From Parsha to Halakha: Devarim – Does Jewish justice apply to non-Jews?
Righteous justice
When Moshe describes appointing judges he states:
“I ordered your judges at that time, saying, hear out [the matter] between your brothers and judge righteousness between a man and his brother and his foreigner (geiro). Do not favor (lit. recognize faces) in judgment, listen to the small and the great alike, do not be afraid in the face of any man, for judgment is God’s; and you shall bring a matter that is difficult to you to me, and I will hear it.”[1]
The midrash explains that the judges must execute fair and righteous judgments over disputes between all Israelites – male or female, groups or individuals:
“Bein ish l’a’khiv: Between a man and his brother, this only gives me [judgments] between man and man. From where [do we derive that judges serve] between a man and a woman, a woman and a man, a tribe and a family, one family and another? From ‘between a man and his brother,’ in any way.”[2]
Who is geiro?
All Jewish people are “brothers,” all Jews are to be judged righteously.[3] But the verse says, “judge righteousness between a man and his brother and geiro.” Who does “geiro” refer to? Geir most often means some sort of foreigner, and geiro should mean “his foreigner.” This makes sense both linguistically and contextually, since the term geiro should refer to people who are not included in the category of “akhiv,” “his brother.” Indeed, a few traditional commentaries such as Onkelos, Abarbanel, Beiur Yashar, and Rav Shimshon Rafael Hirsch explain the verse in this manner.[4]
Nevertheless, most traditional Jewish commentaries, even those that generally adhere to the peshat (plain meaning of the text), overwhelmingly reject this explanation. Talmud and midrash explain geiro as the claimant, who collects or piles (ogeir) claims against him, or as someone who shares living space (gar), such as a neighbor, groomsman, or tenant.[5]
Rashi brings both midrashic explanations. Bartenura explains he found both necessary because the first explanation of claimant is grammatically problematic – if it’s derived from the word ogeir it should start with an aleph – ogro. Why not suffice with the second explanation – geiro pertains to ‘his living area’? It would seem this presents a contextual problem.
Others try to bridge the plain and midrashic interpretations. Like the plain meaning of the text, they explain geiro means “his foreigner” and that it is juxtaposed to “his brother,” but, like the midrash halakha, this foreigner is not a non-Jew or convert. For example, Alshikh explains the verse tells the judge to listen to both claimants equally, even though one has a claim that is more familiar to him, and is therefore like his brother, akhiv, and the other is foreign to him, geiro. Others explain the verse juxtaposes between claimants who are brothers – have equal claim or equal status, and claimants who are unevenly matched – like a foreigner has less of a claim or is less esteemed.[6]
Alternatively, Gur Aryeh accepts the midrashic interpretation of the term geiro, and explains that it fits into the context that contrasts two types of cases, “akhiv” and “geiro.” Sometimes people come to a judge as brothers (“ish” and “akhiv”) – there is no complaint or charge, they agree on the facts but don’t know the law. Other times they disagree, and one stacks (ogeir) claims against the other (“ish” and “geiro”).
There seem to be several reasons the prevalent explanation diverges from the plain meaning of geir as foreigner. As Birkat Asher explains, interpreting the word geiro as his geir is grammatically difficult. How can a foreigner belong to someone?[7]
Furthermore, Be’er Mayim Chaim explains there is a contextual problem explaining geiro as geir tzedek, a righteous convert or Jew-by-choice; he claims there is no reason to think a geir tzedek should have a different legal status than “his brother” and they are clearly equal in the eyes of Jewish law.[8] One could argue that the Torah often explicitly includes the geir in many laws concerning righteousness and justice. Still, it’s unusual for Chazal to disregard such a reference; many Talmudic statements highlight the Torah’s emphasis on treating geirim with justice and righteousness.[9]
Therefore, we must return to our original question – why do most traditional Jewish explanations disregard the plain explanation of geiro as his foreigner?
Is justice only for Jews?
Perhaps the answer can be found in an aggadta on the verse:
“Hear out [the matter] between your brothers.” This is the way Rabbi Yishmael would judge: If two people came before him for judgment, one a Gentile, and one Israelite. If by the laws of Israel, he would find for the Israelite, and if by laws of the nations of the world, he would find for the Jew.
He said, ‘What does it matter to me? Didn’t the Torah say, ‘Hear out among your brothers?!’
Rabban Shimon ben Gamliel said this is unnecessary, if he came to judge according to the laws of Israel he judged in the laws of Israel, if on the laws of the nations of the world, he judged according to the laws of the nations.”[10]
This aggadta is incredibly difficult. It indicates that Rabbi Yishmael chose the legal system he used in cases between Jews and Gentiles based on which one benefited the Jew. Not only that, he claims the Torah justifies this bias when it limits the judge’s instruction to “judge with righteousness between your brothers” to cases between Jewish litigants.
