This selection from the tannaitic midrash Mekhilta Deuteronomy expounds on a passage from Moses’s final blessing to Israel (Deuteronomy 33). Our source addresses the words “Lover, indeed, of the peoples” (Deuteronomy 33:3, JPS), whose meaning is ambiguous in their biblical context; so this rendering is but one possibility. Yet, our midrash (and its parallel in Sifre Deuteronomy 344) uses this phrase to consider several laws that favor Jews over gentiles. This midrash also reflects an awareness that these halakhot discriminate against non-Jews and how gentiles, especially Roman authorities, may have perceived them.

Section A discusses Deuteronomy 33:3, claiming that its opening phrase indicates that God assigned extra ḥibah (love, esteem or honor) to Israel, relative to other nations. The Mekhilta does not depict God neglecting those nations, but rather granting Israel a greater measure of affection.

Section B presents three legal rulings from rabbinic halakhah that were each considered illustrations of this extra level of divine care for Israel:

1) Mishnah Baba Qamma 4:3 requires a gentile to pay indemnity if his ox gored an ox that was owned by an Israelite, yet it exempts an Israelite from payment if the scenario were reversed. By contrast, if this incident involved animals that were both owned by Israelites, the aggressive ox’s past behavior becomes a factor for determining damages: namely whether this ox had previously attacked a person or another animal and, therefore, its owner should have exercised greater precautionary measures, would be considered. However, if a gentile owned the culpable ox, these factors are not taken into account and its owner is automatically held liable.

2) This example is derived from Mishnah Avodah Zarah 2:1 (although its content is presented in a different order; see also Tosefta Avodah Zarah 3:3). A gentile woman may assist the delivery and breastfeeding of an Israelite baby, albeit in the presence of an Israelite, but an Israelite female may not provide such support to non-Jewish female (probably as a midwife) or her infant. The Mishnah and Tosefta both justify this position by stating that Israelite women should not help an idolater to enter the world. This reasoning also appears in a discussion of breastfeeding (probably as a wet nurse) in the Tosefta.

3) The final item states that an Israelite may take possession, then use or sell, an object that a gentile lost. Although not referenced here, Mishnah Baba Metzi‘a (Chapter Two) and many other rabbinic passages teach that, under most circumstances (especially if it could be identified), an object that was lost by an Israelite should be restored to its owner.

A parallel in Sifre Deuteronomy 344 only presents the third of these examples, however, it mentions a stolen possession rather than lost property:

גזילו של נוכרי מותר ושל ישראל אסור.

An object that was stolen from a gentile is permitted (for an Israelite to use or sell), but [a stolen object that] belonged to an Israelite is prohibited (for use or sale).

Menahem Kahana, who published selections from the Mekhilta (including the one discussed here) and compared them with parallels in Sifre Deuteronomy, notes that versions in the Mekhilta often incorporate more material than those in the Sifre (“Pages,” p. 177-178). In this selection, the Sifre’s treatment of this regulation is far more discriminatory than the Mekhilta’s, which mentions lost property. Based on our source and others, Kahana shows that these texts differ in their attitudes toward non-Jews: Mekhilta Deuteronomy, associated with the House (School) of Rabbi Ishmael, implies that Jews may not benefit from property that was stolen from a gentile by discussing lost property; however, Sifre Deuteronomy, from the House (School) of Rabbi Akiva, permits Jewish use of such stolen objects (but see Kahana’s reservations in “Pages,” p. 185-186, note 103). Kahana argues that the version of (3) in the Sifre represents the original form since it conforms more closely with the first two cases in the Mekhilta (“Pages,” p. 183-184). The version from the Sifre appears as a parallel in Jerusalem Talmud Baba Qamma 4:3, 4b (on this text, see Rosenthal, “Two Things”); however, the Talmud adds that Rabban Gamliel decreed that gentiles’ stolen possessions are prohibited on the grounds of ḥilul ha-Shem. This Hebrew phrase literally means “defamation of the name of God” but, in this context, it indicates that such permission brings disgrace to the Jewish religion (for a similar ruling, see also Tosefta Baba Qamma 10:15); therefore, although the Torah (which is to say, God) allows Jews to possess property that had been stolen from gentiles, Rabban Gamliel prohibits this conduct. As in earlier tannaitic midrashim, here too the Talmud demonstrates an awareness of how non-Jews, whether gentile neighbors or Roman authorities, would view this discriminatory ruling.

Eliezer Shimshon Rosenthal wrote before the publication of our passage from the Mekhilta and, therefore, only had access to versions from the Sifre and the Jerusalem Talmud. In his comparison of these two sources, he posits that the law which permits Jews to benefit from property that had been stolen from a gentile is the original, which was subsequently modified by a decree or Scriptural reinterpretation (“Two Things,” p. 475-476). According to Menahem Kahana, the Mekhilta’s version was adapted to suit the later law (“Pages,” p. 184). As noted above, Kahana attributes our text’s avoidance of mentioning stolen property to the introduction of lost property as a substitute. However, this adaptation distinguishes this third example from the others: the first two discuss identical scenarios in which Israelites and gentiles are treated differently; however, (3) discusses rights to an Israelite’s stolen possession alongside a gentile’s lost object. This evidence supports Kahana’s claim that our passage was adjusted to a later ruling or, alternatively, in response to the problematic assertion that Jews could legally use or sell items that had been stolen from non-Jews.

