People take a knee during a Black Lives Matter rally, as protests continue over the death in Minneapolis police custody of George Floyd, outside the US Capitol in Washington, DC, June 3, 2020. Photo: Reuters / Jonathan Ernst.
While there will be no quarrel regarding the Biblical admonition to pursue justice, what actually constitutes justice is less clear. There is the sense that if one willfully wrongs another and is held accountable, the accountability should be proportionate to the wrong. In Judaism, a disproportionate punishment is deemed unjust. This is Abrahams argument demanding justice for any righteous inhabitants of Sodom, in the first discussion of justice in the Torah.
Abrahams argument reflects the abhorrence of collective punishment. A righteous man living in Sodom should not be punished for the sins of his community. But the Torah also recognizes a communal responsibility in several places. Deuteronomy describes how when a murdered corpse is found outside a city, the community must undertake the ceremonial sacrifice of the eglah arufa.
And then there is Rashis explanation that the sin of the golden calf, chet haegel, falls upon all future generations and that every misfortune that falls upon the Jews is, in part, retribution for that sin.
How can this be just? We were not there, and we didnt worship any golden calf. And there is the Third Commandment, which states that God takes account of the sin of parents upon their children and their childrens children even though they may be complete innocents. Here the commentators explain this apparent injustice as actually an act of grace. Judgment is withheld so that a future generation may purge the sin and atone for a prior generation.
August 9, 2020 11:05 am
The sense of communal responsibility is hardly limited to the Jews. Jews accept reparations paid by young Germans today who would recoil at the atrocities committed by their parents and grandparents. But the Germans pay reparations out of the sense of communal sin, despite their individual innocence.
In short, there is the concept of communal justice and ongoing responsibility, even when members of the community did not commit the original sin.
The reasons for this communal responsibility become clearer when we consider our circumstances.
We are American citizens. We are born into (or seek out) that citizenship and accept it. The United States has treated the Jewish people better than any country in our history. Since the creation of Israel, we have by choice remained American citizens and accepted the gifts and burdens of that citizenship. So great are those benefits that most of those who move to Israel retain their American citizenship.
Those benefits are the result of a communal heritage developed over 250 years: a democratic government; the Constitution, particularly its Bill of Rights; perhaps, above all, extraordinary religious tolerance; the great causes: the Revolution, the Civil War, World War II. And these concepts are supported by a historical heritage of great leaders. To the extent Jews feel comfortable in America today, it is the result of that historical culture.
With that American citizenship comes the burdens and communal sins the American chet haegel, golden calf.
These sins include what was done to the Native Americans, which led Hitler to taunt Roosevelt when he criticized the German treatment of the Jews (Go speak to an Oglala Sioux). But perhaps the largest communal sin is the sin of African-American enslavement, and the compounding of that sin is before us today.
That sin is as much a sin of Americans today as the chet haegel is to Jews. We believe even a convert to Judaism bears responsibility for that sin. Similarly, the unexpiated sin of slavery is part of the American heritage and a responsibility of that citizenship.
Even Abraham Lincoln, who freed the slaves and saw the sacrifice of hundreds of thousands of soldiers lives in carrying out that liberation, recognized that it was a national sin that God had inflicted on the American people. In his great Second Inaugural Address, he quoted Tehillim on this point:
It may seem strange that any men should dare to ask a just Gods assistance in wringing their bread from the sweat of other mens faces, but let us judge not that we be not judged. The Almighty has His own purposes. If we shall suppose that American slavery is one of those offenses which in the providence of God must needs come but which having continued through His appointed time He now wills to remove and that He gives to both North and South this terrible war as the woe due to those by whom the offense came shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope fervently do we pray that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsmans 250 years of unrequited toil shall be sunk and until every drop of blood drawn with the lash shall be paid by another drawn with the sword as was said three thousand years ago, so still it must be said, The judgments of the Lord are true and righteous altogether.
So it is no answer that we Jews the majority of us came to America long after the slaves were freed. We are Americans, and we share in the heritage the good and the bad. We did not worship the golden calf, and perhaps no member of the community murdered the body found outside the city. As part of the ceremony of the eglah arufa, the elders say: Our hands did not spill this blood. Still, they must sacrifice and expiate the communal sin. And so it is for us who may not have committed the sin of slavery, but partake of the heritage.
How often have you heard someone say that their great-grandparents came with nothing and look at what they sacrificed and accomplished a comparison that somehow passes the blame on to African-Americans for their plight today?
The Torah has much to say about this as well. The greatest two events in Jewish history were the redemption from slavery and the revelation at Sinai. Yet the mark of slavery was so great that tradition tells us that God forced the Jews to sojourn in the desert until every member of the slave community who left Egypt was dead. Even though they saw the sea split and heard the word of God at Sinai, they had been slaves and the Promised Land was not to be founded by freed slaves. (See Ibn Ezra on Exodus 14:13.)
The only portion of the Torah that tradition teaches is a Torah commandment to read is the command to remember what the Amelekites did to us when we left Egypt. (See Deut. 28:17.) What did the Amelekites do? They attacked us as we left Egypt, when we were a vulnerable slave people who had just been freed. This is considered the most nefarious thing done to the Jews recorded in the Torah, so heinous that it is reinforced later when King Saul loses his kingship for failing to heed Gods command to kill all the Amalekites.
When our African-American brethren were liberated, they did not have the good fortune to prevail over the Amalekites. Lincoln was killed and there was no Aaron and Hur to hold up Moses arms, and with Gods aid crush the Amalekites. After they were freed even during the heyday of Reconstruction they were attacked, lynched, and to a great extent effectively enslaved again. We know that this remained their condition in the harshest of ways long, long afterward, for generations. They were in a promised land but with no promise.
So we are commanded to remember how the Amalekites pursued us on the road from Egypt, even though every last Amalekite was slain during the reign of King Saul. And what the Amalekites did is considered a transgression against us. Recall that no slave who left Egypt, even after standing at Sinai, was deemed worthy of entering the Promised Land such was the stigma of generations of slavery. And so, there is no dismissing for this or that excuse, that Black lives matter, or that we are excused because our hands did not shed this blood.
Howard Langer is the founder of Langer Grogan & Diver, an antitrust and consumer law firm in Philadelphia. He is adjunct professor of law at the University of Pennsylvania Law School and has taught at the Centre for Competition Law and Policy at Oxford and the Law School of the University of Tokyo.
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