Simon Jackson
Legal Advisor to Torah Mitzion
“Everyone agrees that the Scriptural expression dror connotes liberty. How do we know this? For it was taught in a Baraita: …Rabbi Yehuda said: What is meant by the term dror? It connotes a person who may dwell in any dwelling place (ki’medayer bei dayara) and transports merchandise in any land” (Rosh Hashana 9b).
The term dror is thus related to dayara, dwelling place. A slave is subject to his master’s will and may not travel from place to place. By contrast, a free man is subject to no one’s will but his own. According to Rashi (on both his commentary on the Chumash and the above quoted piece of Gemara), this is evidenced by the fact that he may dwell in any place he chooses, with no one to impede his desires. Rashi thus implies that there are two aspects to this right: one positive (the person’s right to dwell wherever he wishes), the other negative (others are unable to impede this right because he is not under their control).
Limitations on Freedom of Residence
Jewish law contains no specific chapter upholding a person’s freedom to live wherever he chooses or a blanket prohibition on expelling a person from his home or country. The notion of any limitation upon a person’s freedom of residence is contained in several sources. From an examination of these sources, we can discover the basic principles and the exceptions to these principles.
Expulsion – “for a Proper Purpose”
In our last column, we analyzed the case of Hagar as the first foreign worker in Israel. We concluded that, no matter what the justification for a person’s expulsion from his home, the act of expulsion per se is a highly traumatic event, entailing as it does a violation of a person’s dignity and freedom, as well as his property and freedom of movement, and a person’s right to decide for himself where he wants to live.
At times, the expulsion is accompanied by a violation of other basic values as well, such as the rules of natural justice, the expelled person’s right to a fair procedure and his right to plead his case. Clearly, these rights are not absolute; they must be balanced against other equally basic rights, such as national security and the public welfare. However, violations of a person’s right to freedom of movement or to choose his desired place of residence can only be justified if they are performed “for a proper purpose, and to an extent no greater than is required” (s.8 Basic Law: Human Dignity and Freedom, 5752- 1992).
Expulsion as a Punishment
Alongside expulsion that is intended to achieve a “proper purpose” some sources speak of expulsion as a means of punishment. In general, this serious punishment is taken only against hard-core criminals such as the “informer-imposter” whose deeds are likely to bring disaster upon the whole community. Thus, in the 14th century, the leaders of the Spanish Jewish Community decided to expel a consummated evildoer from the borders of the city for a minimum period of 5 years:
“The practice of communities to cast out from the city harbingers of evil tidings and sinners or someone who does not walk in the right path or does not walk in the path of the community – is a fitting and lawful practice which will result in the realization of the verse: ‘… and he shall be isolated from the congregation of the exile’ (Ezra 10:8)… The purpose of such expulsion was to diminish his influence by ousting him from our borders, in order to fulfil the teaching: ‘Drive away the scoffer and strife will depart, and judgment and shame will cease’ (Proverbs 22:10)”
The above source indicates that this was conventional practice, not merely a one-time event. There exist a not insignificant number of testimonies of the use made of this severe sanction in Spain, Poland and other communities. However, expulsions would only take place pursuant to due legal procedure in the local Beit Din, following which the expelled person is given the right to get himself organized in preparation of his anticipated expulsion.
Consideration for the Expelled Person’s Family
Alongside the above sources, other sources emphasize the great caution that needs to be exercised in the use of this severe sanction, which affects not only the expelled person but also members of his household who are not direct partners in the terrorist’s crime. The 14th century Spanish commentator, Ritva, for example, criticizes the decision of a Dayan to expel a habitual offender in addition to the severe bodily penalties imposed on him, including the severance of his hand(!)
“What will the person do whose hand has been incapacitated and can no longer earn a living… This is especially true now that he has young children to sustain. It appears to me that this verdict should be overturned and the community should be ordered to sustain his young ones, once he has accepted these rulings. In addition, he should remain in the place of wickedness so that those around him will constantly see him and fear” (Shut HaRitva 131).
Conclusion
Only if expulsion is genuinely for a proper purpose, and all other possibilities have been attempted and exhausted, should resort be had to this measure; and, even then, the expulsion should preserve the proprietary and procedural rights of the expelled person, as well as his dignity and freedom, where possible. In this manner, the ethical character of the State of Israel and its values, both Jewish and democratic, will be preserved – especially the former.
Next Column: Oppressive Employment Conditions in Israel – Ideals and Reality Compared
