Compelling in the Instance of Midat Sedom (3)

The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

Shiur #09: COMPELLING IN THE INSTANCE OF MIDAT SEDOM (PART III)

HaRav Aharon Lichtenstein*

 

 

            Thus far our survey of the principle of "compelling in the instance of Midat Sedom" has focused on the definition of the trait. We shall now begin to analyze the compulsion itself. As we have already seen, the parameters of the two are not identical. There can be midat Sedom that does not lead to compulsion – whether because it does not express itself in a particular act, but in a general and amorphous way of life; or because it has only taken root as a personality trait, but has not yet found practical expression; or because of secondary factors, e.g., the possibility of changing the situation under discussion ("had the owner wanted to rent it out to someone else, he would have profited"), or because of a more or less arbitrary claim ("sometimes one channel may continue running while the other dries up"). The details of these conditions in and of themselves allow for discussion and definition. When does the severity of the trait or the degree of its realization lead to the law of compulsion? How subjective can a claim be and still be acceptable? Where do we draw the line between a direct and specific action and general behavior or an indirect action? Questions of this sort do not lend themselves to clear-cut answers, and perforce any answer will be slightly vague and even ambiguous, and subject to differences of opinion. But even if we do not inquire into such details, we must still clarify the parameters of compulsion and its relationship to midat Sedom.

 

            In order to answer this question, we must first determine the foundation of the law that "we compel in an instance of midat Sedom" – both regarding the condemnation of the trait itself and regarding the compulsion. The first point does not present a difficult problem. In the extreme form of the trait, namely, a case of real le-hakh'is, there may be a violation of the prohibition of hating one's fellow, and in many cases, also verbal oppression (ona'a).[1] As for its more moderate form, "one who does not care," the loathing of the trait stems from the obligation to practice acts of lovingkindness – and therefore, as asserted by the Ritzba,[2] it is by Torah law. The description of Sedom in the book of Yechezkel only mentions the neglect of giving charity: "Behold this was the iniquity of your sister Sedom: she and her daughters had pride, surfeit of bread, and abundance of idleness, and yet she did not strengthen the hand of the poor and needy."[3] Chazal, however, understood that it includes also the neglect of performing acts of lovingkindness. What is more is that the Gemara in Sanhedrin emphasizes precisely this point: "They [= the people of Sedom] said: Since there comes forth bread out of [our] earth, and it has the dust of gold, why should we suffer wayfarers, who come to us only to deplete our wealth. Come, let us abolish the practice of travelling in our land."[4] The obligation to condemn this trait stems then from the two general sources of the mitzva to perform acts of lovingkindness – "you shall walk in His ways," on the one hand, and "you shall love your neighbor as yourself," on the other.[5] Its source is also found in another general verse, "And you shall do what is right and good," this being the source for moral conduct that goes beyond the letter of the law[6] - which should be understood as a full-fledged obligation, and not just an act of special piety.

 

            When, however, we come to examine the basis for the compulsion, both its objective and its rationale, we encounter confusion. Is the foundation for coercion moral or practical? Two questions arise that are parallel and independent, but to a certain degree also intertwined. What obligates the compulsion and regarding what circumstances was it enacted? And especially, is the compulsion rooted in the moral obligation of the owners, so that it is executed as a response to their negligence? Or perhaps the possibility of providing for the needs of others suffices in order to coerce the owners? Put differently, what is the determining factor - the mitzva falling upon the party who "suffers no loss" or the giving to the party who "seeks the benefit." The clarification of these issues has important halakhic ramifications. For example, does the principle of compelling in an instance of midat Sedom apply to a minor? If the moral factor is decisive, then it cannot apply to a minor. For it has already been established as law, that according to the one who maintains that shi'bud is not by Torah law, we do not collect debt from the debtor's heirs who are minors (even if we know that their father did not repay his debt during his lifetime), because "repaying a debt is a mitzva, and minors are not obligated to perform mitzvot."[7] Similarly, "[guardians] cannot undertake on [the orphans'] behalf to give charity or to redeem captives."[8] If, however, the other person's need is the critical factor, there is no room to distinguish between adult and minor. Regarding what is stated in the Mishna: "[A resident of a city] may be compelled to contribute to the building of a wall, folding doors, and a crossbar," the Gemara adds: "Rav Yehuda said: All must contribute to the building of doors in the town gates, even orphans."[9]

