Two Jewish Views of Justice

Rabbi Melanie Aron

Friday, January 15, 2010

The San Antonio Martin Luther King Day Parade is led by a city garbage truck. This is not meant as disrespect but is a tribute to the last march that Dr. King led, a march for sanitation workers in Memphis, Tennessee.

When Martin Luther King was assassinated on April 3rd 1968 he had been involved in supporting efforts to unionize garbage workers who were on strike for safer working conditions, fairer treatment, and higher wages. Their wage at the time was $1.70 an hour: their goal was $2.35.

To provide some context, in 1968, the minimum wage was $1.58/hour, which is about $8.50 adjusted for inflation, actually a little more than our current minimum wage. $1.70, their wage at the time, is about $9.25 an hour in current dollars, and $2.35 their goal, is about $12.75 an hour in current dollars.

In addition to economic issues, the strike was prompted in part by anger after the death of two sanitation workers who had been crushed by a malfunctioning truck.

Though there was a civil rights aspect to this effort, since the terms of employment for Black sanitation workers were very different than those of the white sanitation workers, it was also very much a struggle for economic justice.

Many of King’s allies criticized him for getting involved in the garbage strike. It seemed to them peripheral to his main focus. They felt they could support him in fighting discrimination but not in his Poor People’s Campaign which was challenging American societal norms in other ways. The campaign focused on full employment, low income housing, and a guaranteed income for all Americans. King urged a massive government jobs programs to rebuild America’s cities. He saw this economic campaign as the second stage of his earlier campaigns against racial discrimination. King argued that, “for people too poor to eat at a restaurant or afford a decent home, anti-discrimination laws were hollow.”

In Jewish tradition there are two terms for justice, mishpat and tzedek. MIshpat is often identified with even-handed justice, fairness, playing by the book. MIshpat can be understood as the powerful principle that law should apply uniformly for all individuals; that the best way to uphold a standard of justice and fairness is to treat everyone the same. We find this in Biblical texts as in the Holiness Code which we read on Yom Kippur afternoon where we are instructed: “do not favor the poor in judgment or show partiality to the rich.” In this aspect of justice, a person’s personal circumstances or socio-economic status should not give them any special consideration. This is justice, as “equal justice under the law.”

To some extent this was the type of justice for which the Rev. Dr. Martin Luther King struggled, as in his last speech in Memphis, the Mountaintop Speech, where he says, “All we can say to America is: Be True to what You Said on Paper.” He wanted African Americans to have the same chances for success, and an important part of that chance for success was equal treatment under the law.

Tzedek, related to the commonly used word tzedakah, is a different aspect of justice. We create Tzedek by creating a system for the fairer distribution of goods, services and opportunities. This is justice by means of the redistribution of wealth, justice tailored to the particular circumstance or a particular situation of an individual. Tzedek prevents that which tzedakah is designed to repair.

Related to tzedek are a series of Biblical texts concerning our obligation to the poor which extend beyond the demands of Mishpat.

Legally, the crops we grow on our fields belong to us, we own the land and we have done the labor, but the Torah teaches that we must leave the corners of our fields for the poor, the stranger, the widow and the orphan.

Legally the pledged item which is given as collateral for a loan is required to be returned only when the debt is paid, but the Torah teaches that we must return that pledge of the poor every evening: “it is his only clothing, the sole covering for his skin.” (Exodus) “you must return the pledge to him at sundown that he may sleep in his cloth and bless you.” (Deuteronomy)

The law dictates that all loans are forgiven in the seventh year, therefore making a loan in year 6 imprudent, but the Torah teaches that even so we must lend our money: “do not harden your heart and shut your hand against your needy kinsman. Rather you must open your hand and lend him sufficient for whatever he needs. Beware lest you harbor the base thought: ‘The seventh year, the year of remission is approaching,’ so that you are mean to your needy kinsman and give him nothing. He will cry out to the Lord against you and you will incur guilt. Give to him readily and have no regrets when you do so.”

Perhaps the contrast is best understood in this story from the Talmud about some porters who were hired to move barrels of wine for Rabbah Bar Bar Hanan. When they broke the barrels, spilling the wine, he took the porters outer garments in payment for the loss that they had caused him. The porters then went and complained to Rav, the most prominent rabbi of his generation. Rav told Rabbah Bar Bar Hanan that he could not keep the garments, even though he had suffered a financial loss. From Baba Metzia, a section of the Talmud that deals with business issues we read:

Rav told Rabbah: “Return the garments.”

Rabbah said: “Is that the law?”

Rav admitted, “No, but ‘follow the good way,’” Lemaan Teylech, bederech Tovim, quoting Proverbs 2:20.

The garments were returned but the porters complained: “We are poor men. We worked all day and were not paid. Are we to get nothing for our labors?”

Rav then ordered Rabbah to pay the porters.

Rabbah asked: “Is that the law?”

Rav admitted: “No, but ‘be sure to walk on the paths of Tzedek, of righteousness,’” Ve’archot tzadikim tishmor, quoting the rest of the same verse in Proverbs.

The law, mishpat, was on Rabbah’s side, but Rav urged him to act by the standard of tzedek.

There is equal justice under the law, but then there is also a higher standard of distributive justice. The last three years of the Reverand Dr. Martin Luther King’s life, from 1965-1968, years often unheralded in the tv tributes at this time of year, were focused on this second aspect of justice. He wrote: “True compassion is more than flinging a coin to a beggar-it comes to see that an edifice which produces beggars needs restructuring.”

As an American Jewish community I think we feel more comfortable in struggling for mishpat than for tzedek. Fair is fair, we will say, as we try to level the playing field, to make sure that everyone gets to play by the same rules. But sometimes mishpat is not sufficient and it is really for the standard of tzedek that we must fight.

Several of the Churches with which we have gotten involved through PACT, are struggling with the issue of home foreclosure. What in our congregation is a problem that has so far affected less than a dozen of our members, involves over 10% of the homes on the eastside and what seems like ½ the houses on the street of the Church where we held our first Health Fair. Overall in Santa Clara county home foreclosures jumped from 2,000 in 2006 to 14,000 in 2008.

Some of what the Churches of Pact are seeking is mishpat, an end to unfair practices and predatory lending targeting the minority communities. But some of what they need is Tzedek, looking at the foreclosure problem not only in terms of the letter of the law but in terms of the importance of keeping families together, promoting continuity in children’s education, and stabilizing neighborhoods. Father Eddie our Health Fair partner is working to get fairer treatment from Bank of America, which nationwide has made less than 100 accommodations.* Certainly more creative thinking could be used in solving such a large problem.

I feel certain that, in regard to home loan modifications, Rav would respond as he did in the situation of the porters- it may not be the law, but the needs of individuals and of the community must be considered. This is surely the kind of campaign, that were he alive today, Dr. Martin Luther King would chose to embrace. O God, we pray that we too will find the strength and courage to work for Tzedek as well as Mishpat.


* The numbers have been updated.  As of Dec 30, after significant community pressure, Bank of America had done 3,100 permanent loan modifications out of over 1 million eligible borrowers. JP Morgan Chase, the next biggest holder of bad loans, with about 450,000 borrowers who qualify for a loan modification, or less than one-half of what Bank of America holds, has done about 7,000 permanent modifications.