Rabbinic sages as experts in Jewish law and in the laws of the nations
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This source from the third-century midrash Sifre Deuteronomy comments on Deuteronomy 1:16: “Then I commanded your judges at that time, saying ‘Hear between your brethren, and judge righteously between a man and his brother or the stranger who is with him’” (based on NKJV). This passage indicates that the sages differentiated between Israelite laws and the laws of the nations in a manner that seems to echo the Roman category of ius gentium (“law of the nations”). According to Gaius 1.1, the law of the nations is both natural and rational; therefore, it was common to all nations. Our text neither mentions natural law nor does it define “the laws of nations.” Yet, here it seems possible to choose between two legal systems: “the laws of the nations” and the “laws of Israel.” It seems likely that the parties would elect the system that they preferred. As Caroline Humfress notes, under the Roman empire, litigants “had the legal capacity to agree between themselves on a competent bureaucratic forum…in addition to the various ‘private’ arbitration procedures” (“Thinking through Legal Pluralism, p. 235). Moreover, on the subject of “law in the provinces,” Andrew M. Riggsby observes that “In some cases individuals were given the right to choose under which system their cases would be decided,” namely Roman or local law (Roman Law, p. 220). Scholars have directed significant attention to the use of local law under Roman rule and it has been claimed that, especially in the East, local law continued to be practiced alongside Roman law (Lintott, Imperium Romanum, p. 156-160; Richardson, “Roman Law,” p. 56). Our source makes does not speak of Roman law, despite its dominant status; rather it highlights the position of Israel in the world by placing its law on a par with the law of the nations. Thus, while Rome may be included among “the nations,” that is not specified. Moreover, it is significant that the sages consider themselves qualified to judge in accordance with Israelite law and the law of the nations.
In the scenario presented here, an Israelite and a gentile appear before a sage who may judge their dispute by Israelite law or the law of the nations. Section A describes the legal approach of Rabbi Ishmael, a third-generation tanna who was active in the second century, especially in the decades before and immediately after the Bar Kokhba revolt. Irrespective of the law being applied and the merits of the case, he would always rule for the Israelite. The midrash then cites his use of the biblical imperative “Hear between your brethren” (Deuteronomy 1:16) to justify such verdicts (cf. Furstenberg, “From Competition to Integration,” p. 37, who explains that Rabbi Ishmael chose the legal system that would enable him to favor the Jew over the gentile). Section B presents the view of Rabban Shimon ben Gamliel, who was active in the second century, especially after the Bar Kokhba revolt. In contrast to Rabbi Ishmael, Rabban Shimon ben Gamliel does not read this verse as an instruction to show partiality toward Israelites in legal settings. Rather, judges should issue their rulings according to the law that was selected, not by the litigant’s identity.
Several rabbinic sources show an awareness that certain Jewish laws discriminate against non-Jews. For example, Mekhilta Deuteronomy 33:3 and Sifre Deuteronomy 344 acknowledge that the Torah includes laws that show preferential treatment toward Israelites and that gentiles, especially the Roman government, would respond negatively to such bias. However, this midrash does not focus on specific laws but rather on the sage who serves as the judge. Must he favor an Israelite, regardless of the operative legal system? Or is he expected to follow the law that he or the litigants selected? Both situations assume that a sage may resolve a legal case according to the law of the nations rather than rabbinic law, probably based on the litigants’ preference. Complications could arise when the law of the nations contradicts the Torah, although our passage does not mention this possibility.
This text provides another example where Roman legal concepts, here “the law of the nations,” are integrated into rabbinic thought. However, while neither Rome, its legal system, nor its juridical dominance are explicitly mentioned here, the sages operated (in fact or by their own description) within the Roman legal landscape and provided legal counsel based on the Torah as well as non-Jewish law.