Indeed, Rabban Shimon ben Gamliel cannot abide by this explanation and offers his own. At first glance it seems that he disputes Rabbi Yishmael’s position and counters that the claimants choose which system of law they wish to apply – Jewish or Gentile – and the beit din rules accordingly. On closer reading it’s also possible that Rabban Shimon ben Gamliel disputes the anonymous claim that this was “the way of Rabbi Yishmael.” Accordingly, he teaches that Rabbi Yishmael applied the system the claimants chose. Why? Because the Torah only commands that we apply Torah law in disputes between two Jews, and this does not apply when one litigant is a Gentile.
An alternative
Interestingly, a different version of this midrash appears in Midrash Tannaim on Devarim, Rav David Tzvi Hoffman’s attempt to reconstruct the missing Mekhilta on Devarim using a combination of sources from manuscripts such as the Yemenite Midrash HaGadol and Rabbi Solomon Shechter’s findings from the Cairo Geniza. In this version Rabbi Yishmael’s way was: “If they came to be judged by Israelite law he would find in favor of the Israelite, and if they came to be judged according to the law of the nations of the world, he would find for the Gentile.”[11]
According to this version, the claimants would choose the legal system. If they chose the Jewish system Rabbi Yishmael would find in the Jew’s favor, if they chose the Gentile system he found in the Gentile’s favor. Both versions give the impression that Rabbi Yishmael does not judge based on the merits of the case; it doesn’t matter because judges are only commanded to “judge with righteousness between your brothers,” which does not apply when one claimant is a Gentile.
The version in Midrash Tannaim does not leave us with the question of how Rabbi Yishmael could justify such clear bias, but it does present us with another question: If Rabbi Yishmael did not rule on the merits of cases between Jews and Gentiles, why did he rule in this way? Is this a comment on the inherent bias of legal systems that favor insiders? Is a Jew penalized for requesting to be judged according to Gentile laws?
Rabban Shimon ben Gamliel also disputes Rabbi Yishmael’s “way” in this version, but with an addendum. After stating that the claimants are judged according to the chosen system he adds: “Since the Torah didn’t say anything but, ‘judge righteously.’”[12] Rabban Shimon ben Gamliel seems to maintain that judges are required to rule righteously, no matter the context.
Indeed, how is it possible for Rabbi Yishmael to put this aside and judge based on anything other than the merits of the case?
A double standard
There is little halakhic discussion about this subject. Rabbinic sources tend to discuss Gentile courts rather than Gentiles in beit din, Jewish courts that rule according to halakha. This seems to reflect reality. When these sources were recorded, Jewish people did not have sovereignty, so it was more likely they would be found in a secular court rather than a Gentile in a beit din.
Nevertheless, there is one case where there is clear bias in favor of the Jew. The mishna teaches:
“An ox of an Israelite that gored a sanctified ox, or a sanctified ox that gored an Israelite’s ox – these are exempt. An Israelite’s ox that gores a Gentile’s ox is exempt. A Gentile’s that gores an Israelite’s ox, whether it was [previously] innocent or forewarned – [the owner] pays full damages.”[13]
According to this mishna the regular laws governing damages only apply when both oxen belong to Jews, since the verse specifies “the ox of his fellow.” These laws do not apply if one belongs to a Gentile or was consecrated to God and the Temple. But while a Gentile is not entitled to damages if his ox is gored by a Jew’s ox, the mishna rules that he must pay full damages if his ox gores a Jew’s ox, even if this is a first-time offense. This is even more stringent than the same case between two Jews, where the loss is split between the two parties in a first-time offense.
The gemara questions the blatant double standard in the mishna. If a Gentile does not receive damages because he is not “your fellow” then he should not have to pay them either![14] Rabbi Abahu explains that when God gave Jews permission to take a Gentile’s money because they do not keep the Seven Noahide Laws. Rabbi Yochanan similarly states this happened when they didn’t accept the Torah.
How is this a justification?
Rambam rules according to the mishna and adds further justification. He explains that Gentiles do not observe these mitzvot. In a Gentile court a Jew is not entitled to payment, and therefore the Gentile shouldn’t be entitled to payment in a Jewish court. On the other hand, Jews are generally careful to ensure their animals don’t cause damage, possibly because they are generally required to pay damages. But Gentiles are not, since they are not required to pay damages. Since beit din has an interest in preventing damage they imposed a fine on Gentiles, so that they will be more careful.[15]
There are other ways to interpret the gemara’s justifications, but they all lead to the same question. If the double standard is based on the Gentile’s lawlessness, lack of moral behavior or fear of God, or lack of a proper legal system, what’s the law if a Gentile has these things? If a Gentile observes the Seven Noahide Laws, which includes setting up a justice system, is the Gentile still liable to pay these damages?
