Eviction (Part 1 of 6): The Law Is an Ass

This week, following years of dedicated work by the Israel Land Fund, a three-generation Palestinian family was evicted from its East Jerusalem home of more than 50 years. Other evictions should follow soon; several families in the neighborhood have already been served with documents.  

A highly intelligent, thoughtful, socially and politically engaged friend from the neighborhood was asking me about my sons. The oldest, I said, works at a kind of Think Tank that aims to teach less law and more justice at Harvard Law School. Aren’t law and justice the same thing, asked my friend?

Law and justice should be the same thing, and instinctively – for our essential peace of mind — we tend to assume they are. Those of us fortunate enough to live on ‘the right side of the law’ believe it protects us from injustice. Justice was done, we say, when a law-breaker is caught, tried and prosecuted.

That’s why it’s deeply unsettling to observe law and justice working in diametrically opposite directions, actively competing against each other. That’s why it’s disturbing — to the extent that only the brave can force themselves not to look away — when law is used to perpetrate injustice.

Temporary settlers and police coming to evict the Shamasneh family (Free Jerusalem)

The Torah, especially the sections we’re reading now, shows deep awareness of precisely this problem – law’s potential to aid and abet injustice. Deuteronomy has the Torah’s highest concentration of laws we might call ‘social’, that is to with interpersonal relations and the organization of communities, as opposed to ‘ritual’, that is dealing with holiness and purity.

For Deuteronomy, law is an instrument of justice: Justice, justice you shall pursue. It’s the tool kit with which to build a just society and maintain it its ideal, uncorrupted form. Central to this project is ensuring that the law is not abused, which is why Deuteronomy also has a high concentration of laws about law and legislators. Who is authorized to dispense justice (Deuteronomy 16:18); how can we ensure that justice is done (Deuteronomy 20:15-19): what happens when we are unable to do justice (Deuteronomy 21); how can we patrol the weak border between just punishment and revenge (Deuteronomy 19:7; 25:3)?

Restraints are placed upon the rich, powerful and well-connected, who might otherwise use the law to further their own aims. For example, the king must have his own copy of the law, written for him by levitical priests, that he must read every day (Deuteronomy 17:18-19). He might break the law, as even Israel’s greatest kings unfortunately did, but he can never make Richard Nixon’s mistake of thinking that he’s above the law.

At the other end of the spectrum, the Torah emphasizes that people at the margins of society – those who might otherwise fall outside the protective net of the law – are in fact the law’s primary beneficiaries. A just society is measured by its treatment of its weakest citizens: the poor, widows, orphans and strangers (Deuteronomy 16:11-12).

Why is the Torah so insistent about our obligations towards people at society’s margins? Why does it so often compel us to protect the poor, widows, orphans and strangers? Until now, I’ve assumed that this reflects the sad reality that human beings are fundamentally selfish, and need to be reminded again and again to care for the disadvantaged. But events of the last few weeks have led me to a different understanding.

The Torah emphasizes, I think, our obligations towards the weak and marginal because, paradoxically, we are inclined to attribute abusive, exploitative intentions to the very people who depend on us. We can’t help feeling that – no less than powerful rulers who force our sons to build their palaces and enlist our daughters in their kitchens – the weak will somehow manage to take advantage of us.

Think of the negative stereotypes attached to the very categories designated by the Torah for special protection. There’s the ‘black widow’, the serial killer who dispenses with her husband and makes off with his money; the orphans who work in organized crime rings to ‘pick our pockets’; the ‘great unwashed poor’ and the ‘welfare queens’ living off our hard-earned salaries; and, of course, there are the strangers.

Strangers, gerim, in the Bible are ‘resident aliens’, people who live among us and share some but not all of our rights and responsibilities. (The Rabbis, who lived at a time when there was no Jewish state, and therefore no state-based categories like ‘resident alien’, reinterpreted gerim as ‘converts to Judaism’.)

Almost every culture sees the stranger in its midst, the not entirely knowable insider-outsider, as a source of danger. One threat strangers pose to the majority features in the curses and punishments mentioned in this week’s parasha, Ki Tavo. If the Israelites fail to keep the mitzvot, the commandments, when they enter the Promised Land, ‘The stranger in your midst shall rise above you higher and higher, while you sink lower and lower’ (Deuteronomy 28:43).

But most of what Jews know about strangers, we have learned from our own experience. We are the ‘strangers’ feared by the people in whose midst we live. That’s how the exodus from Egypt began (Exodus 1:8-12). That’s why the king of Moab hired the non-Israelite prophet Balaam to curse Israel (Numbers 22:3). That’s how the wicked Haman convinced King Ahasuerosh to let him kill the Jews of Shushan (Esther 3:8-9).

