ON INTERPRETATION AND TREATMENT OF THE STRANGER Mishpatim Exodus 21:1 – 24:18

How do you decide to treat strangers who arrive at your border, either to cross illegally or to make a claim for refugee status at an official entry point? This is clearly a central issue of our day, not only because Donald Trump insisted and continues to insist on building a wall to deter the arrival of migrants and refugees, but because refugees have become a central political issue of our time. It has been blamed as the main reason why a majority of British voted in a referendum for BREXIT, the decision to opt out of the European Union. It is likely to be a major issue in the coming election campaign in Canada.

Do you decide based on psychology (empathy), ethics, national law or the rule of law (the two are different) or a combination of all of them? If the foundation is based on one or other of the latter two or one or both, then it will be necessary to interpret that law. Instead of beginning with the foundation or foundations for any decision, I first want to deal with the issue of interpretation, first as applied to empathy and ethical norms using the discussion of Exodus 21:1 – 24:18 (Mishpatim) as a starting point which begins, “And these are the rules you shall set before them.” (21:1)

Those rules can be divided into:

  1. Interpersonal laws, including the exhibition of kindness to strangers;
  2. Cultic laws such as prohibiting boiling a kid in its mother’s milk (23:19);
  3. The reference to and reinforcement by the source of the laws (24:1-18).
Here, I am clearly interested in 1 & 3, though I will illustrate a point about the reference language using cultic law. If there is a concern with 3, then there must be a concern with how the whole portion begins, for in Plaut’s commentary, the vav at the beginning, the letter which is translated as “and,” is omitted from the English translation.

ולֹ֥א תַטֶּ֛ה מִשְׁפַּ֥ט אֶבְיֹֽנְךָ֖ בְּרִיבֽוֹ:

The portion in Hebrew begins with “vav.” Plaut translates the first sentence without the “vav.” “These are the rules…” This is clear incidence of interpretation in the translation from Hebrew into English. The rules of translation from Hebrew to English permit translating vav as “and” or as “but” or omitting any translation altogether. Tradition held that this portion was a continuation and elaboration of the giving of the Ten Commandments on Mount Sinai (Exodus 19-20) and included the translation of the vav, If you want to conjoin law that is handed down by God and man-made cultic laws, for example the dietary laws re eating meat separate from dairy that is derived from the passage in this Parashat about not cooking or boiling a kid in its mother’s milk (23:10-19), then you will likely include the translation of “vav” as “And.”

However, if you want to separate man-made cultic laws from ethical laws derived from God, then you are likely to drop the “And.” Thus, dropping it altogether depends on context and on a general interpretation. By inclusion, the implication is that these laws are but specifications of the general principles set forth by the Ten Commandments. (Rabbi Reuven Greenvald) Dropping the translation of the “vav” implies a fundamental distinction between the basic law as handed down at Mt. Sinai and cultic and possibly interpersonal laws.

My concern here is not with cultic laws, but with the law enunciated as, “You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt.” (Exodus 23:9) On the other hand, I want to argue that the laws re treatment of strangers are elaborations and specifications of constitutional laws. I would stress continuity in this case rather than discontinuity, for, as you have read in prior blogs, I consider the issue of whom a society permits to become members (immigration and refugee law) as a central defining moment for any society.

There is another issue in interpreting the meaning of the text. What language are you using as a base – Hebrew or English, Hebrew or Greek as in the Septuagint texts? How do you interpret the difference in liability when a pregnant woman in the wrong place at the wrong time is injured in a fight such that she loses her “baby”? (Exodus 21:22-25) Does the text distinguish between the miscarriage and the death of the foetus versus injury to the woman herself, or is the depiction one between a woman with a deformed foetus versus a woman with a properly formed one? The former interpretation directly from the Hebrew explains why Jews, who do not use the Septuagint version as a basic reference, are much more liberal in their approach to an issue such as abortion.

Early Christian commentators, who relied on the Septuagint version, interpreted the ruling re penalties in the second sense (injury to a woman with an imperfect versus a perfect foetus resulting in a miscarriage). They found abortion to be an abomination. In contrast, Jewish commentators generally focused on injuring the foetus versus injury to the woman in their translation. Ancient Christian commentators insisted the comparison was between an imperfect foetus with a perfect one capable of becoming a living human. (See the commentary by Beth Kalisch.)