Many halakhic authorities do not differentiate between different Gentiles, but Meiri does.[16] He explains that Jewish law does not show favoritism if a Gentile observes the Seven Noahide Laws and adds that this includes people whose religion has such laws, seemingly referring to Christians.[17] Indeed, Rav Kook rules according to Meiri and explained that nations that have fair laws governing interpersonal interactions are considered like a geir toshav, meaning that many interpersonal mitzvot apply to them.[18]
As we have seen, several rabbinic opinions argue that there are times beit din and Torah law favor Jews over Gentiles. In each case there are those who argue against this double standard. Rabban Shimon ben Gamliel maintained judges are commanded to execute righteous justice, no matter who stands before them. Meiri claimed that the Torah may allow for discriminating against amoral Gentiles, perhaps as a way to restore justice rather than pervert it, but this should not apply to Gentiles who abide by a fair justice system, even if it is different than that of the Torah.
Rabbinic sources offer other reasons why Jewish law should not or cannot differentiate between Jew and Gentile – to maintain peace or prevent strife. Yet there is another reason which goes much farther – the aspect of kiddush Hashem, sanctifying God’s name. The Yerushalmi discusses returning the lost items of Gentiles, since the Torah commands us to return the lost item of “your brother,” excluding non-Jews. Nevertheless, several sages return expensive lost items to non-Jews. They explain this is so the Gentile will say, “blessed is the God of the Jews who commanded them to return lost objects.”[19]
Nowadays every action a Jew does is liable to be examined. If a Jew is found to have a double standard and display bias against non-Jewish people merely because they are not Jewish, we desecrate God’s name. This is not a new idea; as we have seen every source that allows for bias is disputed by one that outlaws it.
If we want to sanctify God’s name in this world our laws must apply equally to Jews and non-Jews. Our foreigners may not be treated more harshly. The law should offer the same protections and consequences, regardless of race or religion. Our judges must execute “righteous judgment” whether the person before them is family or foreigner.
“You shall observe and perform, for in the eyes of the nations it is your wisdom and understanding, who hear all these laws and say, ‘This great nation is a wise and understanding people.’”[20]
[1] Devarim 1:17-18
[2] Sifrei Devarim 16:7
[3] In general, the gendering here is difficult, as all Hebrew is gendered, and Biblical Hebrew rarely uses gender-neutral pronouns or designations. Therefore akh doesn’t just mean brother, it means sibling.
[4] ad loc. See Oheiv Geir II, Chilufei Nuskhaot 322:1
[5] Sifrei Devarim 16; TB Sanhedrin 7b-8a.
An alternative explanation is that geiro is the subject of the dispute between “brothers” who are dividing a shared property or living space. The judge is instructed to take everything into account, even the difference in value between upper and lower levels of a home and an oven and stove.
[6] Divrei David and Ha’Amek Davar, ad loc.
[7] Even though the Torah mentions “geirkha” – your foreigner – it is referring to the plural ‘you’ as in all of Israel. These are people who are “foreigners” as opposed to “ezrachim” – naturally born Israelites. It makes less sense to use this in the singular – his foreigner.
[8] Birkat Asher Devarim 1:16
[9] For example, TB Bava Metzia 59b.
There are times Chazal explain geir refers to a geir tzedek – a righteous convert, but the plain meaning seems to refer to other types of foreigners, such as a geir toshav – a resident foreigner who keeps the Seven Noahide Laws.
[10] Sifrei (JTS 1969) Devarim 17
[11] Rabbi David Tzvi Hoffman notes there is a discrepancy between versions and does not explain why he favors this version.
[12] The phrase “judge righteously” is found in both versions, but in the Sifrei it is generally understood as belonging to the next section.
[13] Mishna Bava Kama 4:3
[14] TB Bava Kama 38a
[15] Hilkhot Nizkei Mamon 8:5
[16] See Shulchan Arukh Choshen Mishpat 406:1
[17] Meiri Bava Kama 37b “shor”. A similar distinction is found in discussions concerning stealing from Gentiles and returning their lot items. See Be’er HaGola Choshen Mishpat 266:1
[18] Iggrot Ha’Reiya I 89
[19] Yerushalmi bava Metzia 2:5
[20] Devarim 4:7
