Rabbi Elli Tikvah Sarah
25 February 2017
There has been a lot in the news recently about law. As soon as he got into office, President Trump started signing a series of ‘executive orders’ to put his campaign promises into practice. The executive order that has hit the headlines concerns the banning of any immigration from seven predominantly Muslim countries.1 More of that in a moment. But first, what is a presidential executive order? A website providing information from the US government explains that: ‘A presidential executive order is a directive issued to federal agencies, department heads, or other federal employees by the President of the United States… Thirty days after being published in the Federal register, executive orders take effect. While they do bypass the U.S. Congress and the standard legislative law-making process, no part of an executive order may direct agencies to conduct illegal or unconstitutional activities.’2 ‘President George Washington issued the first executive order in 1789. Since then, all U.S. presidents have issued executive orders…’ Apparently, President Franklin D Roosevelt signed 3522.3
So, a presidential executive order cannot contravene the American constitution. The particular executive order in question, while banning the entry for 90 days of people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, also blocked the entry of all refugees to the United States for 120 days, and barred Syrian refugees indefinitely. In a disturbing irony lost on President Trump, he issued this particular executive order on Friday, 27 January – the anniversary of the liberation of Auschwitz by the Red Army in 1945, and designated as National Holocaust Memorial Day in Britain. The next day, the New York Times reported – and I quote: ‘A federal judge in Brooklyn came to the aid of scores of refugees and others who were trapped at airports across the United States on Saturday after an executive order signed by President Trump, which sought to keep many foreigners from entering the country, led to chaotic scenes across the globe. The judge’s ruling blocked part of the president’s actions, preventing the government from deporting some arrivals who found themselves ensnared by the presidential order. But it stopped short of letting them into the country or issuing a broader ruling on the constitutionality of Mr. Trump’s actions…’4
The legal challenges have continued. That very same day the American Civil Liberties Union, quoting the Supreme Court, argued that Trump’s executive order, ‘violates “the clearest command of the Establishment clause” [of the American constitution]’, which states that ‘one religious denomination cannot be officially preferred over another’.5 For nearly 100 years, the American Civil Liberties Union has been, as its website puts it, ‘our nation’s guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the constitution and the laws of the United States guarantee everyone in this country.’6 By identifying President Trump’s executive order banning immigration from predominantly Muslim countries as unconstitutional, the ACLU is demonstrating that its concern for human rights extends beyond the rights of US citizens. Indeed, since the executive order was issued, the ACLU has been taking up the cases of individual plaintiffs, who have been detained by the US government and threatened with deportation even though they have valid visas to enter the United States, arguing that – and I quote: ‘Their continued detention based only on the executive order violates their fifth Amendment procedural and substantive due process rights as well as US immigration statutes.’7
Isn’t the law marvelous – that is, as long as the legal system in question protects human rights. Hopefully, Trump’s excesses will be curtailed by the American constitution. Meanwhile, here in Britain, the triggering of article 50, and with it, the two-year process of disengagement from the European Union, threatens to involve abandoning a swathe of EU laws related to employment rights. These laws include: paid holidays, equal treatment for part-time workers, rights for new mothers, 18 weeks’ parental leave, equal pay for equal work, limits on how long an employee can be forced to work, employers’ responsibility to keep workers informed, health and safety, workers’ protection if the employer is bought out – and last but by no means least: protection from discrimination on the grounds of religion, sexuality, gender reassignment status, belief, and age. Prior to EU legislation, the UK only enacted laws for race and gender discrimination.8 Let’s hope that given the most practical approach to disengagement from the EU is likely to involve as a first step, incorporating EU law into UK law, there is a chance that a majority in the House of Commons will ensure that all employment rights are retained.
This week’s Torah portion, Mishpatim, which begins at Exodus chapter 21, is largely taken up with detailing mishpatim, ‘laws’; specifically, laws related to slavery, injury, property, and moral behaviour. It is telling that directly following the account of Divine Revelation at Mount Sinai described in last week’s parashah, Yitro, which includes Aseret Ha-Dibbrot, the ‘Ten Utterances’ better known as the ‘Ten Commandments’,9 the editors of the Torah inserted a code of law. Even more telling, this insertion turns out to be an interruption, with Mishpatim concluding by returning to the Sinai narrative. We learn that after relating all the words of the Eternal to the people, Moses read Seifer Ha-B’rit, the Book of the Covenant aloud, gaining their consent, before once again, climbing up the mountain.10
The word ‘revelation’ in a religious context refers to the mysterious phenomenon by which the Divine communicates to the human. And yet, in a Jewish context, mystery very quickly gives way to the material. It’s not just that it’s impossible to describe a mystery – the burning bush, that is not consumed by the flames11, the smoking mountain, shuddering with thunder and streaked by lightning.12 From a Jewish perspective, the Eternal One breaks into our lives for a very particular concrete purpose: in order to instruct us about how to live as a community and as a society. Apart from the compelling narrative that extends from two accounts of creation through the end of forty years of wilderness wandering, the Torah is packed full of laws that are by definition intended to compel our behaviour and structure and regulate our lives from birth to death, from day to day, week to week, month to month, year to year. Not surprisingly, the laws we find in Mishpatim and in the other legal codes of the Torah, reflect the ancient Near Eastern context in which they were formulated, with its patriarchal social mores – hence, Mishpatim opens by relating the laws concerning ownership of Hebrew slaves.13 On the other hand, the Torah’s legal codes also include laws specifically related to social justice and ethical conduct that transcend time and space. And so, for example, Mishpatim includes this series of rules14:
You shall not subvert the rights of your needy in their disputes. / Keep far from a false charge; do not bring death on those who are innocent and in the right, for I will not acquit the wrongdoer. / Do not take bribes, for bribes blind the clear-sighted and upset the pleas of those who are in the right. / You shall not oppress a stranger, for you know the inner-being – nefesh – of the stranger, having yourselves been strangers in the land of Egypt / Six years you shall sow your land and gather in its yield; but in the seventh you shall let it rest and lie fallow. Let the needy among your people eat of it, and what they leave let the wild beasts eat. You shall do the same with your vineyards and your olive groves. / Six days you shall do your work, but on the seventh you shall cease in order that your ox and your ass may rest, and your servant and stranger may be refreshed – v’yinafeish.
