Asylum seekers and universal human rights: Does the Bible still matter?

876,100 people submitted applications for asylum in 2011, which is to say that they applied for official refugee status. 76,000 of these applications were received in the United States, reflecting the tip of the iceberg of the population regarded as illegally resident or “undocumented” in that country. But it is developing nations that host four-fifths of all displaced persons, with Pakistan, Iran and Syria struggling with by far the greatest numbers, followed by Germany, Jordan, Kenya and Chad.

The scale of the problem seems overwhelming, although in countries like Australia, the political charge attached to these issues is out of all proportion to the international statistical comparisons; the raw numbers of people seeking asylum in Australia, especially when considered in relation to national wealth, barely rate a mention in international analyses. National elections in Australia have been known to turn on “border protection” policies, and yet the debates around these issues rarely reach the depth that is required if we are to claim that democratic processes have dealt adequately with the problems.

What, then, can biblical theology and ethics hope to contribute to these debates? The question is a pressing one for faith communities, and it is not without relevance for democratic contexts where a large proportion of citizens identify as Christian.

The Bible and borders

One approach to the politics of asylum has been to emphasize the over-riding obligations to the stranger that appear throughout the scriptures (for example Exodus 22:21; Leviticus 19:10, 34; Deuteronomy 14:29, 23:7; Isaiah 61:5; Jeremiah 7:6; Matthew 5:18; Luke 10:25-37). M. Daniel Carroll’s book Christians at the Border has been influential in this regard, especially in America. Nevertheless, some scholars with a commitment to biblical norms have countered his arguments by discriminating between different classes of strangers in the Hebrew Bible.

James Hoffmeier, for example, has argued that the biblical obligation is precisely to the “stranger” (the ger in Hebrew) who might be understood by analogy as a “properly processed alien,” as opposed to an undocumented “foreigner” who can claim no protection from the state. This semantic correlation is then linked to a sanctification of state authorities, notably with reference to Romans 13, and an argument that Christians are therefore called to submit to the laws of the state, including immigration laws.

Directly opposed to the acknowledgment of state authority, Christian “cosmopolitan” arguments for hospitality to strangers fundamentally reject the relevance of nation state jurisdictions and take up more philosophical approaches to the issues.

But neither the philosophical nor the biblical approaches to hospitality seem to pay much attention to the complexity of biblical literature on the theme of borders and how this literature might contribute to a contemporary political theology. Even Esther Reed, who does provide some valuable theological reflection on borders, tends to agree that “a Christian theology of the political should be far more occupied with secular authority, government, power, office, and civil polity than with land, territory, borders, and sovereignty.”

In the long run, this may well be justifiable, but the making of state sovereignties in colonial history was deeply indebted to the assumptions of Christendom, and addressing the secularized legacies of colonial history is a matter that deserves detailed theological work. A relative indifference to land, borders and indigenous sovereignty is part of the historic problem, and in this respect a globalized cosmopolitanism resurrects a colonial logic even as it rails against the arbitrariness of national borders sealing off the majority of the world’s fragile populations from life-giving resources.

Esther Reed emphasizes that there is theological value in re-tracing the steps by which divine sovereignty was secularized firstly in the making of modern European states, and secondly in the fabrication of colonial sovereignties. Such retrospective analysis helps to underline the constructed nature of modern nation states, but once established, they are far from being merely discursive products that can be undone by cleverly told histories or subtle philosophical paradoxes.