 

            I am unable, based on the words of Chazal and the Rishonim, to offer clear answers to these questions. It is, possible, however, to point to various sources which in my opinion touch on the aforementioned issues. One such source is the disagreement between Rabba and Rav Yosef regarding the division of an estate according to the understanding of Rashi, which we already mentioned above. Their disagreement revolves around the refusal of one heir to allow his brother to take his portion from that part of the estate that adjoins land that he already owns – in a situation where one of the portions is liable to go up in value in the future, though it is not known now which portion will appreciate. It seems to me that in light of the present knowledge, which does not justify preferring one portion over the other, the brother who does not own the adjoining property should be classified as one who suffers no loss; and his refusal to give his brother the portion that is adjacent to his own property, should constitute, from a subjective perspective, outright midat Sedom. Therefore, if refinement of the soul suffices to impose compulsion, Rabba is correct. If, however, the obligation of compulsion stems from the obligation to aid another person, there is room to say that the obligation to help him is limited to a case where there is not a trace of loss to the owner, so that the benefit to the other party derives, as it were, from ownerless property. But if, objectively speaking, the compulsion is liable to cause the owner a loss, despite the fact that from his perspective we are dealing with purely arbitrary stubbornness which constitutes midat Sedom in the full sense of the word, he cannot be compelled. Since we rule here in accordance with Rav Yosef, we must conclude, according to Rashi, that the moral factor alone does not suffice to obligate compulsion.

 

            According to Rashi, it is Rabba who emphasizes the subjective element regarding compulsion. According to the Rambam, on the other hand, it seems just the opposite. According to him, the Gemara deals with parcels of land of different quality, one land of the best quality and the other land of the poorest quality; all this notwithstanding, Rabba maintains that since there is no real loss in the bookkeeping sense, we compel. In such a case, it is clearly impossible to view the one brother as a terribly cruel person who arbitrarily wishes to deny benefit to his brother who owns the adjoining property. He puts forward a reasonable claim, and if we compel him, it must be that this is not to refine his character, but to bestow benefit upon the other. As for the position of Rav Yosef, he too might agree to this understanding of compulsion, but he maintains that the difference in quality between the fields constitutes a real loss, "for how is it possible that Rabba should call this midat Sedom, when this is the mida of the Torah which said that for damages we collect from land of the best quality, and debts we collect from land of the poorest quality."[10] According to him, we are not at all dealing here with a case of "this one derives benefit and this one suffers no loss."

 

            According to one of the Rishonim, it is possible to connect our question to the controversy between Rabban Shimon ben Gamliel and the Sages regarding the writing of two shetari beirurin. The Gemara explains the position of Rabban Shimon ben Gamliel: "Because [one can] say to the other, 'I do not like your rights to be at the side of my rights, for you appear to me as a lurking lion'";[11] but it does not explain the view of the Sages. The Rishonim adopted several approaches. The Rama[12] understood that they simply saw Rabban Shimon ben Gamliel's concern as far-fetched and without value. The Rashba,[13] however, writes that even the Sages recognized the validity of the concern, but they were inclined to reject it because of the monetary loss suffered by the other party. This being the case, it is difficult to assume that we compel here in order to uproot the compelled party's wickedness. Indeed, if we were asked to decide the case based on the subjective state of the compelled party, we would be unable to compel, because the level of Sedom's evil – refusal to help another person even when that involves no loss whatsoever to the helper – does not find expression here. We are forced to say that according to the Rashba we compel because objectively speaking it is possible to cause one person to benefit without causing another person to suffer a loss. The practical factor suffices to impose compulsion. Of course, even if we accept this assumption, there is still room to question his position. It is possible to see the very fear – which according to the Rashba does not fall into the category of excessive paranoia – as a loss; and whenever there is any degree of loss, the argument of the Ketzot ha-Choshen is certainly reasonable: "Whenever there is even a small loss, even if it is very minute, it is no longer regarded as midat Sedom."[14] In any event, it seems certain that according to the Rashba, the practical factor suffices to impose compulsion.

