The massive wave of migration to Europe and beyond from Syria and other Middle Eastern countries has us scrambling to mount an appropriate and adequate response. The most urgent sort of “response” is in the field of action: what can we Jews do to ease the horrible suffering of these, our fellow human beings? But another kind of response is the one that takes place in the realm of thought: how should we Jews think and talk about our moral obligations toward the migrants? We would like to think that our tradition teaches us something about an earth-shaking challenge such as this, that it offers substantive guidance as to how we should act. And if it does, we would expect to find that teaching and guidance within the resources of the halakhah, that segment of our tradition that speaks most directly to questions of sacred action.
Dr. Tomer Persico claims that the halakhic sources do offer such guidance. Persico teaches at Tel Aviv University and at the Shalom Hartman Institute, among other places, and is a widely recognized Israeli public intellectual. His essay, entitled “The Jewish Obligation to Resettle[1] Refugees,” can be found here, behind the Haaretz paywall, and here, on his blog (Hebrew). The following summary of his argument can give us a sense of the difficulties – and the opportunities – that confront us as we look to the halakhah for “the” Jewish response to the refugee crisis.
Persico does not wish to settle for broad and vague moral exhortations. As his title suggests, he believes that Jewish tradition imposes a clear obligation – the word he uses is חובה/ḥovah – to offer aid and sanctuary to refugees.[2] He begins with the following verse from the Torah (Deuteronomy 23:16-17):
לֹא־תַסְגִּ֥יר עֶ֖בֶד אֶל־אֲדֹנָ֑יו אֲשֶׁר־יִנָּצֵ֥ל אֵלֶ֖יךָ מֵעִ֥ם אֲדֹנָֽיו: עִמְּךָ֫ יֵשֵׁ֣ב בְּקִרְבְּךָ֗ בַּמָּק֧וֹם אֲשֶׁר־יִבְחַ֪ר בְּאַחַ֥ד שְׁעָרֶ֖יךָ בַּטּ֣וֹב ל֑וֹ לֹ֖א תּוֹנֶֽנּוּ
You shall not turn over to his master a slave who seeks refuge with you from his master. He shall live with you in any place he may choose among the settlements in your midst, wherever he pleases; you must not ill-treat him.
While this verse speaks literally of the fugitive slave, Persico cites unnamed “Biblical commentators” who apply it as well to refugees from war and oppression. Moreover, he adds, the following passage in Maimonides (Rambam), Moreh N’vuḥim (Guide of the Perplexed, 3:39) identifies the assisting of refugees as a central purpose of these commandments:
There is great utility to these mitzvot. They instill within us an important moral quality, namely the willingness to grant refuge to those who seek our protection, to defend them and not return them to those from whom they have fled. (They teach us as well that) it is not sufficient to grant refuge to escaped slaves; one must also provide for their needs and take care of them and to refrain from saying anything that will cause them anxiety.
Thus, says Persico, Jewish law obligates us Jews, along with the State of Israel, the political embodiment of Jewish peoplehood, to help resettle today’s refugees. His conclusion, though, rests upon shaky textual ground. The Rabbinic sources define the Deuteronomic slave as one who has escaped to the land of Israel from servitude to an idol-worshiping master. The slave therefore flees idolatry in order to to embrace Judaism.[3] And contrary to Persico’s vague assertion, the major “Biblical commentators” follow this Rabbinic interpretation.[4] These mitzvot, in other words, are a subset of our relationship to the ger tzedek, the Jew by choice, rather than to the political refugee who has no intention of converting to our faith. As for the citation from Rambam, we have to keep in mind that the Moreh N’vuḥim is a work of speculative thought and not, strictly speaking, of halakhah. While it famously explores the rationale behind the Torah’s commandments (טעמי המצות / ta`amei hamitzvot), the rendering of actual halakhic decisions (p’sak halakhah) is not part of its program. Rambam does, of course, attend to halakhic decision in his comprehensive code, the Mishneh Torah. But there, as we have seen,[5] he applies this mitzvah specifically to the fugitive slave and makes no mention of anyone else who seeks our “protection.”
For all these reasons, then, it’s hard to say that Persico proves that aiding the Syrian refugees is a ḥovah under the conventional practices of halakhic interpretation. It would seem that he has stretched the Torah’s text too far. A number of comments to Persico’s Facebook entry make this very point. And not always politely.
