Wronging and Oppressing Strangers: Mishpatim Exodus 21:1 – 24:18
Is it serendipity that we read such a text between Donald Trump’s aborted cruel, inhuman and unconstitutional Executive Order dealing with migrants and the delayed promise to issue a revised order next week? When immigration enforcement officers were previously restricted to rounding up illegal aliens in the U.S. found guilty of serious crimes, is it serendipity that we read Mishpatim when restrictions on U.S. immigration officers have been lifted and they are now instructed to round up illegal aliens found or even alleged to be guilty of any conviction (going through a red light) and not just a criminal let alone a serious criminal record? Guadalupe García de Rayos, was arrested in Phoenix and ordered deported; she is the mother of two American-born children and had been in the U.S. ten years and was registered with the American Immigration Service to which she reported dutifully twice per year. But she had been found guilty years ago of carrying and working under a fake ID.
Is it serendipity that we read Mishpatim when refugees in the dead of winter have been crossing the undefended and usually unprotected land border between the U.S. and Canada at Saint-Bernard-de-Lacolle, Quebec or near Emerson, Manitoba or in British Columbia at unmanned border crossings such as in Surrey where a Honduran family recently entered Canada? RCMP officers may monitor banks of screens receiving data from surveillance cameras, but that only tracks and does not stop claimants from crossing into Canada. Once on Canadian soil, they are assisted by Quebec provincial police, RCMP officers, Canadian Border Services agents or volunteers to be taken to a centre where they can make a refugee claim. In January alone, 452 asylum seekers crossed into Quebec and over 400 into Manitoba. To repeat, this has been in the dead of winter. In another month, we can expect the numbers to greatly increase so that I will not be surprised, if the circumstances do not change in the U.S., to see up to 40,000 asylum claimants cross the border into Canada illegally in 2017. And this could turn out to be a gross underestimate.
There is a way to circumvent these riskier crossings. Allow claimants to cross at legal entry points and make a claim there. That would mean suspending the definition of the U.S. as a Safe Third Country. For that provision presumed that asylum claimants would be protected by U.S. law. There are justifiable fears that this is no longer the case, not just by sympathetic Canadians, but by supporters of refugees in the United States, many of whom have volunteered to take the asylum claimants to areas where they can walk across the border at a terminus of a new underground railway network into Canada.
Many Americans and Canadians are taking Justin Trudeau at his word when he tweeted, “To those fleeing persecution, terror and war, Canadians will welcome you, regardless of your faith. Diversity is our strength.” This week, Canada welcomed into Manitoba another group of the 1,200 Yazidis due to arrive in Canada this year as humanitarian refugees who will not have to be processed through the Convention refugee claims system.
Canada is on the outer fringes of the refugee movements, especially the hundreds of thousands crossing into Europe from the Middle East and North Africa. This past week, we read of 87 bodies recovered from a capsized boat off the cost of Libya; the smugglers had removed the motor and allowed the boat to be swamped. Last week I learned that the son of an Israeli friend, a diver who inspects underwater pipelines, found numerous bodies trapped under the pipeline at the bottom of the Mediterranean Sea.
Several weeks ago, a visiting Israeli rabbi talked to a group of us about the refugees arriving in Israel from Africa and the Middle East and discussed the “Extradition of Refugees According to the Jewish Tradition.” He quoted Deuteronomy 23:16-17 dealing with the treatment of bondsmen who should not be returned to his master and, instead, should be allowed to dwell with one who found him or her. That escaped bondsmen should be allowed to live in freedom within the gates of the city and no wrong should be committed against him.
Mishpatim (laws) deal with both slaves and strangers. Though Genesis 14:19 enjoins Israelites to “love the stranger for ye were strangers in the land of Egypt,” Mishpatim is the first time this moral injunction is put into a legal code posed as a negative as distinct from a positive moral injunction of action that is just, These Covenantal laws, Sefer HaB’rit, are not as generous as the Deuteronomic Code or the Holiness Code found in Leviticus, but just as Moses upon the advice of Jethro made a beginning in the administration of justice and introduced a more decentralized system of administering law, one in which the magistrates were to be chosen based on moral criteria without direct guidance from God (see my blog from last Friday), much more specific and clearly man-made laws well beyond the Ten Commandments had to be introduced. If we take the position in the text as reflecting a time when the laws were introduced (unlikely), these laws were promulgated before Moses disappeared for forty days and forty nights.
It is telling that the very first laws are those applicable to Hebrew slaves and then to property. Only then, and very briefly, do we read, “You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.” (22:20) I thought that Rabbi Plaut had told me that this injunction was the one most repeated in the Torah and was cited 27 times, but my memory must be incorrect because the visiting rabbi said that, in fact, he had counted and it was repeated 36 times. As everyone knows, and as the Babylonian Talmud reminds us (Bava Metzia 59b), the more repetition, the greater the significance. It isn’t as if there is a causal relationship between the experience of slavery in Egypt and the obligation not to wrong or oppress strangers, but, as many know who have undertaken research on those who assist refugees, the closer the connection in the family history with the experience of refugees, the greater the motivation to help. Having been a stranger is neither an adequate nor a necessary motive for helping refugees, but, statistically, it increases the likelihood of offering such assistance. Even more importantly, it established a fundamental identity between the person offering assistance and the refugee. History and memory must be reinforced to ensure hospitality for the stranger.
But the Israelites were not just strangers in Egypt; they were slaves. The section Mishpatim begins with slaves as an echo of Genesis, “Know now that your descendants shall be strangers in a land not theirs; they shall be enslaved and afflicted for four hundred years.” (Genesis 15:13) Refugees are often treated worse even than slaves, for they often lack the protections of the larger society or state in which they live. However, if we are to understand what it means in the instruction not to wrong or oppress the stranger, it is helpful to look at the initial and first try at dealing with slaves, not slaves who are non-nationals, but Hebrew slaves.
