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Ju s t ic e i n t h e C i t y New Perspectives in Post-Rabbinic Judaism Series Editor— Shaul Magid (Indiana University) Ju st ice in t he Cit y Aryeh Cohen Boston 2 0 1 2 Library of Congress Cataloging-in-Publication Data: A catalog record for this title is available from the Library of Congress. Copyright © 2012 Academic Studies Press All rights reserved ISBN 978-1-936235-64-3 Book design by Ivan Grave Published by Academic Studies Press in 2012 28 Montfern Avenue Brighton, MA 02135, USA press@academicstudiespress.com www.academicstudiespress.com C on t e n t s Acknowledgments............................................................................................. 7 Introduction...................................................................................................... 9 Ancient Texts, Contemporary Claims.......................................................... 9 Locating this Book......................................................................................... 11 The City in the Philosophical Tradition..................................................... 14 The Rabbinic Textual Tradition and This Book......................................... 17 The Personal................................................................................................... 18 The Order of the Book.................................................................................. 20 A Short Primer on Rabbinic Literature for the Uninitiated..................... 22 Notes. . ............................................................................................................... 23 PART I Chapter 1: Acting Like Pharaoh or Acting Like God............................... 27 Exodus and the Cry. . ..................................................................................... 28 The Gatehouse............................................................................................... 33 Walking the Talk: Acting Like God or Acting Like Pharaoh................... 37 Notes. . ............................................................................................................... 39 Chapter 2: The Obligation of Protest.......................................................... 41 I The Law........................................................................................................ 44 II The Story..................................................................................................... 47 III The Prophetic Moment............................................................................ 51 Conclusion...................................................................................................... 56 Notes. . ............................................................................................................... 60 Appendix to Chapter 2..................................................................................... 63 Chapter 3: Geographical Boundaries and the Boundaries of Responsibility............................................................................................ 66 The Corpse: No One and Nowhere............................................................ 69 The Mishnah. . ................................................................................................. 71 The Talmudic Discussion............................................................................. 72 “We Coerce Accompaniment”..................................................................... 75 Politics............................................................................................................. 81 Walking the Talk............................................................................................ 83 Notes. . ............................................................................................................... 84 Chapter 4: Summary of the Argument So Far........................................... 88 Notes. . ............................................................................................................... 89 PART II Chapter 5: Homelessness. . ............................................................................ 92 Prerequisites for Piety................................................................................... 93 Moving Toward a Communal Obligation................................................. 96 The Obligations of Citizenship.................................................................... 98 The Implications of Homelessness. . .......................................................... 102 Changing the Conversation....................................................................... 104 From Rant to Action.................................................................................... 106 Walking the Talk.......................................................................................... 107 Notes. . ............................................................................................................. 108 Chapter 6: Labor.......................................................................................... 110 My Servants and Not Servants of Servants. . ............................................ 110 Follow the Way of the Good...................................................................... 111 “Do Not Withhold Good from Those to Whom It Is Due”................... 114 What is Labor Worth?................................................................................. 117 The Custom of the Place/ Minhag Mamedinah...................................... 119 The Residents of the Town/ Bnei Ha-ir.................................................... 120 The Shift to Modernity. . .............................................................................. 123 The Important Person/ Adam Hashuv..................................................... 126 Economic Justice and the Community of Obligation. . ........................... 127 Walking the Talk.......................................................................................... 128 Notes. . ............................................................................................................. 130 Chapter 7: Restorative Justice.................................................................... 133 Atonement and Justice. . .............................................................................. 134 Restorative vs. Punitive Justice. . ................................................................ 136 Forgiveness and Justice.............................................................................. 137 The Sage, Her Husband, and the Ruffians. . ............................................. 138 Lex Talionis. . ................................................................................................. 142 The Sugya..................................................................................................... 145 The Father, the Son, the Donkey, and the Court..................................... 149 Restorative Justice....................................................................................... 151 Notes. . ............................................................................................................. 153 Chapter 8: Conclusion. . ............................................................................... 158 Notes. . ............................................................................................................. 160 Bibliography.................................................................................................. 161 Index............................................................................................................. 169 A c k now l e d g e m e n t s This book started years ago in conversations at the Progressive Jewish Alliance. I am grateful to Daniel Sokatch for his friendship and camaraderie, for his work at the helm of the PJA, creating a home for creative Jewish thinking and direct action around social justice issues, and for his tireless efforts to create a more just society. I am also grateful to the participants in the short-lived PJA think tank—David Myers, Patsy Ostroy, Joe Ostroy, Eric Greene, Sharon Dolovitch, Jamie Rapaport, Chaim Seidler-Feller and Daniel Sokatch—to whom I presented a very early version of the first part of this book. The PJA, under the leadership of Elissa Barret and Eric Greene, and Clergy and Laity United for Economic Justice, L.A., under the leadership of Jonathan Klein, have been my activist communities, for which I am grateful. I want to thank several cohorts of students in my “Issues of Justice” seminar at the Ziegler School for Rabbinic Studies, where I was able to teach much of this material; as well as the rabbinical students (from both Ziegler and HUC) and the business leaders who participated in the seminar on economic justice and Jewish sources that I led together with Bill Cutter, whom I am grateful to also call my friend. I am very thankful for Gordon Bernat-Kunin’s ongoing friendship, intellectual companionship, and the very many pleasurable hours of conversation and hiking in the Santa Monica mountains during which I tried out many of the themes of this book. Andrea Hodos, Ariella Radwin, Danya Ruttenberg, Jeff Helmreich, Michael Lerner, Elissa Barret, and Michael Berenbaum read the manuscript in whole or in part and I am grateful for their comments and criticism, which have improved it immensely. I am indebted to Michael Berenbaum for his help in many other ways as 7 Acknow ledgements well. Danya Ruttenberg generously introduced me to the ways of book proposals and agents. Thank you. Bradley Shavit Artson has been a friend and my dean for about the same amount of time. I am grateful for both, and for his commitment to this project. Charlotte Fonrobert read the complete manuscript more carefully than I could have dared to hope. I am very thankful for her insightful comments. It is hard to adequately express my gratitude to Shaul Magid. He is a friend, an inspiration, and a collaborator in envisioning a different and better world. Thank you. The Shtibl Minyan has provided my family and me a warm and loving community within which to sing and learn and do acts of justice and kindness. Thank you. Neal Castleman has been a friend for a long time, and I am especially thankful for his support through the Castleman Family Foundation for the publication of this book. Finally, to Andrea, I am so happy that we get to create a life together. Shachar and Oryah, when you need to articulate an intellectual understanding of your deep intuitions about justice, I hope this book might help. I love you all. I n t roduc t ion In this book I argue that the literature of the rabbis—and especially the Babylonian Talmud, the central canonical text of Rabbinic Judaism—paints a compelling picture of what a just city should be. A just city should be a community of obligation. That is, in a community thus conceived, the privilege of citizenship is the assumption of the obligations of the city toward others who are not always in view. These “others” include workers, the poor, and the homeless. They form a constitutive part of the city. 1 The goal of this project is to ground a conception of justice in a tradition of rabbinic discourse centering on the Babylonian Talmud. This theory of justice that I seek to propose is significantly drawn from that textual tradition, while it is also based on a contemporary ethical and philosophical framework. Most prominently, I am indebted to the twentieth-century French Jewish philosopher Emmanuel Levinas for a framework of interpersonal ethics which allows me to see rabbinic ethics more clearly and to ask sharper questions about rabbinic ethics. At the same time, I am indebted to the Babylonian Talmud and the textual tradition it generated to enhance or critique what I consider to be Levinas’s asymmetrical obsession with the Other. Ancient Texts, Contemporar y Claims There are two areas in this work which might encounter resistance in different parts of the audience with which I am engaging. The first is the claim that I can read these texts of late antiquity such that they are relevant to contemporary situations and, even more so, will have some normative weight, and that I can still read them with integrity and academic rigor and discipline. This argument brushes up against a certain type of academic 9 Introduct ion propriety which would claim that there are unbridgeable social, cultural, philosophical, linguistic, and ideological chasms between us and the community of readers for whom and among whom the text was originally written. 2 The second area of resistance might arise from those who think that the only faithful reading is one in which the reader exhibits certain specific faith commitments. My claim is that although my reading of Rabbinic Judaism in this book certainly makes claims on that tradition, it is not premised on specific faith claims. First things first. The first argument is that a hermeneutic engagement with the Talmud will yield or generate a claim on our notions of justice which ought to be listened to. The claim is that writing within a tradition brings a certain gravity to an argument that it might not otherwise have. This is not the same as arguing from tradition (saying, for example, that X is old and hoary, and therefore, it is right). Arguing within a tradition brings a certain cultural vocabulary to bear on a problem which is not solved by recourse to first principles. 3 The hermeneutic engagement itself brings to bear or is itself imminently intertwined with a necessary sociality. Studying 4 together in actuality or theory implicates both author and reader in a process of persuasion which is grounded on a textual moment. When we place a text between us either metaphorically (as in this book) or in actuality (if we were sitting around a table), we engage in an activity one of whose steps is entering into the parameters of a textually bounded moment. There is a notion of a “shared project” in the attempt to understand together or dialogue through the text. This notion is not dissimilar to constitutional interpretation, in that there is a premium placed on the legal interpretation arrived at being grounded in the textual situation (i.e., the Constitution or the Bill of Rights), rather than merely in this or that principled belief. For this type of textual reasoning to take place, the text that is mediating or generating the dialogue (and which, in this specific way, will ultimately ground the interpretation) must be a text that generates a certain level of respect or have at least a patina of gravity. One need not have a declared fidelity to the text (though one might, as 10 Ancient Te xts, Contemporar y Claims in the case of the Constitution), but one must have at least a level of respect for the text. Through this joint study of a text—in the case of this book, rabbinic texts—I invite you into a discourse on an issue of import without having to develop an argument from first principles. The unfolding of the subsequent dialogue is informed by the fact that it is mediated through a text which is part of a tradition. This connection to tradition brings to bear a certain hermeneutic seriousness which might be called inspirational. By this I mean that in our dialogue, there is an intention to “follow in the footsteps” of the implications 5 of a sugya in the Babylonian Talmud, where implications would be arrived at through what might be a generous, though discursively rigorous, reading of that sugya. The sociality of the hermeneutic situation implies that the consequences of the engagement will be, or are intended to be, applied outside this specific engagement. As a result, this form of interpretation will not be a claim for a literalist reading of texts or an insinuation of (the discourse of) a particular faith commitment into the political and ethical vocabulary of justice. It will rather be a display of the textured use of the vocabulary that the Jewish legal/textual tradition presents. This is itself a goal, since part of the larger exercise is staking a claim to a Judaism which privileges justice and in which justice is the warp and woof of society. That is, I would like to have shown by the end of this book that the discourse of justice that I refer to is not something grafted on to a core religious vocabulary by artificial means, but rather that this discourse of justice is of the essence of that core religious vocabulary. I will have accomplished this by revealing, from within the textual center of Jewish tradition, that vocabulary. Locating This Book This book is located in a number of theoretical and actual places. This is a discussion that is located in the city and also, in many ways, a particular city—Los Angeles. This is for both contemporary reasons and historical and traditional reasons. Rabbinic Judaism is an urban phenomenon. While a large proportion of the laws that 6 11 Introduct ion are discussed in the earliest collections of Jewish law—Mishnah and Tosefta and the commentaries on those works, the Babylonian and Palestinian Talmuds—are agricultural laws, the authors of those collections themselves were urban dwellers. Further, the sages who composed these books, while being embedded in different cultures in many ways, share the fact that they were part of a multiethnic/ multireligious urban milieu. So while the sages, especially those of 7 the Babylonian Talmud who will be at the center of our concerns, wrote about (almost literally) everything and everywhere, they were themselves located in an urban environment and saw its concerns as their concerns. In the cities, in the markets, in the bathhouses, the sages came into contact with people of other religions and ethnicities. This led to competition, polemics, sharing, boundary crossing, and boundary marking. The sages also came into contact with poverty, 8 workers, conflict over wages, prices, ideologies, and practices. The sages wrote about institutional justice and (the problematics of) its application. My working assumption, then, is that there is wisdom 9 which might be extracted from these conversations which can be translated to contemporary realities. Our contemporary urban centers are places of great conflict and injustice. According to a survey by the Institute for Research on Labor and Employment, “low-wage workers in Los Angeles regularly experience violations of basic laws that mandate a minimum wage and overtime pay and are frequently forced to work off the clock or during their breaks.” According to a 2009 study by the National 10 Law Center on Homelessness & Poverty and the National Coalition for the Homeless, Los Angeles was spending $6 million a year to pay for fifty extra police officers to crack down on crime in the Skid Row area at a time when the city budgeted only $5.7 million for homeless services. This becomes all the more startling when one 11 notes that there were nearly fifty thousand homeless people in Los Angeles every night at the time of the study. 12 Yet this is not, and need not be, the whole story. Megalopolises like Los Angeles, New York, and others—because of their size and the density of their populations—contain great possibilities for creating community and doing justice. An overwhelming number 12 Introduct ion in a non-intimate relationship with the many people whom I don’t “know,” I am still obliged to maintain this society with the Other. My obligation to the Other is forced upon me by my recognition of my asymmetrical relationship with another person—the Other is transcendent. This latter idea is somewhat counterintuitive to the current ethos of American culture. The political culture of the United States is a culture of rights, while the popular culture is a culture of individual expression and entitlement. Levinas’s understanding 16 of the relationship between the self and the Other is a relationship of obligation—that is, I am obligated to the Other person from the moment of the first meeting or interaction. I, therefore, need to recognize, to understand, and to be attentive to the ways in which my actions affect those parts of the larger anonymous community with which I am not in intimate contact. I must act politically (that is, as a member of the polis) in a manner which flows from my obligation to that larger anonymous community which is not “I” nor the same as “I.” Finally, I must curtail the reach of those actions which come from a perspective in which I think that I can completely grasp the strangers in my city whom I don’t know and place them into the neat categories that I already have. At the same time, I must expand those actions which respond to those strangers as complete human beings beyond my ability to completely understand. My thinking in this book is in line with contemporary thinkers who might take as their motto the subtitle of a recent book by Kwame Anthony Appiah, Ethics in a World of Strangers. The world 17 I am focused on right now is the major urban center I inhabit—and similar ones inhabited by millions in many locations in the world. The City in the Philosophical Tradition In the Greek philosophical tradition, beginning with Plato in The Republic and continuing with Aristotle in Politics, the city was 18 understood in the context of virtue ethics. The point of a city was to enable all the excellences of all the virtues to come together in one place. This was a result of Plato’s claim that any one person could only excel at or perfect one virtue or skill from youth. If there was to 14 The Cit y in the Philosophical Tradition be perfection of all the virtues, there would need to be a collection of people who together as a whole would perfect all the virtues. As Averroes, the thirteenth-century Muslim Spanish philosopher, paraphrased Plato’s argument: It . . . appears that no man’s substance can become realized through any of these virtues unless [a number of] humans help him and that to acquire his virtue a man has need of other people. Hence he is political by nature. 