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Mishpatim — Beyond the Letter of the Law

February 12, 2018

Good Shabbos. This morning I am going to speak about the immigration debate. And following the example of Nancy Pelosi I’ve got about 8 hours’ worth of material — give or take a couple of hours – so make yourselves comfortable.
Actually, the immigration issue I’d like to speak about is not the ongoing debate in America. Rather, I’d like to focus attention to Israel where a debate about the status of African immigrants has consumed the country.
Since 2005, approximately 60,000 Africans, mainly from Eritrea and Sudan have made their way to Israel claiming to seek refuge from ongoing war and violence in their countries. This migration stopped in 2012 when the Israeli government built a fence across the border with Egypt thereby preventing the refugees from entering the country. The government has claimed that the overwhelming majority of these folks came to Israel seeking economic opportunity, and has undertaken efforts to remove them from Israel. Recently an ultimatum has been declared: The African immigrants have until March to leave Israel or face being sent to jail. The government has offered them $3,500 and a plane ticket to another country in Africa. And while the crackdown (for now) is limited to single males – women, children and families will be allowed to stay – and has excluded those from the Darfur region of Sudan, still, approximately 35,000 African refugees in Israel are facing deportation.
The debates in Israel are just as intense as the debates here – maybe even more so. As the New York Times headline summarizes it: “Israel Moves to Expel Africans. Critics Say That’s Not Jewish.” (
Many point to this week’s parsha and the Torah’s commandment not to oppress the stranger, “For you were a stranger in Egypt.” Others turn to the Holocaust as reason why the Jewish state should never expel asylum seekers.
Yossi Klein Halevi, a prominent Israeli journalist writes that this is a pivotal moment in Israel’s history:
“There are moments that touch on the core of a people’s identity and experience that transcend legal categories. When it comes to asylum seekers, international law cannot be the only measure of Jewish behavior. We need to judge ourselves by our memories and values….” (
There have been swelling grassroots protests against the crackdown. El Al pilots have said that they would refuse to pilot the flights removing them from the country. Rabbi Susan Silverman (sister of the comedian Sarah Silverman) began an initiative called Miklat Yisrael, which is known in the English press as Anne Frank Home Sanctuary Movement. So far 500 families have signed up to adopt asylum seekers and hide them in their homes, if necessary. This has prompted a whole other debate over whether use of Anne Frank and the Holocaust is appropriate. (See here for one provocative article on the subject

I believe that our parsha provides a perspective on how to think about this issue and debate. With Parshat Mishpatim we transition away from the narrative of the Exodus and focus on Jewish civil law.
Toward the end of Chapter 22 we read of two cases that call for attention:

כ) וְגֵ֥ר לֹא־תוֹנֶ֖ה וְלֹ֣א תִלְחָצֶ֑נּוּ כִּֽי־גֵרִ֥ים הֱיִיתֶ֖ם בְּאֶ֥רֶץ מִצְרָֽיִם׃ (כא) כָּל־אַלְמָנָ֥ה וְיָת֖וֹם לֹ֥א תְעַנּֽוּן׃ (כב) אִם־עַנֵּ֥ה תְעַנֶּ֖ה אֹת֑וֹ כִּ֣י אִם־צָעֹ֤ק יִצְעַק֙ אֵלַ֔י שָׁמֹ֥עַ אֶשְׁמַ֖ע צַעֲקָתֽוֹ׃ (כג) וְחָרָ֣ה אַפִּ֔י וְהָרַגְתִּ֥י אֶתְכֶ֖ם בֶּחָ֑רֶב וְהָי֤וּ נְשֵׁיכֶם֙ אַלְמָנ֔וֹת וּבְנֵיכֶ֖ם יְתֹמִֽים׃ (פ) (כד) אִם־כֶּ֣סֶף ׀ תַּלְוֶ֣ה אֶת־עַמִּ֗י אֶת־הֶֽעָנִי֙ עִמָּ֔ךְ לֹא־תִהְיֶ֥ה ל֖וֹ כְּנֹשֶׁ֑ה לֹֽא־תְשִׂימ֥וּן עָלָ֖יו נֶֽשֶׁךְ׃ (כה) אִם־חָבֹ֥ל תַּחְבֹּ֖ל שַׂלְמַ֣ת רֵעֶ֑ךָ עַד־בֹּ֥א הַשֶּׁ֖מֶשׁ תְּשִׁיבֶ֥נּוּ לֽוֹ׃ (כו) כִּ֣י הִ֤וא כסותה [כְסוּתוֹ֙] לְבַדָּ֔הּ הִ֥וא שִׂמְלָת֖וֹ לְעֹר֑וֹ בַּמֶּ֣ה יִשְׁכָּ֔ב וְהָיָה֙ כִּֽי־יִצְעַ֣ק אֵלַ֔י וְשָׁמַעְתִּ֖י כִּֽי־חַנּ֥וּן אָֽנִי׃ (ס)