Reed argues that in beginning to consider borders as at least relatively meaningful in theological terms, there is value in reconsidering the following list of biblical texts:

“You have set all the borders of the earth.” (Psalm 74:17)

“When the Most High apportioned the nations, when he divided humankind, he fixed the boundaries of the peoples according to the number of the gods; Yhwh’s own portion was his people, Jacob his allotted share.” (Deuteronomy 32:8-9)

“These are the borders by which you shall divide the land as an inheritance among the twelve tribes of Israel.” (Ezekiel 47:13)

“He has made from one blood every nation to dwell on all the face of the earth, and has determined their preappointed times and the boundaries of their dwellings.” (Acts 17:26)

Given the diversity of these texts, Reed argues, it would indeed be hazardous to suggest that we could find here biblical warrants for sanctifying the borders created in “postcolonial Africa, the disputed territories of the West Bank and Gaza Strip, Nagorno-Karabakh, the seabed of Antarctica, or the state of Jammu and Kashmir, and more.” Reed rejects such a naive reading, but she goes on to argue nevertheless that there is a properly ethical status for borders within a conception of state sovereignty explicated as responsibility before God:

“The ancient hope that God will judge the nations – retold in Matthew 25:31-35 as the Son of Man judging the nations based upon how they have responded to the requirements of the gospel for the treatment of the hungry, poorly clothed, imprisoned, and so on – invites an explication of the dynamic and norms of answerability.”

This appeal to the parable of the sheep and the goats in Matthew 25 interestingly reveals a weakness in James Hoffmeier’s dependence on the Hebrew terminology of the ger, since in Matthew 25:38 and 25:44 the hungry, thirsty, naked or imprisoned stranger is an undifferentiated xenos (rather than paroikos, as the customary Greek translation of ger might lead us to expect).

Moreover, the unsettling suggestion in the parable that not even the “righteous” have discerned that the xenos is Christ can hardly lead to an unreserved confidence in immigration authorities. On the contrary, the parable points precisely to the theological danger of categorizing strangers.

While Reed’s argument focuses on an ethic of answerability, rather than one of hospitality, there is an inevitable conceptual linkage between affirming borders and affirming the idea of a homeland. Home and migration are reciprocally defining. Equally, a concept of home is logically implied by what is now called “forced migration” in recent research. In exploring the contribution of the biblical literature to public debates about a state’s obligations to provide asylum, we need to give consideration to the obligations of hospitality in the broader political sense.

Rights and responsibility

Any defence of refugee rights today assumes that states have obligations to provide refuge (for instance, under domestic legislation arising from the 1951 UN Convention Relating to the Status of Refugees), but the presumption that all state parties have the same legal obligations, regardless of their capacity and resources, actually raises questions about the ideological functions of state sovereignties in resisting international accountability.

Thus, for example, Australian political discussion tends to be focused on the hundreds of asylum seekers arriving in small boats instead of the millions of displaced people living in countries that lack adequate resources to care for them. “Answerability,” in this respect, is not just about the legal accountability of individual nations taken one at a time.

When considering the secular developments of international law after 1948, it is evident that signatories to United Nations’ Declarations are primarily state parties who are formalizing their answerability before the international community. Following the horrors of World War II, the overwhelming consensus was that an international instrument was needed that could uphold the rights of individuals against the powers of a state, even a state that had been democratically elected as was the case in Nazi Germany.

When considering the long pre-history of human rights, however, it is also clear that their foundations were laid in conceptions of answerability to a divine Creator, particularly in contexts where the wellbeing of fragile persons was at risk. The story of the Christian churches’ involvement in drafting the documents behind the 1948 Universal Declaration of Human Rights is perhaps less well known than it should be.

Biblical theology and the development of human rights

Some theologians have argued that all modern talk of human rights is inherently individualistic and incompatible with the Bible’s communitarian logic, but this rejection of the Bible’s relevance does not do justice to the variety of ways in which the biblical traditions have influenced the recognition of human rights. These rights were not born into secular liberalism; they were adapted within that environment in the context of new conceptions of human flourishing.

A simplistic historical account of seventeenth century Europe might suggest that in this modern period the divine right of kings gave way to a new secular model of sovereignty within which the inherent rights of the people finally prevailed over medieval theological hierarchies. But a closer examination of history clearly reveals that secularity was initially forged in theologicaldebates, and some philosophical and legal commentators even doubt whether the discourse of human rights can be successfully maintained without its religious moorings.

