Friday, January 24, 2014

Imperfect Anti Racism - Today & Torah Portion Mishpatim

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My eyes are teary in seat 51C on a Qantas flight. I am reading the lawyers impassioned speech in “To Kill a Mocking Bird” (1). It is a good time for an Australian Jew from New York to shed a few tears about the flawed struggle against racism. This week Martin Luther King Jnr Day was observed in the US. In Australia advocates of Multiculturalism are concerned about the new conservative government’s review of the Curriculum. The review appears to be motivated at least in part by a concern that the current curriculum is insufficiently honouring of our “Judeo- Christian”-“Western”- English heritage. Our Torah reading, Mishpatim, can be read as either emphatically condemning discrimination or even condoning it.

I read about the lawyer Atticus defending Tom, an upstanding member of the local Black Church community, falsely accused of rape by people of questionable character. He argues to the jury that this case is “as simple as black and white”. He declares that the white witnesses against Tom testified with the “cynical confidence that their testimony would not be doubted, confident that you gentlemen would go along with them on the assumption, the evil assumption, that all Negroes lie… that all Negroes cannot be trusted around our women”. He pleads with them; “A jury is only as sound as the people who make it up…in the name of God, do your duty!”

I am moved by what I am reading. Yet, I have been told that the book has been criticized for not being pure enough, itself containing elements of prejudice.  I have not read the critics so I can’t judge the specific criticisms. Still, my first reaction is, “give me a break, this book was published in 1960! I have no doubt it moved people along on the journey, so what if it’s not perfect?!

This leads me back to the Torah, written thousands of years ago, but taken as the timeless word of God by many believers. It discusses slavery laws that are, thank God, no longer practiced. Instead these texts have a more symbolic message for people today.  It states that if a master beats his slave, either male or female, and “the slave dies under his hand then revenge must be prosecuted against the master” (2). This verse which is interpreted as relating to the Canaanite/non Jewish slave (3), teaches that murder of a slave by his master is a capital crime just as the killing of any other person. Beautiful! It teaches us about the equal value of humans, free man/woman or slave.

In the next verse it gets tricky. If the slave “stands” (after the beating) for a day or two days then the master is not punished. This is because “he (the slave) is his property (literally his money)” (4). Yikes! A human being, a non-Jewish slave, is merely someone’s property?!

In the first instance, some Torah scholars of our day have argued that the Torah’s tolerance for slavery was part of a gradual process to move people along a continuum from unrestricted practice of slavery, to one with safeguards and limitations, and ultimately to abandoning the disgusting practice entirely (5). The Torah’s approach is expressed well in the words of Job “"If I have despised the just cause of my slave… then what shall I do when God rises up… what shall I answer Him? Did He who created me in the belly not create him, and was it not the same One who fashioned us in the womb?" (6).

A gradual approach to discrimination is also suggested in To Kill a Mocking Bird.  When the jury declare Tom guilty Atticus is indignant, but he is also pleased that his efforts led the jury to deliberate for many hours rather than the few minutes it would normally take for a white Jury in the American South to convict a black man in the 1930s. Atticus believes in incremental progress, so do I. Perhaps a compromised approach to promoting diversity in the Australian Curriculum will ultimately bear greater fruit, I can only hope.

Returning to our “Slave as property” verse, some commentators understand it as justifying the beating (7). Another view is that being that the master has a financial interest in the slave’s wellbeing. Therefore, if there was some recovery between the beating and the death, there is a presumption that there was a different cause of death (8).  A key message from this section is that God warns the master against cruelty in disciplining his slaves, and that if he persists in violent beating that leads to the death of the slave he himself will be executed. This is because “the mercies of God is for all of those He created, as it is written regarding King David (that he was disqualified from building the house of God because) “much blood you have spilled (9)” and (those that David killed) were not of Israel (10). 

Later in our reading this week, the text is emphatic in prohibiting discrimination against the foreigner. “And you shall not mistreat a foreigner, nor shall you oppress him, for you were foreigners in the land of Egypt”. And again: “And you shall not oppress a foreigner, for you know the feelings of the foreigner, since you were foreigner in the land of Egypt” (11). Some commentaries assume that these laws apply to a person from a “foreign” ethnic background who converted to Judaism (12), the word for convert is the same as the one for foreigner. I have found sufficient basis to understand it as applying to any member of a minority (13). These instructions against mistreatment of the foreigner have been explained in terms of “your” power relative to the powerlessness of the newcomer (14). This is one of the key elements of modern racism. 