 

            Moreover, if we go back for a moment to the passage of Rabba and Rav Yosef, it seems that according to the Rashba the benefit derived by the other party is the only decisive factor. In the course of his explanation,[15] the Rashba agrees with those who maintain that we only compel according to Rabba if the ownership of the adjoining property preceded the division of the estate. But this seems to be difficult, as pointed out by Rabbenu Yona in his Aliyot: "There is no basis for this, for inasmuch as Rabba's rationale is not based on the strict law, but on the rule that we compel in an instance of midat Sedom, what doing of what is right and good is there regarding the one over the other?"[16] We are forced to say that the Rashba did not see the moral education of the owner as sufficient reason to compel, for from this perspective the wickedness of the brother is equal in the two cases, and there is no difference between them. But if the benefit derived by the other party is the decisive factor, it is perhaps possible to view the compulsion as a sort of right belonging to the brother who owns the adjoining property; and this exists only when he owns the adjoining property. If at the beginning of the division of the estate, this right was not yet established, there is no room for compulsion.

 

            And finally, I think that this uncertainty is echoed in a disagreement among the Rishonim regarding preventing squatting lekhatchila, in a case where the person would otherwise rent living quarters and the house is not up for rent. If the reason that we do not compel in such a case is that the person seeking the benefit is trying to take control of his fellow's property, and this in itself turns the owner into one who suffers a loss, then this disagreement has no connection to our question. But if the reason is that the owner can turn his house into one that is up for rent, then the question may be raised: As long as there has been no change, and he has not yet put the house on the rental market, does his refusal not stem from midat Sedom? Must we be concerned about what might happen? If the wickedness in and of itself obligates compulsion, this argument is certainly correct. And perhaps this is the way to understand the view of those who maintain that in such a case we compel. If, however, the subjective injustice does not suffice, and we compel only in order to allow the other person to derive benefit from "ownerless property," then it can surely be suggested that whenever it is within the owner's authority to change the character of his property, we do not allow others to derive benefit from it. The fact that he has not yet changed the status of his house does not at all impair his control over it.

 

            These proofs relate to the factors that obligate compulsion. But we must still present a different question: What is the nature and objective of this compulsion? However we define the conditions that obligate compulsion, what is its teleological nature? Again we are faced with two possibilities: 1) the moral improvement of the party who refuses to allow his fellow to benefit from his property. 2) helping that other party to derive benefit. From one perspective, the compulsion is directed inwards, and constitutes an educational effort to uproot the wickedness in the compelled party's soul; from another perspective, its goal is outward, and it constitutes a means to achieve a pragmatic goal. Here the emphasis is on the refinement of a person's soul; there on the benefit to his fellow.[17] The nature of the compulsion also varies according to the one definition or the other. In one form, the compulsion is against the person. On the practical level, they might deal with his property, similar to the position of the Ramban[18] regarding compulsion in the case of repayment of a debt according to the view that shi'bud is not by Torah law. Essentially, however, the coercion relates to the owner of the property: we compel the owner to waive that which belongs to him. In the other form, however, the compulsion relates directly to the property. Those who compel – generally, the court – take control of the property, claiming the rights of the one who seeks benefit, without any connection to the owner. So too the role of the court as enforcer varies – here as teacher of justice and moral guide, there as ruler of the people and one who is responsible for its welfare.

 

            Here too, this is not a merely theoretical discussion. There is a clear and simple practical ramification, perhaps of wider scope than those connected to the previous question. Does compulsion apply to a person who continues in his stubborn ways? If the objective is moral refinement, there is no room for further compulsion; but if we are concerned about benefit, there is certainly room. From here we see that there is a possibility for the sinner to profit, for if the goal of the compulsion is the compelled party's moral improvement, we are dealing here with a crooked person who cannot be straightened. In this framework, the question is not whether it is appropriate to compel, but whether it is possible to compel. If in the depths of his heart, a person refuses to heed the instruction of the Sages, and their efforts only harden him in his rebellion, then surely their rebuke is included in the category of "words that are not heard," regarding which there is a mitzva not to sound them.