19 Averroes explains that cities exist for one of three reasons: (1) There is an unavoidable necessity. In other words, the only way that many people can acquire the stuff of survival (food, clothing, etc.) is by banding together and mutually supporting each other. (2) Cities are easier. In cities, not everybody has to learn how to plant or sew or make pottery. People can benefit from the skills that others have. (3) It is the best way. “Since it is impossible that the human perfections be attained other than in different individuals within a given population, the individuals of this species are all different in natural disposition corresponding to the difference in their perfections. . . . [T]his being as we have characterized it, there ought to exist an association of humans—[an association] perfect in every species of human and [whose members] are helped to their completion in that the less perfect follows the fully perfect by way of preparing for his own perfection, and the more perfect aids the less by giving him the principles of his perfection.” 20 This last reason, unsurprisingly, is the most important reason for the Aristotelian tradition. That is, a city is an association in which people assemble to aid each other in perfecting their individual virtues, and then the city as a whole will be perfect in its virtues. Finally, the city will be considered a just city, according to Plato, when each person pursues that activity to which he is disposed by nature. Justice is the “equity” that results when “every one of them [i.e., the citizens] will perform the activity that is his by nature and will not long for what does not belong to him. This being so, this city will be just in their associating together in it, for the equity in it consists only in every one of its citizens doing what is singularly his.” 21 15 The R abbinic Te xt ual Tradition and Thi s Book The rabbis moved beyond the idea of a city as the mechanism by which individuals could fulfill their obligations to others, to an idea of the city as being the locus of obligation, whose burden was shared by all residents. The social safety net (food, clothing, shelter) was an obligation of the city. The city, through its institutions and 28 representatives, passed that obligation on to its residents. It is in the legal construction of this web of interpersonal responsibility, which is backed up with the force of both moral and legal authorities, that the just city, the community of obligation, emerges. While there are many important differences between the rabbinic city and the Aristotelian polis, using the term polis allows me to use the terms politics and political in a way which conveys commitment to the ideals of a community of obligation rather than the degraded understanding that the word has assumed in contemporary culture. The R abbinic Textual Tradition and T his Book This work is intellectually and spiritually located in the rabbinic textual tradition, and especially the articulation of that tradition in the Babylonian Talmud. By this, I mean two things. First, the conceptual frame which I develop in this book emerges from a close and diligent reading of texts in the Babylonian Talmud (called sugyot). This is not an exercise in selective quotation of seemingly sympathetic or noxious lines, but rather a reading of arguably complete discussions. It is the reading itself which reveals the conceptual frame. It is then in this type of thick analysis that the conceptual vocabulary of Justice in the City will come to light, rather than being found in the occasional saying or anecdote. Rabbinic thought can also serve as a critique of Levinas’s radical focus on my obligation to the other. For Levinas, obligation is not mutual; it is asymmetrical. There is no serial order of obligation (even though you would see me as hierarchically elevated, as I do you). I do not respond to you because I expect that you would respond to me in the future. While this is powerful when I think about my obligations to others and to the Stranger (even our obligation to the Stranger), it is disempowering from the point of 17 Introduct ion view of the Other. If obligation is what defines me as a member of the polis, what defines the one to whom I am obligated as a member of the polis? As I will demonstrate, the sages of the Mishnah and the Talmud are very clear on this point. Since all are defined as persons based on obligation, all are obligated—even the poor must give charity, etc. The community of obligation that I envision is one in which all of its members are obligated. The Personal This book is also located in my own intellectual biography. Although I am profoundly interested in philosophy, I am not trained as a philosopher. I am a Talmudist by training, having studied in both traditional settings (Yeshivot) and universities. While I have in almost every sense left the world of the Yeshivot, I still carry the bias toward thinking through texts which I grew up with in the batei midrash, study halls, of my youth and young adulthood. At the same time, one of the reasons that I left the world of the Yeshivot was so that I could think critically about the biases of the texts. I teach in a seminary which trains men and women for the Conservative rabbinate. This means that I am challenged on a daily basis to articulate the connection between the texts I am teaching and the people “out there” to whom my charges will minister. “How is this relevant?” I am often asked. Often the best and most appropriate response is to deflect the question—to teach my students to listen to the text as “commanding Other” before immediately attempting wholesale pastoral transvaluation. However, I am also invested in my students, future rabbis, being able to think about and articulate to their eventual congregants, colleagues, and fellow citizens, the obligations that devolve upon them from being part of a polis. I think in Jewish terms about these obligations and would hope that my students would too. In addition to my practice in the academy, I am also a social justice activist who has held (and still holds) leadership positions in Jewish and interfaith social justice organizations (the Progressive Jewish Alliance or PJA and Clergy and Laity United for Economic Justice or CLUE). My involvement in the Jewish social justice 18 The Personal movement has allowed me to combine my academic practice with the practice of organizing and advocating in the streets. I was instrumental in the creation of the Jewish Community Justice Project, a restorative justice project which mediated between first- or second-time nonviolent offenders and those who were hurt by their offenses. I was part of a group that wrote and submitted amicus or “friend of the court” briefs in which we articulated an objection from within a progressive Jewish position to the death penalty, to trying minors as adults, and to other issues. I participated in the Justice for Janitors campaign, writing a letter outlining the responsibilities of employers to their workers and workers to their employers in the Jewish tradition. Ultimately, tens of rabbis from Southern California signed the letter, and it was instrumental in winning a union contract from one of the largest mall owners in the country. I went with interfaith delegations of clergy to managements in support of hotel workers, security workers, and grocery workers. I participated in civil disobedience and was arrested while supporting hotel workers’ demands for a fair and just contract. Being on both the front lines and in the study hall sharpened my sense of the need for an articulated Jewish view of justice, drawn from the heart of the textual tradition. I was not satisfied with the oft-cited verses which traditionally decorate the banners and placards at protests and demonstrations. I began by developing curricula and articulating positions in papers that I shared with my academic colleagues at conferences and my activist partners in a nascent think tank at the PJA. I started developing a course to teach to my rabbinic students and ultimately developed a joint course with Bill Cutter of the Hebrew Union College for rabbinic students of both our institutions, and CEOs of companies in Los Angeles, on issues of economic justice in the Jewish textual tradition. The logical endpoint of that activity is this book—a textured and grounded Jewish account of certain principles of social justice in an urban setting. Introduct ion The Order of the Book The book is organized along the following lines. The first three chapters draw out three fundamental principles of justice in the city. Chapter 1’s bottom line is concisely articulated as “Choose to be like God and not like Pharaoh.” This chapter discusses the obligation to create our urban spaces so that we are able to hear the cry of the poor. The chapter analyzes a text from Tractate Baba Bathra and the commentary upon it in the Babylonian Talmud. This involves stories about Elijah, the prophet, and the sages he comes to visit. Ultimately, the challenge posed by the first principle is to live in the city such that you are available to hear your neighbor—whom you do not know—in her moment of despair, so that you can act in a manner that is just. The second chapter argues for the obligation of dissent. If cities should ultimately be comprised of webs of just relationships between strangers, one incurs an obligation to protest against injustice at any place along those webs. This chapter analyzes a Talmudic story which supplies a counterexample to protesting injustice, and investigates the way that that story was dealt with in the commentary tradition. The third chapter argues that the boundaries of responsibility of one who lives in an urban setting extend far beyond the geographical boundaries of one’s home and neighborhood and specific community. I argue that the boundaries of obligation of necessity encompass all who live in the city, and that I am obligated to make the ramifications (even the distant ramifications) of my actions occasions of justice. An important corollary of this principle is that it extends not only beyond my geographical space and the community therein— implicitly arguing against an ethic of intimacy or hospitality—but beyond my religious community. The second part of the book engages specific areas of social justice. Chapter 4 addresses the issue of homelessness. I trace the obligation to house the homeless in the textual tradition as it moves from an individual obligation, impinging on certain absolute 20 The Order of the Book property rights, to a communal obligation, as a recognized “need of the poor.” At the same time, I argue that homelessness itself subverts the very idea of a city as a community of obligation. Chapter 5 addresses labor. Relationships between employers and employees play out much differently when framed in an ethic of obligation. This approach is neither market based nor classically socialist. The question of the value of labor and the worth and dignity of the laborer is central to rabbinic discussions. In this chapter, I argue that the community has an obligation to intervene in the market to ensure that the distinction between wage labor and slave labor is bright and wide. The “market” is not a natural force in the world, but rather a long and involved series of choices made by individuals. At each juncture, one can choose justly or unjustly. When decisions about labor are made from the point of view of the community and its obligations to justice, one cannot hide behind the screen of “market forces” or “the demands of Wall Street.” If one were to operate within the principles I have argued for, one would then have to rethink the justice system along the lines of restorative rather than punitive justice. This is the subject of the sixth chapter. If the goal of a system of justice is to restore to wholeness the web of relationships that were rent by the actions of a person who disregarded his or her obligations to others, then the end of that system would not be punishment but “restoration.” Restoration would include both compensation and (in many cases) some form of punishment (especially in cases of violence in which the offender either is still a threat or has proven himself or herself unable to participate in a just community), but ultimately the goal would be to restore the community. Restorative justice, as I understand it, is based on two principles. The first is that human character is corrigible and not immutable. The second claim is that justice is dependent on the recognition of the dignity of everyone in the community. Introduct ion A Shor t Primer on R abbinic Literature for the Uninitiated When, in this book, I refer to the rabbis or a specific rabbi (or equally, when I refer to a sage or the sages), I refer not to a contemporary cleric, but rather to a member of the intellectual and spiritual guild which flourished in the first seven or so centuries of the first millennium and which created Rabbinic Judaism. (Rabbinic Judaism is, for all intents and purposes, the archetype for every contemporary Judaism from right to left.) The central texts of the rabbinic canon are the Mishnah, the Tosefta, the Palestinian Talmud, and the Babylonian Talmud. The Mishnah is arguably the first text of Rabbinic Judaism. It was published in the first part of the third century of the Common Era. It is a collection of legal statements which might be a law code or a legal textbook or a casebook. This is still being debated. The Tosefta is an alternative version of Mishnah published either before it or as a commentary to it. None of the classical texts of Judaism come with a real introduction, so some of the basic meta-questions about them are not answered or cannot be answered. 29 The Palestinian Talmud is a commentary on most of Mishnah. It was finished in the fourth or fifth century and consists of legal discussions of the Mishnah and, at times, the Tosefta. It also has material which is not directly connected to either the Mishnah or the Tosefta, but to its own legal or theological agenda. The seventh-century Babylonian Talmud is the crown jewel of rabbinic texts and has been the cornerstone of the traditional Jewish curriculum from as early as the tenth century. The Babylonian Talmud is a sprawling work which is comprised of law, legal theory, religious discourse, and folk wisdom, and uses the commentary form often as the pretext for excursions which go far afield, following an internal logic. The Babylonian Talmud has also generated a voluminous commentary tradition which began soon after its completion and continues to this day. Notes 1 For this reason, in this work, I use the Greek term polis interchangeably with city and identify the latter as a community of obligation. A polis denotes not only a randomly assembled mass of humans who by chance live together. A polis in the Greek sense is the end result of a natural tendency of humans to congregate and create communities. A person, in the Aristotelian philosophical tradition, is a zoon politikon, a political being. 2 See, for example, Miriam B. Peskowitz, Spinning Fantasies: Rabbis, Gender and History (University of California Press, 1997), pp. 154–177, esp. 171: “Our modern ways of making the past make meaning offer no salvation and little redemption. Relations with the past are never innocent. They are always gendered, and often with ill effects.” 3 This is not the same as Alisdair Macintyre’s notion of tradition. Cf. Whose Justice? Whose Rationality?, esp. chapter 18. See also Moshe Helinger, “Justice and Social Justice in Halakhic Judaism and in Current Liberal Thought” (Heb.) in Yedidia Z. Stern, ed. My Justice, Your Justice: Justice across Cultures (The Zalman Shazar Center, the Israel Democracy Institute, 2010), 111–145. Helinger’s fine article is marred by his felt need to distance himself from unnamed “contemporary Jewish liberal understandings which often bend before the liberal norms without sufficient critique of that position” (p. 125). This is especially unfortunate since he must know that there are those who would apply this same critique to his own “personal” reading of the Jewish political tradition. For a different approach to bringing Talmudic discussions to bear on contemporary issues, see Gerald J. Blidstein, “Talmudic Ethics and Contemporary Problematics,” Review of Rabbinic Judaism 12.2 (2009): 204–217. 4 Robert Gibbs, “Verdict and Sentence: Cover and Levinas on the Robe of Justice” in Journal of Jewish Thought and Philosophy, vol. 14, no. 1–2 (2006): 73–90. 5 Cf. Edith Wyschogrod, Saints and Postmodernism: Revisioning Moral Philosophy, especially chapter 1. 6 Cf. Charlotte Elisheva Fonrobert, “The Political Symbolism of the Eruv,” Jewish Social Studies 11, no. 3 (2005): 9–35; Alan Segal, Rebecca’s Children: Judaism and Christianity in the Roman World (Harvard University Press, 1986). 7 Fergus Millar, The Roman Near East: 31 BC–AD 337 (Harvard University Press, 1994). 8 Cf. Galit Hasan-Rokem, Tales of the Neighborhood: Jewish Narrative Dialogues in Late Antiquity (Ewing, NJ: University of California Press, 2003); Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity (University of Pennsylvania, 2004). 9 Cf. Beth A. Berkowitz, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (Oxford University Press, 2006). 23 Introduct ion 10 Ana Luz Gonzalez Ruth Milkman, Victor Narro, Wage Theft and Workplace Violations in Los Angeles: The Failure of Employment and Labor Law for Low-Wage Workers (UCLA Institute for Research on Labor and Employment, 2010), 1. 11 “Homes Not Handcuffs: The Criminalization of Homelessness in U.S. Cities” (The National Law Center on Homelessness & Poverty and the National Coalition for the Homeless, 2009): 33. 12 “2009 Greater Los Angeles Homeless Count Report” (Los Angeles Homeless Services Authority, 2009). 13 The term is found in his essay “Cities of Refuge,” which appears in the collection Beyond the Verse: Talmudic Readings and Lectures (Athlone Press, 1994). 14 Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority, translated by Alphonso Lingis, (Duquesne University Press, 1969), 47. 15 Levinas’s claim is actually stronger. He claims that “Desire,” whose essence is murderous of the Other, “becomes, faced with the other, and ‘against all good sense,’ the impossibility of murder” of the Other (ibid.). 16 For one of a plethora of examples, see Rob Walker, The Born Identity, http:// www.nytimes.com/2010/08/01/magazine/01fob-consumed-t.html. (A version of this article appeared in print on August 1, 2010, on page MM19 of the New York Times magazine). 17 Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (W. W. Norton, 2006). 18 By the Middle Ages, these were read as complementing each other. See Averroes on Plato’s Republic, translated, with an introduction and notes by Ralph Lerner (Cornell University Press, 1974). 19 Averroes, Averroes on Plato’s Republic, translated, with an introduction and notes (Cornell University Press, 1974), 5. Cf. “It follows that the state belongs to the class of objects which exist by nature, and that man is by nature a political animal.” Aristotle, Politics, I.253.a1. 20 Ibid., 6. 21 Ibid., 53. 