Presence

Over at Cross Currents, R. Yaakov Menken mentioned a gemara in Sanhedrin (57B) that I found intriguing. The gemara was brought as a proof that the Talmud held that an unborn fetus had some status as "alive." The Rambam (Hil. Melachim 9:4) paraphrases:

בן נוח שהרג נפש, אפילו עובר במעי אימו--נהרג עליו

I found it interesting that Rashi on Sanhedrin 57B quotes Nidah 44A, "A one day-old infant, his murderer is culpable," that is, a Jew would not incur a capital punishment for aborting a fetus (saying nothing about the permissibility of abortion for Jew or Ben Noach, only that the punishments are unequal). I found this perplexing, that the Talmud would hold a Jew to a lower standard than a Ben Noach. If anything, we would expect the opposite.

As an explanation, consider that the standard punishment meted out to a Ben Noach, for any infraction of the seven Noachide Commandments, is death (Hil. Melachim 9:17-18). The Noachide Laws are broad, societal and wholly unconcerned with the individual. Their goal is the formation, function and perpetuation of the society; any individual who takes action that inhibits the society from existing or functioning in a just fashion is dealt with accordingly, without mercy.

In contradistinction, the community created for B'nei Yisrael is concerned for the individual. Punishment is reframed in the context of kapparah, atonement rather than retribution. The fact that the default punishment is lashes, not death, or that capital punishments act as exculpation for wrongdoings rather a simple means of derivative justice, is an expression of a closer relationship between Man and God. A servant is cast from the master's presence for even the slightest infraction; a father longs for his son's company and presence, even when the son has grieviously sinned. Taking it one step further, this concern for the individual is an expression of Divine Mercy (Hesed). Those in contact with the Divine Presence are afforded an extra level of Divine Mercy absent from the system of the Ben Noach. That is not to say that justice is forsaken in the quest for individual reformation; justice is upheld, but tempered with an element of mercy.

Thinking historically (and assuming this analysis is correct), I'm not sure the category of Ben Noach exists any longer (at least in the West); most modern societies have incorporated a concern for the individual and his reformation, rather than a blanket concern for cold, hard justice in order to maintain a functioning society. It would seem that once a society's legal system moves beyond concern for just it's own function and focuses on the individual's salvation, the society leaves the category of B'nei Noach.