Today is October 23, 2018 / /

The Torah Learning Library of Yeshivat Chovevei Torah

Unequal Justice? – Does Halakha Tolerate Unethical Behavior Towards the Other? Part 3: Acts Against Person

by Rabbi Dov Linzer (Posted on July 20, 2016)
Topics: Halakha & Modernity, Non-Jews & Other Religions

Print Friendly, PDF & Email

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

ישראל גולה ולוקה ע”י כותי, בשלמא גולה – דקטליה, אלא לוקה אמאי?… אלא אמר רב אחא בריה דרב איקא: הכא במאי עסקינן – כגון שהכהו הכאה [ט ע”א] שאין בה שוה פרוטה, דא”ר אמי א”ר יוחנן: הכהו הכאה שאין בה שוה פרוטה – לוקה…

“An Israelite… receives a flogging, on account of a Samaritan or slave… For what reason does he receive flogging?… Said R. Aha son of R. Ika, the case is where an Israelite had struck a [wounding] blow which is estimated [in damages] at less than a perutah, as R. Ammi, reporting R. Yochanan, said that if one struck a [wounding] blow worth [in damages] less than a perutah, the assailant receives a flogging…

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

[א] אסור לאדם לחבול בין בעצמו בין בחבירו, ולא החובל בלבד אלא כל המכה אדם כשר מישראל בין קטן בין גדול בין איש בין אשה דרך נציון הרי זה עובר בלא תעשה, שנ’ לא יוסיף להכותו, אם הזהירה תורה שלא להוסיף בהכאת החוטא קל וחומר למכה את הצדיק.
[ג] המכה את חבירו הכאה שאין בה שוה פרוטה לוקה, שהרי אין כאן תשלומין כדי שיהיה לאו זה ניתן לתשלומין
ואפילו הכה עבד חבירו הכאה שאין בה שוה פרוטה לוקה שהרי ישנו במקצת מצות, וגוי שהכה את ישראל חייב מיתה שנ’ ויפן כה וכה ויך את המצרי.
[1] It is forbidden for a person to injure anyone, neither his own self nor another person. Not only a person who causes an injury, but anyone who strikes in strife a Jewish person who is not wicked, whether a minor or an adult, whether a man or a woman, violates a negative commandment, as it   states: “Do not continue… to flog him.” (Deut. 25:3).  If the Torah adjures us against adding to the blows to a sinner [being flogged by the court], surely this prohibition applies with regard to striking a righteous person.

[3] When a person strikes his fellow a blow that does not inflict a perutah  worth of damage, he receives lashes. For there is no financial penalty in this case which would categorize it as a negative commandment that is assigned financial penalty [for its transgression rather than lashes].

Even if a person strikes his fellow’s slave with a blow that does not warrant a perutah to be paid in recompense, he receives lashes, for this slave is obligated is some of the mitzvot.

If a Gentile strikes a Jew, he deserves death, as it states: “He turned this way and that way… and struck the Egyptian.” (Ex. 2:12).

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

מכה איש. אין לי אלא שהכה את האיש, הכה את האשה ואת הקטן מנין, ת”ל (ויקרא כד יז) ואיש כי יכה כל נפש אדם, להביא את שהכה את האשה ואת הקטן “One who smites a man [and he dies shall surely be put to death]” (Ex. 21:12). I only know that this applies to one who smites a man. If one smites a woman or a minor, from where do I learn [that he is deserving of death]? The verse teaches: “And a man who kills any person [shall be put to death]” (Lev. 24:17), which comes to include one who smites [and kills] a woman and a minor.

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

רעהו, להוציא את אחרים. – איסי בן עקיבא אומר, קודם מתן תורה, היינו מוזהרים על שפיכות דמים, לאחר מתן תורה תחת שהוחמרו הוקלו; באמת אמרו, פטור מדיני בשר ודם, ודינו מסור לשמים. [“But if a man plots against his neighbor, to slay him with guile; From Mine altar you shall take him that he may be put to death” (Ex. 21:14)]. “His neighbor” – this excludes “others.”  Issi ben Akiva says: ‘Before the Giving of the Torah we were prohibited regarding murder [of “others”].  Now, after the Giving of the Torah, is it possible that as a result of the weightier obligations, the matter is now less severe?!  In truth they said that such a person is exempt from human judgment, and his case is given over to Heaven (he will be judged by God).’

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 

על שפיכות דמים כיצד גוי בגוי וגוי בישר’ חייב ישר’ בגוי פטור [Gentiles are commanded by the Noahide laws] on murder.  How so?  A Gentile against a Gentile and a Gentile against a Jew is liable, but a Jew against a Gentile is exempt.

