Key points

In our discussion of distinctions in the area of acts against person, pay attention to the following key points as we work through our sources:

• Biblical terms – are there any limiting words such as achikha, rei’echa or amitcha in the verses dealing with injury and murder?
• Permitting act or difference in severity or punishment? – note that in no source are acts of violence permitted.  Note where the distinctions – if they exist – do occur.  Are they regarding severity of the transgression, or just a difference in the court-imposed punishment?  
• Voices of objection – notice where some sources voice objection to distinctions in this area {source ‎41}, or where they stress the value of all human life {source ‎45}.
• Explanations and Justifications – notice where possible explanations for these distinctions arise in the sources, and where they suggest a particular historical context and a perception of Gentiles as violent or murderous.  Does it seem like the distinctions are rooted in an understanding of an existential difference between Jews and Gentiles, or because of a perception of Gentile’s actions and behavior?
• Commission versus omission – while halakha does not permit an act of violence against anyone, Jew or Gentile, one source allows – or rather, requires – a Jew to not provide aid to a Gentile in danger.  Can this be justified legally?  Cant it be justified morally?  What might the reasoning be behind such a ruling?

Biblical terms and rabbinic interpretations

We now turn to looking at acts against one’s person – personal injury and the taking of a life (as well as the saving or non-saving of a life at risk).  It is worth underscoring out the outset that in these cases, the Torah by and large does not use limiting words such as achikha, or even amitkha or rei’echa and tends to speak in categorical terms, e.g., “Thou shall not commit murder.”  Similarly, and in contrast to Talmudic passages regarding acts against property (see Section B), there are no Talmudic passages which give warrant to violent acts committed against the person of another, Jew or Gentile.  This is not to say that no differences exist in these laws, but these differences, when they are present, are differences in the severity of the transgression.  However, a serious distinction exists regarding the obligation to render assistance when someone’s life is in danger, as we will see below.

Personal Injury

The Torah never explicitly prohibits the inflicting of personal injury on another person, although it does detail the financial payments that must be made to the injured party – the cost of lost wages and the medical bills (Ex. 21:19), as well as the famous lex talionis, an “eye for an eye,” which was understood by the Rabbis to refer to financial compensation for any permanent damage and for pain and suffering (Ex. 21:24-25; Lev. 19-20).   Those versus refer to one person smiting rei’eyhu or amito, words meaning “his friend,” and which could easily be understood in context to not refer exclusively to another Israelite (many translate these verses simply as “one smites another.”).  In fact, one verse refers only to anashim, two people fighting (21:24).  At the pshat level of these verses, there is no compelling reason to distinguish between personal injury inflicted on a Jew and such injury inflicted on a Gentile.

When we turn to the Gemara, we find that the Talmud identifies a negative prohibition for inflicting personal injury on, or even merely smiting, another person based on the verse (Deut. 25:3) which warns against giving extra lashes to a person being flogged by the court.  This verse refers to achikha, your brother, a word which in general, and in this context as well, can be understood to refer only to a fellow Jew.  Thus, the Talmud {source ‎38} states that one only transgresses (and receives lashes when there is no financial payment to be made) when one intentionally injures or smites a Jew or a slave (who is considered partly-Jewish and is partly obligated in mitzvot).  The clear implication is that one does not transgress when one injures or smites a non-Jew, and this point is stated explicitly by Rambam {source ‎39}.

38. Bavli Makkot 8b-9a   |   (.בבלי,מכות (ח:-ט

Note how Rambam underscores that a slave is partly obligated in mitzvot.  Why is this relevant here?  Also note the last line in law 3 regarding when a Gentile smites a Jew.  Where have we seen such asymmetry before?