 

            Needless to say, this question has great practical ramifications. Halakha recognizes compulsion – but employs it with a heavy heart and in the absence of alternatives. Halakha's goal is elevation of the spirit, and not a bringing low of the body, a repair of the vessels, and not their breaking. Its means, at the initial stage, are education and guidance – tokhacha, "rebuke," in the sense of instruction, rather than punishment. "The Merciful seeks the heart."[19] As stated above, however, despite its ideal aspirations, Halakha does not recoil from compulsion. Coercive measures are sometimes employed in order to prevent some objective evil; and sometimes they are even seen as a means to educate the coerced party himself. The efficiency of employing coercion as an educational tool, however, is dependent upon the character and emotional make-up of the individual. Not everybody responds in the same way. A person who generally recognizes the authority of the coercer and his values, and accepts his yoke, even though he cannot question his orders, is likely to derive educational benefit from compulsion. In its wake he will not only repair the concrete injustice, but also repent, and strengthen thereby in the depths of his heart his acceptance of obligation in the future. Modern man, however, who is raised on an individualistic outlook and a liberal tradition, is generally inclined to react negatively to coercion. Even if he values the coercer's goal, and is perhaps prepared to realize it over time, the very fact of coercion stirs up fierce bitterness within him.[20] Instead of the Rashba's question, "How is it possible to think that we would not compel in an instance of midat Sedom?"[21], the modern Jew is liable to ask just the reverse. And this is not out of insensitivity to evil, in society or in his soul, but out of insistence on his own dignity. Thus the question stands: To what extent should compulsion be employed in the case of midat Sedom, when the expected response is negative?

 

            The wording employed by the Rosh in a responsum implies that the goal of compulsion is indeed educational: "And we compel him to distance himself from evil traits and to perform acts of lovingkindness with his fellow in a situation where he suffers no loss."[22] But apart from this source, I have found no other sources, or even well-founded indirect proofs, in the words of our Sages, that would allow me to provide a clear answer. Perhaps we can adduce proof from the fact that we do not find regarding midat Sedom a halakha similar to that found regarding charity – "and we confiscate his property in his presence and take what is appropriate for him to give"[23] – that is, that the coercive measures must only be employed in the owner's presence. Perhaps we can also draw inferences from the fact that it says "kofin," "we compel,"[24] rather than "kofin oto," "we compel him." Standing on their own, however, these precise readings cannot decide the matter. My intention is to raise the question, and not to settle the issue; to present it as a vibrant question, which many have struggled with in the past, and not to resolve all the problems in its regard. Nevertheless, allow me to add two points. First, there is no contradiction between the two approaches. It is certainly possible that the achievement of either goal justifies compulsion; and it is possible that in certain conditions it is the one factor that is critical and in other circumstances it is the other factor. And it is also possible that compulsion is only an option when there is a combination of both the educational and the practical factors. We are not necessarily required to choose between the two factors.

 

            And second, in certain cases we encounter compulsion more authoritative than anything that we have seen thus far. The various modes of compulsion described above all require certain actions on the part of the coercing party – whether against the owner or against his property. In these cases, however, the right of the other party exists on its own, and it stems from a new definition that restricts the concept of ownership itself. When the court gets involved, its role is legislative, rather than juridical. Its action is based on the principal that "property declared ownerless by the court is ownerless," and its means is a general ordinance, rather than taking control of a particular individual.

 

            This concept is rooted in a talmudic passage at the end of chapter Chezkat ha-Batim, dealing with two neighbors, one of whom wishes to extend a projection over the airspace of his fellow's courtyard: "[Regarding] a projection [which projects not less than] a handbreadth, there is a chazaka and the owner of the courtyard can prevent it [from being made in the first place]. If it is less than a handbreadth, there is no chazaka for it and he cannot prevent it [from being made].[25] In its discussion regarding the second clause, the Gemara records a disagreement between Rav Huna and Rav Yehuda concerning the question whether only the owner of the roof cannot prevent the owner of the courtyard from using the projection, or perhaps even the owner of the courtyard cannot prevent the owner of the roof from using it.[26] The Gemara explains that the Amoraim disagree whether or not the owner of the courtyard can raise the claim of damage caused by visual exposure, because the owner of the roof will gaze into his courtyard when he places things on the projection.

 

            In light of our generally accepted notions a simple question arises: Why must we examine the validity and justice of the claim raised by the owner of the courtyard? Surely the airspace of his courtyard belongs to him – about that there is no disagreement, and surely this is so, because it can acquire things for him based on the kinyan of chatzer! Does he not then have the legal right to prevent other people from using it? Do not his desires – even if they are totally arbitrary – constitute a wall that must be respected? On the other hand, however: Who gave the owner of the courtyard the right to use the projection? Even if we grant him the right to force his neighbor to remove it, surely as long as it is standing, for whatever reason, the owner of the courtyard should not be able to prevent his neighbor from using it!