Some would argue that we must disregard these sacred texts because they don’t articulate a perfect, unambiguous, consistent message of absolute equality. In To Kill a Mocking Bird, Tom, the innocent black man is killed in jail, while waiting for incremental white progress! Going slow has a terrible price that must be considered. Still, I believe we need to work with what we have and both support and challenge people to move along their journey toward full acceptance and valuing of every fellow human in whatever way that will work.    

1.    Lee, H. (1960), To Kill a Mocking Bird
2.    Exodus 21:20
3.    Mechilta, Mechilta D’Rashbi cited in Torah Shlaima, p.109, Rashi and others
4.    Exodus 21:21
5.    I don’t remember the name of the scholar I first read who articulated this approach. However see Samet,  Rabbi E.
6.    Job 31:13-15, cited by Samet ibid.
7.    Seforno, Rashbam
8.    Ibn Ezra, Klei Yakar elaborates: “Certainly he (the master) would not have beaten him with cruel beatings that could result in killing the slave, because he is his property! Is there any person who destroys his property with his own hands?!” The term “cruel beatings” made me ask the obvious question: is there another kind of beating? While all violence is abhorrent, there are degrees of violence. Samson Raphael Hirsh argues that “This reason given cannot be taken to mean that he is in some way of a lower degree of humanity that ordinary man. For it only applies to the master, to everybody else the full ordinary laws of murder applies. The reason can only lie in the relationship of the master to his personal property…”
9.    Chronicles I 22:8
10.    Ibn Ezra on Exodus 21:21
11.    Exodus 22:20, and Exodus 23:9
12.    Mechilta, Midrash Aggada, Toras Kohanim Kedoshim 8:2, Chizkuni cited in Torah Shlaima p. 98-99, see notes 366-7.  Rashbam, Ibn Ezra, Sefer Hachinuch Mitzva 63. For contemporary argument see
13.    One source for the narrow interpretation of the law as relating only to converts is in the Talmud Bava Metzia 59b. It states “Why did the Torah admonish us about the convert in thirty-six…places?  This is because “his turning is bad”.  Many people have understood this to mean that he has a strong inclination towards evil or his old habits regarding idol worship and if he is mistreated he will “turn back to evil and reject Judaism”. However the Beer Mayim Chayim understands the “bad turn” very differently. “it is bad and bitter for him, that he is removed (turned away) from his family”. This way of understanding the Talmud applies just as well to a non-Jewish migrant who left family, friends and colleagues behind as it does to a convert.
The Sefer Hachinuch The Chinnukh (Mitzva 431) expands this prohibition beyond converts: “It is incumbent upon us to learn from this precious commandment to take pity on any person who is in a town or city that is not his native ground and not his ancestral home.  Let us not maltreat him in any way, finding him alone, with those who would aid him quite far from him….
Rabbi Samson Raphael Hirsch states “the rights of humanity and citizenship come not from race, descent, birth, country or property, nor from anything external or due to chance; they emanate simply and purely from the inner spiritual and moral worth of a human being.  This basic principle is further ensured against neglect by the additional motive “for you were sojourners in the land of Egypt.”…  your whole misfortune in Egypt was that you were foreigners and aliens there.  As such, according to the views of other nations, you had no right to be there, had no claim to rights of settlement, home or property.  Accordingly, you had no equal rights to invoke against unfair or unjust treatment.  As aliens, you were without any rights in Egypt, and out of that grew all your slavery and wretchedness.  Thus, the Torah admonishes us to avoid making rights in our own state conditional on anything other than the simple humanity which every human being, as such, bears within him.  With any limitation of these human rights, the gate is opened to the whole horror of Egyptian human-rights abuses.
14.    Ibn Ezra on Exodus 22:20, he points out the link between the law of the foreigner alongside laws against the mistreatment of the orphan and widow, all of whom appear to lack protectors or networks.  Ramban also makes the link to mistreatment based on the difference of power.

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