Wikimedia Commons
Main image: Pieter Brueghel the Younger Wikimedia Commons
Navigate to Belief section

Jew vs. Non-Jew vs. Jew

In this week’s ‘Daf Yomi,’ Talmudic sages attempt to deal with the risks inherent in communal loyalty taking precedence over common law and principled justice

Adam Kirsch
September 27, 2016
Wikimedia Commons
Main image: Pieter Brueghel the Younger Wikimedia Commons

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

One of the most delicate and unsettling issues for me, in writing about my Daf Yomi reading, is the Talmud’s treatment of the relationship between gentiles and Jews. As a Jew in 21st-century America, I have a basic sense that religion should be irrelevant to questions of law and justice. If a Jew and a non-Jew are parties to a lawsuit, I take it for granted that they will go before a government court and receive impartial justice. Any suggestion that Jews owe loyalty to each other and their own laws, rather than to common laws and universal standards of justice, distresses me. And if I am honest, one of the reasons it distresses me is that I worry what non-Jews will make of it. Anti-Semites past and present love to charge that Jews are loyal to each other but hostile to outsiders—which is one reason why modern Jews have been such passionate universalists.

But universalism was not a reality for Jews living in the Roman and Persian Empires in the first centuries CE. As we have seen in various ways in the Talmud, non-Jews were assumed to be hostile; Rome, in particular, was seen as Edom, an ancient enemy of the Jews, the destroyer of the Temple and persecutor of Judaism. The safest course for Jews was to have as little as possible to do with gentiles. Back in Tractate Eruvin, for instance, the rabbis warned that a Jew should never live among non-Jews. A similar idea came up in this week’s reading, in Bava Kamma 114a, where Rav Ashi says: “In the case of a Jewish man who sells a gentile a plot of land that is on the border of the property of his fellow Jew, we excommunicate him.” Why such a harsh punishment? “Because we say to him: You have placed a lion on my border.” A non-Jewish neighbor would, the Talmud assumes, cause trouble for a Jew—and the non-Jew would have the power of the government and its laws on his side.

Indeed, one of the questions that I have often asked myself in reading the Talmud is exactly how Jewish courts enforced their rulings in societies where they had no official status. Ordinary courts can send people to jail, confiscate their property, or execute them. But reading between the lines of the Talmud, it seems that Jewish courts had no such powers; that may be why the rabbis left the punishment of capital crimes to God or changed the punishment to karet, being “cut off” from God in the next world. Supernatural sanctions were easier to impose than practical ones.

Indirect confirmation of this secular powerlessness came in Bava Kamma 114a, where the rabbis discuss the concept of “despair.” Despair, here, is not a spiritual or emotional term but a legal one. When a man’s property is stolen by a thief, we saw earlier in Bava Kamma, it remains legally the possession of the original owner. This changes only if the thief makes a significant change to the status of the stolen item—say, if a stolen cow gets pregnant with a calf, or a stolen pile of wooden boards are made into a piece of furniture. In that case, the changed item becomes the thief’s property, and the owner is entitled only to compensation for the value of the item at the time he lost it.

But there is another consideration as well, this time psychological. If the original owner of a stolen item still has the hope of recovering it, it belongs to him. But once he “despairs” of recovering it, it officially belongs to the person who took it. This doesn’t mean that the thief is immune from punishment, but the theft has other legal consequences. For instance, if a thief sells a piece of stolen property, can the original owner reclaim it from the person who buys it? If he has not despaired of it, he can reclaim it, because it was legally his all along and the thief had no right to sell it. But if he did despair, then the sale is binding, and he can only recover the money that the thief received in exchange for the stolen item.

The concept of despair intersects in a fascinating way with another law, having to do with bandits—that is, professional robbers. It is safe to assume that any given item in the possession of a bandit is stolen. So if you make a bargain with a bandit—say, you give him money in exchange for a cloak—do you really own the item you purchased? The answer, according to the mishna, is yes, because it is assumed that the original owner of the cloak despaired of ever getting it back from the bandit. The unspoken assumption here is that bandits operate with impunity: Once a bandit steals something from you, it is as good as lost, because no court is ever going to find the bandit and get it back. It’s a bit like having a bike stolen in New York City today: The odds of ever getting your bike back are so small that you effectively write it off.

