By Rav Yosef Greenwald
If we look at the current political climate in the United States, it seems that there is a large divide between the two sides of the spectrum. This divide appears to be much larger than it ever was before, and the possibility of serious dialogue between the sides is almost non-existent. This polarizing gap does not just affect issues of morality, such as positions on abortion or alternative lifestyles, but affects a whole range of other issues as well. These include the proper rules for legal immigration, how to deal with illegal immigration, how to look at countries that promote terrorism, tolerance for minorities, economic issues of free trade or protectionism, and preferring a global economy vs. “America First”. Essentially, nearly everything is vehemently disputed by the two sides, and there seems to be no way of proving one side correct and the other wrong.
Before we discuss the halacha’s perspective on some of these topics, we should first recognize, and be thankful that Hashem has given us Jews a definitive code of conduct, as set out by the Torah and halacha. These sources should give us perspective on all issues in life, and help guide us as to how best to fulfill the will of Hashem. Even though the world does not necessarily listen to our opinion about these matters, understanding the moral clarity and perspective of the Torah’s position is vital, and can actually be a kiddush Hashem to project these approaches onto others as well.
Immigration Policy: To Close or Not to Close the Border?
What should be the proper position regarding immigration policy? Should we bar certain people from entering the country based on their country of origin? Some have been saying that if we do so, it would be equivalent to the situation of the Jews before World War II, where those trying to flee from Nazi Europe had no place to go, yet the United States would not let most of them into the country. Indeed, many were killed due to this policy. The issues at that time were primarily economic: People were concerned with the potential negative economic consequences for the U.S., as the job market was tight, and opening economic competition to others entering the country could cause some to lose their livelihood. For these reasons, as well as some anti-Semitic considerations (which are of course wrong and immoral), many did not want to allow Jewish immigration.
How does the halacha look at these economic concerns, which may be relevant today as well (though on an entirely different scale)? Does the imperative of lo sa’amod al dam rei’echa (Vayikra 19:16), not standing idly by when another’s blood is being spilled – i.e., their life is in danger (which could be true for refugees from dangerous or war-torn countries) – override any economic concerns we might have of accepting them? We must also consider another factor today that was not relevant during World War II: Is there a certain potential element of risk with regard to the security of our nation in allowing them to enter? Are we required to place our lives in any sort of potential danger in order to save them?
Lo Ta’amod and Safek Sakana
Given these conditions, we might apply the following halachic discussion to our case: The Sefer HaChinuch (Mitzva 237) and other rishonim discuss the parameters of the mitzva of lo sa’amod mentioned above. One of the classic examples of this mitzva (see Sanhedrin 73a) is where a person falls into the river or ocean and may drown, G-d forbid. In such a situation, a bystander who knows how to swim is obligated to jump in to try to rescue them.
However, what is the halacha if there is a chance that the rescuer himself may be swept away by the current or the tide? Is he obligated to place himself in danger in order to rescue the other person, who will certainly drown if he is not saved? This issue is known in halachic literature as safek sakana, possibly endangering oneself in order to save another who is definitely in danger. The Minchas Chinuch (Mitzva 237) and other rishonim discuss this case,1 and the Minchas Chinuch is unsure as to the correct ruling, as perhaps here, where not trying to rescue the person is a form of shev v’al ta’aseh, passively violating the prohibition (rather than actively violating an aveira), it is preferable not to risk one’s own life.
Lo Sa’amod and Giving Up One’s Money
Another interesting corollary to this question, which may be even more relevant to our issue, but is not discussed directly in the rishonim, is whether one is obligated to give up all of one’s money in order to save someone else’s life. For a standard lo saa’seh, negative biblical mitzva, one is indeed obligated to give up all of one’s money in order to avoid violating it (Rema O.C. 656:1). Does the same apply to this negative mitzva of lo sa’amod, where violating it is done through non-action? If it does, then perhaps U.S. citizens would be obligated to undertake the financial risk of damaging their economy in order to save the refugees from certain danger.
It is clear that if one does use one’s own money to save the person, that person is obligated to reimburse him (Shulchan Aruch C.M. 426:1). However, is the potential rescuer obligated to use money for this purpose, or is the halacha simply stating that if he chose to, he must be reimbursed, but he is not required to do so? As mentioned, this issue is not directly discussed in the earlier sources,2but these are the issues that would seem to be relevant to a simple question of whether it is permitted, obligated, or forbidden, to let at-risk individuals, either in an economic sense, or a security sense, into the country.