39. Rambam, Laws of Personal Injury 5:1,3   |   רמב”ם הלכות חובל ומזיק ה’:א’,ג

By stating that one transgresses for smiting a slave because a slave is partly obligated in mitzot, Rambam is most likely merely making a technical point: a slave is considered ‘your brother’ because he is ‘your brother in mitzvot’ – you share similar mitzvah obligations.  However, this could also indicate the reason why there is a problem to strike another person – because you share religious affiliation.  This goes against a strong ethical sensibility that it is fundamentally wrong to injure any person, and protection against injury should not be limited to those who share one’s religious – or other – affiliation.   In fact, the Biblical principle that all are created in b’tzelem E-lohim, in the image of God, would seem to speak directly to the need to not inflict injury on another person, regardless of who he or she is.

Equally challenging is Rambam’s ruling that a Gentile who strikes a Jew is deserving of death (based on Sanhedrin 58b).  Elsewhere Rambam clarifies that a court would not actually execute a person for such a crime (Laws of Kings 10:6).  In addition, this harsh ruling may be based on the general ruling that transgressions of the Noahide laws, no matter how minor, are always deserving of death (see Rambam, ibid., 9:9).   Nevertheless, the extreme asymmetry between the case of a Jew smiting a Gentile and a Gentile smiting a Jew, evokes a similar asymmetry in the case of the goring ox (sources 24-25), further exacerbating the sense of injustice in these laws.   

Evoking the case of Moshe smiting the Egyptian might, however, help explain what lies behind some of these differences.  For in fact, the prooftext actually quite weak.  Just because mortal force was justified to protect an Israelite being beaten, possibly to death, by an Egyptian, does not mean that every Gentile who strikes a Jew has committed a crime worthy of death.  If nevertheless historical circumstances had conditioned the Rabbis to view all Gentile-Jewish interactions through the lens of the Egyptian enslavement of the Jews, then every Gentile could be seen as an oppressor or potential oppressor.  If this is how Gentiles were seen by the Rabbis, one can begin to understand why the halakha would have exempted a Jew for smiting a Gentile, and conversely would have seen with the greatest severity the case of a Gentile smiting a Jew.

Murder

In the Ten Commandments the Torah states categorically לא תרצח, “Thou shall not commit murder” (Ex. 20:13).  It would seem that there should be no question that this would refer equally to whether the victim was a Jew or a Gentile.  Similarly, the verse in Mishpatim that prescribes the death penalty for murder, speaks about killing “a person” and does not use any possibly limiting terms such as achikha or rei’echa (Ex. 21:12).  Following this, the passage from Mechilta, the Tannaitic work on Exodus, on this verse states that one is liable regardless if the victim is man, woman or child {source ‎40}; it makes no attempt to distinguish between a Jew or a Gentile.

40. Mechilta of R. Yishmael, Mishpatim, Parsha 4   |   מכילתא דר’ ישמעאל משפטים פרשה ד

The question of the Gentile arises in a later passage from the Mechilta.  The verse states that a murderer cannot find sanctuary by grabbing onto the altar (Ex. 21:14).  In this verse, the act of murder is described as one who kills rei’eyhu, “his friend.”  Mechilta addresses what this means in reference to Gentiles {source ‎41}. What question does Issi ben Akiva raise?  Is this a logical question or a moral one? and how does he resolve it?

41. Mechilta of R. Yishmael, Mishpatim, Parsha 4    |    מכילתא דר’ ישמעאל משפטים פרשה ד

This passage – due to its sensitive nature – refers to Gentiles as “others.”  The Mechilta states that this verse does apply to the murder of “others.”  Issi ben Yehuda cannot accept that the prohibition of murder would not cover the murder of Gentiles, inasmuch as before the Jewish People were given the Torah at Mt. Sinai the taking of any life was an act of murder, punishable by death, no less (cf. Gen. 9:5).  He could be raising just a logical point – how could it be that something that was forbidden before the Giving of the Torah – when the mitzvah burden was lighted – became permissible afterwards, when the mitzvah burden was heavier?  However, his use of the term “spilling of blood,” seems to underscore a moral challenge as well: the taking of any human life is the spilling of blood!  How could this now not be prohibited?!  