22 Cf. “Since we see that every city-state is a sort of community and that every community is established for the sake of some good (for everyone does everything for the sake of what they believe to be good), it is clear that every community aims at some good, and the community which has the most authority of all and includes all the others aims highest, that is, at the good with the most authority. This is what is called the city-state or political community.” Aristotle, Politics, I.1.1.252a1-7 translation from Fred Miller, “Aristotle’s Political Theory,” The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/spr2010/entries/aristotle-politics/. 23 Rawls’s Theory of Justice is of course not just another contractarian theory, 24 Chapter 1 Acting Like Pharaoh or Acting Like God I believe you to be a person who would hide me if it came to that. Wouldn’t you? Whoever I am or happen to be. Who would remove the wood planks in the floor, in the ceiling, let me in to enough breathing space. A person who will not walk by the man old enough to be your grandfather, somebody’s grandfather, on the street, in this great cold. Jorie Graham 1 The biblical book of Exodus tells one of the most powerful tales in the history of the world. The story of the ancient Israelites’ redemption from Egypt has generated two blockbuster movies, in addition to supplying the conceptual frame for liberation movements around the world. The scene of Moses splitting the Red Sea while Pharaoh and the Egyptians drown therein almost became the Great Seal of the fledgling United States of America. John Adams recorded this plan for the seal in his own hand in a note dated August 1776, preserved in the archive of the Library of Congress: 2 Pharaoh sitting in an open chariot, a crown on his head and a sword in his hand passing through the Red Sea in pursuit of the Israelites: rays from a pillar of fire in the cloud, expression of the divine presence . . . Moses stands on the shore and extending his hand over the sea, causes it to overwhelm Pharaoh. Motto: Rebellion to tyrants is obedience to God. 3 As a high school student in New York in the early 1970s, I was passionately involved in the movement to save Soviet Jewry. The motto of our struggle was “Let My People Go.” 4 The exodus of the Israelites from Egypt is a tale of redemption. It is also a tale of the possibility of redemption. This is arguably the reason that the yearly ritual enactment and retelling of the story in the Jewish tradition at the Passover Seder is so powerful. The concluding blessing of the liturgical retelling of the exodus at the 27 Chapter 1: Act ing L i ke Pharaoh or Act ing L i ke God Passover Seder invokes the redemption from Egypt as a harbinger of the future and final redemption. What, then, does the Exodus mean? Even if we were to narrowly define the word “mean,” we would not be able to begin to sketch an answer to this question. On the other hand, an achievable goal will be to point to one way the rabbinic tradition understands that the Torah inscribes the Exodus experience in law. Focusing on the familiar passage in the book of Exodus chapter 22, about caring for the alien and the widow, I will point to an unfamiliar reading delineated in the medieval Torah commentary of the thirteenthcentury Spanish sage Nachmanides (Rabbi Moshe ben Nachman). In short, I will argue that the Torah does not understand that the lesson of oppression (i.e., slavery in Egypt) is compassion (i.e., for the alien and the widow). The Torah argues, rather, that there is 5 an obligation to imitate the God of the Exodus and not to imitate Pharaoh. This generates other obligations which will become known in the fullness of this essay. In the second part of the chapter, I will suggest that a certain understanding of the redemptive power of justice is already present in early rabbinic literature. As an example of this, I will examine a short legal discussion in the seventh-century Babylonian Talmud which is informed by a certain reading of the Exodus story as portrayed above. Exodus and the Cr y Exodus chapter 2 ends at the moment before the commissioning of Moses as redeemer and leader of Israel. Israel is enslaved and suffering under the yoke of bondage and, in its struggles, cries out. 23 And it came to pass in the course of those many days that the king of Egypt died; and the children of Israel sighed by reason of the bondage, and they cried, and their cry came up unto God by reason of the bondage. 24 And God heard their groaning, and God remembered His covenant with Abraham, with Isaac, and with Jacob. 28 Exodus and the Cr y 25 And God saw the children of Israel, and God took cognizance of them. At the end of the chapter, the reader is left with the knowledge that “God took cognizance of” Israel. The reader has no idea what this will lead to yet. This moment itself, however, is the moment at which the redemption story begins. God is now, by virtue of hearing the cries of the slaves, involved and invested. On a parallel track, Moses has discovered his Israelite identity—earlier in chapter 2—and has fled to Midian to escape the wrath of Pharaoh after killing an Egyptian taskmaster. Moses, too, has seen the oppression of bondage, but he has no idea that he can do anything about it. The power of this liminal moment—this moment whose place is immediately after knowledge and immediately preceding action—comes from the fact that God will act as a direct result of having heard the cry (za’akah) of the children of Israel. God knows or “takes cognizance” (yada) because God heard their cries and then remembered the covenant. This moment leads to—and perhaps enables—redemption. In the next moment (chapter 3), Moses wanders into God, as it were, and God commissions Moses to take the Israelites out of Egypt. 7 And the LORD continued, “I have marked well the plight of My people in Egypt and have heeded their outcry because of their taskmasters; yes, I am mindful of their sufferings. 8 I have come down to rescue them from the Egyptians . . .” God articulates the explicit causality between being attentive to—“hearing”—the cries of the oppressed, and doing something about it—acting on it. Exodus 5 presents an opposite paradigm. In Moses’s first confrontation with Pharaoh, Pharaoh is completely recalcitrant. Pharaoh denies both Moses’s request and God’s power to back it up. Moses leaves and Pharaoh, as punishment, orders that the Israelite 29 The Gatehouse rabbinic legal tradition. I am going to show how this understanding will help us make sense of a somewhat challenging Talmudic text. The Gatehouse The third-century CE legal text known as the Mishnah covers all areas of law from prayer to torts to sacrifices to the structure of the legal system. Mishnah is the first compilation of rabbinic law and stands as the cornerstone of the Jewish legal tradition. The 8 Mishnah generated two major commentaries—the fifth-century Palestinian Talmud and the seventh-century Babylonian Talmud. 9 Of interest to us here is a law that is found in the first chapter of the last part of the Mishnah tractate, “Torts”/nezikin, known as Baba Bathra, or the “last gate.” 10 The Mishnah is as follows: They may coerce him to [participate in the] building of a gate house and a gate for the [joint] courtyard. Rabban Shimon ben Gamliel says, Not all courtyards need a gate house. The law states that if people are living in houses that share a common courtyard, the residents of those houses can decide to build a gate and/or a gatehouse for the courtyard; and furthermore, they can force everyone to chip in for the cost of said gate and gatehouse. This is somewhat similar to a contemporary condominium situation in which the owner(s) of one apartment can be forced to pay for certain improvements to the house. The Babylonian Talmud comments on this Mishnah: This implies that the building of a gate house is a laudable thing. However, there is [the story of] that righteous person whom Elijah spoke with [regularly]. He built a gate house for his house, And Elijah no longer spoke with him. The Babylonian Talmud begins its comment by drawing a straightforward implication from the Mishnah’s law. Since the 33 Chapter 1: Act ing L i ke Pharaoh or Act ing L i ke God Mishnah stated that a resident of the shared courtyard could be coerced into sharing the financial burden of building the gatehouse, it is reasonable to assume that building a gatehouse is a laudable thing. The only assumption that one needs to accede to is that the law would not promote behavior which is not “laudable.” This seems to be a reasonable assumption. The Talmud derives this assumption for the purpose of challenging it. The first line is a setup for the inquiry that is to follow. If the building of a gatehouse is a laudable thing, the Talmud asks, why is it then that Elijah stopped his meetings with the righteous person after the latter built a gatehouse? The conclusion must be 11 that building a gatehouse is actually not laudable. What then are we to make of the Mishnah’s law? To clarify the challenge, the Mishnah—the third-century base text upon which the Talmud is commenting and which is considered authoritative by the Talmud—mandates the building of a gatehouse. The Mishnah states this mandate as actionable—one resident might legally coerce a fellow courtyard resident to contribute his portion for the building of the gatehouse. The reasonable conclusion that the Talmud draws from this is that, as a matter of public policy, the building of a gatehouse would seem to be an approved activity. The Talmud challenges this assumption by introducing the story of the prophet Elijah who stopped visiting a certain righteous man as a result of that man’s involvement in the building of a gatehouse. This would imply that the building of a gatehouse is not an approved or laudable activity. Hence, the problem. The rhetorical strategy that is followed in these cases is distinguishing between the two instances of seemingly incompatible law. It may seem as if one source claims that a certain activity is forbidden, while the second equally authoritative source claims that that very activity is permitted. However, in truth, the first source only seems to be forbidding the activity, but it is actually only forbidden under certain circumstances. The Talmud in the continuation of the discussion does just this. It successfully distinguishes between the gatehouse that is discussed in the Mishnah and the gatehouse that the righteous person built, thus preserving both the law of the Mishnah and 34 Walking the Talk : Ac ting Lik e God or Ac ting Lik e Pharaoh Yet, here, what benefit is there? And what harm is removed from the courtyard with this gatehouse? For certainly when the poor can enter, so too can thieves enter! Still, this makes no difference. 14 Still, this makes no difference. There is a more compelling “benefit” to creating a city in which the poor can be heard, than the “harm” of risking burglary. There is a point at which justice must be everyone’s priority. Walking the Talk: Acting Like God or Acting Like Pharaoh The power of the gatehouse text is that the details and the theoretical principles are inextricably intertwined. There is no moment in which the allegorical or analogical reflex is triggered and we need to say: it’s not really about a gatehouse and a courtyard. It is really about a gatehouse and a courtyard. The text is about the real actions that people perform and how those concrete actions point toward a larger conceptual framework of justice. Just as each facet of a crystal reflects the entire crystal, so too each action must embody the conception of justice of the whole. In the text in Baba Bathra, the legitimate action of improving one’s property is limited by the need to create the opportunities for strangers and their needs to be present to us. There are legitimate ways to build a gatehouse and illegitimate ways—it all hinges on whether the way we build the gatehouse allows the poor person’s cry to be heard. For this is the first step toward just action. When I make decisions about how I am going to live, those decisions construct a reality which is either just or not. Am I going to live in a gated community? Am I going to live in a community in which I will see indigent or homeless folks on the streets? Am I going to pressure the local police officers to roust the homeless from my neighborhood? Will I oppose the halfway house in my neighborhood or welcome it? Will I be a NIMBY (Not in My When push comes to Backyard) or a YIMBY (Yes in My Backyard)? 15 shove, does my property take precedence over my values? Once we have entered into this discourse, there is also a larger context for it, a more analogical context perhaps. The larger 37 Chapter 1: Act ing L i ke Pharaoh or Act ing L i ke God challenge is figuring out how to pay attention to people who live outside my intimate geography. How do I hear the cries of those I never see and never visit? How do I keep in mind that when I vote on property taxes, the health and education needs of people I will never meet are impacted? How do I retain a focus on the fact that the way I live my life can enhance or endanger the lives of people on the “other side of town”—the other side sometimes being only blocks away? The rabbinic discussion of the gatehouse suggests that a politics that will create a community of obligation begins with a practice of hearing. Walking on the streets of my neighborhood, I need to see the folks who live on the street as part of my neighborhood. I need to hear them and respond to them. Walking into a supermarket, I should also be thinking of the wages that the stock clerks and the cashiers make; I should see the cashier as part of my neighborhood rather than as part of the cash register. The practice of piety—hearing the cry of the poor—must then lead to a political practice, a practice which causes the city as a whole to engage the larger questions of poverty and homelessness. The Elijah story is invoked to challenge the law of the Mishnah because the principle at stake is central to the legal tradition—the notion that one must be able to hear the cry of the poor. If one can hear the cry, one can choose to be like God. Precluding the possibility of hearing the cry of the poor is itself a choice—a choice to be like Pharaoh. Notes 1 “Posterity,” in Overlord: Poems (Harper Collins Publishers, 2005), 86. 2 http://www.loc.gov/exhibits/religion/f0402as.jpg (accessed June 22, 2009, 11:46 a.m.). 3 An article in Harper’s New Monthly Magazine, July 1856, by Ben Lossing (p. 180) confirms that this was indeed intended as a design for the Great Seal. 4 Many a wag has pointed out that the second part of the verse, “So that they shall worship Me,” was not part of our slogan. 5 Cf., for example, Obery Hendricks, The Politics of Jesus: Rediscovering the True Revolutionary Nature of Jesus’ Teachings and How They Have Been Corrupted (Doubleday, 2006) as one recent example of this frequently argued meaning of the Exodus. 6 This is explicitly so. See Exodus 13:14, “And when, in time to come, your son asks you, saying, ‘What does this mean?’ you shall say to him, ‘It was with a mighty hand that the LORD brought us out from Egypt, the house of bondage.” 7 See note 5 above. This understanding is also present in the medieval commentary tradition. See the commentary of Rashbam (Rabbenu Shlomo ben Meir) (the French commentator who wrote in the twelfth century) on Exodus 22:20 on the phrase, “for you were aliens in Egypt”: “As it is explained before us ‘and you know the soul of the stranger for you were strangers.’ (Exod. 23:9) Since his pain is great, so too is the punishment [for his pain].” For a contemporary example from a writer in the Jewish tradition, see this column on the weekly Torah portion in the popular secular Israeli newspaper Yediot Aharanot: “Have we forgotten the covenant which created the Jewish religion? ‘Do not oppress the stranger for you were strangers in the land of Egypt.’ Have we forgotten the sacred alchemy of turning suffering into compassion?” (http://www.ynetnews.com/articles/0,7340,L-3203786,00.html. accessed 10/04/10 at 12:35 p.m.) 8 Defining what exactly Mishnah is—whether code or casebook or textbook— is the subject of scholarly debate. For a recent article which summarizes the state of the debate, see Yaakov Elman, “Order, Sequence, and Selection: The Mishnah’s Anthological Choices,” in David Stern, ed. The Anthology in Jewish Literature (Oxford University Press, 2004), 53–80. 9 “Commentary” is both an apt and a completely inapt description of the Talmud. For a recent and current introductory discussion of some of the issues, see Lawrence Shiffman, “The Making of the Mishnah and the Talmud,” and Yaakov Ellman, “The Babylonian Talmud in Its Historical Context,” both in Sharon Lieberman Mintz and Gabriel M. Goldstein, Printing the Talmud: From Bomberg to Schottenstein (Yeshiva University Museum, 2005). 10 Originally, Nezikin was one tractate. It was subsequently divided into three parts or “gates.” 39 Chapter 1: Act ing L i ke Pharaoh or Act ing L i ke God 11 In the service of brevity and clarity, I have personified “the Talmud” and, in so doing, have sacrificed some scholarly accuracy. For the most part, when I write “the Talmud” in this essay, I intend the anonymous editorial layer referred to as the stam. For the fundamental role of the stam in the shaping of the Babylonian Talmud, see Jeffrey Rubenstein, The Culture of the Babylonian Talmud (Johns Hopkins University Press, 2003). 12 This epochal division is found in the Talmud itself—noted in the breach. See B Ketubot 8a where the stam questions how Rav, an amora, a Talmudic sage, can challenge a law found in the Mishnah. The answer is that Rav is considered as a Tanna. 13 On Abulafiah, see Bernard Septimus, Hispano-Jewish Culture in Transition: The Career and Controversies of Ramah (Harvard University Press, 1982). 14 Sefer Yad Ramah, (Heb.) (n.d.) folio 13, p. 25. 15 Not in my backyard or yes in my backyard. Chapter 2 The Obligation of Protest So much seems to depend upon a cow, a very specific cow; Rabbi Elazar’s cow to be exact. It is a cow which defied the sages, and the sages were not happy. Rabbi Elazar ben Azaryah’s cow would go out with a strap between its horns against the will of the sages. (Mishnah Shabbat, 5:4) 1 Now, admittedly, this pronouncement follows an anonymous—and therefore, at least rhetorically, unanimous— law which explicitly stated, “And a cow . . . should not [go out on Shabbat] with a strap between its horns.” Immediately, it appears, Rabbi Elazar’s cow flew in the face of this rabbinic ruling and walked out (presumably of its pen/Rabbi Elazar’s house/barn, etc.) into the public domain flaunting its horn strap. 2 The striking thing about this is that the agency is ascribed to the cow. The Mishnah does not relate that Rabbi Elazar ben Azaryah allowed his cow to go out; or that Rabbi Elazar ben Azaryah urged his cow to go out; or that Rabbi Elazar ben Azaryah—in order to make his point that he thought the rest of the sages were dead wrong on this issue—paraded his cow in Bet She’arim Square adorned with her Shabbat horn strap. On the other hand, the cow is known to us only as Rabbi Elazar ben Azaryah’s cow. This again is an odd way to go about having a Mishnaic dispute. One would have expected something on the order of “Rabbi Elazar ben Azaryah said, ‘The cow may go out on the Shabbat with a strap between its horns.’” It’s almost as if the cow story is cited as a sage story might be—so that we may learn from it. 41 Chapter 2: The Obl igat ion of Protest The two Talmuds differ in their approach to this bit of text. The sixth-century Palestinian Talmud treats this line as if it had actually been an argument, as if it had read, “Rabbi Elazar ben Azaryah said, ‘The cow may go out on the Shabbat with a strap between its horns.’” It then introduces a dispute about the meaning of this dispute. This manner of interpretation is pretty standard when there is an actual dispute. The legal logic would then demand that the dispute be clarified: what is the reasoning behind the fact that Rabbi Elazar ben Azaryah disagrees with everybody else? 3 The Babylonian Talmud goes in a completely different direction. It seems that the BT is also stuck on the oddness of the phrase, “Rabbi Elazar ben Azaryah’s cow.” Perhaps it too is bothered by the fact that the action is ascribed to the cow. In any event, for the BT, naming the cow after Rabbi Elazar ben Azaryah is a reason to reflect and a cause to question. To the Bavli’s ear, the Mishnah’s statement sounds as if Rabbi Elazar ben Azaryah had only one cow. (“Rabbi Elazar ben Azaryah’s cow . . .”) However, the editors of the Babylonian Talmud seem to have known that Rabbi Elazar ben Azaryah had far more than the one cow. They cite a tradition attributed to Rav (a third-century CE Babylonian sage or amora) which credited Rabbi Elazar ben Azaryah with tithing twelve thousand lambs every year. Doing 4 the math, this brings the entire herd to at least one hundred and twenty thousand animals a year. What then is meant by the quaint description, “Rabbi Elazar ben Azaryah’s cow”? The answer proffered by the Talmud is that the cow actually belonged to Rabbi Elazar ben Azaryah’s neighbor. However, since Rabbi Elazar ben Azaryah did not protest the fact that his neighbor let her cow out with a strap between its horns, the cow and its actions were ascribed to Rabbi Elazar ben Azaryah— and it was Rabbi Elazar ben Azaryah with whom the sages were displeased. 