Does the To­rah cre­ate ‘sanc­tu­ary cities’ for law vi­o­la­tors?

The Jerusalem Post - The Jerusalem Post Magazine - - JU­DAISM - SHLOMO M. BRODY The writer, au­thor of A Guide to the Com­plex: Con­tem­po­rary Halakhic De­bates, di­rects the Tik­vah Over­seas Stu­dents In­sti­tute and is a pres­i­den­tial scholar at Bar-Ilan Univer­sity Law School. Face­book.com/Rab­biShlo­moBrody

In re­cent months, Euro­peans and Amer­i­cans have de­bated the le­git­i­macy of mu­nic­i­pal­i­ties declar­ing them­selves as “sanc­tu­ary cities” to wel­come il­le­gal or un­doc­u­mented im­mi­grants. While in some cases this means that the city will make an overt at­tempt to be wel­com­ing, in other places it re­flects a sig­nif­i­cant dec­la­ra­tion that lo­cal mu­nic­i­pal of­fi­cials will not aid or pro­vide funds to en­force na­tional im­mi­gra­tion laws.

De­trac­tors of these poli­cies ar­gue that it is a fun­da­men­tal vi­o­la­tion of the rule of law. Sup­port­ers claim that en­forc­ing im­mi­gra­tion laws is not the re­spon­si­bil­ity of lo­cal of­fi­cials and that mu­nic­i­pal­i­ties have the right to host il­le­gal im­mi­grants. Many have citied bi­b­li­cal con­cepts or in­sti­tu­tions to jus­tify this pol­icy. With­out com­ment­ing on the broader ques­tion of just im­mi­gra­tion poli­cies, this col­umn will ques­tion whether the Bi­ble sup­ports such no­tions of skirt­ing the law.

One bi­b­li­cal com­mand­ment some­times cited in sup­port of the “sanc­tu­ary pol­icy” re­lates to grant­ing asy­lum for es­caped slaves. “You shall not turn over to his mas­ter a slave who seeks refuge with you from his mas­ter. He shall live with you in any place he may choose among the set­tle­ments in your midst, wher­ever he pleases; you must not ill-treat him” (Deuteron­omy 23:16-17). The tal­mu­dic Sages in­ter­preted this pas­sage to re­fer to slaves who fled a for­eign coun­try. The slave was of­fered asy­lum while he was ex­pected to take upon the obli­ga­tions of a res­i­dent alien (ger toshav), in­clud­ing the seven Noahide laws.

While cer­tainly a fas­ci­nat­ing con­cept that may or may not have rel­e­vancy for broader ques­tions of ac­cept­ing refugees, it does not re­late per se to pro­vid­ing asy­lum for those who vi­o­late cur­rent im­mi­gra­tion laws.

A more in­ter­est­ing bi­b­li­cal con­cept re­lates to the no­tion of “al­tar sanc­tu­ary.” While this con­cept ex­isted in Greco-Ro­man tem­ples, it is best known from dec­la­ra­tions of the Church, with its first of­fi­cial ar­tic­u­la­tion made in 303 CE in Con­stan­tine’s Edict of Tol­er­a­tion which pro­vided sanc­tu­ary within a holy place for fugi­tives. While the in­tended goal was to pre­vent blood­shed, the no­tion of al­tar sanc­tu­ary was ap­plied dif­fer­ently in var­i­ous ar­eas, with ex­clu­sions to var­i­ous classes of peo­ple. Jews and heretics were never af­forded sanc­tu­ary in these ar­eas, and by the sixth cen­tury al­tar sanc­tu­ary also ex­cluded adul­ter­ers and mur­der­ers in some places. The lat­ter, in fact, are ex­plic­itly de­nied such sanc­tu­ary in the To­rah, as is made clear in the last verse of the fol­low­ing pas­sage.

“He who fa­tally strikes a man shall be put to death. If he did not do it by de­sign, but it came about by an act of God, I will as­sign you a place to which he can flee. When a man schemes against an­other and kills him treach­er­ously, you shall take him from My very al­tar to be put to death” (Ex­o­dus 21:12-14).