Issi ben Akiva’s answer is that the verse that is understood to exclude a Gentile is only dealing with the issue of the court-imposed punishment.  And even here, while the courts will not execute such a person, God will still mete out the proper judgment.  Regarding the nature of the act, however, there is no difference.  The taking a human life remains an act of murder, regardless of the victim.  This answer does not fully resolve the problem, logically or morally: according to Gen. 9:5, such an act is punishable by execution by the court, and now – after the Giving of the Torah – it no longer is when the victim is a Gentile; and why should such an act be punished less severely based on the identity of the victim?  Nevertheless, it does address the primary moral challenge – such an act is always an act of murder; “Thou shall not commit murder” applies equally to Jew and to Gentile.

A parallel ruling to the Mechilta can be found in the Tosefta {source ‎42}.  Note how the Tosefta gives the simple ruling that when a Gentile is the victim, one is exempt from the court-imposed execution, but does not give voice to the moral challenge of Issi ben Yehudah, nor does it make a clear statement regarding whether such an act is prohibited by the verse “Thou shall not commit murder.”

42. Tosefta Avoda Zara 8:5   |   תוספתא עבודה זרה ח’:ה 

Rambam follows these passages and rules that a Jew is not executed for the murder of a Gentile, or for the murder of a resident alien {source ‎43}.  However, he goes beyond the Mechilta and states that the verse “Thou shall not commit murder” applies only to the murder of a Jew {source ‎44}.  In contrast, Sefer HaHinukh states that the prohibition against murder applies to the taking of the any human life {source ‎45}.  Here is a case where the most challenging of the rulings is to be found not in the Talmud, but in Rambam.  It should be emphasized that the issue is not whether it is permissible to do such a heinous act.  Rambam  himself rules – following the Gemara (Sanhedrin 57a; Avoda Zara 26b)  – that it is forbidden to even indirectly bring about the death of a Gentile (Laws of Murder 5:11, see below source ‎47). Nevertheless, Rambam’s ruling regarding the scope of the prohibition of murder remains deeply troubling.

43. Rambam, Laws of Murder, 2:11   |   רמב”ם הל’ רוצח ושמירת הנפש ב:י”א

44. Rambam, Laws of Murder, 1:1    |   רמב”ם הלכות רוצח ושמירת הנפש א:א

45. Sefer HaHinukh, Mitzvah 34   |  ספר החינוך מצוה לד

Saving from Death

The Torah states “You shall not stand against the blood of your neighbor” (Lev. 19:16), a verse understood by the Rabbis to mean that one may not stand idly by when another person is in danger of losing his life {source ‎46}. This verse uses the word rei’echa, your neighbor, and we will thus not be surprised to find that the mandate to preserve a life is generally understood to be limited to the life of a Jew.

In some ways, this is less disturbing than the discussion above regarding the prohibition of murder.  Here, we are talking about passive non-assistance.  While not helping someone whose life is in danger would be seen as immoral, almost no secular legal system actually requires a person to come to the assistance of another person who is in danger (the purpose of Good Samaritan laws are to free a person who chooses to come to another’s aid from any possible liability that may result from his actions).  However, this is because secular legal systems focus on rights, not obligations. We would still expect a religious and moral legal system to require such action, and to require it regardless of the identity of the victim.

46. Sifra Kedoshim, Parsha 2   |   ספרא קדושים פרשה ב

While the above source does not explicitly exclude cases involving a Gentile, this is made clear in the passage from Bavli, Avoda Zara 26a {source ‎47}.  There we find not only that one does not have a positive obligation to save the life of a Gentile, but – according to this passage – one should not act to preserve his life.  No reason is given for this, but note that this statement applies to shepherds of small animals (sheep) as well.  What can be inferred from this grouping?

