Chapter Four | The Second Pillar – the Individual and Society

“Once a man was clearing stones from his field and sending them into public domain. There was a pious man who chased after him, saying: why are you clearing stones from that which is not yours into that which is yours? He laughed at him. A while later, that man came into hardship and sold his field, and he would walk about the same area and stumble, saying: “not for nothing did that man tell me that you were clearing stones from that which is not yours into that which is yours” ¹.

Rabbi Shimon Bar Yochai taught a parable of people that were sitting in a boat. One of them took a drill and began to bore a hole under him. His friends said to him: “what are you sitting and doing?”, he said back to them: “what do you care? Am I not drilling under my [seat]?” They responded: “the water is rising and flooding our boat”².

Introduction

In many ecological conversations there is a fundamental tension between the individual person, who has an interest in doing what he wishes to do with his property, and the greater public who are affected by this. This phenomenon is called “the tragedy of the commons” ³. Thus for example, the narrow interests of industrial factory is to discard or combust its trash at the lowest cost, even at the price of air and water pollution that impacts all of society⁴.

In Jewish halacha there are three spheres of obligation of the individual to society: 1. The halachot of damages, regarding direct insult. 2. Neighbor law, which includes indirect damages. 3. Local edicts that are designed to protect the environment.

Tort Law (Dinei Nezikin) and the Law of Grama

Jewish law approaches dinei nezikin with severity and great attention, placing responsibility on man for his actions and his property’s damages. Alongside this, it determined many limitations to this responsibility, of which the most famous is the exemption from damages of grama, i.e. damage caused only indirectly and at a later time then the man’s actions. Many environmental damages obviously fall under this definition, so it seems there is no room to obligate their prevention based on dinei nezikin.

Despite this, there are a number of exceptions to the exemption of grama, and it is possible to extrapolate from there to our matter at hand. The most significant and delineated exception is those of “the Four Categories of Damages”, the damages of the pit, the fire, and the various damages of oxen, of which the Torah obligated the one responsible despite the fact that they weren’t directly caused by his actions⁵. Ariel Even-Ma’aseh proposed including in the category of ‘fire’ the toxic waste that is created by agricultural pesticides, excessive use of pollutants, and the dangerous health side effects, spread via air or leaking into groundwater, and including in the category of ‘pit’ a wide variety of items, from microplastics to nylon wrap, straws, and disposable bottles, or any other thing that turns, at the end of the chain, into mountains and islands of garbage⁶. Granted, in the majority of cases it is difficult to tailor the rigid definitions that halacha granted to these categories ⁷. This is because the liability for fire damage is specifically when the damage is caused directly by the lighter of the fire, without other people assisting ⁸ or natural factors that act as part of the damage as well ⁹. This is the case with pit damages as well, which at its core are limited to a situation where a person or animal (if it has owners) negligently stumbled into an item that was placed in public domain and incurred damages ¹⁰.

Another channel by which there is room to make one liable for indirect harm is “dina degarmi”, codified in halacha by the Rema (Choshen Mishpat 386:3) in the following manner: “there are those who say that for all indirect cause to damage, if it is a common and normal matter, one is obligated to pay a fine”. According to this approach, the sages of each generation could obligate compensation for every form of indirect damage that is common and problematic in their time. Rabbi Avraham Kahane-Shapira writes that one who is holds that we obligate for grama damage nowadays bases this on the expansive interpretation of dina degarmi and on the fact that halacha itself determines that some grama damages render a person ‘liable in the eyes of heaven’, and therefore one should give power to the edicts and laws that expand and rely on this liability ¹¹.

Even when it is impossible to obligate a person in tort law, it is possible to provide restrictions. Even grama damages, which bear no liability, are prohibited from the onset ¹². Additional, man is responsible for acting with a degree of piety and ensure that his actions do not lead to harm. The Gemara recounts that the “early pious ones” would bury their thorns and pieces of glass deep underground so that they would not cause harm to others ¹³. The Shulchan Aruch rules in light of this: “it is a matter of piety for man to hide his thorns and any other damaging thing in a place that will not lead to a misstep” ¹⁴. From here one can draw out, for example, a basis for the prohibition to dispose of trash in a way that could endanger people or animals.