The Rodef Factor
However, in our current situation an additional factor must be considered. If the chance exists that the individuals themselves may actually threaten the residents by supporting or even directly executing terror attacks or severe crimes, another halachic issue would come into play: The concept of rodef, a pursuer. The Torah discusses a case of ba ba’machteres (Shemos 22:1), one who secretly tries to enter someone’s home to steal. As interpreted by Chazal (Sanhedrin 72a-b), this refers to someone who, if confronted by the owner, may react violently and try to kill him. Therefore, the owner may respond first by killing this would-be thief if necessary. The Sefer HaChinuch (Mitzva 600, 601) derives from here that if one person is pursuing another person with the possible intention to kill him, then there is an absolute obligation on others to attempt to save the nirdaf, the one being pursued, even if it comes at the cost of actually killing the rodef. Moreover, in this case, even if the rodef is not clearly engaged in killing the nirdaf, but concern exists that he may react violently and attempt to kill him, he may still be stopped, and killed if there is no other way to do so.3
The Noda B’Yehuda (Tanaya C.M. 60) also supports the notion that the focus is on saving the nirdaf, if he is in fact in danger,even if the rodef himself is not directly or intentionally causing danger, and does not necessarily have a psak misa, death verdict, imposed upon him. The Noda B’Yehuda rules that even a katan, a minor, can qualify as a rodef, even though a katan is not old enough to receive an official death sentence from a beis din. Therefore, if he is endangering another, even unintentionally, it is permissible to kill him. The reason for this is that since the one being pursued is in danger, regardless of the intention of the pursuer, we must save the one being pursued at all costs, even if it means killing a katan.
Nevertheless, it is clear that there is another facet of the halacha of rodef as well, in that he generally does have a psak misa, death sentence, placed upon him. This is evident from the Gemara (Sanhedrin 72a, Bava Kamma 23) that states that when someone is engaged in an act of pursuing, he will not be responsible for any monetary damage caused along the way, due to the principle of kam leh b’drabbah minei. Kam leh dictates that only one type of punishment may be imposed on a person at one time, but a death sentence and financial liability would not be imposed together. This is true even if the rodef is not actively chasing the other person at that moment when the property is damaged, as the psak misa is still in effect, due to the fact that he is potentially dangerous.
The Brisker Rav, Rav Yizchak Zev Soloveitchik (Chidushei HaGriz on the Rambam, Hilchos Shemiras HaNefesh) and the Imrei Moshe explain that there are in fact two elements of the status of a rodef:It includes both the obligation to kill the pursuer if necessary, due to the psak misa against him, as well as an obligation to save the nirdaf, the one being pursued, which also may require one to kill a rodef, even one who has not intentionally attempted to cause harm.
Based on this concept, would refugees from countries that perpetuate a culture and legacy of anti-Americanism, as well as condone or support terrorism, qualify as rodfim, pursuers? True, there are different levels of supporting terrorism, such as direct help in executing an attack, financial support, or social media support. In addition, it is not clear whether one who is part of a group that condones or supports terrorism automatically receives the status of rodef or not. However, a strong case could be made that such refugees may qualify, as any time that reasonable doubt exists that such a person could be provoked into being a killer, he is considered a rodef, even if he is not actively pursuing someone at this moment. In addition, the element discussed of saving the nirdaf, which in this case would be citizens of the United States, might require us to do everything possible to protect them, even if the refugees are not all intentionally trying to directly murder Americans.
The same may be true with regard to illegal immigrants, such as those streaming across the Mexican border. According to halacha, it seems clear that they should have the status of rodfim, as they may possibly create lawlessness in the country in the places they choose to inhabit, heighten drug use, and create easier access to drugs. This, in turn, raises the homicide rate as well as the suicide rate. In addition, they may even be involved with drugs themselves (rather than simply causing easier access to them). If so, the larger society that supports this may also forfeit the moral right to be treated with tolerance, and any other moral issue about whether it is appropriate to let in immigrants would be overridden by this important consideration.
If so, then in this case, the current president is certainly correct according to halacha in his approach of trying to abolish or change current immigration laws. The same is true for interrogating terrorists in a violent manner. Since these terrorists are certainly dangerous for society, they are considered rodfim, pursuers, and their lives are forfeit. Consequently, it is certainly permissible, and even obligatory, to torture them, especially if officials believe that this will possibly help to save other lives.
