Human Dignity and the Law of the Land

Rabbi Marcus Rubenstein is the rabbi of Temple Sinai, an egalitarian Conservative synagogue about half an hour from where I live. We came to each other's attention when he organized the first Never Again Is Now action in our area--which I unfortunately found out about too late to attend. He has been hosting a series of iyyunim (roughly translatable as, lecture and discussion on topics of Judaic interest) at his synagogue, which fortunately for me one need not be a congregation member to attend. Monday's iyyun was Talmud Berakhot 19b through 20a, in which the rabbis discuss situations where strict adherence to certain commandments might conflict with showing respect for the dignity of other people. I missed it; the traffic on Route 6 was terrible, giving me ample opportunity to observe the texting habits of my fellow drivers. But after the iyyun, R. Marcus posted some thoughts on Facebook prompted by his own presentation. And I was with him until his last paragraph, when he attempted to derive its practical application by trying to draw conclusions about how DHS or ICE agents should act in their efforts to enforce, not divine law, but the all-too-human law of who may cross borders and abide within them.

This did not sit well with me. But rather than fire off a glib response, as Facebook's interface encourages people to do, to the detriment of their relationships and thoughts, I decided to sit with that discomfort for the day and see if anything came to mind that would account for it.

This is where I arrived in my thoughts: The rabbanim were not giving guidance to agents of state power, but to a dispersed, minority people scattered through the Sassanian and Byzantine Empires and beyond. And their words live inasmuch as they have meaning to persons--Jews, yes, but any who can read and understand their words, and apply them with intelligence--persons who are striving to act ethically. Not those who are enforcing the laws of earthly power, but those who are trying to do what is right by others. (Yes, my operating definition of "ethics" here borrows heavily from Emmanuel Levinas.) That is not to say that Jews, or any other would-be ethical actor, is under no obligation to the laws of the state in which they live. As the rabbanim dictate, dina de-malkhuta dina, that is, the laws of the land are binding upon the ethical subject inasmuch as they do not conflict directly with Torah. How, then, could adherence to the law of the land in this country come into conflict with human dignity? Consider the case of Scott Warren, against whom the Federal government brought felony charges for leaving water in places where immigrants could find it in the desert, and against whom they could still elect to attempt a retrial. If someone is presented with an opportunity to protect the dignity of an immigrant by offering food, water, or shelter, should they shy away from that ethical obligation, for fear of transgressing dina de-malkhuta, the law of the land?

Referring back to Berakhot, then, and Rabbi Marcus's iyyun, how might the conclusion reached by the rabbanim apply, that human dignity takes precedence over positive ("thou shalt") commandments and rabbinical ones (those derived by the rabbanim in the course of building series of "fences around the Torah"), but not over negative ("thou shalt not") commandments? Dina de-malkhuta is a rabbinical commandment, an adaptation to the loss of temporal power by Jewish communal institutions under Roman and Persian rule, and an injunction that no individual Jew should jeopardize the security of the community as a whole by claiming that the superiority of divine law gives license for all forms of rebellion. It is not absolute and for all time: Had it been, the Bar Kokhba rebellion would have been heretical, but Mar Samuel, the rabbi on whose authority it is given, was born more than forty years after that rebellion's defeat. As a rabbinical commandment, dina de-malkhuta is of a lower order than the defense of human dignity. Fear of breaking the law is no excuse for failure to come to the aid of immigrants, but rather, pusillanimity and moral cowardice.

So what does this have to do, then, with DHS or ICE? Rabbi Marcus may be more sanguine than I about the possibility that there remain, within those organizations, people still capable of behaving as ethical subjects. I find any such hope doubtful on its face. At this point, the actions of those agencies do not only transgress against human dignity, but also against certain basic, negative commandments that should be known to all: "Thou shalt not kill," "thou shalt not steal," and these more than suffice for critique of its actions. Ethical behavior within these organizations would require consistent and organized defiance of orders that not only transgress basic moral law, but also international treaty obligations. An employee of DHS or ICE, if they are not to risk being cast out from humankind as an agent of depravity, would have to take specific actions by which they would risk their job, or quit the filthy job entirely.

Longtime readers are probably perplexed that an atheist of known communistic sympathies is engaging in such Talmudic analysis, but as I already wrote six years ago when my worldview started to shift, "the main tasks of the moment are neither political nor economic, but ethical or moral." When one speculates on what the agents of a state ought to do--or, if one has given up hope that they might do otherwise than they are doing, how to frustrate their intent--one is engaged in political reasoning, and in that domain my training, the conceptual and analytic tools which I have most readily to hand, can be grouped under the broad heading of "Marxism." When one is discussing what persons ought to do, not necessarily with an eye toward the transformation of power relations but simply to demonstrate respect for others, one is engaged in ethical reasoning, and there, the earliest training I was given, the vocabulary to which I default, and the dialectical methods through which I attempt to navigate my way through contradictions, these all remain Jewish.