Alongside this, even the liability for grama or garmi damages is limited to situations where there is a clear victim that was significantly harmed from the actions of the perpetrator. In order to include indirect or collective environment hazards that impact quality of life or raise the risk of illness and the like, one must rely on another domain of dinei nezikin, the field of damage to neighbors, as follows.

Damage to Neighbors

The second chapter of Mesechet Bava Batra is dedicated to a wide variety of disturbances that one is prohibited from creating near the property of another person or in public spaces:

“A man should not dig a pit near the pit of his friend… man should not open a bakery or dye shop under his friend’s collection… we distance impure animal corpses, graves, and tanneries [at least] 50 amot away from the city” ¹⁵.

Halachic authorities have based these halachot on two types of sources. One category is general sources such as “love thy neighbor as yourself” ¹⁶, “it’s ways are ways of pleasantness” ¹⁷, or “your brother shall live amongst you” ¹⁸. The second category is specific sources such as the command “and you shall judge with justice between man and his friend and the convert” ¹⁹ of which the Sages expound is relating to judgement “between a house and [the resident in] the attic… between an oven and stove” ²⁰, and Rabbeinu Chananel explains that the intention is for distancing between neighbors. An additional example is the command “do not put a stumbling block before a blind man” ²¹, from which the Rama learns these halachot ²².

In light of this, it seems that these halachot are not limited to the examples brought in the worlds of the Sages, rather they have the potential to guide our interpretation of the proper direction, similar to what the Rosh writes: “for all areas where it was not explained what the measurement of distancing [a hazard] in the Talmud, [the distance is] in order not to cause damage” ²³, and the Rema adds that the determination of the measurement is done “according to the assessment of the experts” ²⁴. Based on this principle, the Ben Ish Chai writes: “it is prohibited to leave an animal corpse in public domain in the alleyways within the city, such as a chicken or a cat that died, or a rotten fish or the like, and it is a commandment for all people who sees a rotting animal corpse in the city streets that he should provide a salary to someone else to work to take it out of the city, and this is called public needs… and it is already known based on what is written in the holy Zohar regarding those who pour putrid and rotten water out of the entrance to their courtyard that they are cursed by the angels. This is the general principle: anything that a person cares about and would be disgusted by in his home, he should not pour out or throw away into public domain” ²⁵. Based on these sources as well as others, Avraham Sheinfeld determined that Israeli damage law, which prohibits an action that “endangers life, safety, health, property, or comfort of the public” fits with Jewish law ²⁶.

A specific example that the authorities of our generation have dealt with is the topic of second-hand smoke. Rabbi Moshe Feinstein writes that it is prohibited to smoke in a place where the smoke bothers or harms others, and emphasized that if many people smoke together, and each smoker themselves would not have been detected if they had smoked alone, one should judge all the smokers together as damaging cooperatively ²⁷. Rabbi Eliezer Waldenberg also writes that one who smokes in public areas must distance themselves “so that they will not cause harm according to the assessment of experts, or the distance it would take for the smoke not to reach others” ²⁸ and Rabbi Yehuda Silman writes that it is appropriate for the one appointed over the public domain “to make edicts restricting smoking” ²⁹.

Alongside this, even this type of halachot unite into situations where the damage comes from a hazard directly to a degree ³⁰, and not when dealing with processes that erode the public quality of life over decades. The relevant halachic term in this context is “his arrows (giri dilei)”, i.e. direct correlation between the man’s actions and the resultant damage, which are required to define the man as responsible for the damage. The authorities, Rishonim and Achronim, discussed the precise definition of the correlation needed to be rendered liable extensively ³¹. There are those who only prohibit actions that can cause immediate harm ³², and there are those who prohibit actions that are more continued as long as the damage is at the location where the hazard was created ³³. When dealing with damage that will occur at a high probability, there are those who are even more stringent, writing: “one must distance themselves from things that cause stench and as a result create mosquitoes and gnats and the like” ³⁴. They also instructed that there is an obligation to abstain from actions that can cause plagues and spread disease ³⁵. The root for this can be found already in the words of Rebbe Yossi brought in the Tosefta: “we distance the bees [in apiaries] from the city 50 amot so that they do not sting humans” ³⁶. Granted that this definition certainly does not include carbon dioxide emissions that impact the greenhouse gas effect and additional indirect actions of this sort.

