Legal, Political and Economic Equality: B’har – B’chukotai

Leviticus 25:1-27:34

“Leviticus 25 offers a vision for the relationship between individual and community, an approach to resources and the distribution of resources, and an understanding of the limits of ownership and private property. Leviticus 26 follows with a detailed image of what happens when a community fails to live up to its values.” (Rabbi Dvora E. Weisberg) Begin with the relationship of man and nature, man and man, and community and community with respect to the use and ownership of land.

This section creates: a) the shmita year, the seventh year during which the land itself shall enjoy a sabbatical of rest. (25:3-4); b) the jubilee year, yovel, every fifty years when land that is “sold,” that is rented to another under a long-term lease lasting until the scheduled jubilee year to a maximum of fifty years, is returned to its original owner (25:23); and c) the way tracts of land were distributed among the ancient tribes of Israel who were assigned only as its custodial ownership on behalf of God.

Individual persons were also considered property. One had proprietary ownership of one’s own body. That meant that it too could be rented out for hours, days, weeks or even years, but within limits. If it was a long-term rental, that was considered as selling oneself or another into slavery. A peasant could only sell himself to a landlord for a maximum of fifty years. A captive in war could only be enslaved for a maximum of fifty years. There was no right to own another in perpetuity and, in that sense, slavery was forbidden.

If these laws of ownership and apportionment are not followed, the Israelites were condemned to grow up as roots out of dry ground in the words of Isaiah. (52:3) Possessive individualism and collectivism both have boundary conditions in time and space. At the same time, the law protects the ownership of private property. Theft of property is forbidden as is its fraudulent or arbitrary confiscation. If the model of Abraham is followed in the purchase of a gravesite for his beloved Sarah, property should not be taken as a gift from a stranger lest an obligation be assumed within a system of shame and humiliation that does not spell out terms. Land exchange requires a contract, a watered-down economic covenant, that is, a hypothetical agreement that specifies the value of the exchange in monetary terms and any conditional clauses under which the exchange is to take place.

Some commentators, like Rabbi Yitz Greenberg, also view these provisions as visionary, as offering an economic utopia of egalitarianism. “The Torah reveals its commitment to equality by shaping the seventh year as a sabbatical year. The number seven represents the Torah’s ideal of the perfect, the whole, the complete. The seventh day every week is Shabbat. Six days a week we tolerate and participate in the flawed daily regimen where there is equality and inequality, rich and poor, justice and injustice, satiety and deprivation. On the seventh day, the Shabbat, we put aside all the compromises and injustice. All people—be they free or slaves—are released from work. All competition and striving to get ahead is suspended. People live the day as a foretaste of the Messianic era when all people will have all that they need, without war or conflict. People live in harmony with God, with Nature, and with each other.”

But I believe that this vision is read into the text and does not arise from the text. There may be boundaries placed on ownership of lands and persons, but equality is neither commanded nor promised. The Torah, I believe, in this respect, is not about that kind of justice and egalitarianism. It is not economic competition that is suspended on either shabat or on a sabbatical year, but labour. And the two are not the same. In the doctrine of possessive individualism, in contrast to communism for example, humans put their labour into the land specifically in an agricultural society, or into the material world more generally, to convert that world through the benefits of one’s intellectual and physical energy into goods and services that can be bought and sold. Shabat and the sabbatical year requires both a periodic rest from such activities and redistribution. It does not mandate equality among all parties. Justice does not entail equality but simply fairness.

However, is the land not apportioned among the tribes according to the ratio of the numbers in each tribe, larger tribes getting a larger portion and smaller ones a lesser portion? That is certainly the principle of collective distribution of land so that each nation should receive an amount of productive land proportionate not only to their numbers but to the type of activities in which that community is engaged. Cowboys need greater swaths of land than settled farmers. Rueben, Gad and half the tribe of Menassah received larger portions relative to their numbers because they raised cattle and were not farmers. (Numbers 32:4)

Periodic liberty from labour does not entail equality of ownership. Nor do efforts to redistribute ownership in the direction of greater equality and rebalancing. Fairness does not mean egalitarianism in the biblical ethos.  

What about the Palestinians who lost their homes and lands in 1948 and became refugees or displaced persons? What about the Jews who lost their lands and homes when they were forced to flee Arab countries in the aftermath of the War of Independence? Should they not have their ownership rights restored by 1998 or, compensation paid for their losses? If the residents of Sheikh Jarrah in East Jerusalem lost their homes in Haifa or elsewhere in what became Israel and fled to Jordanian occupied East Jerusalem to take possession of homes and land owned by Jews there who were also forced to flee, after fifty years, should title be restored to those Jews or payment made under a contract of purchase and sale? Should the Palestinian refugees not be entitled to repossess their land and homes by the fiftieth year following their losses?

I believe that the biblical principles of both individual and community land ownership and the precepts found therein demand precisely such a redistribution, not in the name of egalitarianism, but in the name of justice and fairness. The Torah does not command full equality assured only by collective ownership, but fairness of distribution within a specific historical context. That is how the world is repaired.

However, for fairness to be pervasive, there must be one kind of equality – equality before the law. All residents in a region must be subject to and be protected by the same law. That is why the occupants of the homes in Sheikh Jarrah have continued to reside in their homes for decades in spite of pressures on them to leave. That is why the court ordered a compromise whereby the residents would be allowed to remain in their homes provided the ownership of the Jewish owners in 1948 is recognized, the “leases” to last a limited period relative to the length of lives of the owners and tenants.   

Fairness requires the rule of law and equality before that law. What happens if one group contends that the system of law does not apply equally to all, that the law is merely an extension of a colonial settler apartheid state that privileges Jews over Palestinians by applying the law one way in the case of the Sheikh Jarrah area in East Jerusalem but another law in the case of an area in Haifa that used to be Palestinian before 1948? If that is the case, then the law falls into disrepute. All communities in the land governing those communities by a common law must be treated in the same way. If that is not the actual case, it must be the aspirational goal.

However, it must be the aspirational goal of all the communities living under that system of laws, whether in East Jerusalem, the rest of Israel or the West Bank controlled by Israel and administered under that law. If the system is headed in the other direction, then it is headed toward an apartheid system rather than an egalitarian system under the rule of law. However, both the protesters resisting inequity under the law and the defenders of traditional property rights must both recognize and respect that law. The protesters cannot be allowed for years and decades to use the legal system to postpone a day of reckoning rather than resolve a dispute. And those in power cannot use the law simply to advance their own ownership rights but must advance the ownership rights of all those who live in the land under the ruling legal system.

Further, jurisdiction does not align with military control but with the area ruled by a common system of law. That is why one cannot have one system of law ruling some people in Area C of the West Bank whereas another system of law governs people in the same section of Area C. That is simply a guarantee of inequity under the law. An equitable system requires all people in an area of jurisdiction be treated under the same system of laws.

What about the distribution of land between and among communities and the defining of the boundaries of one system of law versus another? The rules of a just defensive war apply. When the kingdoms of Sihon and Og attacked the Israelites, and the peoples of both Sihon and Og were defeated, the land conquered and its boundaries are determined in actuality and in the biblical text by the conquering party. But only if it applies that law to all who fall under that jurisdiction.

Thus, equity and fairness must boundary power at all times.

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