Can a Government Decide Who to Let into the Country?
Let’s now look at the specific issue of whether halacha supports the right of the government to limit immigration or not (aside from any consideration of danger or rodef). To what extent is a government morally and legally empowered to set up a system that protects what it sees as rights of its citizens? Can a government legislate rules limiting who enters its borders? Can it even establish borders in the first place?
Let’s approach this question from a few angles:
- Borders— It seems clear that a government can forbid others from infringing upon the territory of the country. As the Torah says (Devarim 32:8), “Yatzev Gevulos Amim,” “He set the borders of the peoples.” Thus, clearly there is a Torah idea of a country with borders, rights, and its own territory. The United States certainly qualifies as an independent land, at least economically (though culturally one could argue that it is a melting pot of immigrants from many other countries). Therefore, the government should have the right to decide who is allowed to enter and who is not.
- Dina D’malchusa Dina – The Gemara establishes a rule (Bava Basra 54b and elsewhere) that the law of the land is considered binding according to halacha as well. Therefore, the Gemara says, if the government obligates citizens to pay taxes, if it is consistent with the local laws, and if local law is based on an organized system, then this obligation is binding according to halacha as well. If we examine some of the approaches to this principle,4 we can see that this too should support the halachic right of a government to enact a policy to limit immigration should it so choose.
- The Gra (C.M. 369) clarifies based on the Gemara (Bava Kamma 113b and elsewhere) that this rule applies when the rules in fact come from the malchus, the government, using a system created for the country. However, a state of lawlessness with armed groups roaming the streets would not qualify; in that situation, halacha does not recognize the validity of the commands of those groups. The government of the United States, though, certainly qualifies as a malchus.
- It is important to note as well that the Rema writes (C.M. 369, based on the Teshuvos HaRashba) that to qualify as a legitimate malchus, the system need not be democratic (as the Torah itself recognizes monarchial rule), or even one that is best for each individual citizen. Rather, it must simply be a system that the rulers decided is best for the country as a whole.5 In this regard, too, the U.S. most definitely qualifies.
- The Rema (C.M. 369:11) cites one opinion of the Ran (Nedarim 28a) that the basis for the validity of dina d’malchusa dina is that the king (or government) is essentially renting out the land: He is considered to own the land, and he can therefore dictate the terms of the “rental” as he wishes; if one does not like the terms, that person must leave. Therefore, if the king imposes a tax on the population, then everyone must pay.6
- Since the context of many of the passages in the Gemara referring to this topic is taxes (see, e.g., Bava Kamma 113a), commentaries including the Sefer HaTeruma (46:8) and Shach (C.M. 165:8) discuss whether the rule is limited to taxes or rental payments, or applies to most laws legislated by the system as a whole. The consensus of most commentaries is that all laws are included in the rule, not just taxes. This is quite logical as well, as the role of the government is critical in society. As the Mishna says in Pirkei Avos (3:2), one should pray for the well-being of the government, because without it, every person would “swallow” others alive. In fact, in countries where there was no organized state of law (such as the countries in the former Soviet Union following its collapse), that is exactly what happened. So Chazal already recognized that it is important to have a system, and it is generally valid according to halacha.
- When secular law stands in contradistinction to the rules of halacha, at least within monetary law, the poskim dispute whether one is allowed to follow secular law. The Rema (C.M. 73) argues that one may still follow the secular law, but the Shach (C.M. 73:39) argues that for any case where halacha takes a clear position, one must follow the halacha even for monetary law, and may not follow secular law.7Even if one is stringent on this question though, when it comes to immigration, it should still be permitted, as limiting immigration in the current situation is not against halacha at all. Rather, as we have explained, it is consistent with it, due to the principles of rodef.
