On Restrictions and Fairness – Parashat Mattot-Mas’ei

We are the end of Numbers, the Book of BeMidbar. We are at the end of a series of revolts in which command and control were at odds with demands for recognition and equal status. Does the final portion of the book add any additional insight into the Jewish view on the issue of the principle of equality creating problems for the principle of recognition of distinctions?

There are three stories told at the end of Numbers. First, there is the narrative about the land allocated to the Levites. Secondly, in the midst of this story, there are the laws about sanctuary cities concerned with murder and manslaughter. In the third and final story, the issue is about the marriage of daughters who inherit their father’s land because there are no brothers.

Unpack the three stories beginning with the last one first. The Israelites wanted to keep the land allocation to each tribe in line with the proportionate numbers in that tribe. In the name of fairness, it had already been ruled that, in the case of the five daughters of Zelophehad, when there were no male heirs, the female children could inherit the land. Previously, they could not since only males were counted in the census. Without such a revised rule of inheritance, this meant that, if the father died, his lineage would be severed from his clan.

However, with the new rule, lest that land be lost to the tribe when these women marry, restrictions were placed on whom they could marry – only members of their own tribe. To ensure fairness to female children when there were no males, they were allowed to inherit land. Now, to ensure fairness to the collectivity – in this case a tribe – the choice of spouses was restricted. Otherwise there was a fear that if these daughters married outside the clan and, thereby, joined another clan, there would be a diminution in this case in the holdings of the Manassites. The issue was ensuring fairness by imposing restrictions when the freedom granted individuals in the name of fairness had negative consequences for the tribe, for the collectivity. An adjustment was made by means of a positive sum game.

However, restrictions could have been imposed which enhanced unfairness, For example, in Ethiopia’s Amhara region, traditionally a ban was placed on women plowing the land when they gained ownership. The result of ceding control over plowing meant that the female heirs had to share a significant proportion of their crop to sharecropping plowmen. Sometimes these plowmen are former husbands who marry women who own land, then separate or divorce, and finally, then use this device of demanding large payments for their roles of plowmen, a role reserved for males, to wrest control over the surplus value of the land. When women gained rights to land, the benefits were easily reversed by other perverse restrictions.

In the story of the allocation of land to the Levites, we know that all the other tribes had been given land but not the priests. Were they to rule and judge disputes among the non-Levites and serve as caretakers of rituals in service to God while they were also dependant and subordinate to the other tribes when it came to their material existence? God instructed Moses to assign specific towns to the Levites even though they have not been allocated an area of either Canaan or the land east of the Jordan River. They were assigned forty-eight towns along with the pasture around those towns, two thousand cubits on each of the four sides.

Taking a chunk of land from each of the other eleven tribes in proportion to the numbers in that tribe and reallocating it to the Levites ensured the material independence of the Levites. That is, by taking and limiting the land of each tribe even further, the independence of the Levites was assured. Again, restrictions and limits were imposed on others to enhance equality without diminishing the distinctive recognition given to the Levites.

In the third story, six of the forty-eight towns assigned to the Levites, three on each side of the Jordan, were designated as sanctuary cities. What is a sanctuary city? It is a place where individuals obtain safety and freedom. For example, Bologna was a sanctuary city at the end of the Middle Ages; serfs gained their freedom once they got within the city walls. The collectivity also gained in a positive sum game because Bologna had lost half its population to the fourteenth century Black Plague. The serfs became artisans. In the time of the Israelites, a sanctuary city was one in which someone found guilty of manslaughter, that is, the unintentional killing of another, could find safety from the desire of an avenger to kill him.

An action deliberately intended to kill another or a negligent one resulting in death because of the choice of instrument to hit another – the cop holding George Lloyd in a choke hold – is murder, not manslaughter. Only a person who commits manslaughter could have safety in a sanctuary city and only if he or she did not leave the boundaries of that city. The priest in charge of that sanctuary city would make the determination. Thus, in the name of fairness to those who commit manslaughter, restrictions were placed on where and whether vengeance could be carried out.