5 This resolves two problems. The dispute in the Mishnah which does not look like a dispute—or is not written in a dispute form—is not actually a dispute. Rabbi Elazar ben Azaryah actually agrees with everybody else that horn straps are forbidden for cows on the Sabbath. Rabbi Elazar ben Azaryah aroused the ire of the 42 Chapter 2: The Obl igat ion of Protest cow leads us to a consideration of one’s obligation to stop bad actors from acting badly anywhere that action happens. The anonymity of the neighbor, and other actors in the text, reinforces the idea that my responsibility is also to people whose names I do not know, and I am obligated to prevent injustice being perpetrated by people I don’t know. As I am reading this text, its claim is that I have an 7 obligation to prevent wrong or injustice from happening to, or being done by, anybody. Cashing out this obligation is the work of political practice. We have, however, gotten ahead of ourselves. In order to get from here to there, we will pass through three textual moments. The first is a statement of law, the second is a profoundly disturbing story of sages acting badly (and other sages calling them on it), and the third moment is a rereading of a powerful prophetic moment from the book of Ezekiel. I. The Law The Talmudic discussion continues from the statement of Rabbi Elazar ben Azaryah’s responsibility: 8 Rav, R. Hanina, R. Yohanan, and R. Haviva taught, [. . .] All who can protest against [something wrong that] one of their family [is doing] and does not protest, is accountable 9 together with their family. [All who can protest against something wrong that] a citizen of their city [is doing and does not protest], is accountable together with all citizens of the city. [All who can protest against something wrong that is being done] in the whole world, is accountable together with all citizens of the world. What is meant here by “protest”? This word—machah in Hebrew in the verb form; mecha’ah is the Hebrew noun —has 10 a pretty stable field of meaning in rabbinic literature. It usually means verbally demanding that another stop doing something. The activities that are or could be (or are not able to be) protested against in rabbinic literature range from the profane (noise coming from a shop, moving a window a hand’s breadth ) to the sacred 11 12 44 I. The Law (saying the explicit name of God). The principle of this statement 13 is that not protesting against an action comes close to supporting that action—close enough to be considered as if one is doing the action. Another important term here is “can.” Does “can” mean the physical ability to protest (as is the case in other instances where face-to-face protest is required)? Or does it mean that there is a real possibility that the protest might be listened to? Rashi (Rabbi Shlomo Yitzhaki), the eleventh- to twelfthcentury commentator from Northern France, understands that “can protest” means that one’s protest has the possibility to be effective. In commenting on the last line that we quoted above (“in the whole world”), Rashi writes that this refers to “a king or a patriarch who has the ability to protest for people are afraid of them and fulfill their decrees.” Rashi, of course, is writing in the context of a feudal 14 state in the twelfth century. It is important to think of what the implications would be for a democracy, where seemingly it is the citizens whose decrees must be fulfilled. On the other hand, Rabbi Menahem HaMeiri, who lived in Provence in the thirteenth and fourteenth centuries, drew a different conclusion from these texts. He wrote, “The king is punished for the sin of the nation because he did not protest against them; and the nation as a whole is punished for the sin of the king because they did not protest against him.” One need not be the king to protest. A question that we will encounter further on in the text is whether protest is important in and of itself or whether there is a need for a plausible chance of success in order to be obligated to protest. If protest is an individual’s obligation, even in a situation where there is no chance of impacting the injustice being protested against, the act of protest, then, is about preserving one’s own “purity.” If one did not protest, one had not made clear that one stood outside the cultural or societal boundaries of injustice. If, however, protest is an obligation only when there is a plausible chance of success, the act of protest is then an act which need only be performed when one can change some unwanted outcome for the better. 45 II. The Stor y not protest the acts of the princes. Relative powerlessness is not an excuse for the rabbis. The basic point remains. One has a responsibility to stop an act that is happening in the spheres of one’s existence—which spheres reach out to the world. East Los Angeles is part of my world, as is Jerusalem, as is Darfur, in the Sudan. This does not speak to the question of hierarchy but rather to the basic question of responsibility. The question of responsibility does also impact the question of hierarchy or priority. 19 There are of course many questions that are left open. What qualifies as a protest? How long must one protest? By what means should one protest? Are there any means that are disqualified? Violence? Shaming? Is protest the same thing as bringing something to an end? And so on. The obvious next step in this discussion would be for the Talmud to start dealing with these questions. In a sense, it does that. I I. The Stor y As is the practice of the Talmud, a story is introduced at this point. I will cite the whole story and then review it line by line. R. Yehudah was sitting in front of [i.e., was learning from] Shmuel. A certain woman came. She cried out before him and he paid no attention. He [R. Yehudah] said to him: “Does the Master not hold that ‘One Who stops his ears at the cry of the poor, he also shall cry himself, but shall not be answered?’” (Prov. 21:13). He [Shmuel] said to him: “Sharp one! Your head [i.e., Shmuel] is cold. Your head’s head is in the heat! Mar Uqba is sitting as the head of the court.” For it is written: O house of David, thus said the LORD: Execute justice in the morning, and deliver the spoiled out of the hand of the oppressor, lest My fury go forth like fire, and burn that none can quench it, because of the evil of your doings (Jer. 21:12). The story is set in the most natural of all situations for the sages: a younger sage is learning from a senior sage. The identity 47 Chapter 2: The Obl igat ion of Protest of the sages is instructive. Shmuel, a second-century sage, was with Rav, the founder of the academies in Babylonia; that is, he was the “father” of Rabbinic Judaism in Babylonia. This is to make the point that he is not your run-of-the-mill rabbi. He is an important sage. Rav Yehudah was no slouch either. Though the junior member at this time, he is credited with creating a third academy at Pumbeditha after his training with both Shmuel and Rav. Rav Yehudah then was literally “sitting in front of” Shmuel, which might denote the actual pedagogical scene, and definitely the difference in their status. Until rather late in the history of the 20 rabbinic enterprise in Babylonia, there were no brick-and-mortar academies. A student would therefore just sit in front of a master either inside a house or outside under a tree. This is somewhat 21 important as it makes the sages accessible to passersby. Scene two involves a passerby. As they are studying, a woman approaches. We are told nothing about her except that she approaches. We are then told that she is crying out or shouting to them for help. Her cries are ignored. Rav Yehudah, it seems, was looking to his teacher to react in some way. No reaction was forthcoming. Finally, Rav Yehudah rebuked his teacher. His rebuke seems to articulate in one sentence the principle that we defined in chapter 1—the obligation to listen to the cry of the Stranger. Rav Yehudah asks Shmuel pointedly if he, Shmuel, does not abide by the teaching of Proverbs which makes the strong claim that if one does not hear the cry of the poor, then one’s own cries will go unanswered. Rav Yehudah seems to be rightly saying to Shmuel: “How can you ignore this woman and continue to teach Torah? Is this not a fundamental principle of Torah—to choose to act like God and not Pharaoh?” Shmuel’s answer is less than satisfactory. He parries Rav Yehudah’s demand by saying that since he—Shmuel—is not the political leader, since he does not have official authority, he has no culpability. It is Mar Uqba who is culpable. Finally, as a coup de grace, Shmuel cites Jeremiah 21:12 as a prooftext. However, instead of raising up the demand to “execute justice . . . .and deliver the spoiled out of the hand of the oppressor,” Shmuel finds in this verse 48 I I I. The P rophetic Moment Yehudah protested against Shmuel in the story in Shabbat 55a (Tosafot s.v. ‘elyonim lema‘alah vetahtonim lematah, Baba Bathra 10b). This statement directly comments on an “out of body experience” had by one of the sages who was very sick and almost died. When asked by his father, “What did you see?” he answered, “I saw an upside-down world.” He doesn’t explain his statement any further. His father replies, “You saw the true world.” The tradition that was transmitted shortly after the text was composed connects this statement with our story of Shmuel and Rav Yehudah. The “upsidedown world” was the one in which the teacher, Shmuel, sits in front of his student Rav Yehudah. This, however, is the true world, because Rav Yehudah was the one who protested while Shmuel was silent. This midrashic reading of the statement in Baba Bathra 10b as a way of interpreting our story supports our discomfort with the story and our reading of Rav Yehudah’s role in the narrative. Shmuel seems to understand that he has an obligation to act justly, not an obligation to make sure justice happens and injustice is thwarted. Therefore, if he is not himself the bad actor, he has fulfilled his obligation. In the interaction with the woman, he has decided that the appropriate actor is the exilarch; therefore, it is not even incumbent upon him to find out the particulars of the woman’s story. Rav Yehudah, along with the tradition, seems to take the opposite stance. There is an obligation to ensure that justice happens and injustice is thwarted. One must listen to and hear the cry of the oppressed—and then be claimed by it and act accordingly. It is Rav Yehudah whom we raise up. I I I. The Prophetic Moment The sugya continues, R. Zera said to R. Simon: “The Master should rebuke these 26 of the house of the partriarch.” He [R. Simon] said to him: “They will not accept [the rebuke] from me.” He said to him: “Even though they will not accept it, the Master should rebuke them.” 51 Chapter 2: The Obl igat ion of Protest This exchange opens with R. Zera challenging or urging R. Simon to rebuke the political leadership. The reason for the rebuke is left unstated. We have no way of knowing if the matter was one of ritual or whether there was some civil injustice that was being perpetrated. R. Simon obviously knows what R. Zera is referring to. His reply is that a rebuke would be unwarranted since it will fall on deaf ears. R. Zera replies that this should not be a deciding factor. What is the discussion about? First, R. Zera, following Rav Yehudah’s lead urges that 27 protests should be lodged against the political authority. His basic stance is that nobody is exempt from protest. His second point (after R. Simon’s demurral) is a point about protest itself. This point can be understood in one of two ways. Either R. Zera is urging an agnostic stance toward the political leadership. That is, until you are sure that they will not listen to you, you must rebuke them. Or R. Zera is making a much more far-reaching point about protest itself. There is an obligation to protest or rebuke independent of the efficacy of any specific act of protest. The obligation then, is not connected to the ability to stop the activity. This latter type of protest is more in line with the Christian notion of “witness.” The protest is an act which defines the line between good and evil, even if it ultimately fails in stopping the evil. The rest of the sugya places this discussion in stark mythic terms, rereading a prophecy from the book of Ezekiel in which the righteous of Jerusalem are slain by God together with the iniquitous, because the righteous did not protest the iniquity. Before proceeding, I would like to tarry briefly at this moment. R. Zera’s advocacy for activism stands on its own. He seems to be saying that if injustice is being perpetrated in the world, the only way to be just is to stand against that injustice. This is not to argue for a utopian political practice, rather it is an argument against a political practice which gives utility not only a vote but a veto. At times, all we can do to practice our humanity is to say, “We are not complicit in this action.” If we always allow ourselves to fall victim to the seeming futility of justice, injustice will inevitably prevail, and the image of God which we each carry in the form of doing justice will inevitably lose more and more of its luster. 52 Chapter 2: The Obl igat ion of Protest And it also is written: And they started with the elders in front of the House (Ezek. 9:6). Why start with the elders in front of the House? There seem to be two midrashic readings here. First, the identification of “elders” with righteous (“old in wisdom” as the Talmudic saying goes). Second, the term “my Temple” is reread. R. Yosef taught: “Do not read ‘my temple’ (mikdashi), but rather, ‘my sanctified ones’ (mekudashay). These are people who fulfilled the Torah from Aleph to Tav.” And immediately: And here, six people approach from the Upper Gate which faces north, and each person has their tool of destruction in their hand, and amongst them is one dressed in linens and the scribe’s case is by his side. And they approached and stood beside the bronze altar (Ezek. 9:2). God, after the conversation with Truth, ordered that the killing start with “my sanctified ones.” It is only then that the mission begins—reading verse 2 after verse 6. Only after Truth’s clarification is it clear who gets the sign—only one who was righteous and protested against wickedness. Returning to R. Zera, his argument with R. Simon is that only God can know that a protest is futile. From the point of view of mere mortals, the obligation to protest is absolute. Conclusion There are three moments in the Talmud’s discussion of the obligation to protest. The relationship between them is not the linear continuity of a narrative nor the question and answer of a Socratic dialogue. The first moment is the introduction of a law—a law without explanation. This does not imply that the law is irrational, only that, as we might expect in contemporary legal codes, the law is introduced as binding and is left unexplained. Just as we are settling in to this moment of pure prescription, a grounding is introduced for one of the laws. This grounding is a certain reading of a verse from the Torah, a claim that the verse from the Torah leads to the 56 Conclusion law. It is an open question whether this supplies an explanation for the law or whether it is only a grounding of the law—that is, an authoritative source which would move one to acquiesce in the understanding that this law is binding. The law that is introduced in this first moment is also a demand of justice: one has an obligation to take responsibility for the actions that are committed in one’s circles of existence—one’s family, one’s city, and the world. The mode of taking responsibility for the actions is an obligation to intervene to stop bad or wicked actions. The second moment is a narrative moment. A ma’aseh, or a story with heuristic significance, is told. The story seems to contradict the basic premise of everything that was just introduced in the first moment of the text. The central character, an important sage, refuses to take responsibility for a woman who cries out for his help. The third moment is almost completely midrash. An exchange between two scholars generates a midrashic reading of a prophetic vision from the book and the prophet Ezekiel. The midrashic reading makes the strong claim that one is obligated to protest against wicked deeds even when there is no chance of the protest being successful in changing the behavior. The claim comes in the form of a dispute between God and middat ha-din which is something like a divine personification of the demands of a strict justice without compassion. Middat ha-din appears several times in the Babylonian Talmud to challenge God on a point of justice, always pushing God away from compassion to strict fairness—which leads to someone getting punished. How is one to understand these moments? The move from the first moment to the second is baffling. Where one is expecting a story which supports the general line of the law which preceded, the reader actually is moved, shoved perhaps, to the other side of the spectrum. A respected sage, one of the founders of the academies in Babylonia, refuses to take responsibility for attempting to assuage a woman’s pain, to even hear the woman’s cry. Similarly, the move from the second moment to the third is equally jarring. Following this story of rabbinic indifference comes 57 Chapter 2: The Obl igat ion of Protest Notes 1 The full text of the sugya (Talmudic discussion) is in the appendix to this chapter, page 62 below. 2 In general, Mishnah Shabbat chapter 5 details those things with which one’s animal is allowed to wander around outside a pen on the Sabbath. This discussion is something of a second-order discussion about “carrying” on Shabbat. “Carrying” is forbidden. It is one of the forty-nine categories of forbidden work which the Mishnah lists in chapter 7 of Mishnah Shabbat. “Carrying” is defined (loosely, as there are many pages of details) as bringing something from a private to a public domain or vice versa, or transporting an object more than four cubits (something around seventy-two inches) within a public domain. Much of Tractate Shabbat is taken up with defining all of these terms: What is “public?” What is “private?” What is an “object?” What is “transporting?” What is a “domain?” and so on. 3 The Palestinian Talmud does eventually get to the idea that Rabbi Elazar’s cow might not actually be his. The Talmud then proposes one of two possibilities: either it is his wife’s or his neighbors’. 4 There is some doubt raised about the veracity of this source by Rabbi Yaakov of Troyes, known as Rabbenu Tam, the twelfth-century Talmud scholar who founded the style and school of the Tosafists. He points out that according to Talmudic sources, Rabbi Elazar ben Azaryah would have been no more than fifteen when the Temple was destroyed. Further, there was no tithing of animals after the destruction of the Temple. It is then not very plausible that Rabbi Elazar ben Azaryah actually tithed twelve thousand animals (Tosafot to Shabbat 54b s.v. hava me’aser; cf. Tosafot to Yoma 66a s.v. ein makdishin). 5 This bit of creative interpretation trails the Mishnah itself by several centuries. The tradition about Rabbi Elazar ben Azaryah cannot be later than the early third century CE (the date of the editing of the Mishnah). The Talmud’s interpretation comes from the anonymous editorial voice which is not earlier than the sixth or seventh century CE. There are other Talmudic sources that seem to testify to Rabbi Elazar ben Azaryah’s wealth. Aside from the source attributed here to Rav, there is also an anonymous statement in Tractate Kiddushin that implies that Rabbi Elazar ben Azaryah had great wealth. 