1 DEVELOPMENT OF ENVIRONMENTAL HALAKHA by Dr Manfred Gerstenfeld

Seminar on Contemporary Environmental Problems Through a Jewish Lens, Makhon Lev, The Center for Judaism and the Environment, January 8, 2001

Today the Jewish communitys interest in the environment is still fairly modest. Let us assume, however, that we had known at the beginning of the 19th century what environmentalism was, and that we had studied which Western culture had the greatest awareness of the environment. Most probably we would have concluded that Judaism deals in detail with far more environmental issues than anyone else. The reason for this rather surprising finding is due to the normative character of Judaism. Over the millennia, halakha has dealt with many situations we would now call environmental. This is further strengthened by the Biblical narratives and the Midrash. Creating an environmental codex We could do another exercise, and group all halakhic references in existence in the year 1800 into a single codex. We would then have a book of law with detailed references to all the key environmental categories: protection of nature, protection of animals, preservation of natural resources, prevention of nuisance and pollution, and allocation of space. This can be easily illustrated: Bal tashhit, the prohibition against wanton destruction, is an important law for defining the Jews relationship to nature. Tsaar baalei haim, the prohibition against causing animals pain, is a very broad law concerning the protection of animals. Many detailed regulations for avoiding nuisance and pollution are given in the Talmud. We might call the Rambams hilkhot skhenim, the laws of the neighbors, the first Jewish environmental codex. With regard to the preservation of natural resources, the laws of shmitah and yovel, the sabbatical and jubilee years, provide important measures for preventing erosion and exhaustion of the land. The laws of the Levite cities, which have become binding for all other Jewish cities, provide instructions for preserving green areas around the built-up areas. They deal with another key element of modern environmental concern: the allocation of space.

2 Why is the Jewish voice not heard clearly? So if Judaism was in the forefront of environmental concern two hundred years ago, what has gone wrong since then? Why does one find so many Jews today in general environmental activist groups abroad, and yet the specific voice of Judaism is heard so little? When a Jewish voice is heard, it is seldom an orthodox one. There are several explanations for this. Firstly, there are relatively few committed Jews today, and there are many items on the Jewish agenda. On the other hand, one might posit that environmentalism like feminism is among the main ideological issues on the worlds agenda and that it merits serious Jewish attention. However, whereas Jewish gender studies have an important place in the academic world, Jewish environmental studies are almost non-existent. If we wish to remedy this situation, particularly from the orthodox Jewish viewpoint, there are two main roads which we must travel simultaneously. The first is a much profounder study of what classical Jewish sources say about the environment. I am particularly happy that Makhon Lev has accepted my suggestion to establish Center for Judaism and the Environment, especially as it was Prof. Bodenheimer who, abouat five years ago, invited me to give my first lecture on Judaism and the environment. The second road is to put environmental halakhic questions to poskim, decision-makers. A simultaneous approach in both directions is the only way to help us progress toward greater Jewish awareness of environmental issues and a more authoritative Jewish position on them. I am not an halakhic expert. All I would like to do here is to provide a general overview of the halakhic attitudes towards the main environmental issues. As said, these halakhot are well developed in the classical Jewish sources. There is thus much more to be said on this subject than I can manage in the short time available. Protection of nature Let us start again with the main elements of environmental concern: firstly the protection of nature. The key halakhic prohibition here is bal tashhit, on which many regulations are based. The few Jewish authors who write

3 about Judaism and the environment usually mention this as the foremost expression of Jewish law on environmental issues. The Torah forbids the wanton destruction of fruit trees in times of war. The Sifrei, written around 300 CE, extends the prohibition to include interference with water sources. One opinion in the Talmud extends this further still, to include an uneconomical use of fuel. Rambam mentions additional extensions of the bal tashhit principle, pointing out that it is relevant at all times, and not only in times of war. He also applies it to what is placed in the grave, stating that it is preferable to give clothes to the poor than to throw them to the worms. Whoever puts too many clothes on the dead, therefore, transgresses the law of bal tashhit. The prohibition against hunting Hunting for sport is another issue linked to destruction: this, too, is forbidden. One of the most quoted responsa on this subject is that of the 18th century halakhic authority R. Yechezkel Landau, better known as the Noda biYehuda. In his responsum to the query as to whether a Jew may hunt game with a rifle, he says: The only hunters mentioned in the Torah are Nimrod and Esau. Hunting is not a sport for the children of Abraham, Yitzchak and Yaakov... How can a Jew go to kill a living creature only with the purpose of hunting for pleasure?1 The Italian Jews of the Renaissance period did hunt, however. Bonaventura da Volterra, having had a fortunate days hunting in January 1471, sent his friend Lorenzo the Magnificent a buck and two fawns, and another present of the sort the following winter.2 In the 17th century, R. Simon Morpurgo, a prominent Italian rabbinical authority, disapproved of this practice. 3 The law of kilayim, prohibiting change to the continuity of species, is another important example of halakhic protection of nature. Today, when there is so much discussion about genetic manipulation, a law for preserving the species as God created them is particularly relevant.

1 2

Teshuvot Noda biYehuda, Yoreh Deah, No. 10. [Hebrew] Cecil Roth, The Jews in the Renaissance. New York: Harper Torchbooks, 1959, p. 31. 3 Responsa Morpurgo ii.18 as mentioned in: ibid.