In­deed, in ac­cor­dance with this sen­ti­ment, King Solomon had the rebel leader Joab killed even though he was grasp­ing the horns of the al­tar (I Kings 2:28-34). The Sages fur­ther ruled that a priest who mur­ders is re­moved from the Tem­ple be­fore he can be­gin his ser­vice (San­hedrin 36b). The To­rah, it seems, has no in­ter­est in holy places pro­vid­ing sanc­tu­ary to fugi­tive mur­der­ers, or in the words of Jeremiah (7:11), turn­ing into a “den of thieves.”

Yet the pas­sage in Ex­o­dus does in­di­cate that there will be a “place” for asy­lum in cases of an un­in­ten­tional killing. While some tra­di­tions as­serted that this asy­lum would be the al­tar sanc­tu­ary, the Sages in­ter­preted this as a ref­er­ence to the Le­vite camp and later to the so­called cities of refuge which they would in­habit, as de­picted in the Book of Num­bers. “You shall pro­vide your­selves with places to serve you as cities of refuge to which a manslayer who has killed a per­son un­in­ten­tion­ally may flee. The cities shall serve you as a refuge from the avenger so that the manslayer may not die, un­less he has stood trial be­fore the as­sem­bly .... If he struck him with his hand in en­mity and death re­sulted, the as­sailant shall be put to death – he is a mur­derer” (Num­bers 35:11-28).

As the text makes clear, the “cities of refuge” were cre­ated to pre­vent the phe­nom­e­non of fam­ily mem­bers of the slain vic­tim tak­ing vengeance on the killer. The killer could safely live within the city of refuge un­til prop­erly tried by the court as­sem­bly. If deemed guilty of mur­der, he was ex­e­cuted. If he was found to have killed un­wit­tingly, then he could safely re­turn to the city of refuge. Such cities were to be strate­gi­cally placed around the coun­try (Deuteron­omy 19) and were ini­tially built dur­ing Joshua’s set­tle­ment of the land (Joshua 21).

This was a revo­lu­tion­ary in­no­va­tion meant to pre­vent vig­i­lan­tism while bring­ing jus­tice for vic­tims. More­over, while it helped killers prove that they were not mur­der­ers, it held them ac­count­able for not tak­ing the nec­es­sary pre­cau­tions that led to the spilling of blood. Ex­ile in these cities was seen par­tially as a form of pu­n­ish­ment but also an op­por­tu­nity for re­ha­bil­i­ta­tion, with the ac­ci­den­tal killers now liv­ing in a city of spir­i­tual lead­ers (Le­vites). In fact, two Jewish le­gal schol­ars, Ita­mar Warhaftig and Shlomo Rabi­novitz, have even sug­gested that these cities should be seen as mod­els for mod­ern pen­i­ten­tiary sys­tems, which seem more fo­cused on rep­ri­mand than re­pen­tance and rein­te­gra­tion.

In any case, it is dif­fi­cult to see how “sanc­tu­ary cities” estab­lished to ex­e­cute jus­tice, pre­vent blood vengeance and pro­vide re­ha­bil­i­ta­tion should be seen as a model for har­bor­ing il­le­gal im­mi­grants. There may be good rea­sons to dis­agree with the im­mi­gra­tion poli­cies of var­i­ous coun­tries, and that’s an im­por­tant dis­cus­sion for Western democ­ra­cies. The Bi­ble, how­ever, does not seem to pro­vide a prece­dent in this case for dodg­ing the law. ■

While [‘cities of refuge’] helped killers prove that they were not mur­der­ers, it held them ac­count­able for not tak­ing the nec­es­sary pre­cau­tions that led to the spilling of blood

(Jimmy Baikovi­cius/Flickr)

KING SOLOMON (pic­tured in Tiffany stu­dios, Chicago) had the rebel leader Joab killed even though he was grasp­ing the horns of the al­tar.

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