6 This would be the view resulting from an analysis of the interesting law of rodef—the preemptive killing of one who seemingly is about to commit a murder or worship idols. One of the reasons given for the decision that the rodef/the pursuer should be killed is that “we save the person from the sin with that person’s own life.” This is some form of killing the person to save his soul (Tosafot to Bavli Sanhedrin 73a s.v. lehatzilo benafsho). 7 The special prosecutor of the International Criminal Court charged with investigating the genocide in Darfur has said that genocide is characterized by evil being perpetrated by bureaucrats. The anonymity of the perpetrators is not a justification for inaction. 60 Note s 8 The roman numerals in the text in the appendix (page 63 below) follow the roman numerals of the sections of the chapter. 9 While the Hebrew here—nitpas—is slightly ambiguous, a parallel source in Bavli Avodah Zarah 17b uses the explicit ne’enash, which unambiguously means “punished.” Rashi interprets nitpas as ne’nash or “punished.” 10 Mechi is the Aramaic word. 11 Mishnah Baba Bathra 2:3. 12 Mishnah Baba Bathra 3:6. 13 Bavli Avodah Zarah 17b. 14 In this same comment, Rashi defines the world as only referring to the Jewish people. Meiri appears not to agree with this interpretation either. 15 This version is translated from MS Vat. 108. The printed editions have: “As this that R. Hanina said . . .” This introductory form implies that R. Hanina’s ִ statement is some sort of proof for R. Papa’s statement. This is not so, however. R. Hanina’s statement deals with relations between the political and religious leadership (in simplistic terms) while R. Papa is discussing relations between Jews and the rest of the world. 16 Rav Papa is a fourth-century Babylonian sage. 17 This is, of course, the practice of midrash. This is the reading practice which is one of the hallmarks of the rabbis and the rabbinic period and textual tradition. A verse is decontextualized. It is recontextualized within another story, a verse which has an intertextual relation with it, or “Judaism” writ large. Each of its component words is then read to exploit its full semantic field, as informed by the new context. A Midrashic reading is generated by a textual anomaly, inconsistency, contradiction, real, or imagined. This type of reading is also applied to the Mishnah. On the practice of midrash, see Daniel Boyarin, Intertextuality and the Reading of Midrash, (Bloomington, IN: Indiana University Press, 1990). 18 E.g. as in Exodus 24:1 19 See for example, Peter Singer, “What Should a Billionaire Give—and What Should You?” in New York Times Magazine (December 17, 2006). See also Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (New York, NY: W. W. Norton & Co., 2006). 20 This phrase occurs sixty-seven times in the Babylonian Talmud (according to a search of the Bar Ilan Reponsa Project version 14). It is thus a common setting for a story. 21 Jeffrey Rubenstein, The Culture of the Babylonian Talmud (Baltimore: Johns Hopkins University Press, 2003). 22 Sukkah 31a, Ketubot 80b, Baba Bathra 9b, Avodah Zarah 28b, Eruvin 25a— all in the Babylonian Talmud. This specific trope does not seem to appear in the Palestinian Talmud. 61 Appendix to Chapter 2 Mishnah Shabbat 5:4 [. . .] A cow should not [go out on Shabbat] with the skin of a hedgehog [tied to protect its teats] or with a strap between its horns. Rabbi Elazar ben Azaryah’s cow would go out with a strap between its horns against the will of the Sages. Bavli Shabbat 54b–55a Did he only have one cow? Did not Rav say (and there are those who say it was Rav Yehudah who said in the name of Rav): Rabbi Elazar ben Azaryah would tithe twelve thousand lambs each and every year! It was taught: The cow was not his, rather it was his neighbor’s. Since he did not protest [her allowing the cow out with a strap between its horns] it was named after him. I. Rav, R. Hanina, R. Yohanan, and R. Haviva taught: [. . .] All who can protest against [something wrong that] one of their family [is doing] and does not protest, is held accountable for their family. [All who can protest against something wrong that] a ci-tizen of their city [is doing and does not protest], is held accountable for all citizens of the city. [All who can protest against something wrong that is being done] in the whole world, is accountable together with all citizens of the world. Said R. Papa: “These of the house of the Exilarch are punished for all the world.” As this that R. Hanina said: “Why is it written: ‘The LORD will enter into judgment with the elders of His people, and the princes thereof” (Isa. 3:14). If the princes sinned, what did the elders do? Rather, say that the elders did not protest against the princes.” 63 Chapter 2: The Obl igat ion of Protest II. R. Yehudah was sitting in front of [i.e., was learning from] Shmuel. A certain woman came. She cried out before him, and he paid no attention. He [R. Yehudah] said to him: “Does the Master not hold that One Who stops his ears at the cry of the poor, he also shall cry himself, but shall not be answered?” (Prov. 21:13) He [Shmuel] said to him: “Sharp one! Your head [i.e., Shmuel] is cold. Your head’s head is in the heat! Mar Uqba is sitting as the head of the court.” For it is written: O house of David, thus said the LORD: Execute justice in the morning, and deliver the spoiled out of the hand of the oppressor, lest My fury go forth like fire, and burn that none can quench it, because of the evil of your doings (Jer. 21:12). III. R. Zera said to R. Simon: “The Master should rebuke these of the house of the partriarch.” He [R. Simon] said to him: “They will not accept [the rebuke] from me.” He said to him: “Even though they will not accept it, the Master should rebuke them.” For R. Aha son of R. Hanina said: Never did a good decree leave the mouth of the Holy One of Blessing which then [the Holy One of Blessing] turned to evil except concerning this matter. For it is written: And God said to him, pass through the city, through Jerusalem, and make a mark on the foreheads of the men who are sighing and groaning for all the abominations that have been done in it [Jerusalem] (Ezek. 9:4). Said the Holy One of Blessing to Gavriel: “Go and write on the foreheads of the righteous an ink mark so that the angels of destruction will not have power over them. And on the foreheads of the wicked a mark of blood so that the angels of destruction shall have power over them.” Truth said to the Holy One of Blessing: “Master of the World, how are these different than these?” God said to her: “These are completely righteous and these are completely wicked.” She said before God: “Master of the World, they were able to protest and they did not protest.” God said to her: “It is revealed and known to me that if they had protested, they would not have accepted the protest.” 64 Chapter 3 Geographical Boundaries and the Boundaries of Responsibility December 24, 2002, was my forty-fourth birthday. The previous night, I had gone to the Joint, a local club in our neighborhood in Los Angeles, to celebrate together with my partner Andrea. Monday nights they had a band fronted by Waddy Wachtel, Warren Zevon’s amazing guitarist. We were joined by another couple, who had initiated us into this local Monday-night happening. Being that it was the night before Christmas Eve, a number of musicians dropped by to jam with the band. It was a great night. The club was long and narrow, the music was loud and very good, there were a lot of people, and there was a lot of beer. The crowd was mature; we were definitely on the younger end of the age spectrum on this night. The show started at nine-thirty, and we were probably there till midnight. When we left the club, it was a clear night, brisk, in the lower forties. We were in the few weeks of winter weather in Los Angeles. We parted company with our friends and walked home. The Joint is on Pico Boulevard near Robertson. The neighborhood is usually referred to as “Pico-Robertson” because of this intersection at its heart, though the real estate agents called it Beverly Hills adjacent. Pico Boulevard is a wide street with stores on both sides. During the day, contrary to widespread impressions of Los Angeles, the streets are full of people going to and from shops, supermarkets, restaurants, pizza shops, and cafés. At night, the street is mainly empty. We crossed Pico and walked to our house along a side street. Walking south, the neighborhood is obviously residential. At first, there were many multi-unit dwellings with car parks called dingbats. Then the private houses started to predominate. Our block 66 Chapter 3: The Boundar ies of R esponsi b i l it y is all one-family and two-family houses—the latter called duplexes in Los Angeles. We live in the lower unit of a Spanish-style corner duplex. We had been there two years, feeling very lucky to have been able to buy into a very tight housing market which was getting tighter by the day. We entered the house, walking past the lawn, the trikes and toys and plastic furniture on our patio, paid the babysitter, checked on our kids, and went to sleep. The next day, my birthday, was a lazy day. The university was closed; the semester was over. I was just back from an academic conference and thought I would get some grading done. The only thing on my calendar was a three o’clock meeting with a friend at Delice, a café on Pico. Nine miles away, in downtown Los Angeles, life was very different for Stanley Barger. Stanley Barger suffered a brain injury in a car accident in 1998 and subsequently lost his Social Security Disability Insurance. His total monthly income consisted of food stamps and $221 in welfare payments. On the night of the twenty1 of December, Barger, who could rarely afford a place even in an SRO (single-room occupancy) hotel, bedded down on the sidewalk on the corner of East Sixth Street and Towne Avenue. At 5:00 a.m., December 24, Los Angeles Police Department officers roused Barger from sleep and arrested him. The charge was violating section 41.18(d) of the Municipal Code. Section 41.18(d) of the municipal code says the following: No person shall sit, lie or sleep in or upon any street, sidewalk or other public way. Since there are not enough shelter beds to house the homeless, Section 41.18(d), which is enforced round the clock, criminalizes homelessness. As I woke up on the morning of the twenty-fourth 2 to the sounds of a raucously peaceful household, Stanley Barger was jailed—perhaps the first time that the county had provided him with shelter. The coincidence in time of these two events provokes me to ask about my connection with Stanley Barger. I live in a city of millions. This is a city (actually a county since the city of Beverly Hills, for example, protects its wealth under the mantel of municipal 67 The Cor pse: No One and Nowhere to civic responsibility. There was a cost and a benefit to this. The Roman model benefited poor people along with other citizens. The line of demarcation was citizenship. Those impoverished, homeless noncitizens who lived at the margins of society were never a focus of care. The Christian model, which Brown also sees as the Jewish and Muslim model, obligated care for all poor as good works, as charity. However, there was no political thinking about the poor. Poverty was a state which should be ameliorated, but it was not a political issue nor could (should?) it be eradicated. 7 In this chapter, I will argue that out of Rabbinic Judaism, a model of responsibility emerges which, while recognizing the poor and homeless in society—citizen and noncitizen—as groups in need of care and deserving of support and shelter, sees the answer also in political terms. The responsibility is placed on the city as a community defined by obligation toward those who reside in its boundaries. The boundaries of obligation are not the geographical boundaries of intimacy or municipality. The central argument in this chapter is that the boundaries of responsibility redraw and exceed the boundaries of intimacy, community, and municipality. The texts that I will introduce in this chapter are grounded in a biblical ritual which attempts to adjudicate responsibility for the ownerless places in between cities, and responsibility toward people who may pass through cities anonymously. The rabbis used this biblical ritual as a grounding for the principal that the boundaries of responsibility extend beyond the geographic boundaries of intimacy—village, community, neighborhood. Living in a contemporary megalopolis, the boundaries of my extended community and neighborhood rarely have even diplomatic relations with the neighborhood in which Stanley Barger found shelter. The Cor pse: No One and Nowhere The biblical ritual is found in Deuteronomy, chapter 21. 1 If, in the land that the LORD your God is assigning you to possess, someone slain is found lying in the open, the identity of the slayer not being known, 69 Chapter 3: The Boundar ies of R esponsi b i l it y 2 your elders and magistrates shall go out and measure the distances from the corpse to the nearby towns. 3 The elders of the town nearest to the corpse shall then take a heifer which has never been worked, which has never pulled in a yoke; 4 and the elders of that town shall bring the heifer down to an everflowing wadi, which is not tilled or sown. There, in the wadi, they shall break the heifer’s neck. 5 The priests, sons of Levi, shall come forward; for the LORD your God has chosen them to minister to Him and to pronounce blessing in the name of the LORD, and every lawsuit and case of assault is subject to their ruling. 6 Then all the elders of the town nearest to the corpse shall wash their hands over the heifer whose neck was broken in the wadi. 7 And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done. 8 Absolve, O LORD, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.” And they will be absolved of bloodguilt. 9 Thus you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of the LORD. The opening verse of the section frames the incident as involving both a body whose identity is not known and also a place which is not accounted for by any specific municipal authority. The word translated as “open space” is the Hebrew sadeh which is often opposed to inhabited spaces and has the connotation of ownerless or wild. 8 There are three stages to the ritual once the body is found. 9 First, a measurement is conducted to determine which town is closest and therefore will bear at the least symbolic responsibility. Then the elders of that town will bring the offering to the riverbed. 10 They finally perform the ritual itself. The elders break the neck of the animal, they wash their hands over the animal, and they recite the formula: “Our hands did not shed this blood, nor did our eyes see it done. Absolve, O LORD, Your people Israel whom You redeemed, 70 The Mishnah and do not let guilt for the blood of the innocent remain among Your people Israel.” The Torah seems intent on taking a crime which happened to no one—the victim is just referred to as “the corpse” or “someone slain”—in the middle of nowhere and making the statement that there is always someone who is responsible, someone who must expiate the blood. 11 The Mishnah A whole chapter of Mishnah is devoted to this ritual—the last chapter of Tractate Sotah. The chapter of Mishnah interrogates 12 every point of possible ambiguity in the biblical ritual. What if the man is not found on the ground but in a tree? Where on the body do you measure from? The head? The navel? What happens if one witness claims to have seen the murderer, while the second witness claims to have not seen the murderer. What happens to the animal 13 if after it was brought to the stream, yet before it was killed, the killer was found? The questions continue on and on. The sages of the Mishnah are also intrigued by the formula which the elders of the town are to say at the climactic moment of the ritual: Mishnah Sotah 9:6 The elders of that town wash their hands in the water at the place of the killing of the heifer, and they say: “Our hands did not spill this blood, and are our eyes did not see.” And did we believe that the elders of the court are spillers 14 of blood? Rather [they say]: “For he did not come to us and we dismissed him. And we did not see him and let him be.” 15 The Mishnah reads the formula hyperliterally in order to ask the disturbing question: Why is it that the elders of the town are instructed to disavow their guilt? Was there actually a presumption that they were in fact guilty? Essentially, the Mishnaic author is reading the verse “midrashically.” This means that he is reading the verse strongly to press on the literal problematics in the verse. In this instance, it 71 Chapter 3: The Boundar ies of R esponsi b i l it y seems that the irritant is the fact that the second half of the verse, “and our eyes did not see,” does not have an object for the verb “see.” Most modern translations supply the missing object from the first half of the statement. That is, as the JPS translation has it, “nor did our eyes see it done.” The King James translation and others 16 just add the word “it.” 17 The Mishnah seems to have read this naked verb strongly as intransitive—a verb without an object. That is, the elders of the town must declare that they were not guilty of not seeing, of willful or negligent blindness—and that that blindness led to the shedding of the blood. A paraphrase of the declaration as the Mishnah is now reading it would be, “We were not willfully or negligently blind and thereby caused this bloodshed.” This reading of the verse in Deuteronomy is played out in the rhetorical question: “Did we ever think that the elders of the court are spillers of blood?” Which allows the answer: “Rather they must say: ‘For he did not come to us and we dismissed him. And we did not see him and let him be.’” This reading of the ritual declaration from Deuteronomy is strengthened in the discussion of this Mishnah in the Babylonian Talmud. The Talmudic Discussion The Talmudic discussion of this Mishnah begins by citing a baraita. A baraita is, literally, an “outside text.” It is a text whose 18 authority and provenance are similar to the Mishnah, though they were “left out” of the canonical collection of Mishnah attributed to Rabbi Judah the Patriarch. This particular baraita comments on Deuteronomy 21:6–7. Our interest lies in the second half of the baraita, the comment on Deuteronomy 21:7: “And they shall make this declaration: ‘Our hands did not shed this blood, nor did our eyes see it done.’ And did we believe that the court [is composed of] murderers? Rather [they say] “He did not come to us and we dismissed him with no food,” and “We did not see him and yet leave him with no escort.” 72 The Talmudic Discussion The comments of this text take the Mishnah’s midrashic reading of Deuteronomy 21:7 one step further. The author of this baraita explains what is meant by “dismissed him” and “let him be.” The former refers to not providing the Stranger with food and letting him sally forth on his own, hungry. In the eleventh century, Rashi (Rabbenu Shlomo Yitzhaki) poignantly commented, “This is what is meant by ‘our hands did not spill . . .’ he was not killed as a result of our action that we dismissed him without food, and he was forced to steal from people and was killed as a result of that.” Rashi adds another narrative layer in trying to imagine what the exact events leading to death were. The counterfactual story, the story that the elders are disavowing, is that a stranger comes to town, does not find any food, and leaves empty-handed, alone, and hungry. Desperate for food, he attempts to rob another wayfarer and is killed in the attempt. The detail in this story, which we swear did not happen, pushes us to begin to suspect that it might, in fact, have happened. This is what the literary theorist Jacques Derrida calls “writing under erasure” —introducing something into the 19 conversation and immediately negating it, in the manner of saying “Johnny is not sick” rather than “Johnny is well.” Saying “Johnny is not sick” places the idea of sickness in the conversation (as if one said “Johnny is sick”). This is true here. The elders, the representatives of the city, relate this narrative, “This stranger came to us and we dismissed him without food and he was forced to rob another person and was killed in the process,” by denying it: The counterfactual details, the facts of the case that are disavowed, continue, “We let him be without providing an escort for him.” It is not true, the elders protest, that we were blind to his plight. The growing facts of the disavowed narrative lead us to the conclusion that there is actual responsibility here. Somebody should have seen. What kind of place is this which a stranger can wander through in total anonymity and not be offered food and provided with escort? Therefore, the court, the institution that defines a settlement as a city, has to atone for 20 this death. The feeling of responsibility is immediately translated into legislation as the Talmudic discussion continues, citing another baraita. 