Granted, Rabbi Gedalya Aharon Rabinowitz proposed that when dealing with damage caused to the greater public, one must be more stringent than normal halachic restrictions. This is based on the words of the Ra’avan (Ra’avan Responsa, article 1) who writes that for “damage to the public” one is liable even when not dealing with giri dilei. Even though the Rashba (Bava Batra 26 a, ד”ה אמר) writes that there is no difference between damages of the individual vs. the public ³⁷, Rabbi Rabinowitz writes that according to the methodology of the Chazon Ish (Bava Batra 14:13) that all of the halachot of neighbor law are based on the consideration of the judge, it seems reasonable that one can restrict the actions of an individual for the wellbeing of the public ³⁸. Similarly, even if one is not halachically liable, there is an aspect of going above the strict letter of the law ³⁹. From this, Rabbi Rabinowitz concludes that one should abstain from developing technology that have a high probability of caused more harm than good ⁴⁰. However, we are dealing with a relatively unique position, and as a general principle it is difficult to include actions that do not directly harm one’s neighbors themselves within the category of “halachot of neighbors”. 

Additionally, against the sweeping prohibition to cause harm to an individual or the public stands the principle brought in Mesechet Bava Kama, which brings ten criteria that Yehoshua delineated for the Nation of Israel when he bequeathed the land to them ⁴¹.These criteria include the permit to bring trash out into public domain ⁴², to cleanse oneself with chemicals that pollute the environment ⁴³, and to perform other actions that harm the public. The Ramban writes that these conditions and the like are hinted to in the verse in Sefer Yehoshua, “and he placed law and judgement in Shechem” ⁴⁴, which does not relate to the legislation of Torah law but “conduct and settlement of cities” ⁴⁵. In other words, part of the state leadership includes determining various permissible acts that allow people to slightly harm others, for as the Chazon Ish writes, “it is the natural order of the world for neighbors to cause damage to one another” ⁴⁶. In light of this, as long as a person acts in the framework of the government’s laws, it is impossible to determine that he has violated a prohibition to cause damage ⁴⁷. The obligation of the individual to preserve the environment is tightly connected to the establishment of proper edicts from the government as we will see later on.

Between Man and Space

With the entry into the Land of Isael a new level of connection was built, not only the initial connection between man and the earth, or the practical connection between the individual and society, but the deep and unique ties of the nation to its land ⁴⁸. The land which is gazed upon by God becomes a part of the national identity of the Nation of Israel, and it requires conservation lest it be contamination, chalila, or it shall spit them out. The nation’s destiny, in a very significant manner, becomes dependent on its destiny. Even if it is difficult to find clear halachic categories that can be implemented automatically for action of environmental harm (which doesn’t directly affect humans), it is very easy to find specific examples of these implementations ⁴⁹. This, for example, is how the Rambam explains the obligation to cover feces within the camp as well as the prohibition of eating pig:

“the pig is wetter than what is appropriate and its waste is great. The Torah is repulsed by it primarily because its significant dirt and its being nourished by slop. You know how much the Torah prevents seeing filth even in the valley, in the camp, all the more so in the cities. Had we taken pigs as food, the caravans and even the houses would be dirtier than a bathroom, like the Frank lands nowadays” ⁵⁰.

The “scientific” explanation of the Rambam is in highly doubtful, and from a scientific perspective it is difficult to accept it today. However, the vary fact that explanations using filth and pollution act in our Mishnah as a reason for biblical prohibitions is more significant. The Torah placed restrictions on the actions of the individual man  and prohibited him from eating and raising pigs, and the Rambam assumes that the reason for this is the consideration of environmental cleanliness. This is also explained by the Ralbag regarding the prohibition of letting a corpse remain unburied overnight: “and you shall not impurify your land’ – because of the stench that will be created in that place then if a corpse remains there” ⁵¹. Similarly, Rashi explains the command to leave clear space around the Levite cities:

“and a field – a space of smooth land outside and around the city to act as beauty for the city, and one is not permitted to built a house there or plant a vineyard or plant saplings” ⁵².