Certainly, the modern discourse of human rights plays a key role in the philosophical construction of liberal democracies, which themselves depart substantially from the older conceptions of natural law. In this liberal tradition, citizens are often seen as participants in a virtual social contract – rather than a divinely constituted covenant – within which individuals are willing to relinquish some aspects of their autonomy to the state in exchange for security of life and property.

Essentially the role of the state is to protect the “life, liberty and property” of its citizens, or perhaps even the “pursuit of happiness,” as the American Declaration of Independence has it in 1776. This political tradition is linked closely to the life of modern nation states, and accordingly it entails an inevitable tension between the flourishing of the individual state over against the common good of humanity as such.

Conceptions of natural rights were discussed by Catholic lawyers already in the twelfth century, and Brian Tierney has shown how these antecedents work their way through the centuries to the complex secular theology of Hugo Grotius. In the thirteenth century, for example, St Bonaventure argued in his Defence of the Mendicants that although love among Christians might give rise to the practice of sharing goods in common, there was a more basic community of goods from which people could draw in sustaining their natural existence, on the basis of “the right that naturally belongs to man as God’s image and noblest creature.” The right to these goods held in common could be exercised by virtue of “natural necessity” and could not be renounced.

It would take some centuries before the idea of “inalienable” rights would take revolutionary shape, but when Oliver Cromwell assaulted the monarchy in the seventeenth century, and asserted the rights of the people against the Crown, it was still on the basis of a biblical covenant theology within which “the people” relate directly to God, making kings and priests largely unnecessary. Later forms of nationalism moved between ethnic and civic extremes, excising monarchs and religion to greater and lesser degrees depending on the local permutations.

Protestant revolutionaries in Europe did not invent their ideas out of nothing; they were re-reading the Bible with renewed political interest. What they found, especially in the prophetic books, was a relentless critique of kings and priests. We now know that this ancient tradition of prophetic critique was very unusual within the surrounding cultures of Mesopotamia, Egypt and Assyria. Kings were more likely to be considered divine or semi-divine, and given this exalted status, they were the ones who made the law.

In Israel this was pointedly not so: kings were not originally part of the divine plan for government, and when they did arrive on the scene it was a matter of divine regret and accommodation to human desire, as at least 1 Samuel 8 suggests. Kings exercisedmishpat in the sense of “judgment” (usually very badly), but they did not make the foundational statutes handed down in Mosaic tradition.

In the course of time, the accommodation of monarchs in Israelite religion took on different forms, ranging from the strong affirmations in Zion-Jerusalem theology to the constraint of kings under divine law in Deuteronomistic theology, and to a qualified indifference to monarchs in priestly tradition.

According to the biblical story that describes the introduction of kingship into Israel’s polity, Samuel warns the people that the king’s “justice” (mishpat) would turn out to be an oppressive regime of accumulation. The Crown’s view of social order would not just require taxation, but also the acquisition of sons, daughters and land: “he will take the best of your fields, vineyards, and olive groves and give them to his underlings” (1 Samuel 8:11, 14). The force of Samuel’s speech is clearly that of a warning; he presumes that the social order imposed by a king is a bad thing and to be avoided, and therefore the use of mishpat is better seen as ironic – if this is justice, who would want it?

Ironically, as in social contract theory, Israel seems willing in the Samuel narrative to engage in a trade-off, accepting the social benefits along with the impositions that the new polity entails. Set against this trade-off, Samuel’s warning against kingship in 1 Samuel 8 fits with the later prophetic denunciations of the wealthy, including of wealthy kings, where the prophets assert that they did not become rich because God had blessed them in accord with their righteousness, but rather, they are wealthy as a result of their exploitative behaviour. Samuel eventually finds a middle position by imposing legal contraints on the Crown: “Samuel told the people the rights and duties (mishpat) of the kingship, and he wrote them in a book and laid it up before Yhwh.” (1 Samuel 10:25)

While we do not find the specifically modern vocabulary of “inherent” or “human” rights in biblical law, analogous concepts can be found there nonetheless. The mishphat may not always be universalizable, as illustrated by the “right (mishpat) of the firstborn” (Deuteronomy 21:17) or the “right of redemption” (Jeremiah 32:7-8). Nevertheless, unlike such instances of “special rights” arising from family position or institutional function, the rights of the widow, orphan and alien belong naturally to persons as such. An even better example is provided by Job, who founds his protection of the marginalized widow, orphan and alien explicitly on the basis of a universal creation theology, rather than Deuteronomic divine commands:

“Did not He who made me in the belly make them,and form me in the one womb?” (Job 31:15)

Thus, argument for the natural or universal rights of gerim can be established on broader canonical foundations, which situate the particularity of Israelite law within a universal horizon of answerability to God.