Interpretation not only depends on how you interpret words, even conjunctions, not only depends on the language that is your basic reference (Hebrew or Greek), but also depends on whether the text is read: 1) just as a story or a narrative, or 2) whether it is read primarily as a narrative in which legal prohibitions are set in a particular time and place – halacha is embedded in aggadah, or 3) whether it is read as a narrative that is primarily about setting basic laws and norms for a society – aggadah serves halacha, or 4) whether it is read as a combination of narrative, aggadah, and legal precepts, halacha. Depending on which of the four approaches to text is used, the interpretation will generally differ.

Interpretation of law itself is a different matter. And it requires interpretation as a fascinating essay by my former colleague, Rabbi Martin Lockshin, makes clear. See “Does the Torah Differentiate between Unpaid and Paid Bailee?” Marty sketches the dialectic between traditional interpretations and innovation in making sense of law. However, this is a discussion for another day. I do deal with the dangers of innovation uprooted from tradition.

David Frum, in his book Trumpocracy, claims that there is a positive side to Donald Trump’s malignant lying, even as it has “warped the minds of his core supporters.” (223) (Warped further, perhaps, for were their minds not already somewhat deformed to have voted into office an impetuous, incompetent and unscrupulous kleptocrat and braggart?) Since the election of Trump, Frum contends that a growing majority of Americans have rallied behind a belief in truth. They crave, seek and vindicate truth. In doing so, they have undermined the thesis of largely leftist postmodernists who contend that a belief in truth and falsity is both outdated and a front for powerful self-serving ideologies. This “glamorous new system of thought,” (223) insisted that all we can know for certain are narratives, different for different nations, classes and genders.

The emphasis should be on “all we can know.” I believe it is the case that the liberal narrative upholds the values of truth and objectivity, while proto-fascists and some leftists both rail against the powers that have “done them in.” Liberals and genuine conservatives insist that we can only really know because we can distinguish between the fraud and the person of integrity, between falsity and truth. I believe that the latter is how the biblical narrative is constructed, but not so much to define the basis of truth as much as it is to define the nature of justice and virtue on the assumption that truth and falsity can be established, in effect, in a court of law.

How do you interpret the original language, how do you translate from that language, how do you use that language to construct a narrative, in the biblical case, not in defence of power, but in the use of that power to construct a better world? These are all important to interpreting the meaning of an imperative. The first explicit injunction of 36 in the Bible not to oppress the stranger reads, “You shall not wrong or oppress a stranger, for you were strangers in the land of Egypt.” (Exodus 22:20) The second version of this injunction is more explicit and reads: “You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt” (Exodus 23:9). In this one, the reason is clearer, for it is not simply that you were a stranger in Egypt, but that you know what it feels like to be a stranger. In other words, what backs up the injunction is not only a narrative, but that it was your narrative which your people experienced and which you annually engage in rituals in order to re-enact that experience.

In the United States, there have been six contentious issues over the last decade concerning strangers. Three (the A category of those already within the U.S.) concern strangers who live amongst Americans. The first and most important of these is whether or not to grant citizenship to the “Dreamers, the estimated 800,000 individuals under the age of thirty (roughly .2% of the population) who entered the U.S. as minors, that is, before they turned sixteen. Should they be put on the path to citizenship or, at least, be protected from deportation on condition that they had never been convicted of a felony? The second focused on the parents of Dreamers which enlarged the population of concern to four million (1.1% of the American population). The third concerned all other illegal immigrants living as strangers among Americans which then enlarged the population of concern to ten or even twelve million (up to 3.3% of the total American population).

President Obama, frustrated at the refusal of the inaction of a Republicans dominated Congress to negotiate a deal on the question, issued an unprecedented Presidential Executive Order in June of 2012 that did not go as far as Dreamer citizenship, but did protect them from deportation. In November 2014, Obama did the same for the 3.2 additional family members of Dreamers. He took no initiatives with respect to the other 6-8 million illegals in the U.S., although there was an open debate about whether deportation was being pursued zealously or even seriously.

The other B category of those outside the U.S. was also divided into three groups. There were those: 1) who attempted to cross the border illegally, 2) those who presented themselves at legal border crossings and claimed to be Convention Refugees, but did not qualify according to American adjudicators, and 3) those that presented themselves and did qualify. There was no question that the third group had a right in accordance with both American and international law to enter the U.S. and be protected by the U.S. government.

