5768 - #39


Throughout history, one of the gravest critiques leveled against the Jewish People was the challenge that throughout the Halacha there are many cases where Jewish Law distinguishes between the treatment of Jews and the treatment of non-Jews. One such example concerns the obligation, based on Devarim 22:1, to return a lost article specifically to a fellow Jew.1 Sanhedrin 76b furthermore,  actually describes returning a lost article to a non-Jew as improper behaviour. 2 Another example is the charging of interest which is only forbidden in regard to loans between Jews.3 Rambam, Mishneh Torah, Hilchot Malveh v’Loveh 5:1, it would seem applying Devarim 23:21 literally, maintains that there is even a mitzvah to lend to non-Jews with interest.4 There can be no doubt that, in various circumstances within the Halacha, distinctions are made between Jews and non-Jews, sometimes and according to differing opinions, in a most powerful manner. The argument made by these historical critics of our people that we are discriminatory would seem to be substantiated by our laws. Yet is this discrimination actually unethical or simply a reflection of the human reality of nation and community to which the Torah gives value?

            Included in his presentation of the reasons for the mitzvah of returning lost articles, Sefer Hachinuch, mitzvah 538 states that this type of concern for returning lost articles is important for the yishuv hamedina, the stability of the state or nation. With this explanation, the Chinuch introduces a different macro perspective on the possible reasons for commandments. One could, theoretically, have presented a reason that focuses on the micro event itself, declaring the propriety of one person returning another’s property. One could have focused on the narrow parameters of the event itself declaring that such behaviour is simply ethical. The Chinuch, instead, states that this command functions within the context of nationhood and services the proper functioning of our society. It could be argued that the Chinuch, in explaining the reason for this commandment is not applying an ethical yardstick but rather the yardstick of societal standard. It may be that not returning a lost article is not necessarily unethical but it clearly still undermines the optimal working of the Torah vision of community.

            A similar, albeit somewhat different, argument could be made in regard to the concept of lending without interest. Is it clearly unethical to lend with interest? If we answered this question in the affirmative, we would be challenging many aspects of our present lifestyle. While various restrictions may need to be placed on the charging and collecting of interest, in theory, if all parties, in a correct manner, agree to this arrangement, it really is just another type of business transaction. It would be hard-pressed to describe the Torah’s laws regarding interest as reflecting an intrinsic ethical viewpoint that there is something inherently wrong with charging interest. Yet if we look at the charging of interest from a macro perspective and in consideration of what may be best for the society, a different perception may emerge. In maintaining a positive collective environment, in fostering the proper relations, bonding and emotions between members of the society, the absence of the charging of interest may have very positive consequences.5 The Torah’s reason for not charging interest is communal with the Torah specifically favouring one form of communal structure that favours a mandated returning of lost articles and not charging interest. These two laws are societal. Is it not understandable that it should, thus, specifically apply within the context of the specific society and nation?

            Ethical laws must be universal. They specifically define what is deemed to be proper behaviour for the individual. In this context, it indeed would be problematic if the Torah, without substantial reason,6 demanded ethical behaviour towards one group of human beings but not towards another. Ultimately, ethical behaviour defines what is proper for an individual even in the vacuum of his/her individuality. Other laws, though, do not reflect proper individual behaviour per se but, rather, reflect what is beneficial within a societal context. They are rules that define what is necessary to create a certain communal spirit and bonding. All nations have such laws. All nations have laws that offer benefits solely for their citizens. These are the laws that distinguish citizens. These are the laws that bond citizens into a collective. By definition, they still exclude others, people who are not members of this society – yet this is not discrimination as we generally understand this word. These are laws that distinguish members of the group from non-members of the group reflecting the fundamentals of this group dynamic.

            Theoretically, it could be argued that a nation could be built upon a standard that does not necessarily demand the return of lost articles just as it could be built upon a standard that demands such return. The same proposition could be made regarding a standard of allowing interest to be charged and one that does not. Whatever standard a nation may choose, the goal of the standard is to affect the structure, value and dynamics within the society. By definition, these standards do not apply to one outside the society for behaviour directions of these standards are inapplicable to such cases. The Torah has set such standards for Klal Yisrael declaring, thereby, the type of society that the Torah envisions for the Jewish People. That these standards may only apply to Jews is thus understandable. This is similar to the laws that any country may apply only to its citizens to the exclusion of non-citizens. The Torah laws regarding interest and lost objects have a purpose for communal bonding and thus they are applicable specifically for Jews.


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Rabbi Benjamin Hecht e-mail


1 See Rambam, Mishneh Torah, Hilchot Gezeila v’Aveida 11:1,3.

2 Rambam, however, limits this directive by describing cases when it would be inapplicable and when it would also be appropriate to return lost articles to non-Jews. From the words of Rambam, he, furthermore, seems to understand the gemara forbidding the return of lost articles to non-Jews as only applying to idolatrous non-Jews. Rashi, Sanhedrin 76b, d.h. v’hamachzir, though, would seem to disagree. Even according to Rambam, however, a distinction between the Jew and the non-Jew still exists in that the obligatory force of this mitzvah still only applies to the former.

3 See Devarim 23:20.

4 While Rambam would further seem to be basing his position on Sifri, Ki Teitzei 129, many Rishonim including Ra’avad do not understand the Sifri and the verse in this manner. They maintain that there is no specific mitzvah to charge interest to non-Jews. In any event, though, it is still permitted.

5 See, also, Sefer HaChinuch, mitzvah 68 where the author again refers to the national benefit.

6 This substantial reason would have to explain why the difference in ethical behaviour is correct. For example, the taking of human life is unethical. Capital punishment, which is still the taking of human life, is deemed by many to be ethical. The argument that it is the proper punishment for certain crimes is ultimately an argument that this difference in ethical behaviour towards a certain group, i.e. people found guilty of capital crimes, is justified.

 (c) Nishma, 2008


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