It’s easy to fear strangers, and challenging, therefore, to promote their interests. But when it comes to Jews and kal v’chomer, how much more so, the Jewish State, stereotypes about strangers and the fears and prejudices that underlie them are simply irrelevant. We are commanded to care for the poor, widows, orphans and strangers, regardless of their characters, habits and occupations, and regardless of what threat we fear they might constitute to us if we extend the care and protection the Torah accords to them. Remember, the strangers in our midst will rise above us when we fail to keep the mitzvot, including the mitzvah that commands us to protect them, not when we give them what they deserve (Deuteronomy 28:43).

Shamasneh family evicted. (Free Jerusalem)

In 1948, Palestinians left their homes in West Jerusalem and relocated – some to other countries, some to other parts of this country, and some to East Jerusalem. Jews meanwhile moved into their ‘Arab’ houses in West Jerusalem districts such as Talbiyeh and Baka. Somewhere along the way, the State of Israel made it illegal for Palestinians to reclaim their property. Some were fortunate; they built new homes and new lives elsewhere, and don’t think of going back. Others, less fortunate, were not able to ‘move on’; literally or metaphorically, they carry their keys around.

People dislocated by war and political upheaval should be compensated financially for what they lost, but it’s rarely practical, possible or even desirable to try to restore them to the lives they once lived. A small minority of Jews wanted to return to Germany, Poland and so forth after the Shoah, but most didn’t even want to visit, let alone live in, those countries again. Jews who left Middle East and North African countries couldn’t, and in most cases still can’t go back, even to visit, and they received no compensation.

To judge from Jewish experience, at least, going back doesn’t work. Have you ever wondered why the Torah speaks about taking the slaves out of Egypt to a Promised Land, the land promised to their ancestors, not back to the land where their ancestors lived?

Here lies the problem. Palestinians are prohibited by Israeli law from reclaiming their property in Jewish West Jerusalem; they cannot go back. But Israeli law permits Jews to reclaim property they owned before 1948. Sure, there are technical, legal justifications for this differential treatment; Arabs and Jews are not equal in the eyes of the law in the Jewish State. And that’s precisely my point. This discrimination is perfectly legal and grotesquely unjust.

The Israel Land Fund, the private organization responsible for the Shamasneh family’s eviction from the East Jerusalem home where they lived for over 50 years, is working systematically, energetically, determinedly, and legally within the Israeli court system to change Jerusalem (and beyond). As they make crystal clear on their website, this is not a matter of restoring properties to individual families who once owned them and want to return. It’s a long-term project that aims, in the next few years, to move 400 different Jewish families into Arab neighborhoods of East Jerusalem.

The people who move in have no connection with the houses they occupy, or with the families who previously owned them. They have no interest in fitting into their new neighborhood or building relationships with existing residents. The huge Israeli flags they hang, and the large menorahs they erect, advertise their ideological intentions. They are extremist settlers – only extremists would be willing to live in these hostile and often dangerous conditions – whose lives must now be protected at vast expense by the State.

None of this is new. It’s been going on in the Old City’s Muslim Quarter and parts of East Jerusalem for years. But it’s taken a new and dangerous turn. The Israel Land Fund, a private organization, heavily financed by donors from abroad, headed by a man who is also a Jerusalem City Councilor (that’s a legal combination, but in my eyes unjust), is upping the ante. The geo-political situation being what it is (it’s no coincidence that last week’s eviction was the first in the highly contentious Sheikh Jarrah neighborhood since 2009), his expansionist dreams could easily come true.

Cities are not museums, not even ancient cities like Rome and Jerusalem. They change organically. Their demographics change. Neighborhoods are gentrified. One or another group becomes dominant. New or improved facilities attract different residents. Transport opens previously inaccessible neighborhoods. Vulnerable residents are often the victims of these change; families and businesses can no longer afford the rent or the property tax. They are exploited by developers looking for profit and city planners with an agenda and a grand vision. We should try to minimize the harm caused by urban development to a city’s weak and vulnerable population, but we can’t stop change in living, breathing cities.

There’s nothing organic about the changes proposed, and already being implemented, by the Israel Land Fund. They are artificial, unilateral. The Israel Land Fund is pulling the carpet from under our feet. Their reality will soon be the ground on which we are forced to stand. They are implicating us – Jerusalem residents, Israelis, Jews who do not share their vision – in their legal injustice.

I feel despair, helplessness, and immense shame, but I refuse to believe there is no systematic, long-term way to return law in the Jewish State to its true path, the course of justice. Charles Dickens’s Mr. Bumble called the law ‘an ass’ because it he thought it foolish. I called the law an ass because, as the Torah makes abundantly clear, it must be harnessed.

There will be protest march in Jerusalem today, Friday September 8th, 2pm, starting at 16 King George (the old Mashbir).