Yoreh Deah 113:1ff.). There are exceptions and loopholes, but the general force is to discourage interaction between Jews and non-Jews.

These laws had serious ramifications in the Middle Ages, when most authorities considered the Christian belief in the Trinity as idolatrous. The Mishnah prohibits any commerce with idolaters prior to their holidays (Mishnah Avodah Zarah 1:1), whichfor Christians is every Sunday. Jews were also prohibited from engaging in partnerships with idolaters, lest the idolaters be encouraged to make oaths to their gods. Both of these laws posed economic challenges to medieval Jews. Jacob Katz, in his landmark study, Exclusiveness and Tolerance, identified three distinct approaches to these challenges.

One approach reinterpreted specific laws. According to Rabbenu Tam (c. 1100-1171), the particular prohibition of commerce on idolater’s holidays was not to support the idolatrous sacrifice. Regular business, even lending money that might be used as an offering in the Church, was permitted since Christians did not sacrifice (Tosafot, Avodah Zarah 2a, s.v. asur).

Similarly, Rabbenu Tam permits partnerships with Christians because when they make oaths, “their intent is on the Maker of Heaven and Earth, and they just associate ‘something else’ [with God]” (Tosafot Bekhorot 2b, s.v. shema). This argument, called shittuf  (association), did not deny Christian idolatry, but avoided prohibiting Christian oaths, thereby permitting business partnerships between Jews and Christians.

A second approach, followed by Rabbenu Gershom (c. 960-1028), applies the Talmudic statement that “non-Jews outside of the Land [of Israel] are not idolaters; it is just an ancestral custom” (Hullin 13b). On this basis, Rabbenu Gershom continues “We who live outside of the Land… do not have to prohibit business with them on their holidays” (Responsa of Rabbenu Gershom, 21, s.v. hakhmei).

The third approach, argued by R. Menahem haMeiri (1249–1316) redefined idolatry as a general lawlessness. Meiri considered Christians among the “nations bound by the ways of religion,” not idolaters, and so there should be no legal restrictions governing Jewish-Christian relations.

Reciprocity and Non-reciprocity

Aside from the laws that seek to distance Jews from idolatry, there are other laws that discriminate between Jews and non-Jews based on presumptions of reciprocity: gentiles are presumed to behave in a certain way, so Jews treat them according to the same principles.

For example, the Torah requires one to return lost property to its owner (Deuteronomy 22:1-3), and the rabbis require the finder to announce the lost item. Since non-Jews did not announce to Jews when they found lost items, Jews did not announce to non-Jews when they found lost items.

Sometimes, however, Jews afforded privileges to non-Jews despite the lack of reciprocity. The Jewish community took care of its own poor, and charity from non-Jews was not accepted. And yet, Jews provided charity to the non-Jewish poor and buried their dead, for the sake of peace (Mishnah Gittin 5.8; Shulhan Arukh Yoreh Deah 254, 256).

Other rules assume that gentiles are, at best unreliable and at worst malevolent and violent. For this reason, a gentile is grouped together with dishonest butchers, gamblers, usurers and thieves who cannot act as witness (Shulhan Arukh Hoshen Mishpat 34). Jewish law also preserves a prohibition against an individual Jew being alone with idolaters lest they act with violence (Shulhan Arukh, Yoreh Deah 153:2,4). This law was probably not in effect when it was published in the Shulhan Arukh since Rabbi Yom Tov Ishbili (1250-1330) had already pointed out that non-Jews had their own law enforcement (Hiddushei haRitba, Avodah Zarah 26a).

The Life of a Non-Jew

Fundamental Jewish ethics can often be deduced in situations that present a conflict of values. When the opportunity to save a life (pikuah nefesh) conflicts with the observance of the Sabbath, saving the life takes precedence. However, some legal authorities distinguish between the obligation to save a Jewish life and a non-Jewish life; to save a non-Jew, a Jewish doctor is allowed to violate rabbinic law but not Torah law. Note, for example, Israel Meir Kagan (1838–1933), known as the Hafetz Hayyim, who opposed the behavior of Jewish doctors who do not distinguish between Jews and non-Jews:

And know that most doctors, even the most religious, do not take any heed whatsoever of this law, for they work on the Sabbath and travel significant distances to treat a non-Jew, and they grind medicine with their own hands. And there is no authority for them to do so.

Mishneh Berurah on O.H. 330

On the other hand, R. Moshe Feinstein (1895-1986), arguably the most influential modern halakhic authority, explicitly rejects the Hafetz Hayyim on this:

All must appreciate that a [refusal to treat a non-Jew on the Sabbath] would now be totally unacceptable in every country known to us…[The opinion of the Hafetz Hayyim] is surely not in consonance with the current social condition…If it should be reported that a Jewish physician refuses to treat a non-Jew on the Sabbath while he does treat his fellow Jews, true animosity (eivah) will result to the great detriment of the Jewish inhabitants.

Igrot Moshe, Orah Hayyim 4:79

Extra-legal Ethics

In their discussions of Jewish-gentile relations, Jewish legal authorities make reference to a variety of extra-legal concepts. Rabban Gamaliel modified civil law lest the inequity cause a “profanation of God’s name.” Charity is given to the poor for the “sake of peace” (mipnei darkhei shalom). When Jews held slaves, although it was permitted to work non-Jewish slaves with rigor, it was considered pious (middat hassidut) to treat them well (Maimonides, Laws of Slaves 9:8). Doctors are permitted to violate Sabbath law in order to heal non-Jews because of “potential animosity” (mishum eivah).

Traditional Jewish law treats Jews better than non-Jews. Even the secondary, formalistic arguments and arguments from self-interest — “we cannot provoke their animosity!” — that permit more equitable treatment for non-Jews may seem morally problematic to modern Jews. That said, it is equally clear that rabbinic authorities have applied a good deal of halakhic creativity, including the use of these extra-legal concepts, in order to overcome the perceived inequities concerning non-Jews in Jewish law.

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