It should be noted that the Torah is especially careful of the aesthetic aspects of the Levite cities, and the reason for this is written in the Sefer HaChinuch:

“Because the gates of the Levite[‘s cities] are primed for the needs of all the rest of the tribes. For [the Levites] are the chosen tribe to serve God, and therefore it would be logical for their cities, which are accessible to and cares for everyone, to be the pinnacle of beauty and delight” ⁵³.

In other words, the centers of holiness and distribution of Torah must excel at cleanliness and aesthetic appeal ⁵⁴[95]. Prohibitions that relate to conservation of the city’s beauty are not able to be waived, and they stand at full force even against the wishes of city inhabitants and leaders ⁵⁵, because “it is damaging to the entire country of Israel if there are unpleasant cities, and it is not within the rights of the mayor to disgrace and shame the country” ⁵⁶. In the words of the sages one can find additional edicts designed to improve the appearance of the public space. A prominent example of this is the prohibition to raise a small animal in the Land of Israel ⁵⁷, as well as the obligation to distance trees from the city because “this is not splendorous for the Land of Israel” ⁵⁸. In the Gemara it is recounted regarding Rebbe Chanina that he would (according to Rashi) “smooth out and repair the obstacles of the city because of his love for the land that he admired and would ensure that a bad reputation would not form regarding the streets” ⁵⁹. It is possible to see this approach to the Land of Israel as a unique phenomenon that derives from its sanctity, or alternatively a fundamental perception regarding the way that a nation must behave in its portion of God.

An additional example is the edicts that the Sages established regarding Jerusalem:

“and one does not jut out protrusions or balconies [into public domain] – because of [creating] a tent of impurity, and so that they will not harm passersby on their pilgrimage. And we do not make garbage mounds – because of crawling impurities. And we do not make furnaces – because of smoke. And we do not make gardens and orchards – because of the rotting” ⁶⁰.  

The municipal edicts that the Sages determined limit both the possibilities of construction and the possibilities of employment, out of concern for the safety and cleanliness of the city. In further generations, the Jewish sages implemented this principle in a variety of times and places. Thus, for example, in Padua and Poznan, and Mantua they placed a communal tax for the sake of paying sanitation workers; in Meknes damaging animals were banned (even when this was not halachically necessary); in the neighborhood of Meah She’arim they established that the streets must be paved in order to prevent bacterial spread; in Mazkeret Moshe they required residents to care for the trees near their house; and so on and so forth ⁶¹. Despite this, when protecting the environment can cause significant harm to the finances of the city inhabitants, the Sages tended to prioritize financial considerations ⁶².

It therefore arises that the Jewish sages and community leaders acknowledged the spirit of biblical law, as well as its limitations, and because of this they did not hesitate to enact edicts based on the needs of the time and place to preserve the environmental quality. Even if it seems at times as if the actions of the individual have minimal impact ⁶³, the child that Rebbe Yehoshua encountered on a conquered road in one of the fields: “thieves like you have conquered this” ⁶⁴. Similarly, our eyes see that the recruitment of many individuals can make a change, like regarding protected wildflowers that changed the situation entirely within a number of years ⁶⁵.

It is important to emphasize that these laws and edicts relate not only to the material benefit of the public space, those relating to public health and removing obstacles, but also the aesthetic aspects ⁶⁶, as Rabbi Shimshon Rafael Hirsch writes: “a society that does not maintain its beauty, even man will grow up a savage” ⁶⁷. Distancing from the aesthetic aspects of life is one of the remnants of the Diaspora ⁶⁸, and the concern for city beauty and cleanliness has weakened in traditional Jewish society over the years ⁶⁹. Some of the process of returning to the Land of Israel includes fixing the aesthetic sense ⁷⁰ and taking responsibility for the splendor and beauty of the land ⁷¹.

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