[Avodah] Double Standards In Jewish Law

[Jay F Shachter]

The posting which began this thread of discussion was incorrectly
titled "Hypocrisy in halakhah"; it turned out, upon reading the
posting, that it did not describe hypocrisy at all, but, rather, a
double standard.  Hypocrisy is articulating a standard for one's own
conduct which contradicts one's own conduct.  The posting described
not that, but a different thing, in fact, an unrelated thing, namely,
having two different standards of conduct for two different classes of
people, or, having two different standards governing one's conduct
toward two different classes of people.  It is hypocritical to say, "I
must do X" while not doing X; it is not hypocritical to say, "I must
do X toward class A, and Y toward class B", unless one does not do X
toward class A, or Y toward class B.  Thus, it is not hypocritical to
say, "I must treat Jews differently than I treat non-Jews".  It is not
even hypocritical (although it may be morally suspect for other
reasons) to say "non-Jews must treat me differently than I treat
non-Jews" because it is not a universal moral principle that
relationships must be symmetrical; non-symmetrical relationships may
properly exist.  For example, I might be married to two women.  Each
of my wives must be faithful to me, but I need not, and, in fact,
cannot, be faithful to each of my wives, and, in fact, may not, under
Jewish law, be faithful to either of them, because the relationship of
husband to wife is not a symmetrical one: a woman can have only one
spouse at a time, whereas the same is not true for a man.

One need not, however, postulate a non-symmetric relationship between
Jew and non-Jew, to justify a double standard of conduct toward Jew
and non-Jew.  The relevant moral distinction is, in fact, a universal
one, and it is the distinction, not between Jew and non-Jew, but
between laws that must be observed even among people who do not
observe them in return, and laws that must be observed only within a
community of people who are themselves bound to observe the same law.

Consider the following halakha.  Jewish law states that if a Gentile
brings a cause of action against a Jew in a Jewish court in a land ruled
by secular law, then the Jewish court must examine both the relevant law
under halakha and under the local Gentile legal system.  The Jewish
court must then render whichever finding is favorable to the Jew.  If
Gentile law favors the Jew, the Jewish court must rule according to
Gentile law and favor the Jew.  If Jewish law favors the Jew, the Jewish
court must rule according to Jewish law and favor the Jew.

This is precisely the kind of halakha that we don't want the antisemites
to find out.  It makes us appear to be unprincipled, clannish,
dishonest, manipulative -- all the things that the antisemites have
always known we were.  In all honesty, doesn't this halakha strike you
as rather distasteful?  It strikes me that way.

But laws must be carefully thought out, by clear-thinking people.  If
you think about this law, you will realize that it is both necessary and
fair.  In the absence of such a law, Gentiles would have an unfair
advantage over us.  Consider the situation that would result from not
having the abovementioned "distasteful" halakha.  Whenever a Gentile had
a dispute with a Jew, he would find out which legal system favored him.
If the Gentile legal system favored him, he could compel the Jew to
participate in a lawsuit in the Gentile court system.  The police power
of the state could then be enlisted to enforce any resulting judgment.
But if the Jewish legal system favored the Gentile, he could sue the Jew
in a Jewish court, and the Jew would be bound by conscience and
community pressure to carry out any resulting judgment.  This places the
Gentile at an unfair advantage -- two legal systems from which to
choose, against only one for the Jew -- because if the Jew sued the
Gentile in a Jewish court, the Gentile could not be compelled to comply.

The principle involved is a universal one, and, in fact, applies to
Jews also, under certain circumstances.  Consider the case of a Jew
who brings a case to the Jewish court after failing to obtain his
desired relief in the Gentile court.  I assume that we are all agreed
on the basic premise: a Jew may not, on pain of "xerem" (total
exclusion from the Jewish community), initiate a cause of action
against another Jew in a Gentile court, except, possibly, to obtain
whatever relief has already been granted ex parte in a properly
convened Jewish court.  If there is any disagreement on this basic
premise, then of course I welcome hearing it.

Now, in the case where a Jew, in violation of the Torah, enlists a
Gentile court against another Jew, fails to obtain the desired result,
and then comes to the Jewish court as a second resort, the halakha is
that we do not accept this case, even if it has merit.  We reject it
out of hand.  And the reason could be the same as the reason behind
the law governing Gentile claims in Jewish courts.  This Jew has
already gone to a Gentile court -- in violation of halakha -- and
sought his relief.  If he had been granted a favorable judgement
against his fellow Jew presumably he would have enlisted the police
power of the state to enforce it.  To allow him to come to Beyt Din
after failing in the Gentile court would give the renegade Jew an
unfair advantage over the one beholden to the Torah, because the
Torah-observant Jew does not have the option of taking the renegade
Jew to a Gentile court.  The renegade Jew must, in effect, be treated
as a Gentile, such that Beyt Din says, "We will apply the Gentile law
to you, and under the Gentile law, as evidenced by your failed
lawsuit, you are not entitled to the relief you request".

The same analysis can be successfully applied to nearly all the laws
that are applied differently to Jews than to non-Jews.  In all cases,
or in nearly all cases, you will find that without such a difference,
the Jew would be placed at an unfair disadvantage vis-à-vis the
non-Jew.  It has nothing to do with there being any difference between
a Jew and a non-Jew, except insofar as the Jew observes Jewish laws,
and the non-Jew does not.  For example, a non-Jew, even a non-Jew
living under Jewish sovereignty, is not obliged to return to me a
twenty-dollar bill that fell out of my pocket.  If I, however, were
obliged to return to him the twenty-dollar bills that fall out of his
pockets, then the advantage would all be his, and the disadvantage
would all be mine.  Within a religious community, however, in which
all people are obliged to return lost property to one another, then of
course I must do the same myself.


			Jay F. ("Yaakov") Shachter
			6424 N Whipple St
			Chicago IL  60645-4111
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				jay at m5.chicago.il.us
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