The Injustice of Equality
By Simon Gordon
The stranger that sojourns with you shall be unto you as the home-born among you, and you shall love him as yourself; for you were strangers in the land of Egypt: I am the Lord your God. (Leviticus 19: 34)
The congregation: there shall be one statute both for you, and for the stranger that sojourns with you, a statute forever throughout your generations; as you are, so shall the stranger be before the Lord. (Numbers 15: 15)
You shall not pervert the justice (mishpat) due to the stranger, or to the fatherless; nor take the widow’s raiment to pledge. But you shall remember that you were a bondman in Egypt, and the Lord your God redeemed you thence; therefore I command you to do this thing. (Deuteronomy 24: 17-18)
What does the Torah mean by loving the stranger? What does this commandment entail?
The key seems to lie in the Israelites’ enslavement in Egypt: knowing what it feels like to be a second-class subject in a foreign land, we must not treat strangers in our land in the same way. Rather, we are commanded to guarantee full equality before the law.
This principle would seem to be no less at home in contemporary society. But to what extent is equality before the law actually upheld today?
In truth, several facets of modern law and ethics that undermine equality before the law are not only accepted, but even claimed to promote equality. How? Because equality before the law is frequently subordinated to equality of outcome.
Take, for example, progressive taxation, which varies fiscal rates by earnings. Equality before the law would demand a single rate of taxation for every citizen. Nonetheless, many argue that progressive taxation advances equality, or social justice, by redistributing wealth from the rich to the poor. Yet this is a different kind of equality from that commanded by the Torah: it relates not to what people must or must not do, but what they do or do not have. Not equality before the law, but equality of outcome.
Or consider much of the contemporary criticism of Israel. How often are Palestinian acts of terror against Israeli civilians excused or even condoned on the basis that conditions in Gaza or the West Bank could yield no other response? Palestinians are ascribed no moral agency, whereas Israelis are held responsible not only for their own actions but also for those of the Palestinians. The premise that there is an inequality of power between Israel and the Palestinians is used to imply an inequality of moral responsibility.
Supporters of Israel frequently cite criticism of this nature as evidence that Israel is irrationally singled out. But Israel is not unique. The same arguments were marshalled to deny the moral responsibility of the perpetrators of the London riots four years ago. Rioters were excused of their violent and destructive conduct by some commentators on the basis of their alleged poverty.
Student groups take this logic one step further. Members of supposedly dominant majorities, such as those who are white, male, heterosexual, or ‘cis-gendered,’ are asked to ‘check their privilege’ before they speak, while members of purportedly marginalised minorities are invited to list their oppressions: the more privileged you are deemed to be, the less valid your opinion, and vice versa. The consequence is an inverse aristocracy, whereby those deemed to have the least power are granted the highest moral authority in compensation. Instead of applying the moral law equally, it is applied relative to race, gender, sexuality, or gender identity.
The ostensible aim of elevating equality of outcome above equality before the law in this manner is to prevent social injustice. Yet the assumption that equality before the law is a hindrance to equality of outcome runs counter to the last millennium of historical experience. From Magna Carta onwards, those seeking to redress imbalances of wealth and power in society recognised that they could be substantially less oppressed if their monarchs or leaders were themselves subject to the law.
This is where the Torah was truly prescient, and why the Israelites’ experience in Egypt is so important. The Israelites did not begin as slaves in Egypt; rather, they went down at the invitation of Joseph, as vizier, and were permitted to live “off the fat of the land,” secluded in Goshen. When the famine hit Egypt, and Joseph effectively forced the Egyptians to sell themselves into slavery so as not to starve, the Israelites, along with the priestly caste, were the only people to remain free, with the right to own property and live unmolested.
But once Joseph was dead, the Israelites no longer served any purpose to the new Pharaoh. He was already established as a god among men, and Joseph had set the precedent that his subjects could be denuded of any rights. Is it any wonder that their wealth and prosperity attracted the new Pharaoh’s resentment, or that he ultimately turned his unconstrained power against them?
The Torah’s repeated instruction that one law is applied to the native and the stranger alike is about more than preventing discrimination against minorities. It is a repudiation of Egypt in every respect: not only slavery, but also the separate and privileged existence the Israelites originally enjoyed in Goshen, and the elevation of a deified ruler with unlimited power above the rest of the people. It is a reminder that there is but one God, that all men were created equal. And it is a cautionary tale: there can be no justice or fairness in society without equality before the law.
Simon Gordon is a professional writer and was formerly assistant editor of Mosaic Magazine. He is a member of Kol Nefesh Masorti Synagogue.
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