But those commenters ought to consider that Persico may be engaged in something other than the “conventional” interpretation of the halakhah. His analysis seems to proceed not from the established rules and precedents of Jewish law but from the conviction that Jewish law must offer some guidance concerning our responsibility toward the refugees. It may be that the halakhic sources do not support the existence of a specific ḥovah to resettle the Middle Eastern refugees. They most assuredly do not quantify any such ḥovah with precision, in the manner in which halakhah determines obligations such as the times for the recitation of the Sh’ma or the dimensions of a sukkah. Yet that does not mean that halakhah, the predominant discourse of Jewish sacred action, has nothing to say about one of the most pressing moral issues of our time. If we take Rambam’s explanation seriously as a statement of principle, it is then arguable that the law does establish, if not a ḥovah, then the existence at the very least of a value, an orientation of mind and heart. And if it is indeed a value of Jewish law that we “grant refuge to those who seek our protection,” then a positive response to the refugee crisis becomes, well, a responsibility, one that we cannot escape simply by noting that the resettlement of refugees is not, in formal terms, a ḥovah.
When we say “value,” we have in mind a legal or halakhic value. We are suggesting that Jewish law – and not simply Jewish “ethics” – imposes a responsibility toward the refugees. The possible distinction between “law” and “ethics” in Judaism is an old question to which we shall have the opportunity to speak more later. Our concern here goes to the reach of Jewish law itself. Some Jewish legal thinkers believe that halakhah consists solely of the discrete and definitive rules we find in the codes. In such a view, any question that falls outside of the circumference of those fixed rules is one on which the formal halakhah has no answer and is entirely neutral. Others, however, hold that halakhah also embodies the values, goals, and aspirations that direct our understanding and application of the rules and precedents in the direction of action for justice and compassion in a strife-torn world. In Dr. Persico’s way of looking at it – and I have to think that progressive halakhic thinkers follow him here[6] – the halakhah corresponds to this more expansive definition. It does more than impose rules of conduct; in this case, at least, it points our vision upward and outward and calls us to action.
What, precisely, that action should be is not something the texts can decide. It is a matter to be determined by judgment, taking into account the realities of politics and economics and diplomacy and all the other things that comprise the realities within which we live. Nor do the texts unambiguously define for us precisely how the standards of “Justice” and “compassion” would have us act in detail when confornting challenges such as this. But that we must act, that we must make a substantive effort to ease the pain of those in flight, is a conclusion we necessarily reach when we think halakhicly about the refugee crisis.
Mark Washofsky
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[1] Persico in fact uses a stronger term: לקלוט, “absorption,” which normally applies to efforts undertaken for the integration of immigrants (olim) to Israel. This indicates his view that this obligation applies to the State of Israel as well as to other nations.
[2] By “obligation,” Persico argues that refugee resettlement is a specific halakhic requirement of the Torah (מצוה מפורשת) rather than a moral exhortation derived from the Torah’s more general demand to “love the stranger” ( for example, ואהבתם את הגר, Deut. 10:19). On this point, it is worthwhile noting that the Biblical commentator R. Yitzhak Abravanel (Deut. 23:16) explicitly links these two principles: giving refuge to the escaped slave is a fulfillment of the prohibition against oppressing the stranger.
[3] B. Gitin 45a; Rambam, Mishneh Torah, Hilkhot Avadim 8:10-11. Remember that the halakhah regards idolatry (avodah zarah) as prohibited to non-Jews as well as to Jews. Thus, by returning the slave to his master, one would be guilty of aiding and abetting the commission of that sin. And should we take the position that halakhah does not recognize Islam and Christianity as “idolatry” (עבודה זרה / avodah zarah) – a position we liberals most certainly adopt – the mitzvah may not apply at all to today’s refugees, and it consequently becomes even more difficult to support the conclusion that we must offer them shelter from their “masters.”
[4] See Targum Yonatan, Rashi, ibn Ezra, and Ramban to the verses in question. True, Ramban (Deut. 23:16) does draw a connection between the escaped slave and warfare, given that the preceding verses contain regulations concerning a military encampment. But the “warfare” of which he speaks is a war in which the people of Israel are directly involved: the slave has escaped to us from the encampment of our enemy. Again, there is no necessary link between the law of the escaped slave and refugees from wars between other, non-Jewish armies.
[5] See note 3.
[6] These words come with all the usual caveats. There are times when liberal and progressive halakhists might be very happy to restrict, rather than expand, the reach of the halakhah. But that decision, too, is going to be shaped by the application of the aspirational values of the Jewish legal system. ענין חשוב, אבל אין כאן מקום להאריך.