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20 Nov, 2017 | 2 Kislev, 5778

Parashat Mishpatim by Professor Allan Borowski

Wednesday, 11 February 2015 | 22 Shevat, 5775


Parshat Mishpatim
 
Recent years have witnessed a pronounced growth in the incidence of hate crimes (for example, terrorist attacks, violent assaults on individuals going about their daily business, arson attacks on schools, mosques and synagogues, and the desecration of cemeteries) across Europe (most notably in France, Belgium and the United Kingdom) and elsewhere in the Western world, including Australia (e.g., the Cronulla riots of 2005, the Lindt Café terrorist shootings in Sydney in December 2014)) and New Zealand. There has also been a noticeable increase in the social acceptability of expressing hateful sentiments--even in institutions of higher education and other intellectual circles. The major, but by no means sole, factor underlying this growth in overt manifestations of hate is racism, both in its old and new variants.  “Old racism” refers to “biological racism”--the notion that differences between people are innate, indelible and unchangeable and, therefore, that all people do not share a common humanity. “New racism” is a racism grounded in perceived insurmountable cultural differences between groups where the term "culture" has a wide ambit and embodies religion, ethnicity, nationality and race. 
 
The upsurge in racist hate crimes has heightened the consciousness of individuals and a growing number of national governments that we live in the continual presence of difference. The increasingly frequent manifestations of anti-Semitism, anti-Zionism and other racisms have served yet again, as Rabbi Jonathan Sacks has pointed out, to bring to the fore "the issue that has proved to be most difficult in the history of human interaction, namely, the problem of the stranger, the one who is not like us".
 
Mishpatim means ordinances, judgements or social laws and this week’s parshah is full of laws whose primary concern is with social justice.  It also focuses upon the stranger. The parshah is of particular interest for two reasons: first, it is reflective of a unique insight of Judaism, namely, the special relationship between the ethical and the religious and, second, some of its legal prescriptions, for example, how to deal with a thief, anticipated modernity by thousands of years.
 
Parshat Mishpatim is quite wide in its scope.  It deals with a range of laws relating to the relationships between man and man.  It includes laws relating to the treatment of indentured workers or bondsmen (this is one way of punishing a thief), widows or orphans, laws dealing with personal injury and property, and laws against bribery. This parshah also proscribes harming the stranger whether, for example, by means of monetary wrongdoing or verbal abuse.  Thus, in Chapter 22 Verse 20 we read: 
 
You shall not grieve/ill-treat a stranger or oppress him for you were strangers in the land of Egypt. 
 
And shortly thereafter, in Chapter 23 Verse 9, we read:
 
Do not impose restrictions on/oppress a stranger; you yourselves know the soul of the stranger [i.e., how it feels to be a stranger] because you yourselves were strangers in Egypt.
 
Although Parshat Mishpatim twice proscribes harming the stranger, there are, in fact, many more references in biblical law concerning the stranger.  In the Babylonian Talmud, in Tractate Baba Metzia 59b, Rabbi Eliezer the Great says that warnings against wronging a stranger appear in various places between 36 and 46 times.   
 
The repeated emphasis in biblical law on not harming the stranger is reflective of the Jews’ long experience, starting with the Avraham avinu, of being strangers in a strange land and the consequent sensitivity to what it is like for others to find themselves in a similar situation.   
 
The great German biblical commentator of the 19th century, Rabbi Samson Raphael Hirsch, wrote as follows on Mishpatim’s references to not harming the stranger.  “These references”, he wrote …
 
set down the principle, frequently reiterated in biblical law, that personal and civil rights, and personal worth, are not dependent on descent, place of birth or property—that they are independent of any external incidental factor which bears no relationship to the individual’s true character.  Therefore, the rights of the stranger are dependent on nothing other than the pure human quality inherent in every person.  
 
In other words, the rights of the stranger are enjoyed by virtue of his/her common humanity.  Thus, the means for preventing harm to the stranger is to assure every member of society the same legal and political rights. According special rights to some, and not the strangers within, is a recipe for social conflict and fragmentation.
 
So, what we find in this week’s parshah is, effectively, the Torah’s articulation of the “modern” liberal doctrine that the same law should apply to all.  While it does not follow that any law is satisfactory merely on condition that it has uniform application, the liberal commitment to civic equality entails that laws must provide equal treatment for those who belong to different races, faith groups and cultures.  It underscores the invidiousness of having different rules for different people in the same society.
 
In sum, Parshat Mishpatim leaves me with the following message:  First, harmonious living on the part of both the native-born and strangers in society requires universal laws. And second, harmonious living in the constant presence of difference also requires ongoing vigilance by civil society and governments against any effort from any quarter that seeks to dehumanize the stranger, i.e., to attribute differences between human groups to supposedly permanent and ineradicable factors such as race, nationality or “culture.”  
 
 
 
Allan Borowski
 
Emeritus Professor of Social Work and Social Policy, La Trobe University and Professor, Public Policy Program, RMIT University, Melbourne.