Introduction
The issue of those who have
entered the country from Africa seeking economic benefits has been debated by
the politicians and media for a while now. I thought it would make sense to try
to clarify the Torah perspective on this.[1]
I already wrote in “Torah
versus international law” that it is perfectly reasonable to prevent entry
of those who do not accept the seven Noachide laws into Eretz Yisrael (and to
encourage the exit of those who already are citizens), even under the terms
that we are forced to keep to in order to allow the existence of our state. For
the moment, let’s pretend that all of these immigrants are willing to accept
them.[2]
Although the Supreme Court may
not agree, the government certainly is the body that has the authority to make
decisions like this.[3] Furthermore,
the main debate is not even about removing the illegal immigrants by force (due
to impracticality). The disputed law that the government is attempting to
reinforce merely takes away the incentives of these immigrants to live here by
negating the financial benefits of this.[4]
The question that I am going to
address is how we would expect the government to act ideally, from a Torah
perspective (although even if they do not act ideally, their decision is
binding[5]). The
main point that needs to be clarified is how to view sovereign territory, and
those who enter it without permission.
Who ‘owns’ the country?
The intuitive view for many of us
was presented to me recently by a good friend. He compared the situation to
that of a poor man who breaks in to the home of a wealthy man, and starts
living in his spare room. Would left-wing activists protest his eviction?
Let’s examine whether this is
really a good comparison. First lets assume that the spare room of the wealthy
man corresponds to the public areas of a country. Who exactly owns these public
areas?
The Rambam writes that anything
found in a desert is ownerless (hefker), and whoever gets there first can take
possession of it.[6] The clear
implication is that the desert itself has no owner. The Tur writes this
explicitly, stating that deserts and everything in them are examples of
things that never had an owner.[7] As
those who infiltrate the country illegally tend to enter through uninhabited
areas, this original ‘break-in’ seems to be into an ownerless space.
It is also hard to classify the
entry of infiltrators into cities as trespassing, as no law forbids this. And
when they buy or rent property and live in it, it certainly cannot be called
stealing. If they were to obtain services that they are not entitled to (e.g. subsidised
healthcare or free education), that would be stealing. But as far as I am
aware, in this country the likelihood of this happening is not great.
Is it racism?
In fact, there is another group
of people with an identical legal status as the African immigrants. Foreign
yeshiva students often stay in the country well over the limit of their student
(or tourist) visa. Some even live here permanently (well over twenty years),
not wanting to make official aliyah so that their children will not have to
serve in the army. Some are meticulous about arranging the relevant legal
documentation, but even those who don’t rarely face any problems.
The reason for this distinction
is clear. Generally speaking, yeshiva students and chareidim from abroad blend
in to the society they live in, without causing too much disturbance. This is
not the case with African immigrants, especially in areas like south Tel-Aviv
where they have unquestionably changed the community drastically.
However, this too is not unique
in Israel. In the early years of the State, the country struggled to come to
terms with absorption of Jews from vastly different cultures. The leaders,
almost exclusively from European origins, had to accommodate Jews from Yemen,
Iraq and Morocco with varying degrees of success.
More recently, immigration of Jews,
non-Jews and those of questionable Jewish status from Russia and Ethiopia has
also taken place without any significant protest. Thus to me it is clear that
the steps taken to encourage the departure of infiltrators from Eritrea and
Sudan are motivated at least partially by factors other than racism.
Crime and national identity
The main claim made by those in
favour of deportation is the level of crime in areas with large number of
infiltrators. People are understandably upset about their neighbourhood
becoming unsafe at night, evident from the huge increase of numbers of
policemen on patrol.
However, it is also clear that if
this increase in crime had been caused by movement of Israeli citizens from one
part of the country to another, deportation would not be an option. This
solution is only proposed because we are dealing with foreigners, both legally
and inherently.
I believe that at least
subconsciously, the heart of this debate is about national identity. Almost
everyone agrees that immigration cannot be open to anyone, but there is strong
disagreement over who exactly belongs.
The Torah view of this is
reasonably clear. Eretz Yisrael is the Jewish homeland, and any Jew has the
right to live here.[8] Non-Jews
also can live here, as long as they formally accept the basic minimum moral
standards expected of them. These are the seven Noachide laws. If we continue
pretending that this is the case with the African infiltrators, it is hard to
justify their deportation. Theoretically, we should give every one of them the
choice between this acceptance and departure.
Obviously, at this point in time
this is unrealistic. The law of the land does not even include most of the
seven Noachide laws.[9] The
absence of Torah as an official national constitution leaves a void which is
proving impossible to fill.
In the long term, this void could
also threaten our entire hold on Eretz Yisrael. Without the Torah and Hashem’s
promises to us, there is no great justification for our control of the country.
If we try to substitute the Holocaust and other persecution as our basis,[10] it
becomes harder to defend the exclusion of those fleeing persecution elsewhere.[11]
I hope that the questions raised
by this issue can help us clarify our fundamentals, and reinforce our awareness
of true national identity.
[1] Personally
this has caused me to view the issue in a new light, and my conclusion is not
the one I expected to arrive at when I started writing.
[2] And
that we can get round the problem of accepting gerei toshav nowadays,
mentioned in footnote 16 there.
[3] See Who
has to serve in the army?, footnote 16.
[4] See this explanation (in
Hebrew).
[5] We
discussed the limits of this in The
right to resist the abuse of power.
[6]
Hilchos Z’chiya u’Matana 1:1. Although the Ra’avad adds a stipulation to the
words of the Rambam, that only members of the tribe whose territory the desert
is located in may take possession of its contents, this is not relevant
nowadays when the tribes are undefined (see the various commentaries).
[7] Choshen
Mishpat 273
[8] In
fact, even a non-Jewish slave who undergoes the partial conversion his Jewish
master must have him do is included in this. If he flees from his Jewish master
to Eretz Yisrael, the Torah forbids returning him to his master. See Gitin 45a.
[9] They
are the six prohibitions of idolatry, blasphemy, murder, forbidden marital
relationships, theft and eating a limb detached from a live animal, together
with the obligation to enforce monetary law. See Sanhedrin 56b.
[10] For
example by using Hitler’s definition of who is a Jew for the purposes of the
Law of Return.
[11]
Sometimes we may be able to dispute whether there is real danger in the origin
country, as the government has done in this case (I do not know the exact details,
and for the purposes of this post have assumed that the government is correct). However, the reality is that we would not want to grant permanent
residency even to those fleeing real persecution. My understanding is that in
this case international law would only require us to provide temporary asylum
until the persecution is over.