Q&A: Gentile Courts
Gentile Courts
Question
There are the well-known words of the Ran (in Derashot 11), that the interpersonal laws in the Torah are meant for the “application of the divine matter” and not necessarily for the sake of proper social order. His wording is as follows: “Therefore I maintain, and it is fitting to believe, that just as the statutes that have no role at all in the repair of the political order are an immediate intrinsic cause for the application of divine flow, so too the laws of the Torah have a major role, and it is as though they are shared between causing the application of the divine matter in our nation and repairing the matter of our collective life. And it is possible that they are directed more toward the matter that is loftier in rank than toward the repair of our collective life, for that repair would be completed by the king whom we appoint over ourselves, but the judges and the Sanhedrin—their purpose was to judge the people with a true judgment, just in itself, so that from it the divine matter would cleave to us, whether the ordering of the masses’ affairs would thereby be fully completed or not. And because of this, it is possible that among some of the laws and legal systems of the nations mentioned above, there may be things closer to the repair of the political order than what may be found in some of the laws of the Torah.” End quote. This explains a lot. But it seems to me that in the Talmud these laws were understood as suited to proper social order. For example—
In the Talmud (Bava Kamma 15a), which discusses half-damages: “It was stated: Half-damages—Rav Pappa said: it is monetary compensation; Rav Huna the son of Rav Yehoshua said: it is a fine. Rav Pappa said it is monetary compensation, because he holds: ordinary oxen are not presumed to be guarded, and really he ought to pay the full amount, but the Merciful One had pity on him because his ox has not yet been forewarned. Rav Huna the son of Rav Yehoshua said it is a fine, because he holds: ordinary oxen are presumed to be guarded, and really he ought not to pay at all, but the Merciful One fined him so that he should guard his ox.” End quote.
And likewise in Tanchuma, Mishpatim: “Before them—before Israel and not before gentiles, for whoever leaves the judges of Israel and goes before idolaters has first denied the Holy One, blessed be He, and afterward denied the Torah, as it is said: ‘For their rock is not like our Rock, and our enemies judge.’ What is this comparable to? A parable of a sick person whom the doctor came to visit. He said to the members of his household: Feed him and give him drink, whatever he wants; do not withhold anything from him. He then entered another patient and said to his household: Be careful that he not eat such-and-such a thing and not drink such-and-such a thing. They said to him: To this one you said to eat whatever he wants, and to this one you say he should not eat? He said to them: The first patient is not one who will live; therefore I said, do not withhold anything from him—that is, whether he eats or does not eat, he will die. But this one, who is one who will live, I said he should not eat such-and-such a thing so as not to aggravate his illness. So too, the statutes of the gentiles, as it is said: ‘For the statutes of the peoples are vanity,’ and it is written: ‘I too gave them statutes that were not good, and laws by which they would not live.’ But to Israel I gave commandments and good statutes, as it is said: ‘You shall keep My statutes and My laws, which a person shall do and live by them.’” End quote.
And I assume that if I made the effort I would find more examples too (in the laws of bailees, etc.).
How, in your opinion, would the Ran explain these sources? Is it only that they do not have to produce social order? If so, why does the Talmud assume that this is apparently reasonable, and that one can infer from such reasoning whether half-damages is compensation or a fine?
Answer
Take, for example, the prohibition of murder. Clearly it comes to prevent murder, except that preventing murder is not only a moral-social value but also a religious value. So all these examples prove nothing about the question whether we are dealing with a moral-social value or a religious one. For example, half-damages is a fine “so that he should guard his ox”; that comes to ensure that a person guards his previously harmless ox. But that guarding itself has religious value and not only moral value. Sometimes the definitions even come out identical, and sometimes they do not. And in general, repairing society is a religious value and not only a moral one. By the way, the Ran himself, in the passage you quoted, writes that in the Torah’s laws the social value is mixed together with the religious value, and therefore there are “gaps.” But he also sees this as a moral-social value. I don’t think one needs to go that far, since one can say as I did (that it is only a religious value, but preserving society is itself the religious value). And perhaps that is exactly what he means.