However, in order to deter the second group (and perhaps the third), actions were initiated by President Donald Trump that made it very onerous for the third group to make a claim. Further, the first group of those outside the country, those who attempted to cross illegally, were used to sweep up all those living and working in the United States, as well as those outside the country seeking entry, such as Convention refugee claimants, whether successful or not, all into a category of undesirable migrants. This was the case even though a number of illegals living in the U.S. were employed at Mar-a-Lago and other clubs and golf courses owned by the Trump organization.

Facts, however, do matter. Truth matters. The number of illegals trying to cross the southern border of the United States in the year 2000 was just under 1.7 million. With a few small blips since, that number has been steadily dropping. In 2017, the number was just over 300,000. In 2000, 90% were Mexicans. In 2017, the vast majority were Central Americans. The chain migration of Mexicans had died off. Further, Central Americans were largely fleeing violence and persecution. Mexicans had been primarily economic migrants.

In spite of these and numerous other facts, Homeland Security Secretary, Kirstjen Nielsen, claimed that in 2018, there had been,a “325 percent increase in Unaccompanied Alien children and a 435 percent increase in family units entering the country illegally.” However, this was definitely not the long-term trend, but a percentage increase based on the fact that there had been a deep dip in inadmissible arrivals in early 2017, certainly compared to the previous four years. Was Kirstjen’s statement simply misleading or possibly, for some, an outright lie because of her highly selective use of statistics to reinforce a fear agenda? The longer-term trend was clear – May 2014, 10,578 children taken into custody compared to 6,405 in May 2018, 12,722 family units apprehended in May 2014 compared to 9,485 in 2018.

Quite aside from the lack of reason to be fearful, the trend line should be reducing rather than enhancing any fear of numbers, quite aside from the fact that the absolute numbers are underwhelming. The biggest change has been in the number of “legal” arrivals, those who arrive at an official border post to claim asylum. The increase has been enormous as the situation in Central America, that is in El Salvador, Honduras and Guatemala, has deteriorated. As Nielsen noted, “Over the last 10 years, there has been a 1,700 percent increase in asylum claims, resulting in an asylum backlog” to 90,000 in 2016, up from 5,000 ten years earlier.

These are the push factors. They emphasize why some seek to become strangers in a land where the government no longer welcomes them. The push back factors are unjustified: manipulated fears and a political calculation that the Republican Party, instead of advancing an agenda to show the party is more favourable to minorities, fell back on a restrictive platform to satisfy a large core base of Trumpists who resent the changing face of America, are nationalists and even racists. That cohort includes, but is not dominated by, white Christians.

Yet the biblical narrative and its injunctions should prey on their consciences, at least on Christian consciences. They might argue that those injunctions are about interpersonal behaviour, not state policy. But in the Bible, duties regarding interpersonal relations were to be the basis of state policies and laws. However, the Bible also tells us why they are not so inclined. Those receiving the strangers have not themselves experienced being strangers in Egypt, certainly not directly, but neither vicariously either. In fact, their history is replete with patterns of discrimination against blacks, First Nations people and other minorities.

The difference is obvious. If Christian groups have indeed experienced what it was like to be mistreated as strangers – such as the Mennonites and the members of the Dutch Reformed Church in America who experienced the horror at not being able to offer help to persecuted Jews under the Nazi regime – then they stand in the vanguard of those who reach out to help strangers who are refugees. “You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt.”

Conjunctions are important. Do you sweep all strangers, both those within America and those outside into a single general category and then characterize them as mostly rapists and criminals? Or do you distinguish between basic categories and among sub-groups in each category to make policy? Do you misuse language or make an effort at clarity and consistency? Do you simply use language to create a narrative in which the strangers who live among you and those who try to enter are rapists and killers, though some may be good people, or do you construct a different narrative that far more closely corresponds to facts and the truth, namely that the vast majority of strangers who live as illegals amongst the general population are law-abiding tax payers, though a very few, less than the proportion of citizens, may be bad hombres? Does the narrative depict those trying to get in as primarily asylum seekers wanting refugee status or as illegals attempting to cross the border at non-official entry points, and, misleadingly, that even these, are mostly crossing for bad purposes?

America has failed in its civic re-education of narrow nationalists to root an ethics of responsibility towards strangers in rituals which identify with others who are strangers. On the other hand, the effort to root positive law, the actual laws of the nation, not only in ethics, not only in an ethic with psychic depth, but in the rule of law itself, has failed, for in desperation to assist those strangers living in peril amongst Americans, the rule of law was set aside in favour of executive orders on high, thereby setting a terrible precedent for the succeeding top executive officer who had ignoble reather thanrrather than noble motives.

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