In Torah study last week, Rabbi Splansky focused on the issue of recognition in relationship to the plague rained down on Israel. The plague, like COVID-19, was a random killer, though people with certain underling conditions at an older age seemed the preferred targets. These victims very often died alone, usually not surrounded by family and friends. They could have been anonymous. In spite of their numbers, or perhaps because of their relatively large numbers, they became a sideshow. One might say that the greatest evil of a pandemic is the anonymity of the many who die versus the recognition given to first responders who save them.

Quarantine, isolation, restrictions on the movement of individuals were imposed to guarantee as much as possible the health of the whole. The restrictions included forbidding relatives and friends from attending the dying. There were no funerals in any ordinary sense and practice. There were no real shivas. For many, this was the most intolerable, almost even worse than the death itself.

Entry restrictions were also placed on the country as a whole and even parts of the country. Sick individuals with symptoms were isolated. The freedom and rights of mobility were limited for the sake of the collectivity. Individual restrictions resulted in collective benefits.

There were social long-lasting repercussions of the choices made. When the Black Death resulted in the economic and demographic collapse throughout Europe in the fourteenth century, the shortage of labour meant that wages went up, that serfs gained the freedom to become urban artisans, that the landed gentry suffered financially from falling food prices as a result of excess produce while having to pay higher wages. At the same time, other individuals, onetime serfs who were now better off working as artisans in an urban setting, could leave their land and holdings to all their children instead of just the eldest child. (Cf. Lawrence Wright, “Crossroads,” The New Yorker, 20 July 2020) Pandemics result in radical changes in recognition and the allocation of resources in terms of fairness. This was also true of the plague that took place before the Israelites entered the Promised Land.

In our contemporary pandemic, perhaps refuges and displaced people have suffered the worst, not only from the crowded conditions in camps that fostered the spread of the virus, but because of the significantly reduced opportunity for travel and the ability to find sanctuary in another place.  Restrictions imposed on individuals can result is greater inequality and unfairness. Restrictions may also be imposed on individuals to enhance greater fairness and equality. The former seems to be the result of inadvertence and neglect. The latter seems to be the result of deliberate changes in the social system.

That is what happened to the Israelites. Restrictions were imposed to enhance fairness. And these followed the devastation of a plague which wiped out 4% of the population of the Israelites. One commentator wrote, “BeMidbar’s closing scene’s tenor is of ungenerosity and limitation of the other. It seems to be motivated by fear and greed, and to lead to restrained freedom and restricted action.” I read the three final stories in the very opposite way, not as products of fear and greed, but as initiatives to rewrite the social contract to create a different balance between freedom and restrictions. These were exercises in social adjustments to bring a better balance between the restrictions imposed on individuals in order to ensure greater fairness in society as a whole.

As a result of COVID-19, what changes can be anticipated in the fabric of society to rebalance restrictions on individual freedom to enhance the health and wealth of society as a whole? Barbados, for example, has acted to invert the pattern of greater and greater mobility restrictions. Barbadian Prime Minister Mia Mottley noted that, “Covid-19 has placed a severe strain on people’s mental wellness…(on the other hand) The sunshine is powerful. The seawater is powerful. They’re both therapeutic in ways that are hard to explain. And we felt that, why not share it?”

The government introduced the “Barbados Welcome Stamp” to allow visitors to stay on the Caribbean island visa-free for up to one year. Hopefully, this would attract remote workers, especially with the removal of the local income taxes as an incentive, taxes that normally kick in after six months. Surely, working remotely on a beach is more attractive than self-isolation in a small apartment. Lifting restrictions can enhance both individual freedom and greater collective well-being and equality when reconstructive initiatives are taken in the face of disaster.

Will America continue the mindless anti-rational and empirical incompetence that fosters and is rooted in selfishness, self-centeredness and greed, or balance restrictions with greater fairness and equality based on new rules that strengthen community bonds?


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