Here the Gemara raises a crucial distinction: Is the bandit a Jew or a gentile? Evidently, the religion of the thief makes some difference when it comes to “despair”; and this, in turn, has to do with the relative effectiveness of Jewish and gentile courts. According to Rav Ashi, if you are a Jew, it is better to have your item stolen by a Jewish bandit because you might be able to take him before a Jewish court. The assumption here is that Jews, even Jewish criminals, are more likely to obey a Jewish court than a non-Jewish one. Thus if your item is stolen by a Jewish bandit, you do not despair; if the bandit is a gentile, you do despair.

But Rav Yosef objects, saying, “On the contrary, the opposite is more reasonable.” It is better to be robbed by a gentile bandit because then you can take him before a gentile court, and “gentiles judge with force,” while “a Jew pronounces a verbal decision.” That is, an official court has the power to enforce its decisions—it could send a party of soldiers to pursue a bandit, or order the bandit to be whipped or imprisoned until he gives up his loot. A Jewish court, on the other hand, has to rely on mere persuasion, since it can’t order these kinds of actual punishments. It follows that a man whose item is stolen by a Jew will despair, while he will hold out hope if the robber is a non-Jew.

This sheds a great deal of light on the elusive question of how Talmudic courts actually enforced their decisions. As it appears, the decision to accept the judgment of such a court is finally voluntary: if a Jew refuses to acknowledge Jewish law or Jewish judges, there is no way to force him to do so. The only weapon at the Jewish court’s disposal is excommunication and ostracism, cutting off the offender from the company of other Jews or participation in Jewish prayers and rituals. For a believing Jew or even just a Jew who is well-integrated into his community, such a punishment would be devastating—just as it is for members of ultra-Orthodox communities today. For a scoffer—and wouldn’t a professional criminal scoff at the law?—it would mean nothing.

A bandit, however, is a relatively easy kind of thief to deal with. What happens when your money or property is taken under the color of law by an extortionate customs agent or tax collector? Do these agents of the government have the right to take Jewish property, or should such takings be considered thefts? According to the mishna, all the property of a tax collector should be considered stolen property: Thus “one may not exchange coins from the trunk of customers’ collectors nor from the purse of tax collectors, and one may not take charity from them.” Again, this speaks volumes about ancient Jewish attitudes toward gentile authority: a Roman tax collector was not considered the agent of a legitimate government, like the IRS today, but as an enemy extorting tribute.

Right away, however, the Gemara recognizes that this law seems to contradict a major Talmudic principle established earlier in Tractate Bava Kamma, dina demalkhuta dina—the law of the kingdom is the law. Aren’t tax collectors owed obedience simply because they are appointed by the king? One possible response is the one made by Shmuel: The tax collectors mentioned here are ones who “do not have a limitation” on the amount they can collect. In other words, they are tax farmers—people who paid a certain sum to the king in exchange for the right to collect taxes. The tax farmer’s profit consisted of the margin he collected over the amount he paid. Under this system, the tax collector had the incentive to be as rapacious as possible, and the Talmud is saying that this makes him illegitimate, a sort of bandit.

But another explanation, offered by Rabbi Yannai, has to do instead with the religion of the tax collector. It is legally permitted to deceive a gentile tax collector, Yannai says, in accordance with a general principle that a Jew should always support a fellow Jew in any dispute with a gentile. As we read in Bava Kamma 113a:

In the case of a Jew and a gentile who approach the court for judgment in a legal dispute, if you can vindicate the Jew under Jewish law, vindicate him, and say to the gentile: This is our law. If he can be vindicated under gentile law, vindicate him, and say to the gentile: This is your law. And if it is not possible to vindicate him under either system of law, one approaches the case circuitously, seeking a justification to vindicate the Jew.

This disturbing statement effectively says that there is no common principle of justice binding Jew and gentile alike. When a Jew and a gentile are in a legal dispute, the Talmud sees it first and foremost as a communal dispute and advises using any means including deception to make sure the Jewish side wins.

Yet a modern reader is not alone in being shocked by this statement. On the contrary, no less an authority than Akiva, one of the greatest of all the Sages, disagrees with Yannai: “Rabbi Akiva says: One does not approach the case circuitously in order to vindicate the Jew due to the sanctification of God’s name.” In other words, such behavior would bring Jews, Judaism, and by extension the Jewish God into disrepute. Like Jews today, the Sages of the Talmud recognized how dangerous it was to elevate communal loyalty above the principle of justice.


To read Tablet’s complete archive of Daf Yomi Talmud study, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.