Hebrew slaves in Exodus were debt slaves, though in Leviticus (17-26) they are simply called debtors. Reduced to impoverishment, they became slaves to compensate for debts. But as Hebrews, they were not Other. Further, there was a maximum limit to their enslavement – 6 years unless the master provided a male with a woman to wed and they had children. (The Deuteronomy Code – in reality more an incomplete collection of common law rather than a systematic code, but I will use the latter as a term of convenience – renames the debt slave as a brother and goes further, requiring the master to release the debt slave with part of his profits from his years of labour to allow the debt slave to get a new start -15:13) In the latter case, in the Exodus Code, the wife and the children continue to remain slaves belonging to the master, but they were also released in the improved Deuteronomy Code. If a man does not want to be separated from his wife and children, he may voluntarily stay as a refugee for the rest of his life, a status to be marked by an awl pierced through his ear.
Note that this part of the code had to do with male slaves. The code was based on gender discrimination. Daughters could be sold by their fathers (not their parents) but as “wives,” not as slaves, but only under the Exodus Code. But if the male tired of a woman he kept as a concubine, he either had to let her go free, especially if he violated her rights, or provide for her for the rest of her days. He could not sell her. If his son married her, then she had to be treated equally as any other woman chosen to be a wife. (Exodus 21:2-11) So there is a hierarchy of Others – male slaves, female concubines and strangers. The greatest number of injunctions by far apply to the treatment of strangers.
This does not mean that there was a correspondence between the law and actual behaviour. As is well known, there is often a gap between the moral aspirations of a society and its conformity to those ideals. Abuse of debt slaves, of women in slavery and of strangers increased as the gap widened between the protections offered to those at the bottom of the ladder and the rewards taken and presumed by those at the top widened. That is, as societies became more corrupt, as the prophet Amos pointed out, the greater the mistreatment of debt slaves, of women and of strangers. That mistreatment is often a by-product of that corruption and/or used as a distraction from it. The results were often horrific.
For example, a widow cried out to the prophet Elisha:
|ד:א וְאִשָּׁ֣ה אַחַ֣ת מִנְּשֵׁ֣י בְנֵֽי־הַ֠נְּבִיאִים צָעֲקָ֨ה אֶל־אֱלִישָׁ֜ע לֵאמֹ֗ר עַבְדְּךָ֤ אִישִׁי֙ מֵ֔ת וְאַתָּ֣ה יָדַ֔עְתָּ כִּ֣י עַבְדְּךָ֔ הָיָ֥ה יָרֵ֖א אֶת־יְ-הֹוָ֑ה וְהַ֨נֹּשֶׁ֔ה בָּ֗א לָקַ֜חַת אֶת־שְׁנֵ֧י יְלָדַ֛י ל֖וֹ לַעֲבָדִֽים:||4:1 A certain woman, the wife of one of the disciples of the prophets, cried out to Elisha: “Your servant my husband is dead, and you know how your servant revered Yhwh. And now a creditor is coming to seize my two children as slaves.” (2 Kings 4:1)|
This ruthlessness, obviously, is not restricted to the ancient world. When the very people who caused the mortgage crisis and economic collapse in 2008 were rescued, the hundreds of thousands who owed money on many of those mortgages on properties that were then financially underwater were not given relief by and large, but were foreclosed upon and thrown out of their homes because the system “sold the just for silver, and the needy for a pair of sandals.” Ruthlessness became even more the order of the day.
When we do not take care of our own needy (evvon), it is much more difficult to take care of the needs of strangers. The innocent, the just, the idealists (tzaddiqim) are swept aside and everyone out for himself becomes the ruling ethos. The poor, the needy, have indeed been cheated by the system as their incomes decline and they fall into poverty. It is no wonder that many are willing to follow a leader who displaces the blame on foreigners, on strangers, for often, this is a distraction to hide even more deep-seated corruption.
The stranger is not to be treated wrongly or oppressed. These are not the same, but there is contention about the difference. Some argue that a wrong falls under the law – someone is wronged when he or she is treated other than in the way the law requires. A person oppressed is a victim of society. In another interpretation, a wrong is a monetary infraction for which there can be compensation. There can be no compensation for oppression. Alternatively, a wrong is a verbal slight, an expression of anti-Semitism or Islamophobia for which there can be no financial compensation. Oppression is a specific action of exploitation. In a fourth and somewhat complementary conception, a wrong is corrected by writing and applying just law; oppression can only be corrected through empathy by a native-born for the stranger.
Whatever the differences, a ger stranger is not a visiting foreigner (nochri), but an alien living among us who is not yet a citizen. The Torah demands that the ger be treated with all the rights we have and, as well, with a welcoming hand and smile. Xenophobia is the precise opposite to this treatment.
I am grateful for the insights into debt slaves to the commentaries of Professor Marvin A. Sweeney (“The Bible’s Evolving Effort to Humanize Debt Slavery”), Dr. Rabbi Zev Farber (“The Law of the Hebrew Slave: Exodus, Leviticus, and Deuteronomy”), and Dr. Aaron Koller (“The Law of the Hebrew Slave: Reading the Law Collections as Commentary”) who contends that the three different versions apply to three different types of servitude and that Deuteronomy fills in lacunae rather than develops the law in a more benign direction. On the principle of treating the stranger, see Rabbi Jonathan Sack’s commentary from 2 February 2008 entitled “Loving the Stranger.”
With the help of Alex Zisman