73 “We Coerce Accompaniment ” to you.” The fact that the reward is stated, removes the obligation 23 (or right) of the court to coerce observance of the law. Rashi explains what the coercion might look like: “a positive commandment which presents itself to a person, and he does not want to fulfill it; for example, they say to him ‘make a Succah’ and he does not make it . . . they beat him until his soul departs.” This, according to Eidels, is what “coercion” is. It is not peer pressure or religious guilt. It is not even “moderate physical force” to use a current euphemism. It is violent persuasion. Not that the full force of the violent persuasion needs be deployed in every given situation. However, the possibility of the full force of institutional judicial coercion hovers in the background of any discussion. This move, that we just outlined above, from purging blood guilt to accepting municipal responsibility for strangers and which is traced from Torah to the statement of Rabbi Meir, is accompanied by another move. The story and ritual in Deuteronomy focuses on the sadeh, the ownerless space between towns. The statement of the elders as now understood focuses on what happens in cities. Only cities which have a court are considered under this legislation, 24 and it is the city (or, for Maimonides explicitly, the court) which bears the responsibility. The baraita and Rabbi Meir’s statement move us directly into the urban arena. The Talmud is no longer concerned with what happened on the road. The concern is with what happened in the city, and what will happen in the city in the future. Let us attend to Rabbi Meir’s statement in some greater detail. “We Coerce Accompaniment ” There are two parts to Rabbi Meir’s statement. The first part is as just stated, “We coerce accompaniment.” There seems to be 25 an internal contradiction in this phrase itself. Accompaniment is often an intimate act. One accompanies a friend home after dinner. One accompanies a lover to a play. Less anachronistically, one accompanies a sage to the study hall and back as a sign of respect and love. Why then does Rabbi Meir say that we coerce accompaniment? This then is obviously not (only) the intimate accompaniment 75 Chapter 3: The Boundar ies of R esponsi b i l it y of friends and lovers, or even of students and teachers, but the accompaniment of strangers, the accompaniment of those for whom the city takes responsibility since there is not necessarily a single person who otherwise would take responsibility. This contradiction is apparent in Maimonides’s discussion of accompaniment in his code, Mishneh Torah. In the paragraph preceding the one we discussed above, Maimonides lauds 26 accompaniment along with hospitality: The reward for accompaniment is greater than all. This is the law which Abraham legislated, and the path of grace which he practiced. He would feed the wayfarers, give them to drink and accompany them [as they left]. Taking in guests is greater than receiving the face of the Holy Presence . . ., and accompanying them is greater than taking them in. 27 It is the Abrahamic vision which is projected as the ideal of hospitality. The tent is open to all four sides, and everyone who passes by stops in and is given sustenance. This is a vision of deep care and altruism. Yet this is the law which Abraham carved in stone. In the move from the individual actions of an iconically just 28 patriarch to the multifaceted tensions and contradictions of a city, the care for the Stranger could no longer rely on the omniscience of individuals. There is too much risk of inaction, of indifference. The city as a body needs to be able to delegate obligations to individuals in order to maintain the justice of the whole. 29 We now read the second half of the statement. “For the reward for accompaniment has no measure.” If the reward for accompanying a stranger has no measure, why would there be a need to coerce someone to do it? The logic of the text we just cited from Hullin 110b is that if a commandment has an obvious reward, 30 there is no need for coercion. While the reward for accompaniment 31 might not appear explicitly in the Torah, it is explicit in Rabbi Meir’s statement. Rabbi Meir’s statement highlights the fact that accompaniment is part of two discourses. On the one hand, it is a matter of personal piety, for which the reward has no measure; it is immeasurably large. This is the individual attempting to follow in the footsteps 32 76 Politic s though the angel of death cannot. Thus, it is the fantastic which is used to describe the possibilities that are envisioned by the legal obligation. The direct analogue is that the possibility of a city 44 in which accompaniment of the Stranger is an obligation on all residents is a city whose map of responsibility does not abide by the boundaries of its municipal map. It is a city in which there is no sadeh—no ownerless place toward which there is no responsibility. Politics Emmanuel Levinas argued for the importance of grounding philosophical speculation in the initial gesture of recognizing the Other—any other person—as being beyond my grasp. That is, he claimed that the Western philosophical tradition “knew” the world by describing it with categories which originate in the knower. In essence, then, the task of knowing was to successfully assimilate the Other into the Same, that is the knower or me. This might seem to be a good way to go philosophically for a while. If I want to know what exists in the world, I create large categories of things (flowers, plants, planets, TV shows) and then slowly distinguish between the huge number of objects in each category by the subtler differences between them. Thus I am not left with an undifferentiated laundry list of stuff that happens to be in the world. I have a way of grasping what those objects are. What I am doing at base is bringing those objects into my categories so they become familiar. I am bridging or breaking the intellectual gap between them and me. Hence I am assimilating that which is other, different, not me, into that which is the same—that is, me and my intellectual concepts. Knowing an object in this way does, however, deny the object any uniqueness. A unique object cannot ever really be known—just as the way we must guess at the meaning of Hebrew words which only occur once in the Torah. If there is no category in which to place the object, then there is no way to differentiate it from some other category. This is, perhaps, all fine and well for inanimate objects. However, Levinas argues, the basic characteristic of a person is 81 Chapter 3: The Boundar ies of R esponsi b i l it y that he or she is unique. Or, to use Levinas’s terminology, a person is an “infinity.” This is opposed to those other objects which are a “totality,” meaning that we can grasp them in toto. The problem then is that if we want to know the world, perhaps the most important or at least the closest, part of that world that we want to know cannot be described by category and difference. The basic characteristic of another person, the Other, is that they are ungraspable, an “infinity.” They cannot be completely grasped. Then, if I do breach the chasm that exists between me (the “same”) and you (the “Other”), I have misunderstood you. If I place the Other in a category and I define the Other by difference, I have by definition misdefined the Other. The only possible engagement with the Other is response. The relationship is not equal; it is hierarchical with the Other always in the transcendent position. It is also not mutual. I do not respond to you because I expect that you will then respond to me. For Levinas, this philosophical move, which is at heart also an ethical move, is the bulwark against totalitarianism which is the highest form of assimilating the Other into the Same, or denuding the Other of individuality and treating all others as cogs in a wheel, which is the same thing. As I’ve described it, this is an ethics of intimacy. This is a powerful way of describing and conceptualizing relationships between two individuals so that I do not profess to ever be able to know you to the extent that I might be tempted to use you. 45 The model, however, stumbles on the political. This is sometimes 46 referred to as the problem of the third. If there are three people in a relationship (and on ad infinitum), who is responding to whom? As a political model, it seems unworkable. 47 Accompaniment as a conceptual frame offers a solution. Apart from my obligation to respond to the Other, the city as a community of residents has an obligation to the Stranger. The city mediates this obligation in the form of delegating responsibility to residents. “We coerce accompaniment.” The reward for accompaniment is that my neighborhood or community does not have impermeable boundaries, rather I am bound by the logic of the city’s obligation to Stanley Barger to cross those boundaries. 82 Walking the Talk Walking the Talk The logic of levayah/accompaniment says that the justness of a city is a function of the web of relationships between “strangers,” between people who are anonymous to each other. If people can fall into a place which is beyond anybody’s responsibility, this is a reflection on the justness of the city itself. This is when the city needs to atone. The performance of accompaniment as a practice exists for both the individual and the city. The actual accompaniment of guests out of one’s house as the invoking of the Abrahamic ideal is a token of remembrance that the boundaries of responsibility extend beyond the boundaries of intimacy. In our daily lives, the practice of reaching out beyond ourselves is also a performance of accompaniment. Finally, in the life of a city, when budgets are being decided upon, when scarce resources are being allocated, the response to the Stranger has to be the center of the discussion. Eradicating the existence of the “ownerless places” has to be the first and not the last priority. The very fact of widespread homelessness, of people suffering and dying because they cannot afford health care, of people going hungry, shatters the illusion that we live in a just society. 48 Chapter 3: The Boundar ies of R esponsi b i l it y Notes 1 Edward Jones et al. Plaintiffs-Appellants vs. City of Los Angeles et al.; DefendantsAppellees. No. 04-55324 United States Court of Appeals for the Ninth Circuit 444 F.3d 1118; 2006 U.S. App. LEXIS 9308, pp. 13–14. 2 This was the opinion of the majority of the Ninth Circuit court (ibid.). 3 Peter Brown, Poverty and Leadership in the Later Roman Empire (University Press of New England, 2002), 5. 4 See note 3. 5 Peter Brown, “Remembering the Poor and the Aesthetic of Society,” Journal of Interdisciplinary History, xxxv:3 (Winter, 2005): 514–515. 6 See note 5. 7 This shift might explain the disdain that one can read in the question of Tinnius Rufus, Akiva’s interlocutor in the Babylonian Talmud Baba Bathra 10a: “If your God loves the poor, why does he not support them?” 8 The Rabbinic term hefqer/ownerless might apply. Cf. Gen. 27:3, 34:28, 37:15, Deut. 22:25, 27. 9 The history of this text is somewhat complicated. I will not go into it since I am interested here only in the rabbinic reception and transvaluation of the text. On the historical question, see Ziony Zevit, “The ‘egla Ritual of Deuteronomy 21:1–9,” Journal of Biblical Literature 95 (1976): 377–390. Interestingly, some of the conflicting ideologies reflected in the textual stratification are also reflected in debates among the medieval commentaries. See Nachamanides, commentary to Deuteronomy 21:5; and Maimonides, Guide of the Perplexed, III:40. 10 The phrase translated in the JPS Tanakh as everflowing wadi is the Hebrew nachal eitan which can be and has been translated as “rough valley” (King James), “wadi with running water” (New Revised Standard Version), “valley with running water” (Revised Standard Version). The symbolism of the ritual is of course different if the river has water in it or not. 11 There is of course much more to this text. See the literature cited by Zevit. See also the discussion in the Encylopedia Mikrait, s.v. ‘eglah ‘arufah, vol. 77–78. There is a very strong resonance with the slaying of Abel by Cain which also happened in the sadeh. Cf. Gen. 4:8. 12 Sotah is the ritual of the suspected adulteress which is found in Numbers 5:11–31. The first six chapters of Mishnah Sotah deal with the Sotah ritual itself. Chapter 7 is a bridge by way of discussing all the rituals which must be declaimed in Hebrew. Sotah is one of these and the broken-necked heifer or the eglah ritual is another. It is discussed in chapter 9 of Mishnah Sotah. 13 Rabbinic law demands two witnesses. 14 MS Florence does not have “the elders” just “that the court.” 84 Note s 15 The Mishnah text is cited according to the MSS (Kaufman, Parma, Low). The printed editions have apparently assimilated the baraita cited in the Bavli into the Mishnah itself. See the baraita on page 72 below. 16 The old JPS translation, the Revised Standard Version, and the New Revised Standard Version. 17 The ancient Greek translation known as the Septuagint and Everett Fox’s contemporary translation both leave the verb bare without object. 18 Aramaic bar=outside. 19 Jacques Derrida, Of Grammatology, trans. Gayatri Chakravorty Spivak (Johns Hopkins University Press, 1998). 20 cf. Mishnah Sotah 9:2: “If he was found next to . . . a city which had no court, they would not do the ritual. We only measure from a city which has a court.” It is the existence of the court which defines a place as a city which is to be held responsible. 21 This statement itself, “we coerce alms-giving/tzedakah” is of great importance. I translated tzedakah as alms-giving rather than charity in order to destabilize the altruistic relationship which is implied by “charity” coming from the Greek charitas meaning “grace.” (Although according to the OED, “alms” does seem to come from the Greek eleimosunei, meaning compassionateness, the impact is perhaps less immediate because of the anachronism.) Tzedakah, linguistically and ethically is derived from justice/tzedek. 22 Laws of Mourning 14:3 (my translation). 23 Fox translation. 24 See note 20 above. 25 This coercion is the same as that we saw in the discussion of the gate house in chapter 1. 26 Page 74 above. 27 Laws of Mourning 14:2. 28 The literal meaning of haqaq, which we translated as “legislated,” is “carved.” Hoq, derived from haqaq, means “law.” 29 Jacques Derrida points out and works through some of the contradictions between hospitality as a law and hospitality as a “right of residence” in the essay “On Cosmopolitanism” in On Cosmopolitanism and Forgiveness (London and New York: Routledge, 2001). 30 Page 74 above. 31 This is the question that prompted the remarks of the Maharsha. 32 This understanding of “has no measure” as immeasurably large is not certain. It could also mean the reward for accompanying is unknown. The latter 85 Chapter 4 A Summary of the Argument So Far Before proceeding to some particulars of the community of obligation, I will weave together the strands of the argument so far. A just city, a city that is defined as a community of obligation, is a polis in which the residents open themselves to the possibility of hearing the cries of the Stranger—and being compelled by those cries to respond. This goes beyond directly responding to another person who crosses your path. The obligation is first, to set up our cities such that others’ needs will be urgently pressing upon the body politic—whether the vulnerability that demands our response be a result of poverty, ethnicity, lack of a home, or lack of citizenship. 1 In other words, the city needs to be organized such that the cry of the Stranger can be heard. Homelessness must be decriminalized, economic segregation must be ameliorated. 2 Second, as a practice of both politics and piety, we ought to treat others as members of our community. This can be expressed in actions on both the quotidian or immediate and the more abstract levels. The practice of accompanying guests (levayah) out of our houses, beyond the doorways and into the street, might serve as a ritual reminder that the boundary of obligation exceeds geographic boundaries. When a panhandler asks for money, we should stop and ask for her name, engage in small talk, and treat her as a member of our community toward whom we have an obligation. At the same 3 time, the obligation of levayah/accompaniment demands that we hear the concerns of those whose paths we will never cross as we act politically. Decisions on budgets and zoning are more obviously ethical decisions, but so too are decisions about what restaurants or markets we patronize, what hotels we stay at, and how we treat the people who clean our houses and watch our children. These issues 4 are all interconnected since where you live can also determine 88 Chapter 4: A Summar y of the A rg ument So Far whether or not you will have access to healthy food and health care, whether your children will suffer from diabetes or obesity, and whether you will have access to a job that pays a living wage. 5 The web of relationships which results from the desire to respond to the (anonymous) other in the community of obligation also leads to the demand that residents protest against injustice. The rabbinic version of the saying, “Injustice anywhere is injustice everywhere,” is the more activist demand that “[a]ll who can protest against [something wrong that] one of their family [is doing] and does not protest, is accountable together with their family. [All who can protest against something wrong that] a citizen of their city [is doing and does not protest], is accountable together with all citizens of the city. [All who can protest against something wrong that is being done] in the whole world, is accountable together with all citizens of the world.” This demand is that, in a community of obligation, the demands of righting that which is wrong is not predicated on an ethics of intimacy but stems, rather, from the absolute responsibility of each person for justice in the world. In the second half of the book, I will explore the way in which these larger principles play out in the context of the more concrete issues of homelessness, labor relations, and restorative justice. Notes 1 I do not directly address the issue of residents of a polis who are not citizens. Undocumented residents, however, at this moment in the United States, are the most present example of the strangers we refuse to hear. For now, see Avishai Margalit, The Decent Society, trans. Naomi Goldblum (Harvard University Press, 1998) chapter 9, and especially “Since a decent society involves respect for humans, and humiliating any human being is wrong, no distinction should be made in this regard between members of the society and people in its orbit who are not members” (p. 150). While Margalit’s notion of a “decent society” is not the same as the community of obligation, Margalit himself limns the concept of a decent as a necessary prerequisite to a just society (p. ix). 2 On homelessness, see my discussion in chapter 1 of the second part of the book. On mixed income or inclusionary zoning, see, for example, Urban Land Institute, Mixed Income Housing Advisory Group: Workforce Housing Options in Los Angeles Considerations for the City of Los Angeles (Draft) December 2008, http://www. 89 Chapter 4: A Summar y of the A rg ument So Far uli-la.org/files/Workforce-Housing-Options-for-Los-Angeles-Draft.pdf (accessed August 23, 2010). 3 Going beyond this, my colleague Ariella Radwin suggests the practice of having water on hot days to distribute to panhandlers at street corners. Radwin attributes this practice to Tobin Belzer, another colleague (personal communication). Cf. Jim Wallis’s statement at a Brookings Institution panel: “Budgets are moral documents. They reveal the priorities, the values of a family, a church, a synagogue, a city, a state, or a nation. What is important? What is not? Who is important? Who is not? This is a moral conversation, also a very practical one.” “Restoring America’s Promise of Opportunity, Prosperity and Growth” (2006), p. 20. 