Progressive Judaism, a generic term for all the movements affiliated to the World Union of Progressive Judaism,15 including Liberal Judaism, has a questioning relationship to the edifice of Jewish law, halakhah, first devised by the rabbinic sages, who drew on the legislation found in the Torah to construct a framework for Jewish life after the destruction of the Temple by the Romans in 70 CE.16 For Progressive Judaism, the traditions we have inherited, ‘have a vote, but not a veto,’17 and individuals are empowered to make ‘informed choices’ about how to live their lives as Jews.18 Nevertheless, apart from maintaining a host of Jewish rites in a communal context – not least those associated with Shabbat and the festivals – Progressive Judaism also subscribes to the basic premise of Jewish teaching that what we do matters more than what we think and believe, and that it is our responsibility to engage with our inheritance to meet the needs of Jewish life today. As the Liberal Judaism website puts it19:
“Liberal Judaism affirms the dynamic, developing character of our Jewish religious tradition. Questing and questioning, Liberal Judaism is an authentic and modern form of Judaism, rooted in a deep and meaningful engagement with Jewish texts, values, culture and history. We are a movement with a sense of purpose, engaged in community life, study, spirituality and social action. We believe in personal freedom and responsibility and the shared and collective bonds that unite us as Jews and members of humanity.”
This Shabbat is designated as Shabbat Sh’kalim because in addition to the weekly portion, we also read a passage at the beginning of parashat Ki Tissa, Exodus chapter 3020, which describes the census taken of males aged 20 years and over, that is, those eligible for military service, which involved each man giving a half shekel for the upkeep of the sanctuary as an atonement offering. Given that there hasn’t been a sacred place in Jewish life for nearly 2000 years, this poll tax has no contemporary relevance. However, demonstrating what it means to have a ‘meaningful engagement with Jewish texts’, for several years now the Friends of Progressive Judaism, have reconfigured Shabbat Sh’kalim as an opportunity to fundraise in support of fledgling and developing progressive congregations, in particular, in Eastern Europe.21 Progressive Judaism, Liberal Judaism never stands still.
Mishpatim tells us that when Moses read read Seifer Ha-B’rit, the Book of the Covenant to the people, they responded: ‘na’aseh v’nishma (we will do and we will listen)22.’ From a progressive Jewish perspective, as we reflect on the teachings we have received in the context of our lives today, we might say ‘nishma v’na’aseh (we will listen and we will do)23.’ Nevertheless, action remains at the heart of our Liberal Jewish engagement at all levels – at home, in the synagogue, and in the wider society. Currently, the focus of much engagement across the Jewish community here in Britain centres on ensuring that British law, specifically immigration legislation, responds to the desperate need of those fleeing persecution and conflict in search of refuge. Just this past week, prompted by JCORE’s ‘let the children in’ campaign24, I posted letters to local MPs and the Leader of Brighton and Hove City Council, composed by a group of us here at BHPS, calling on them to urge the government to fully implement the Dubs amendment to the Immigration Act25, which committed the government to take around 3000 of the 90,000 loan child refugees in European countries. So far, just 350 children have been brought into the UK. Meanwhile, closer to home, our weekly collection of toiletries and non-perishable foods for local refugees supported by Brighton Voices in Exile continues to meet an urgent need.
No doubt, the reason why Jews have always been disproportionately involved in social justice campaigns is because within Jewish teaching ethical values are codified into law and so linked directly to practice – as demonstrated in the legal code we find in Mishpatim. May we feel inspired by that powerful recipe for action to do what we can to help to resolve the urgent human rights issues of our day. And let us say: Amen.
7 Counsel for the plaintiffs in one particular case, Darweesh vs. Trump, includes alongside the American Civil Liberties Union, the International Refugee Assistance Project at the Urban Justice Center, the National Immigration Law Center, Yale Law School’s Jerome N. Frank Legal Services Organization and the firm Kilpatrick Townsend & Stockton. https://www.aclu.org/cases/darweesh-v-trump
9 Exodus 20:1-14
10 Exodus 24:1-18
11 Exodus 3:2-3
12 Exodus 19:16-19
13 Exodus 21:1-11
14 Exodus 23:6-12
16 The first code of rabbinic law is the Mishnah, edited c. 200 CE.
18 ‘Informed choice’ has been the catch phrase of Liberal Judaism. See my Compelling Commitments: A New Approach to Living as a Liberal Jew (Liberal Judaism, London, 2007). Another version of this paper is published in my book, Trouble-Making Judaism, chapter 10, ‘Compelling Commitments and the Impulse for Engagement’ (David Paul Books, London, 2012).
20 Exodus 30:11-16
22 Exodus 24:7
23 See publications cited in note 15
25 For details of the ‘let the children in’ campaign, see: http://www.jcore.org.uk/let-the-children-in
Lord Alfred Dubs, who drafted the amendment to the Immigration Act came to Britain on the kindertransport, which brought 10,000 young, mostly Jewish, refugees to Britain from Germany and Czechoslovakia in the late 1930s.
Share this Post