One Law for Jews, Another Law for Gentiles

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

The Talmud is a work of Jewish law, which means that it is usually about laws that affect only Jews. Certainly this was true in the earlier divisions of the Talmud that Daf Yomi readers explored, which focused on Jewish holidays and marriage rules. Obviously, only Jews are bound by the laws prohibiting labor on Shabbat or enjoining the building of a sukkah. Only marriages between Jews are governed by the Jewish marriage contract, the ketubah. But now, in Tractate Bava Kamma, we are dealing with a new area of law, regarding property damage and personal injury; and here the non-Jewish world has to be taken into account in a different way.

Take the main subject of the tractate so far, damage caused by an animal. In Chapter 4 of Bava Kamma, which Daf Yomi readers began last week, the Talmud goes into detail about the laws governing a goring ox—that is, an ox that kills another ox, or a human being, with its horns. The Bible, as we have seen, lays down a basic distinction in such cases. If an ox has never hurt anyone before, then its owner is not responsible if it suddenly goes wild and kills someone. But if the ox is “forewarned,” because it has a history of goring people, and the owner does nothing to secure it, then he is held responsible and can even be executed for manslaughter. In earlier chapters of Bava Kamma, the Talmud elaborated the rules about the less-serious case of property damage, when an ox kills another ox. In that case, the owner of the “forewarned” ox must pay the victim’s owner the full value of the killed ox. If, however, the guilty ox is “innocuous,” because it has no history of violence, then its owner has to pay only half the value of the damage.

This is all clear enough, so long as both ox-owners are Jews. But what if a Jew’s ox kills a gentile’s ox, or vice versa? I imagine this situation couldn’t have arisen very often in ancient times, since Jews would usually have lived among Jews. Even if it did arise, I don’t know whether the gentile involved would have been judged by Jewish law. Presumably a Roman or Persian involved in a dispute with a Jew would have gone to a government official, not a Jewish judge. But still the question remains: Does Talmudic law treat Jew and gentile the same, or is there a legal difference in their status, even when it comes to non-ritual matters like this one?

In this case, there is no avoiding the fact that the Talmud is heavily biased in favor of the Jew against the gentile. The mishna in Bava Kamma 37b says, “With regard to an ox of a Jew that gored the ox of a gentile, the owner of the belligerent ox is exempt from liability. But with regard to an ox of a gentile that gored the ox of a Jew, regardless of whether the goring ox was innocuous or forewarned, the owner of the ox pays the full cost of the damage.” In other words, a gentile doesn’t even benefit from the rule about an innocuous ox costing only half the damages; his ox is automatically considered forewarned and so responsible for full damages. But a Jew’s ox can hurt a gentile’s ox with impunity.

The inequity here is blatant—so much so that the rabbis of the Gemara are made distinctly uncomfortable by it. Indeed, one thing I’ve learned from reading Daf Yomi is that any law that seems to offend modern sensibilities about justice was usually already a cause of concern to the rabbis. They simply had to find different ways to deal with the issue. Back in Tractate Sota, we encountered this with the sota, the woman suspected of adultery. In such a case, the Bible prescribes a degrading ordeal that can involve prying the woman’s mouth open with an iron hook. But the Talmud, even as it explicates the procedure in detail, assures us that it is totally inoperative, having been banned centuries earlier during Temple times.

Here, in Tractate Bava Kamma, the Gemara immediately seizes on the inequity of the mishna: “The sages said: This statement is difficult whichever way you look at it.” They formulate the problem by returning to the language of the Bible, which states, “if a man’s ox gores the ox of another.” If the word “another” is taken narrowly to mean “another Jew,” then if a gentile’s innocuous ox gores a Jew’s ox, the gentile should be subject the same law as the Jewish owner of an innocuous ox, and pay only half damages. If, on the other hand, “another” is taken broadly to mean “another human being,” then why should a Jew not owe damages to a gentile if the roles are reversed?

Rather than remedy this injustice, however, the Gemara attempts to justify it. According to Abbahu, God “arose and permitted their [the gentiles’] money to the Jewish people.” The reason for this, he explains, is that after the Flood, the sons of Noah received what are known as the Noahide commandments—seven laws that are binding on all human beings, including laws against theft and murder. Because the non-Jewish peoples did not obey these laws, God punished them by allowing Jews to take their property. (Although one might note that the Israelites notoriously failed to uphold their own laws on many occasions.) Rabbi Yochanan gives an alternate explanation, based on the legend that God offered the Torah to all the peoples of the Earth, but only the Jews accepted it. Thus the other nations deserve to have their goods taken by the Jews.

No matter how much they justify it, however, the rabbis can’t ignore the fact that this principle would make Judaism look pretty bad if it were widely known. That is the message of a story about a pair of Roman officials who were once ordered by their emperor to learn the Torah. When they had finished, they said, “We have examined the entire Torah and it is true, except for this matter that you state with regard to an ox of a Jew that gored the ox of a gentile.” “But,” they added, “we will not inform this matter to the kingdom”: These Romans realized what kind of an impression this favoritism would make on a non-Jewish audience, and agreed to keep it secret.

As the Koren Talmud shows in its always useful notes, later Jewish commentators were equally concerned to palliate this inequity. Many of them held that the law about Jewish and non-Jewish oxen was only promulgated because, in the ancient world, non-Jews were usually pagans with no sense of religion or morality. In later times, when the gentiles that Jews dealt with were mainly Christians and Muslims, who had their own monotheistic beliefs and upheld the Noahide commandments, this law did not apply. Alternatively, Maimonides suggested that since gentile laws did not punish the owner of a goring ox the way Jewish law did, gentiles were treated accordingly and not given compensation when one of their oxen was gored. Still, however you explain it, this is one of those moments when the Talmud reveals the limits of its ethical imagination—which is exactly why later Judaism recognized the need to go beyond it.

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