5 See “Feeding Our Communities: A Call for Standards for Food Access and Job Quality in Los Angeles’s Grocery Industry” (Los Angeles: Blue Ribbon Commission on LA’s Grocery Industry and Community Health, 2008). Chapter 5 Homelessness “There are among them many worthless creatures, no doubt who would sooner beg than work, but the greater part of them are evidently legitimate objects of charity, and their necessities should be attended to. The Police should have strict orders given them to arrest and send to the station-houses, every person, man woman or child who may be found begging in the streets. . . . Every citizen has to contribute too largely to the support of the poor, both by public and private taxes, to be subjected to the incessant annoyances of these mendicants who swarm in all our streets, and haunt our dwelling-houses and places of business.” New York Times (November 26, 1857), p. 4. “Weary of shelters, the couple pitched a pup tent in Roger Williams Park, close to a plaque bearing words Williams [the founder of Rhode Island] had used to describe this place he founded: “A Shelter for Persons in Distress.” But someone complained, so Mr. Freitas set off again in search of shelter. The March winds blew.” “Living in Tents, and by the Rules, Under a Bridge,” Dan Barry, New York Times (July 31, 2009). At the most intense moment of the Jewish liturgical year— Yom Kippur/the fast of the Day of Atonement—the tradition dictates that the portion that we read from the prophets, the haftarah, is one that challenges the very practice embodied in that holy fast day. The reader chants the words of Isaiah, as Isaiah channels the fury of God: “Is this the kind of fast I have chosen, only a day for a man to humble himself? . . . Is it not to share your food with the hungry and to provide the poor wanderer with shelter . . . !” Contrary to some popular misconceptions, Isaiah is not dismissing ritual as so much folderol. At the end of that same chapter, he says, “If you refrain from trampling the Sabbath, from pursuing your affairs on My holy day; If you call the Sabbath 92 Prerequisite s for Piet y ‘delight,’ The LORD’s holy day ‘honored’; And if you honor it and go not your ways nor look to your affairs, nor strike bargains— Then you can seek the favor of the LORD. I will set you astride the heights of the earth, And let you enjoy the heritage of your father Jacob. . . .” Rather, feeding the hungry and providing shelter for the homeless (together with clothing the naked) are established as the prerequisites of righteousness. It is impossible, Isaiah says, for an individual to make a claim on piety without first having passed this threshold. What, however, is the threshold? In this chapter, we will analyze the development of an obligation toward the homeless from a personal to a communal obligation. Prerequisites for Piety I want to focus on one phrase of Isaiah’s speech which I mentioned at the beginning of this chapter: “and to provide the poor wanderer with shelter. . . .” Where is this sentiment translated into the language of obligation, commitment, or public policy? In examining the texts from the third-century Mishnah, the sixthcentury Babylonian Talmud, and the twelfth- and thirteenthcentury commentary tradition on the Talmud, we will see that there is an interesting developmental arc. The obligation to house the homeless moves from an individual right to a communal obligation. In the first instance, the obligation to provide housing—or the right to housing—impacts only an individual property owner’s rights in his or her property. By the thirteenth century, this is a communal obligation and an undisputed component of the basic needs of the poor. We start with Mishnah Baba Metzia, chapter 8, Mishnah 6. [Concerning the case of] one who lets a house to his fellow for the rainy season. He cannot remove [the lessee] from Sukkot until Pesach. [If one lets his house] for the summer season. [He cannot remove the lessee before the end of] thirty days. And [if this happens] in a large city 93 Chapter 5: Homelessness Whether it is the rainy season or the summer season [He cannot remove the lessee before the end of] twelve months. The case described in the Mishnah is one in which a house is rented for the winter, the rainy season. This is usually marked, in the Land of Israel, on one side by the holiday of Sukkot, which falls sometime in September or October, and on the other side by the holiday of Pesach (or Passover), sometime in April. If the stipulation of the rental agreement was that the term of the lease would be “the rainy season,” the owner could not evict the tenant prior to Pesach. On the other hand, if the term of the lease was for the summer season, which stretches from Pesach around to Sukkot (April to September), the owner can evict the tenant after thirty days. One further caveat is introduced by the Mishnah. If the rental property was in a city, where there was high demand for housing (think Manhattan), the lessee cannot be evicted prior to twelve months after the agreement. The Mishnah does not supply the reasons for the various laws here, though they are rather suggestive. At issue, on the one hand, is the ability of a person to make use of their property as he or she sees fit. On the other hand, there is a need to protect the interests of the renter. This is all the more poignant in the rainy season or in a city where it is more difficult to find an alternative residence. The Mishnah faces the competing demands of the renter and the owner. The renter’s claim is that there was an agreement to rent the property for a certain period of time, and the owner had signed off on the agreement. Additionally, the Mishnah seems to take into account the larger reality of pain and suffering that would be endured by the renter if they were forced to abandon their shelter during the rainy season. This would not be the case during the summer season, wherein living without shelter would not be as onerous. The Mishnah is also taking into account the fact that a city offers fewer alternatives to the displaced renter. The bottom line is that the Mishnah recognizes that the owner’s right to dispose of his or her property is circumscribed to some extent by the right of the renter to have shelter, especially in the rainy season. This does not mean that the owner loses all ability to dispose of their property. In 94 Chapter 5: Homelessness season, if the owner gives thirty days notice. According to R. Asi, the notice must be given thirty days prior to the rainy season. All this leaves us with a very circumscribed right of tenancy. The law seems to be equally balanced in its concern for property rights and tenants’ rights. Moreover, there is no mention of any obligation on the court or the community to provide the evicted tenant with alternative housing. Moving Toward a Communal Obligation As we saw above, when played out in the realm of tenantlandlord relations, the Talmud’s interpretation of the Mishnah does not support a robust right to shelter at the expense of an individual’s property rights. There is support for a moderate right to shelter, and a restriction on the landlord’s ability to evict in certain situations. None of this yet adds up to a communal obligation to provide shelter for the homeless. There is another tension between values which an obligation or right to housing presents. In contemporary terms, this is called “means testing.” If a person shows up at a soup kitchen, do we investigate that person’s actual level of resources before giving the person food? If we know, for example, that a person has a house, do we force the person to sell the house before we allow the person to benefit from the community’s coffers? A Mishnah in Tractate Peah addresses this issue. One of the questions that chapter 8 of Tractate Peah addresses is, “How much money can a person have and still be eligible for community assistance?” After deciding on a certain amount of money which would be the rabbinic equivalent of the poverty level, the Mishnah writes the following: [If a person is poor and needy] we do not obligate him to sell his house and his utensils [in order that he be eligible to receive money from the community]. The Mishnah is distinguishing between two different areas of need. On the one hand, a person has a need for housing. This is beyond mere shelter, as the Mishnah includes utensils in its list of assets 96 Mov ing Toward a Communal Obligation that a person could own and still be eligible for public assistance. Although this Mishnah is not yet articulating a communal obligation to afford housing, the Mishnah is recognizing that the communal obligation to support the indigent is not impacted by owning a house and the utensils necessary to cook and so on. There is an implied recognition that a person needs both a house and the ability to support themselves in terms of food, clothing, etc. The two are not exclusive. Before we move on to the Talmud’s discussion of the communal social net, I want to look at how Maimonides in his great twelfthcentury code Mishneh Torah codifies these laws. The interesting thing about Maimonides’s codification is that he adds a moralistic voice to the law. He decides the law and then advocates for it. In Mishneh Torah Laws of Hiring 6:7, Maimonides writes the following: He who lets a house to another for an unspecified term may not dispossess the lessee from the house unless he notifies him 30 days in advance, so as to enable him to find prevent his being thrown into the street. a place and The 30 day period is applicable only during the warm season. In the rainy season, from the Feast of Succoth to the Feast of Passover, the lessor may not dispossess the lessee (emphasis added). Maimonides’s understanding of the law combines bits of our reading of the Mishnah and some of the way that the Talmud reads the Mishnah. Maimonides agrees with R. Yehudah that the thirtyday period is for notification. On the other hand, Maimonides only allows the thirty-day period in the summer months, while in the rainy season, “the lessor may not dispossess the lessee.” Maimonides claims a much more robust protection of the renter. Further, Maimonides explains his reasoning with a somewhat unusual pathos: “so as to enable him to find a place and prevent his being thrown into the street.” It is notable that this reasoning is not found in the Talmud. Maimonides on his own makes a strong claim on the property rights of the landlord. The rights of the landlord can be circumscribed to prevent the renter being thrown into the 97 Chapter 5: Homelessness street. This begins to sound like a right to housing or a communal obligation to provide housing. Similarly, when codifying the law that one can qualify for communal assistance even if one owns a house and utensils, Maimonides adds pathos and a certain robustness to the communal obligation. In Mishneh Torah Laws of Support to the Poor chapter 9:14, Maimonides writes, A poor person in need of support who has a domicile and household utensils, even if they are silver and gold, we do not obligate him to sell his house and his utensils, but rather, he is eligible to collect, and it is an obligation [mitzvah] to support him (emphasis added). The great jurist adds two significant items here. First, he qualifies the household utensils: “even if they are silver and gold” we still don’t obligate him to sell them in order to receive support from the community. This is something that is not mentioned in the Babylonian Talmud’s discussion of the Mishnah. Maimonides’s 1 decision enshrines the idea that not only is a person entitled to a house, a person is entitled to a home. These utensils which make up the person’s space are not accounted for or assessed against the person’s eligibility to draw from the communal welfare fund. Then, Maimonides reinforces this first move by saying that it is a mitzvah or an obligation to support him. Maimonides is stating unequivocally that this support is not beyond the letter of the law, but is the law itself. The community is obligated to support this person who is poor and needy despite the fact that the person owns a home. We are moving toward a recognition of housing as part of a community’s obligations to its residents. The Obligations of Citizenship In chapter 1, we discussed part of the third-century CE Mishnah Baba Bathra 1:5, focusing on the question of tenants in common building a gatehouse. That Mishnah continues with 98 The Obligations of Citi zenship a discussion of the residents of a town having to contribute toward the town’s infrastructure. They may coerce one to [participate in the] building of a wall, a double door and bolt for the city. Rabban Shimon ben Gamliel says, Not all cities need a wall. The debate between the anonymous voice of the first line, and the dissenting voice of Rabban Shimon ben Gamliel, is about public policy. Is a wall, a double door, and a bolt necessary for all cities or only cities that have special circumstances, perhaps border cities or cities plagued by highway bandits? Rabban Shimon ben Gamliel’s argument seemingly would be that a resident of a city cannot be forced to contribute to a merely decorative wall which would serve no purpose. If the town council decided that it was unbecoming for our town not to have a wall, that would not necessarily be enough of a warrant to justify forcing residents to contribute to the building of the wall. The Mishnah then continues with a short discussion of what constitutes residency in a town. How long must one be in the city and be [considered] as a resident? Twelve months. If one bought a lodging, behold one is [considered] as a resident immediately. This Mishnah then articulates a basic claim about what a city is. A city is a community of obligation. Residency in a city is determined by the point at which people assume the obligations of the city. This Mishnah states that the requirement for residency is twelve months. At the end of that time, one is obligated to contribute to the security fund or the infrastructure fund. To translate this into a contemporary idiom: after twelve months, one is taxed as a resident to help fulfill the obligations of residency. This conception of residency runs counter to a contemporary American conception wherein the privileges of citizenship are conferred after a certain amount of time. The Mishnah’s conception of residency differs. The resident is one who joins a community 99 Chapter 5: Homelessness to the poor once it is collected, and therefore, the community can only direct it to fulfilling the needs of the poor. Here for the first time is an explicit statement that housing is a need of the poor which the community is obligated to provide. It is one of the legitimate uses that can be made of the money collected for the poor. Significantly, once housing is added to the list of “needs of the poor,” there is no one who objects to this. No one claims that the community need not provide shelter. This, I think, is important. It points to the fact that there was an implied obligation to provide housing for the poor, and an implied acknowledgment that housing was a necessity. We saw this in one form or another in the discussions of eviction and eligibility to collect money from the community fund. I want to suggest then, that once someone articulated housing as a need of the poor, it caused a certain jolt of recognition, an “Aha!” moment, a moment of saying, “Of course.” This goes back, to my mind, to Isaiah “to provide the poor wanderer with shelter.” This idea was part of the general conceptual and moral world of the rabbis, even though it was not articulated explicitly, and perhaps only lived underground. However, when it was finally articulated, there was a general acceptance of the notion. We see then, the development of the need of housing for the homeless from out of Isaiah’s nascent plea, to a factor in landlordtenant relationships, to a consideration in deciding on one’s status as poor or needy, to an obligation on the community. The Implications of Homelessness 8 Homelessness is an issue that raises deep emotions. Homelessness strikes at the heart of what our conception of our cities is, and even what our own home is. The language that is and has been used to describe both the phenomenon of homelessness and homeless people themselves lays bare the conflicted feelings that people have around the issue. On the one hand, most people have feelings of sympathy toward those who are destitute—and none are so destitute as those that cannot even manage to put a roof over their or their children’s heads. On the other hand, the homeless impinge on my sense of myself. They are not someplace else, 102 The Implications of Homele ssne ss although they don’t belong anywhere. There are many mechanisms with which we negotiate this tension. We talk about the “deserving poor” as opposed to frauds or fakes or scam artists who, it is claimed, actually live fine lives on the basis of the donations that they extort from us through emotional appeal. We all would like to help the deserving poor, but not give money to the undeserving poor, the homeless people who would go and spend the money on alcohol or drugs. We talk about vagrancy and slothfulness. The fact that homeless people live, literally, nowhere, challenges and perhaps threatens the efforts I put into living somewhere. Why should I have to be faced with a “bum” (to recall an anachronism from my youth) who needs a shower on my way home from a hard day at the office? What right does some stranger have to inflict his suffering (which is not my fault) on me? I pay taxes. Somebody should take care of this. There is a deep need to distance myself from homeless people since, especially in the urban areas that I have been discussing, being homeless is the nightmare of all of us in homes. Being reminded that the distance between “homed” and “homeless” can be rather short is a frightening prospect. At the same time, and for this very reason, the homeless person whom I encounter on the street is the paradigmatic Other, the Stranger to whom I must respond. It is in the face of the homeless stranger that I can encounter the depth of need and suffering which should only brook one answer: hineni, “here I am.” It is the homeless stranger whose face points me also beyond herself to all the Strangers who are in need, who should join this conversation about justice as equals—as residents of this city and community with a voice, a commanding voice that I must hear and respond to. Homelessness strikes at the heart of the community of obligation. Being part of a community involves being somewhere. Being homeless is literally being nowhere. Having no address, having no home, brings in its wake having no community. If people come to populate cities in order to, in some way, pool resources for added security and shelter, homeless people are not city dwellers. For them, the city is another wilderness—a wilderness which threatens to overtake the rest of the city ethically. 103 Chapter 5: Homelessness The web of relations that is the community is threatened by the Other who is not actually threatening; the Other who is unseen and unheard and therefore not part of the conversation. For the relationships of response—seeing the face of the Other and recognizing in it the need that must be responded to—that comprise the community of obligation; for those relationships to work, to effectively be just, I must be able to engage the Other face-to-face. In our large, anonymous megalopolises I must at least be able to see in the face of another person the need that points beyond this specific relationship toward the many other Strangers—persons in need, hungry persons, suffering, poor people—beyond my response to just this one person. All the Others, the Strangers, must be able to enter this relationship—as equals—in order to create a just city. While I don’t have an absolute obligation for all the poor and suffering people, I do have a proportional obligation to respond. 