Indeed, a recognition of non-Jewish perspectives on Judaism, especially its laws, is further reflected in Section C, which portrays Roman interest in the Torah, inclusive of written texts and oral traditions. According to the Mekhilta, the Roman kingdom (or government; malkhut) dispatched two astrologers to learn about Jewish teachings on its behalf. In the parallels in the Sifre and the Talmud, the government assigned two soldiers (or administrators; on the meanings of this term, see Rosenthal, “Two Things,” p. 466) to study the Torah. Moreover, in the version in the Sifre, the Roman government instructs these representatives to present themselves as converts. For authors of the Mekhilta, it seems plausible that astrologers would show broad interest in religions and cultures, including Jewish teachings (yet, this is the sole appearance of the word astrologos in tannaitic literature).

According to the Mekilta and the Sifre, to accomplish their mission, these informants traveled to Rabban Gamliel in Usha, a small town in the Galilee, not far from Sepphoris. Interestingly, in rabbinic literature and, especially, in modern descriptions of rabbinic leadership, Usha is typically associated with Rabban Gamliel’s son: Rabban Shimon ben Gamliel, who was active in the second century and, according to later rabbinic sources, established a temporary rabbinic center there after the Bar Kokhba revolt (indeed, the talmudic version does not mention Usha). In our passage, Rabban Gamliel is situated in this town and the government’s agents go there to learn from him, though under false pretenses, “Scripture, midrash, halakhot (legal traditions), and aggadot (homilies and tales),” namely, the classic rabbinic curriculum. Before leaving, they reveal their true intentions and who sent them. At that point, they also shared their assessment of the Torah as “beautiful and praiseworthy,” except for its discrimination toward the gentile owner of an ox that gored an Israelite’s ox, in contrast with an Israelite owner whose ox gored a gentile’s ox (1). However, they promise to conceal this law in their report to the Roman authorities. According to our passage, Rabban Gamliel was not satisfied with that assurance, for his prayers cause the astrologers to forget everything that they had learned with him. The parallel in the Sifre omits this prayer and, in its version, the soldiers-officials note the legal treatment of gentiles’ stolen property:

וכבר שלחה מלכות שתי סרוטיאות ואמרה להן. לכו ועשו עצמכם גרים וראו תורתם של ישראל מה טיבה. הלכו להם אצל רבן גמליא' לאושא וקראו את המקרא ושנו את המשנה מדרש הלכות והגדות. בשעת פטירתן אמרו להן. כל תורתכם נאה ומשובחת חוץ מדבר אחד. גזילו של גוי מותר ושל ישראל אסור. ודבר זה אין אנו מודיעין אותו למלכות.

When the kingdom had already (lit. And already the kingdom) sent two soldiers (or “officials”; “administrators”) and told them: “Go, pretend to be converts (gerim) and see what the nature of Israel’s Torah is,” they went to Rabban Gamliel, to Usha, and read (qar’u) Scriptures (miqra), studied (or “repeated”; shanu) the Mishnah, midrash, halakhot (legal traditions), and aggadot (homilies and tales). Upon departing, they said: “Your entire Torah is beautiful and praiseworthy, except for one thing: ‘An object that was stolen from a gentile is permitted (for an Israelite to use or sell), but such [object] of an Israelite is prohibited (to use or sell).’ But on this thing we will not inform the kingdom.”

Although the “students” in these tannaitic midrashim criticize one ruling – (1) or (3) – from the Mekhilta, in the Jerusalem Talmud, they cite all three. Moreover, the talmudic version presents providing assistance to a woman in labor and breastfeeding as two different subjects, thus mentioning four problematic laws. In each version, however, these texts reflect the notion that the Torah includes laws that favor Israelites over gentiles and an understanding that gentiles, especially the Roman government, would find them objectionable. Furthermore, the authors and transmitters of this narrative assume that the Roman government collected information about the sages’ teachings, which constituted Israel’s Torah. While scholars have debated whether these narratives are based on historical events (see, the bibliography in Fraade, From Tradition to Commentary, p. 214-215, notes 137 and 139), the supposition of interest from the Roman authorities is significant.

The goal of this tale seems to be the affirmation that, with discrete exceptions, the Torah is “beautiful and praiseworthy,” not only from the perspective of Israelites but also non-Jews, whether they are astrologers, Roman soldiers or officials. As Steven D. Fraade concludes: “The subject of the Sifre’s commentary is one in which Israel desires that the nations praise them and their (rabbinic) Torah, even as the latter provides the basis for Israel’s self-understanding as being distinct among the nations as God’s especially beloved” (From Tradition to Commentary, p. 55).