(20) You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt. (21) You shall not ill-treat any widow or orphan. (22) If you do mistreat them, I will heed their outcry as soon as they cry out to Me, (23) and My anger shall blaze forth and I will put you to the sword, and your own wives shall become widows and your children orphans. (24) If you lend money to My people, to the poor among you, do not act toward them as a creditor; exact no interest from them. (25) If you take your neighbor’s garment in pledge, you must return it to him before the sun sets; (26) it is his only clothing, the sole covering for his skin. In what else shall he sleep? Therefore, if he cries out to Me, I will pay heed, for I am compassionate. (Shemot 22:20-26)
Nahum Sarna observes:
The exploitation of these unfortunates was so tempting, and apparently so widespread, and seemingly beyond the reach of the law, that the Torah amplifies the ordinary apodictic formulation with a passionate emphasis on the gravity of the sin in the eyes of God.
And Jeffrey Tigay, the great Biblical scholar explaining why Hashem must insert Himself writes: “the warning may imply that human government was not well equipped to protect the rights of [widows and orphans] and that God was[thus] their only recourse. ”
The Ibn Ezra notes that the Torah’s presentation of the situation is problematic.
Pasuk 21 begins in the singular: כל אלמנה ויתום לא תענו – you (plural)  shall not ill-treat any widow or orphan
Pasuk 22 then is in the singular – אם עני תענה if you (singular) will mistreat
Ibn Ezra writes
: ואחר שאמר לא תענון לשון רבים. אמר אם תענה. כי כל רואה אדם שהוא מענה יתום ואלמנה ולא יעזרם גם הוא יחשב מענה
This is because whoever sees a person oppressing an orphan or a widow and does not help the orphan and the widow, he too is considered an oppressor.

Turning to the second case which evokes God’s anger, we have the case of a debtor who is unable to pay back his loan. All that this person had to offer as collateral was literally the shirt off his back – the shirt that he sleeps in. The Torah says that it would not be right for this person to be left without his “only clothing, the sole covering for his skin.” So the creditor must return the garment to him before nightfall and collect it again in the morning.
The Sridei Eish (R. Yechiel Yaakov Weinberg, 1884-1966) says that this a strange arrangement and not one in which we can reasonably expect the debtor to ever repay the loan. The person is clearly too poor, and the arrangement is rather convenient for him. The Torah instructs that this rather absurd practice should continue for days, weeks, even months…
While the Torah cannot ignore the claim of the creditor, the Sridei Eish suggests that the Torah here teaches an important lesson which should be applied to all instances of civil law: While it would be easy to issue a ruling in favor of the creditor, such a ruling would not be just. The proper response is not to insist that the law “drive through the mountain,” leaving the welfare authorities to deal with the debtor. Rather, the Torah anchors the principles of kindness and righteousness within the legal system itself.
It demands that judges be capable of observing, evaluating and understanding the person standing in judgment. It demands of them not to be right, but rather to be wise, and this wisdom is itself Divine justice…
In both instances the Torah steers us away from the technical, strict letter of the letter to a more compassionate spirit of the law.
Returning to the debate in Israel, Yossi Klein Halevi says that the debate cannot be about the strict letter of the law:
“Supporters of the deportation are right about this: It is not the responsibility of the state of Israel, which is the only designated safe refuge for the Jewish people and which has taken in millions of destitute Jews, to worry about the world’s refugees. Israeli society, already fragmented in multiple ways, might not survive a massive influx of refugees with no connection to the Jewish people. That’s the reason the government built a fence along our border with Sinai. And that fence has solved the problem: Last year, not a single asylum seeker crossed the Sinai border.
“But it’s one matter to keep out asylum seekers, however painful, and quite another to deport those who have found refuge among us.”
He concludes by pondering what Menachem Begin would do in this situation. Begin’s first act as Prime Minister was to take in Vietnamese Boat people
“In one sense it’s an unfair question: Bringing in a few dozen Vietnamese refugees is hardly of the same magnitude as absorbing 35,000 African asylum seekers. But I strongly suspect that, at the very least, Begin would have agonized over the decision. He would have understood that this isn’t just a matter of meeting the minimal standards of international law. He would have felt the weight of risking the moral capital of the Jewish people.
Where is the sign of unease from our leaders, some indication that they understand why so many Jews are tormented by their decision? Part of my feeling of shame today is the absence of shame among our leaders”
Indeed, the message of Parshat Mishpatim is that we must go beyond our legal responsibility.
Shabbat Shalom.



From → Israel, Parsha

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