Learning From a Gored Ox

Mishpatim | Shabbat Shekalim By :  Ismar Schorsch Rabbi Herman Abramovitz Distinguished Service Professor of Jewish History and Chancellor Emeritus Posted On Jan 24, 2001 / 5761 | Torah Commentary | Interreligious

My comment this week will focus on a single verse that sheds light on a vast and contentious subject. Judaism has long been condemned for harboring traces of a double standard, that is, treating insiders more favorably than outsiders. I have no intention of denying the evidence or taking refuge in the universality of the phenomenon. Rather, I wish to show how Judaism struggled to transcend the pattern and bring its legal practice into sync with its theology. It is, after all, a postulate of the creation story that all members of the human family bear the stamp of God’s image.

The verse in question seems straightforward enough: “When a man’s ox injures his neighbor’s ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal (Exodus 21:35).” But how are we to understand the term neighbor, broadly or narrowly? Does this law protect only the property of a fellow Israelite or also that of a non-Israelite? Taking the word re’ehu [his neighbor] narrowly, the Mishnah determines liability in four cases related to this biblical statute: “If an ox of an Israelite gored a Temple ox or a Temple ox gored an ox of an Israelite, the owner is not liable, because Scripture says, ‘the ox of his neighbor’ and not an ox belonging to the Temple. If an ox of an Israelite gored an ox of a gentile [nokhri], the owner is not liable. But, if an ox of a gentile gored an ox of an Israelite, whether the ox [doing the damage] has a history of goring or not, the gentile must pay full damages (Bava Kama 4:3).”

The arbitrariness of the Mishnah is undisguised. A gentile at fault must always reimburse his Jewish victim fully, as if he were negligent, while a Jew at fault against a gentile goes scot-free. Indeed, guilt seems to depend entirely on whose ox is being gored! The blatant inequity would draw the ire of anti-semites down through the ages. It is worthy of note, however, that the talmudic discussion on this passage of the Mishnah does not gloss over the problem. In fact, it zeroes right in on the inconsistent application of the narrow definition of “neighbor.” If you interpret the word exclusively, then the Mishnah should also exonerate a gentile who damages a Jew. And if not, a Jew damaging a gentile should likewise be held liable.

To refute the challenge, the Talmud shifts ground. A theological consideration is introduced to account for the inequity. Long before the revelation to Israel at Sinai, God had imposed on the descendants of No·ah-that is to say, all humanity–a minimum standard of civilization. These seven norms included creating a judicial system and outlawing blasphemy, idolatry, sexual immorality, murder, robbery and the consumption of a limb from a living animal. But when these norms proved of no avail, God permitted Israel to strip gentiles of their wealth. In other words, gentile depravity justified Jewish discrimination.

And yet the Talmud is uncomfortable with this vindication and adds a remarkable story whose historicity is immaterial. The Roman government on one occasion sent a commission to the Rabbis in Palestine to examine the teachings of Judaism. After many months of study, the commissioners reported to the Rabbis that they found the teachings of Torah full of truth except for our Mishnah passage which turns on the definition of re’ehu. They too questioned the inconsistency which made it so unpalatable, but promised not to report the matter to their superiors in Rome (B.T. Bava Kama 37b-38a). To bring the talmudic discussion to a close on this self-critical note betrays a rare ability to see oneself through the lens of the other. The recourse to theology rings hollow to everyone but the insider.

The above is but one instance of many rabbinic regulations that delineate how Jews ought to interact with the non-Jew. According to Prof. Moshe Halbertal of the Hebrew University, the corpus breaks down into three types: The first deals with distancing Jews from contact with any aspect of a religious cult deemed to be idolatrous, the basic reason being a deep reluctance to promote a form of worship abhorrent to the Torah and forbidden even to the descendants of No·ah. The second consists of obligations a Jew may or may not have toward a non-Jew on the basis of the latter’s status as defined by the Rabbis. As in the case of the goring ox, the double standard often derives from a narrow, formalistic reading of an underlying scriptural verse. The third and final category is composed of social strictures designed to minimize the possibility of intermarriage. The best known of these is the prohibition against drinking gentile wine, which is intended to deter socializing.

In the course of the Middle Ages, as Jews in the diaspora became an ever smaller minority within a Moslem or Christian society, categories one and two proved to be increasingly onerous economically and counterproductive politically. Law and practice steadily diverged. The Mishnah had forbidden Jews to trade with gentiles three days before any of their religious festivals and in 12th-Century France, Jews were doing business with Christians on Sunday. The preference of the halakhists was to give ground piecemeal, that is pragmatically, case by case.

What set Rabbi Menachem ha-Meiri, the subject of Halbertal’s brilliant new Hebrew biography (Between Torah and Wisdom), apart was his readiness to elevate the discourse to the level of principle. A follower and defender of Maimonides, the Meiri lived in Provence in the second half of the 13th century. Like the master, he integrated Torah with philosophy into a harmonious synthesis which expressed itself primarily in a highly original commentary on the Talmud. Throughout he articulated a bold theory which effectively relegated categories one and two to ancient Palestine.

As for the first, which proscribed all contact with idolatry, the Meiri argued that neither Christianity nor Islam could be classified as such. Both were a form of pure monotheism, infinitely removed from what the Rabbis excoriated as idolatry in the Greco-Roman world. As for the second, which rendered gentiles legally inferior to Jews, the Meiri claimed that these statutes pertained solely to barbarians who subscribed to no religious norms, not even the seven commandments of No·ah’s progeny. Again both Christians and Moslems were not to be confused with their pagan ancestors. Their lives were bounded by religious constraint and blessed by the unmediated providence of God. In short, the Halakha required of Jews to violate Shabbat to rescue them, to return their lost belongings and not to treat them duplicitously.

Only in the social realm did the Meiri leave the old barriers in place. These did not derive from any outdated ontological or religious premises but rather from a legitimate desire to protect the coherence, vitality and integrity of Judaism.

In time the Meiri’s views and those of like-minded halakhists prevailed. By a process of historicization, many an ordinance of rabbinic law was set aside, even though the codes still carried them on the books. Partly because circumstances had changed, partly because of recurring external denunciation and partly out of a heightened sense of justice, rabbinic leadership dared to modify a part of the system to preserve the viability of the whole.

Shabbat Shalom,

Ismar Schorsch

The publication and distribution of Dr. Schorsch’s commentary on Parashat Mishpatim are made possible by a generous gift from Rita Dee and Harold (z”l) Hassenfeld.