47. Talmud Bavli, Avoda Zara, 26a    |   (.בבלי, עבודה זרה (כו

The grouping of Gentiles with shepherds of sheep indicates that there is more at play here than a focus on status or we versus them.  Shepherds of small animals were seen as contributing to the destruction of the vegetation and the quality of the soil in the land of Israel (see Tosefta Sukkah 2:5, Bavli Sukkah 29a).  We can thus assume that the statement that one should not save a Gentile is likewise rooted in a judgment not of who the Gentiles were, but of what they – the Gentiles of that time – did.  It should be noted  that this statement is made in the name of R. Yochanan, who lived in the Land of Israel under Roman rule, and thus was likely based on history and experience to have a perception of Gentiles as dangerous to the Jews and the well-being of Jewish society in the Land of Israel.

In line with the discussion above, it will not be surprising to find that the Talmud assumes that one may not save the life of a Gentile on Shabbat {source ‎48}.  If in general such action is seen as ill-advised, how much more so would one not be allowed to violate the Shabbat to render such a service.  A number of poskim continue to apply the Talmud’s ruling to contemporary circumstances.  Thus, Rav Ovadya Yosef, while allowing – and one would imagine requiring – the saving of the life of a Gentile in general, nevertheless, does not allow this to be done if it entails a Biblical violation of Shabbat  {source ‎49}. We will see in Part II how other poskim reject this, and require the saving of the life of a Gentile even if it entails a Biblical violation of Shabbat.  What strategies the poskim use to come to this conclusion, and similar conclusions that close the gaps between the treatment of Jews and Gentiles, will be the subject of Part II of this lecture.

48. Mishna Yoma, 8:6   |   משנה יומא פרק ח’ משנה ו

49. Ynet News, 5/17/12

Conclusion – Section C

In conclusion, we have seen in this section that there is little basis in the Biblical verses for making distinctions between Jew and Gentile in the area of acts against one’s person, and halakha never permits acts of violence to be committed against Gentiles.  Nevertheless, in some cases possible distinctions between Jew and Gentile exist regarding the severity of the transgression.  Significantly, we hear here for the first time voices of objection in making such distinctions, and voices that express the sacredness of all human life.

When it comes to providing aid to a Gentile whose life is in danger, the Talmud not only does not require, but seems to forbid, providing such assistance.  This is true during any day of the week and certainly on Shabbat.  This ruling is quite challenging, especially when we remember that according to some opinions one has an obligation to return the lost object or help the collapsing animal of a Gentile (see Section A), although it is consistent with the conclusion of the Bavli that one is exempt from doing so.

Here, as in the case of acts against property, we have seen that some of the differences might be based on a perception of Gentiles as violent, and not based on an existential difference.  We will see in Part II how this might impact the later development of halakha.

Overall Conclusion – Part I

In reviewing all three categories of distinctions – acts of aid, acts against property, and acts against person – we note that the distinctions in the last 2 categories, which are the ones which present greater ethical challenges – are more a product of Rabbinic interpretation and have less explicit basis in the Biblical verse.  The Talmudic passages dealing with these last 2 categories also have more censored terms for Gentiles due to their sensitive nature.  Although the third category – acts against one’s person – deals with the most heinous acts , the Talmud’s distinctions here relate to the weight of the transgression, and never sanction such acts of violence.  In some ways, it is the second category – acts against property – which present the greatest ethical challenges, because the Talmud seems to permit such acts against Gentiles.  It is thus here that we find explicit justification in the Talmud for these distinctions, and where historical context could very well have been a factor.

The following chart summaries the distinctions in law found in each category – which distinctions are clear, which are debated, and where there are no distinctions, as well as identifying other salient differences between the categories.

We now turn to Part II where we will explore the ways in which poskim tried to close the gaps between obligations towards Jews and obligations towards Gentiles, whether in the area of acts of financial aid and assistance,  or in the area of acts against one’s property, or in the area we explored in this section, acts against another’s person or passive non-assistance to a person in danger.