9 My proportional obligation is mediated by the polis, the institutions of the city which are, or should be, the institutions of justice. This is how the community of obligation should look. However, homelessness is a material affliction which carries with it a greater danger—the danger of disappearance. If the city does not have enough places to house the homeless and yet criminalizes vagrancy, sleeping on the sidewalk, even distributing food on the street—the homeless then are defined not as Other but as non-Other, that is, as nonexistent. To criminalize homelessness is to refuse to see the people in our cities who are nowhere. In criminalizing homelessness, we are refusing to look into the face of people who would and should command a just response from us. If, however, instead of responding, I define them into nonexistence before the law, I have obviated the possibility of response. Changing the Conversation There has been a growing international movement beginning with the Universal Declaration of Human Rights in 1948 to recognize the right to housing as a basic human right. This right has been reaffirmed since then in many subsequent conferences and covenants. 10 104 Chang ing the Conversation The issue has not however been settled. The United States, among others, has not recognized the right to housing. Moreover, the housing crisis in the United States has gone from bad to worse in many areas. In Los Angeles, the city in which I live, there are more homeless people (over sixty thousand according to the 2007 LAHSA study) than the total populations of many cities. Over the course of a year, more than a hundred thousand people are homeless in Los Angeles, according to the same study. 11 According to a very recent study, The housing and homelessness situation in the United States has worsened over the past two years, particularly due to the current economic and foreclosure crises. ... The Sarasota, Florida, Herald Tribune noted that, by some estimates, more than 311,000 tenants nationwide have been evicted from homes this year after lenders took over the properties. ... In Denver, nearly 30% of the homeless population is newly homeless. ... The State of Massachusetts reports that the number of families living in shelters has risen by 33% in the past year. In Atlanta, Georgia, the Metro Atlanta Task Force for the Homeless reports that 30% of all people coming into the Day Services Center daily are newly homeless. In Concord, New Hampshire, the food pantry at First Congregational Church serves about 4,000 meals to over 800 people each month, around double the rate from 2007. Of the 25 cities surveyed by the US Conference of Mayors for its annual Hunger and Homelessness Report, 19 reported an increase in homelessness in 2008. On average, cities reported a 12 percent increase. 12 This report documents the disturbing fact that many of our large metropolitan areas are spending much more money on criminalizing the homeless than on services for the homeless. 13 Recognizing that providing housing to the homeless is a communal obligation, an obligation that the polis needs to fulfill, rather than a right that the individual must demand, changes the conversation about the issue. As part of the larger picture of the city as a community of obligation, this further articulation of the web of responsibilities and commitments that residents have to each other, mediated and facilitated by governmental institutions, the 105 Chapter 5: Homelessness obligation to provide housing moves the burden of proof from those who have no shelter to those who must provide it. The language of communal obligation allows us to think about how we as a city are or are not fulfilling our obligations to the residents of our city—to those among us with whom we are in a web of often anonymous relationships and toward whom we must respond. From R ant to Action In chapter 1 of the Book of Isaiah, we find the following: 17 Learn to do good. Devote yourselves to justice; Aid the wronged. Uphold the rights of the orphan; Defend the cause of the widow. [. . .] 20 But if you refuse and disobey, You will be devoured by the sword. —For it was the LORD who spoke. 21 Alas, she has become a harlot, The faithful city That was filled with justice, Where righteousness dwelt—But now murderers. In the first recorded speech in the biblical book which bears his name, Isaiah takes Israel to task for bringing sacrifices while ignoring the plight of the poor and the widow. In verse 17, Isaiah, channeling God, offers an olive branch as it were. If you, the Israelites, do justice, I, God, will erase your sins and you will prosper. If however you “refuse and disobey,” things will not go so well. “You will be devoured by the sword.” Verse 21 is the beginning of a coda in which Isaiah catalogues the current ills of Israel. The people who were great and good are no longer either great or good. Is there any practical impact to these verses for the contemporary Jewish community? When Isaiah says “Learn to do good” or “Devote yourselves to justice,” how does one cash this out? What do I have to do today? In order for this to mean anything real in our lives, we have to answer the questions: Where? When? How much? To whom? These are the questions of the jurist. The jurist par excellence, Maimonides, quotes this chapter in a very interesting and practical way. 106 Walking the Talk On fast days [Jews] distribute food to the poor. Any fast day on which the people ate and rested and did not distribute charity to the poor, behold they are akin to murderers. About them it is stated in the tradition “Righteousness would rest there, but now only murderers” (Maimonides, Mishneh Torah, Laws of Support to the Poor, 9:4). Maimonides reads Isaiah’s hyperbolic oratory: “righteousness would rest there, but now only murderers,” and asks “what exactly do you mean by that?” His answer (based in part on the Babylonian Talmud Sanhedrin 32a) is that when you perform righteousness in the form of fasting, yet you ignore the real existential needs of the poor, you are not righteous—you are akin to murderers. There14 according to Maimonides, what Isaiah means specifically is that on fast days, money must be distributed to the poor. The exhortation is then assimilated into the legal system and deployed in a very specific way. Walking the Talk I want to suggest that there are two levels on which one should act—the personal and the political. The personal level is the obligation to treat homeless people we come across as members of our community. Giving a panhandler a dollar or lunch is not going to fix the political problem; why is there homelessness in this affluent society? However, giving a homeless person a dollar while stopping to talk to him is an act that begins to erase the boundaries between the housed and the homeless. The simple act of giving money, a bottle of water, or a sandwich to a homeless person, and stopping for a minute to chat, affects the giver as much as the recipient. Contact has been made across the barrier that is supposed to divide between us and them. Face-to-face, I can now see and hear the need and the vulnerability of those who sleep on the streets of my city. The second level is political action. In different cities, the tactics may be different. However, the goal must be to have enough affordable housing stock so that nobody has to live on the street. The goal is to have enough affordable housing stock and the support in place for people to be able to transition to homes, so that people 107 Chapter 5: Homelessness can live with their human dignity intact. I am not arguing for a shelter bed. I am arguing that if we are to ever be able to call our cities places where righteousness dwells, we must work toward the possibility of housing for everybody. There are many different ways to get from here to there: inclusionary zoning, low-income housing, housing vouchers. Different solutions will fit different cities. Many smart people are working on specific solutions. The goal of those solutions needs to be kept in mind. We cannot consider ourselves a righteous city when thousands of people live on the streets. Notes 1 Moreover, the Palestinian Talmud, which does mention the quality of the utensils, goes in the opposite direction. The Palestinian Talmud writes that if a person is using gold utensils, we force him to sell them and use silver utensils, if silver then stone, etc. In this light, Maimonides’s statement is even stronger. 2 Quoted further on in the discussion in Baba Bathra (9a). 3 This is Rashi’s gloss on the technical definition which the Mishnah supplies which is “a loaf that costs a pundiyon when the monetary exchange rate is four seah to a sela.” 4 Danby retains the ambiguity of the Hebrew by translating “what is needful to support him for the night.” 5 Baba Bathra 8b. 6 On the dispute here between ibn Megash and Maimonides, see Mark R. Cohen, Poverty and Charity in the Jewish Community of Medieval Egypt, 219. 7 Rabbi Meir Halevi Abulafia, Sefer Yad Ramah to Baba Bathra 17b sec. 90. 8 The thinking in this section is dependent on Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority, trans by Alphonso Lingis (Pittsburgh, PA: Duquesne University Press, 1969) 212–214; Annabelle Herzog, “Is Liberalism All We Need? Lévinas’s Politics of Surplus, Political Theory vol. 30 no. 2, April 2002, 204–227; and Kathleen R. Arnold, Homelessness, Citizenship, and Identity: The Uncanniness of Late Modernity. 9 Agreeing with Kwame Anthony Appiah’s argument in his book Cosmopolitanism: Ethics in a World of Strangers (W. W. Norton, 2006). 10 Convention for the Elimination of all forms of Racial Discrimination (1969); International Bill of Rights, International Covenant of Economic, Social and Cultural Rights (1976); International Covenant of Civil and Political Rights (1976); Habitat II (1996). 108 Note s 11 2007 Greater Los Angeles Homeless Count: Sponsored by Los Angeles Homeless Services Authority, pp. 17–18. 12 Homes Not Handcuffs: The Criminalization of Homelessness in U.S. Cities:. A Report by the National Law Center on Homelessness & Poverty and the National Coalition for the Homeless, July 2009, pp. 17–18. 13 This refers to cities that “do not provide enough affordable housing, shelter space, and food to meet the need,” yet they “use the criminal justice system to punish people living on the street for doing things that they need to do to survive.” They do this by enacting measures to “prohibit activities such as sleeping/camping, eating, sitting, and/or begging in public spaces and include criminal penalties for violation of these laws. Some cities have even enacted food-sharing restrictions that punish groups and individuals for serving homeless people” (Homes Not Handcuffs, p. 14). Los Angeles was ranked number 1, as the “meanest city” in the nation (Homes Not Handcuffs, p. 33). 14 This is especially so if there was a regular distribution of food on which the poor depended. If that distribution was disrupted by the fast day, the poor would go hungry. Cf. Babylonian Talmud Tractate Sanhedrin 35a and the commentaries of Rashi and Rabbi Menahem HaMeiri. Chapter 6 Labor Labor is at the heart of the web of relations which makes up the community of obligation. Whether one is an employer or an employee or whether one benefits from someone else’s labor as a consumer, labor is a central connective tissue of the urban spaces in which we live. Oftentimes the only connection between different parts of Los Angeles—the megalopolis which I call home—is the fact that the person who cleans one’s home or takes care of one’s children comes from the other side of town. Or conversely, that one leaves one’s own children in the care of a relative in order to traverse the economic and geographic divide between east and west and care for someone else’s children. What is labor in Rabbinic Judaism? How are we to think about work and workers? What are the obligations of employers and employees to each other? My Ser vants and Not Ser vants of Ser vants One of the bright lines when thinking about labor is the line between slave labor and wage labor. What are the larger implications of this difference? Rav, a sage who lived in Babylonia in the fourth century and was one of the founders of the Babylonian Rabbinic Academies, said the following: A worker may back out of [his work commitment] even in the middle of the [work] day, . . . for it is written [in Scripture] “For unto Me the children of Israel are servants; they are My servants” and not servants of servants (Babylonian Talmud Baba Metzia 10a). 110 Follow the Way of the Good Rav is pushing hard on a verse in Leviticus in order to arrive at his interpretation or midrash. The verse in full reads as follows: For it is to Me that the Israelites are servants: they are My servants, whom I freed from the land of Egypt, I the LORD your God (Lev. 25:55). The verse is the tagline, as it were, to a set of laws referring to an Israelite who falls on bad times and is forced to sell himself into slavery to a non-Israelite. The laws clarify the mechanisms by which that Israelite can be redeemed from slavery. The set of laws (Lev. 25:47–54) ends with our verse. Rav reads our verse very closely, as a verse unto itself. He presses on the statement, “It is to Me that the Israelites are servants.” The continuation of the verse already narrates that God freed the Israelites from slavery in Egypt. What might the purpose of this first half of the verse be? Rav says that the implication of the verse is the Israelites are only servants to God—and not servants to other people, who are also servants of God. This is a rather radical statement. Following the logic of this statement, slavery would be abolished in total. We know, unfortunately, that this wasn’t the case. However, the implication for workers is similarly radical. Rav’s interpretive logic leads him to say that the end result of this statement is that workers cannot be bound to a labor contract against their will—and that, even in the middle of a work day, they may walk off the job. Follow the Way of the Good What then is signified by the labor contract? What is being bought by wages? What is being paid for? There is an interesting story later on in Tractate Baba Metzia of the Babylonian Talmud which highlights these issues: There were porters who broke a barrel of wine belonging to Rabbah bar bar Hana, [while in his service]. And he took their garments [for the damage caused]; and they came and complained before Rav. He said to [Rabbah bar bar Hana]: “Return their garments!” The latter questioned him: Is this the law? 111 Chapter 6: L abor He answered: Yes, [as it is written]: “So follow the way of the good” (Prov. 2:20). [Rabbah bar bar Hana] returned their garments. [The porters] said: “We are poor, we were working the whole day, we are hungry and have nothing [to eat].” [Rav] said to [Rabbah]: “Pay them their wages.” [Rabbah] asked [again]: “Is this the law?” He answered: “Yes; as it is written: ‘And keep to the paths of the just’” (Prov. 2:20). This story describes a situation of a good relationship gone bad. Initially, Rabbah bar bar Hana hired men to carry a barrel of wine from one place to another. We might assume that he was going to pay them an appropriate wage since he is an upstanding sage and knows the law. Something untoward happens and the barrel breaks. We can assume that this was not the result of negligence since that eventuality is covered by the law, and in that case, the workers would be liable. So an accident happens and the wine barrel is broken and the wine is lost. Rabbah is miffed. Not only is his wine not where he wanted it to be, his wine is lost. He demands payment from the workers. As a surety—or perhaps as a down payment—he seizes the coats off their backs. Rav, the head of one of the two main Babylonian academies and one of the pair of sages credited with founding the rabbinic movement in Babylonia, acting as a judge, orders Rabbah bar bar Hana to return the garments and to pay the hungry and impoverished workers their wages. At each order, Rabbah demands to know if Rav is handing down a legal decision—whether he is acting in his capacity as a judge or speaking in another capacity— as a moral leader. The implication seems to be that if this is the law, Rabbah will follow it. However, if it is merely a suggestion of supererogatory behavior, Rabbah would not feel the same level of obligation to follow the ruling. Rav’s reply is itself fascinating. He claims that his decision is the law. However, the prooftext that he cites to ground his decision is not a legal text per se. He cites a verse from Proverbs which is arguing for a practice of righteousness—not a verse which anchors any specific legal action. 112 Chapter 6: L abor for it. It is the complicated nature of this relationship which must be worked out. Indeed, some of these complications are worked out in Mishnah Baba Metzia (chapter 6 in the Mishnah), and subsequently in the Babylonian Talmud’s discussion of these texts. “Do Not W ithhold Good from Those to W hom It Is Due” The labor relationship, the relationship between worker and employer, is a complicated one to conceptualize within the community of obligation. On the one hand, the relationship between employer and worker should be similar to any other relationship with another person in the city. This means that it is a relationship which is based on obligation. Coming face-to-face with any other person, I am struck by their need and respond to that need. The relationship that is thus created is asymmetrical. It is a relationship in which there is no expectation of mutuality, a relationship in which my response to you is not in any way predicated on your subsequently responding to me. On the other hand, the labor relationship is one in which the employer pays for work or work time. The relationship of employment, almost by definition, is not one of responding to the needs of the other person but using the other person—the worker— to fulfill a task. At the same time, the relationship of the worker to the employer is also utilitarian—labor in exchange for compensation. Within the rabbinic community of obligation, work itself is not a problem. Work is often spoken of in laudatory terms. According to some sages, there is a commandment to work six days a week just as there is a commandment to rest on the seventh. There are 1 statements attributed to various Talmudic sages which praise all work as honoring the one who does it. Work itself is not a problem. 2 3 As stated above, the problem is the relationship between the worker and her employer. In order to understand this relationship better and how the demands for economic justice fit into the larger context of the community of obligation, it would be helpful to explore the way in which labor is contextualized in rabbinic literature. What is the conceptual world within which the labor 114 “Do Not Wi thhold Good f rom Those to W hom It Is Due” relationship is embedded? To this end, we look at a Mishnah and the commentary of the Palestinian and Babylonian Talmuds at the beginning of the sixth chapter of Baba Metzia. Mishnah Baba Metzia 6:1 states the following: One who hires workers, and they defraud one another, their only recourse is indignation. This statement leaves two glaring questions. The first is, “What does it mean that they “defrauded one another?” What was the fraud? The second question is of course what is the practical ramification of “indignation”? One might correctly translate the Hebrew word tar‘omet more strongly: anger, rage, shouting. However, this still leaves open the question of what, if anything, does this accomplish legally for the aggrieved party? The first question is addressed by both Talmuds. The Palestinian Talmud understands that an employer could defraud 4 the workers by lying to them about what the prevailing wages are. According to the Talmud, a potential employer offers work to job seekers. They ask the employer: “How much do workers normally get paid?” The employer says, “Most get $5 an hour.” In actuality, most get $10 an hour. However, since the workers agree to work for $5 an hour, there is no effective remedy, and they are only left with indignation/tar’omet. The workers could defraud the employer in a similar manner. The employer asks what most people earn. The workers say $10 an hour, although in actuality, most people earn $5 an hour. The employer agrees to the $10 an hour and when he discovers that he has been intentionally misinformed, his only recourse (since he has actually agreed to the terms) is indignation/tar’omet. A striking aspect of this is that “indignation” is seen as, in some way, a legal remedy. That is, it is the answer of the court. The court essentially says, “I have no justification to compensate you monetarily. However, I support your claim of having been wronged and affirm the legitimacy of your outrage.” I would suggest that this is a coherent ruling only in a context which recognizes that righteousness is important. Another way to think of this is that in a two-tiered system in which the full measure of justice is not 115
 
 
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