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

ישראל שהרג גר תושב אינו נהרג עליו בבית דין שנ’ וכי יזיד איש על רעהו, ואין צריך לומר שאינו נהרג על הגוי A Jew who murders a resident alien is not executed in the courts, as it says, “And if one man rises up against his neighbor,” and it goes without saying that he is not executed for murdering a Gentile.

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

כל הורג נפש אדם מישראל עובר בלא תעשה שנ’ +שמות כ’ י”ד+ לא תרצח Whoever murders a Jewish person transgresses a negative commandment, as it says,  “Thou shall not murder.”

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

שלא להרוג נפש, שנאמר [שמות כ’, י”ג] לא תרצח.

שורש מצוה זו, ידוע ונגלה לכל רואי השמש, כי השם יתברך בנה העולם וצונו לפרות ולרבות כדי ליישבו לפניו, ומנענו שלא נחריבהו בידינו להרוג ולאבד הבריות שהן המיישבות העולם.

To not murder a human life, as it says, “Thou shall not commit murder.”

The root of this mitzvah (its reason) is known and evident to “all who see the sun” – that God created the world and commanded us to be fruitful and multiply in order that it should be settled, and God forbade us from destroying it with our hands, to kill and destroy its creatures, for they are the ones who cause the world to be settled.

 

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

מנין אם ראית טובע בנהר או ליסטים באים עליו או חיה רעה באה עליו חייב אתה להצילו תלמוד לומר לא תעמוד על דם רעך From where do I learn that if you see someone drowning in the river or bandits are about to attack him, or a wild animal is about to attack him, that you are obligated to save him?  The verse teaches: “You shall not stand over your neighbor’s blood.” (Lev. 19:16)

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

תני רבי אבהו קמיה דר’ יוחנן (העובדי כוכבים) [הגוים]ורועי בהמה דקה לא מעלין ולא מורידין R. Avahu taught a braitta in the presence of R. Yochanan: (Idolaters) [Gentiles] and shepherds of small animals – we do not raise them (from the pit), and we do not cast them down (into the pit).

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

כל ספק נפשות דוחה את השבת. מי שנפלה עליו מפולת, ספק הוא שם ספק אינו שם, ספק חי ספק מת, ספק (כותי) [נכרי] ספק ישראל – מפקחין עליו את הגל. מצאוהו חי – מפקחין, ואם מת – יניחוהו. Every danger to human life suspends the [laws of the] Sabbath. If debris fall on someone, and it is doubtful whether or not he is there, or whether he is alive or dead, or whether he be an Israelite or a Gentile, one should uncover [even on Sabbath] the heap of debris for his sake. If one finds him alive one should remove the debris, and if he be dead one should leave him there [until the Sabbath day is over].

49. Ynet News, 5/17/12

 

Rabbi Yosef: Treating Gentiles Violates Sabbath

Shas’ leader says religious physicians cannot violate Sabbath in order to save gentiles’ lives, but offers halachic solution to avoid legal repercussions

What should religious doctors do if a gentile is injured in a car accident on Shabbat and is rushed to the hospital? According to Rabbi Ovadia Yosef this does not warrant violating the sanctity of the Sabbath.

During a class on Sabbath halacha relating to religious physicians, the spiritual leader of Shas said that while doctors are expected to do everything in their power – even if it requires violating the Sabbath – in order to save Jews whose lives are in danger, the same does not apply for gentiles.

“If a gentile were to get injured in a car accident during Sabbath, and he is brought to the hospital – Israel must not treat him,” he said, explaining that “if the particular procedures come from rabbis (de-rabbanan), then they might be permitted, but if they stem from prohibitions in the Torah (de-‘oraita), then they are not allowed, as the Torah forbids to violate the Sabbath for gentiles.”

Rabbi Yosef expounded on the problem, saying that the Mishnah Berurah explicitly says that “all religious physicians who treat gentiles on the Sabbath or violating the Sabbath; however, in reality the patients are brought to the hospital and must be treated. The doctors’ license says they must treat all patients without distinction of faith or race, and if they don’t, the State could revoke their license and also punish them. So what should the poor doctors do?”

 The rabbi offered a halachic solution that follows a rule by which if a single person is doing the act, he is violating the Sabbath, while if two people are doing it together, they are exempt.

 “The doctor who needs to operate will call on another doctor, or nurse, to hold the scalpel together and make the incision,” said Rabbi Yosef, saying that “it is necessary in order for religious physicians to refrain from being put on trial for distinguishing between a Jew and a gentile on Sabbath.”

 

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.

Chart of Jewish Gentile Relations 1c

 

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.