The prophetic traditions also contain several significant visions of an international law (torah or mishpat) that offers peace and justice beyond Israel. The late wisdom traditions find no tension between the universal torah of creation and the particular torahof Israel, but the book of Isaiah is arguably still in the process of brokering this settlement. Jerusalem is seen as the centre of redemption, even if the offer of salvation goes to the ends of the earth.

Isaiah 42:1 envisages a justice “for the nations,” as does Isaiah 2:3-4, where the nations converge in pilgrimage on Jerusalem. This is a torah given at Zion, not at Sinai, and the change of geographical symbolism may well indicate a shift from the particularities of a national theology to an imperial imagination. But however these changes are construed, we encounter in Isaiah 2:3-4 the symbolism of an international law that brings peace between nations:

“They shall beat their swords into ploughshares,and their spears into pruning-hooks;
nation shall not lift up sword against nation,
neither shall they learn war any more.”

In much later centuries, Judaism and Christianity have each conceived their own versions of internationalism, and both have developed universal conceptions of natural rights that necessarily extend beyond any narrow definition of covenant community.

There have also been a number of attempts to ground human rights Christologically, which are more problematic unless perhaps they are understood in terms of a cosmic Christology that establishes the kinship of all of God’s creatures. The biblical starting point best suited to this kind of project ironically arises from a dialogue with ancient Hellenistic cosmology (see, in particular, Vicky Balabanski’s valuable contribution to Ecological Hermeneutics).

A Christian embrace of the entire created order opens up an environmental hospitality that builds on the covenant with all creatures in Genesis 9. Turning from anthropocentrism to an ecotheology in which human rights take their place within “the gift of continuing creation,” we also take up responsibilities for the rights of other creatures. These responsibilities are closely connected to the issue of refugees, in so far as the number of ecological refugees is likely to increase dramatically with the rise of sea levels, notably in the Pacific region.

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For the atheist defenders of human rights, the historical complexity of the Bible’s legacy is sufficient to demonstrate that such ancient scriptures are irrelevant to modern ethical and legal debates. But for those of us whose identities are still marked by this tradition, another conclusion is possible: a living tradition is always constituted by internal debates about the meaning and values that constitute that tradition.

As it has done for centuries, the Bible still inspires religious motivations to support the common good, including the protection of inherent rights that are secured by a universal theology of creation. This is not the only approach to human rights, and we need to seek clarity in public discourse as to alternative approaches, but in recent Australian debates, the Christian commitment to human rights has been much thinner than it ought to have been.

While the inflation in the sheer number of rights may be problematic, not to mention the associated complexities of legislation, jurisprudence and parliamentary freedoms, there can be no doubt that Christian practice should err on the side of hospitality to asylum seekers, whatever the status of their documentation. To be sure, the lessons drawn from colonial history should cause us to draw back from the cosmopolitan utopia that acknowledges no homelands to which particular groups are attached, since it is precisely a homeland’s jurisdiction that gives rise to special accountabilities.

We can expect some tensions and incommensurability in the way that rights and responsibilities are exercised, and beyond the narrowly legal imperative not to oppress a stranger, ecclesial communities have a positive charge to love the stranger as themselves, in practices of hospitality exercised beyond the constraints of national interest.

Mark Brett teaches biblical studies and ethics at MCD University of Divinity. An extended version of this article will be published later this year in Colloquium.

http://www.abc.net.au/religion/articles/2013/06/17/3783383.htm