 

This question with all of its ramifications has no answer; it can, however, be resolved if we undermine its fundamental assumption, which is mistaken: in the framework of Halakha, ownership does not have such extensive scope, for the reason already alluded to by the Rashbam. We do not accept the argument put forward by the owner of the roof, "for he cannot object and say, 'Do not use the projection,' for what loss is caused the owner of the roof."[27] This point is clarified by the Rashbam's comment on the first clause, that accepts the objection of the owner of the courtyard: "That is to say, if someone comes from the outset to extend a projection not less than a handbreadth over his neighbor's courtyard, the owner of the courtyard can prevent him from the filling the airspace of his courtyard. And we do not say: 'This one derives benefit and this one suffers no loss,' for surely there is a loss, as the Gemara says regarding a projection less than a handbreadth, that since the owner of the roof uses the projection, he looks into the courtyard, and there is damage caused by exposure."[28] The inference is clear: were it not for the damage caused by exposure, there would be no room for objection, for "this one derives benefit and this one suffers no loss." Here is the foundation of the law. In this passage, however, there is no mention of anything like "compulsion in an instance of midat Sedom," for there is no need for a particular coercive measure. Here the ownership does not allow the owner to act in the manner of midat Sedom.

 

V

 

            It is difficult to determine how far-reaching our halakha is. However, two points must be emphasized. First, this level does exist. And second, the limitation set on ownership constitutes an important motif in the whole issue of compulsion in an instance of midat Sedom, and not only in the stage reflected in the passage in Chezkat ha-batim. Even when Halakha makes use of coercive measures, the result is also a diminution of proprietary rights. The fact that this dimunition takes place only by way of a particular legal procedure does not negate the content and validity of the concept. The scope of the restriction is the subject of controversy – between the two opinions cited in the Or Zaru'a, between Rashi and Rabbenu Tam, and others. But there is no disagreement about the principle. The extent to which this reaches may be seen in a law inferred by the Rambam – and agreed to by several other Rishonim – from an incident related at the beginning of Bava Batra: "If someone has windows down below in his wall, and his neighbor wished to build in front of them, and he said to him: 'I will make other windows for you in this same wall above these,' he can prevent him from so doing, saying: 'When you make the windows, you will damage the wall and make it unstable.' Even if he said: 'I will take down the entire wall, and build you a new one, and make windows up above, and rent a house for you to live in until I finish the building,' he can prevent him, saying: 'I do not want to trouble myself with moving from place to place.' Therefore, if there is no trouble whatsoever, and he does not have to move, he cannot prevent him, and we compel him to allow his neighbor to close the window below and open a window above, for this is midat Sedom. And similarly, regarding any instance in which this one benefits, and the other one suffers no loss, we compel him."[29] From the Rambam's formulation, we are liable to conclude that if the owner suffers no loss, his property is given over to his neighbor for demolition and reconstruction. In my opinion, such a conclusion is excessively far-reaching. It is more reasonable to assume that the owner of the wall can prevent his neighbor from touching his property, but he foregoes the right of a neighbor to demand a certain distance on the part of a neighbor who comes to build in front of his window. But even in this watered-down form, in this compulsion – and the Rambam set it up as typical – there is a constriction of the arbitrary control that we ordinarily associate with ownership. The spirit of this halakha is illustrated once again in the words of one of the leading Acharonim. Commenting on the words of the Rema, "[Regarding] a wall separating between [the property of] Reuven and Shimon, and the wall belongs to one of them, he can demolish it if he wishes, and his neighbor cannot prevent him [from so doing],[30] the author of the Netivot ha-Misphat writes: "It seems that this applies when he has some need to demolish the old wall, e.g., the original wall was built entirely on his property, or the like. But if there is no such need, we compel him for midat Sedom, and he receives half the value."[31]

 