- Another perspective given as to the basis for dina dmalchusa can be found in the Rashbam (Bava Basra 54b). In his opinion, it is not due to ownership of the land or the moral need for leadership, but rather due to takanas hatzibur, the right of the citizens to institute the system of government as deciding the binding law. This notion is taken from the Gemara (Bava Basra 6-7), which discusses this idea, and which is later expanded by the rishonim and codified by the Shulchan Aruch (C.M. 231:28). Essentially, the idea is that if the townspeople decide to institute economic measures in a manner that is beneficial for them, the measures are valid and binding, as this represents the will of the people.8
Authority of Legislature vs. Public Consensus
The Rashbam and other sources cited in the previous paragraph highlight the two categories of authority vs. public consensus. In this case, the subject at hand is the people instituting their own rules that benefit them. This is different than an actual law adopted by the legislature. One interesting recent example of a similar rule adopted by the people was the referendum in England of Brexit, which appears not to have been an actual law, just a sign of what the will of the people was, which will, in fact, be honored.
There is an interesting halachic difference between the two cases (though it is not directly relevant to our topic). The Pischei Teshuva (C.M. 231) states that if all of the people in a town agreed to limit official business hours to a certain amount of time per day, such as from 8 am until 6 pm in order to limit extreme competition, that is acceptable. However, he says that this requires a unanimous decision of the people, and having the majority accept it is insufficient.
Why is this different than with regard to a beis din, where if two dayanim, judges, say a person is liable to pay another, and one dayan says he is not, the ruling is according to the majority opinion? Why must the vote here be unanimous? The difference can be explained based on Tosafos (Bava Kamma 27b), who notes that a majority element is not usually sufficient to obligate someone to pay money to another. However, Tosafos says, following the majority of the beis din to render a monetary decision is different. The reason for this, as explained by Rav Chaim Soloveitchik (Chidushim on Bava Kamma in the “stencils”), is that the majority opinion of the dayanim essentially is transformed into the decisive position of the beis din,9 and is treated as if all of them agree to the ruling.
However, this is only true concerning a legislative body with the power to pass laws or issue rulings. With regard to the townspeople, though, they are simply voting on what measures are better for them as a group. Since the measures will ultimately be binding on all of them, and one can’t impose a majority decision of, for instance, five upon the other three that voted against, all must agree.
In Part 2, we will discuss additional aspects of dina d’malchusa dina and how this principle affects questions of what is morally right and wrong about a country’s economic policy.
1 See, for example, the Beis Yosef (C.M. 426:1), who cites the Hagahos Maimonios and the Talmud Yerushalmi that one is obligated to possibly endanger oneself to save another who is definitely in danger. However, the Bach (ad loc.) argues that the Rambam implies that one would not be obligated to do so. For a more complete summary of sources related to this issue, see Pischei Choshen, Nezikin (12:6), and Rabbi J. David Bleich, Contemporary Halakhic Problems Volume 2, p.222.
2 The poskim may be divided about this question: The Chavos Yair (139)is of the opinion that one is not obligated for a passive prohibition, which would seem to include lo sa’amod (see also #146), while the Rivash (387) opines that one is obligated even for a passive prohibition, which would seemingly include lo sa’amod. For a more extensive discussion of this question, see Pischei Choshen, Nezikin (12:5), Sechirus (chapter 9); Sefer Tzedaka U’mishpat (1:note 23); Shevet HaLevi (5:174); Rav Moshe Hershler, Chovas Hahatzala b’mamono in Halacha U’Refua vol.3, p.45. One suggestion offered is that even if one would be obligated to spend all of one’s money, it would only be where no one else can help to provide the support necessary, but when they can turn to others in the community as well, no individual is obligated to do so.
3 Based on this conclusion, it would seem that according to halacha, law enforcement officials must respond immediately in whatever manner necessary to possible suspicious behavior that they believe may entail danger to others.
4 For an English summary of the parameters, see Rav Hershel Schachter, “Dina D’malchusa Dina: Secular Law as Religious Obligation,” Journal of Halacha and Contemporary Society, Spring 1981.
5 Based on this, halacha’s view of the question of counting election votes based on the electoral college vs. relying on the popular vote is a moot point, as halacha does not require a democracy. Therefore, whatever the country decides is best would be acceptable.
6 The issue of whether the rule of dina d’malchusa applies to the State of Israel is a complex and controversial question and beyond the purview of this article.
7 The Chazon Ish argues that every single question that arises has a halachic approach to it, even if it is not spelled out explicitly by the sources. Therefore, for every monetary issue, one must determine and follow the halachic approach. See his essays at the end of Chazon Ish, Choshen Mishpat #16.
8 This will be discussed more in Part 2 of this series.
9 This is also true for the American Congress: Once there is a vote, the opinion of Congress is automatically in accordance with the majority rule, regardless of who voted otherwise