            The simple truth may be told: Compulsion in an instance of midat Sedom absolutely contradicts the prevailing notion that a person is the supreme ruler over his property, that his assets are like clay in the hands of the potter, and that as long as he does not cause others direct damage, he can do with his property as he pleases.[32] Halakha is inspired by a different spirit. So too it stands in opposition to the philosophical formulation (though from a totally different perspective) of this individualistic position – the position of Hegel and his followers – which sees in the idea of ownership an extension and realization of the free self, and therefore denies any limitation on proprietary rights whatsoever as a restriction on the person himself. It is true that the relationship between the person and his ownership is not foreign to Halakha. Chazal recognized the human feeling that "a person prefers one kav of his own to nine kavs of another,"[33] and even conceded its value; but the source of their outlook is different. In Hegel's thought, this idea is filled with metaphysical content, which turns ownership into a right that is more or less absolute, which can only be set aside by the needs of the state as a whole. What is critical here is not the benefit derived from the property but the status of lordship in and of itself. "If the emphasis is placed on my needs," writes Hegel, "then ownership of property is an appropriate means of filling them. But the true view is that from the perspective of liberty, ownership is the first realization of liberty, and is thus an essential goal in and of itself."[34] According to Judaism, however, the value of realizing the person through property constitutes only one aspect of a fundamental social category. It is liable to be set aside in the face of other moral factors – including the welfare of others. As for the value of property in general, the emphasis is indeed placed on the idea of fulfilling man's needs – "it shall be to you to eat." In the framework of Halakha, there is almost no trace of the recoiling from private property found in the writings of a number of Church fathers.[35] The idea has an important, even central place in many realms – from marriage to sacrifices, from bikkurim to lulav, and especially in eruv techumin – withoout mentioning, of course, the realm of monetary laws. Never, however, did Halakha idolize this concept, and other moral demands are liable to bring about its restriction. If Halakha is very far from Proudhon's declaration that "private ownership is theft,"[36] on the other hand, it refuses to agree with the popular adage that "an Englishman's home is his castle."

 

            To a certain degree, this restriction corresponds to the development of social life in our day. The French Revolution's slogan joined the principles of equality, liberty and fraternity, and raised them together to the same level. The bitter fact is, however, that from the socio-economic perspective (as opposed to the legal perspective) the principles of equality and liberty tend to contradict each other; and the experience of the last hundred years testifies to the ascent of the former at the cost of the latter. This direction stands out especially in the tendency to limit proprietary rights in order to realize human rights; and thus the parallel to the spirit of our law. This point, however, should not be overstated, and without a doubt we should not adopt apologetics that come to present compulsion in an instance of midat Sedom as a modern phenomenon. The truth is that in the restricted realm of "this one derives benefit and this one suffers no loss," this halakha is still far-reaching. First, as we have seen, its objective is not only social goals, but also refinement of the individual; in the words of the Rosh, "we compel him to distance himself from evil traits and to perform acts of lovingkindness with his fellow."[37] Second, its scope is wider. Essentially – and perhaps this point is connected to the previous one - modern legislation that restricts the right of ownership generally deals with commerce and industry as impersonal phenomena. Compulsion in an instance of midat Sedom touches on a more delicate point – the actual relations between one man and his fellow.

 

            Thus far we have dealt with a qualitative restriction. However, the principle regarding "this one derives benefit and this one suffers no loss" leads also to the problem of the quantitative restriction. Here we encounter a position adopted by Locke, father of classical liberalism, and fighter for the right of possession: Ownership only applies to that which the owner can make use of to any advantage before it spoils: "Whatever is beyond this, is more than his share, and belongs to others."[38] Or, as it was formulated by a later thinker – he too a follower of the liberal tradition – that we must distinguish between "ownership for the purpose of use" and "ownership for the purpose of control,"[39] and adopt one and condemn the other. With respect to a person who has amassed great wealth, if he sets a small amount aside for the poor, would not such an action, with respect to its impact on his life, be considered "this one derives benefit and this one suffers no loss." Here we touch upon Halakha's attitude to property in general, on the one hand, and the obligation to give charity and perform acts of lovingkindness, on the other, and to their interweaving – both in the definition of midat Sedom as a moral phenomenon and in the definition of the compulsion in its regard.[40] This problems stands us before a wide and splendid horizon – the relationship between personal rights and proprietary rights. This topic, however, requires a more comprehensive discussion that is not possible here.

 

(Translated by David Strauss)