4 Animal protection The protection of animals is another crucial element of modern environmental concern. The prohibition against causing suffering to living creatures, tsaar baalei haim, is one environmental halakha in this category. One of its aspects, ever min hahai, the prohibition against eating a limb of a living animal, is not limited to Jews but applies to all mankind as one of the seven Noahide laws. We can conclude from this that Judaism has also a universal concern about the environment, and not only a particularistic one. Shiluah haken, the commandment to send a mother bird away before taking eggs from her nest, and oto veet bno, the prohibition against slaughtering an animal from a herd or flock on the same day as its young, are also significant environmental principles of Jewish law. Another halakha rules that one, before eating, must feed ones animals. Another example of environmental concern in halakha is the prohibition against making an ox and an ass plow together. Other aspects of animal protection concern animal welfare: the Torah says that the ox and the ass must also rest on the seventh day. 4 Contemporary halakha To some extent, environmental halakha has also developed further in our own times. For example, the Tsits Eliezer, R. Eliezer Waldenberg, states in a teshuva, a responsum, that, no matter what the reason for a persons fasting, his animals must be fed first in order to prevent their suffering. Some halakhic attention has also been given to the contemporary question of animal experimentation. The Seride Esh, R. Yechiel Yaakov Weinberg, a prominent 20th century rabbinical authority, permits this, stating that the elimination of human pain and suffering are more important than the prevention of pain in animals. Rav Eliezer Waldenberg also considers medical experimentation permissible, stressing at the same time, however, that efforts must be made to minimize the animals pain.5 In his view, medical or economic purposes override the prohibitions of both bal tashhit and tsaar baalei haim.

4 5

Exodus 23:12. Responsa Ziz Eliezer 14:68. [Hebrew]

5 Other rabbinical authorities have discussed this subject and have reached varying conclusions.6 A few years ago, the wearing of fur coats led a concerned Israeli to put a halakhic question to the late R. Chayim David Halevi, at that time the Sephardi chief rabbi of Tel Aviv. 7 The person posing the question wrote that he had attended a concert in Tel Aviv, where several women in the audience were wearing fur coats. Demonstrators outside the hall had staged a protest against the wearing of fur. The questioner was surprised by the respective stances taken in the argument: the mainly religious concert-goers had defended the practice, while the non-religious demonstrators had stressed tsaar baalei haim. For similar reasons, former Chief Rabbi Ovadia Yosef has stated that Jews should not attend bullfights. Some halakhic experts have also discussed vegetarianism, but there is considerable debate within Judaism as to whether this is desirable or not. Protection of natural resources With regard to the preservation of natural resources, shmitah and yovel help to prevent the erosion of soil. A taqanah (a later rabbinical enactment in the public interest) in the Talmud deals with the question of not raising sheep and goats in the Holy Land. The reasoning behind this is one of basic sustenance: these animals eat the produce in the fields. It was permissible, however, to raise them in the deserts of Israel and in Syria. Bal tashhit is also of relevance in this issue. There is rabbinical disagreement whether this taqanah is valid for the modern State of Israel. 8 On the one hand, we find R. Kook and R. Ovadya Yosef who say that, even today, it is forbidden to raise goats and sheep in Israel; on the other, we find R. Frank and Shaul Yisraeli, who say that it is permitted.9 Prevention of nuisance and pollution A variety of environmental conditions are currently perceived as causing nuisance. Many of these may have a negative impact on health, such as
6

J. David Bleich, Animal Experimentation. In: Contemporary Halakhic Problems. Vol. 3. New York: Ktav, 1989, pp. 231-2. 7 Responsa Mayim Hayim, Tome Two, Tel Aviv 1995, 50. [Hebrew] 8 See Nachum Rakover, Eihut haSvivah. Jerusalem: haMishpat haIvri, 1993, p. 42ff. [Hebrew] 9 Nahum Rakover, Eikhut HaSviva. Jerusalem:Sifriat HaMishpat HaIvri, 1993, Appendix A, pp. 111ff. [Hebrew]

6 excessive noise, smells, excessive heat, lighting at night, creating conditions for contagious diseases, etc. The Mishna states that neighbors can prevent the opening of a store in a common courtyard by claiming that they cannot sleep due to the noise of customers entering and exiting; however, they may not object to the noise of a hammer or a grinding mill in a craftsmans home; nor may they object to the noise children make if one of the courtyards residents is a religious school teacher. 10 In the 16th century, R. Shlomo Cohen, the Maharschach, referred to the damage caused to the inhabitants of the town by the textile dyeing industry. He decided that the economic interests of a city, dependent on the textile industry for its livelihood, take precedence over the damage caused to neighbors in the vicinity. However, he comments that the owner of the business would do well to reduce the hindrance as much as possible. 11 Rabbi Shimshon Morpurgo of Ancona issued a similar statement in the century, writing that Jews are not allowed to establish damaging industries, and those which already exist in the city must be removed. He added, however, that because Jews were confined to special quarters, the community could not survive economically if such a removal were carried out. 12 Allocation of space A fifth environmental category is the allocation of space. We read a lot in contemporary literature about the concept of sustainable cities; urban sprawl and deterioration are major problems. The Levite cities had pasture land which extended 1,000 cubits outside the city, on all sides. This may be considered a precursor of modern townplanning attitudes, which try to apply strict ratios between built-up and open spaces. Where do we go from here? Against the background of this existing halakhic infrastructure, which I have set out only very briefly, Halakha could be developed further to deal with

10 11

Mishna Bava Batra 2:3. [Hebrew] Responsa Maharschach 2:98. [Hebrew] 12 See Manfred Gerstenfeld, Judaism, Environmentalism and the Environment. Jerusalem: The Jerusalem Institute for Israel Studies/Rubin Mass, 1998, p. 122.

7 several other contemporary environmental issues. The simplest way to set this process in motion may be by posing questions to halakhic authorities. As I have indicated, some individuals in the past decades have already put environmental questions to rabbinical authorities. Besides the issues already mentioned, others concern active and passive smoking, the destruction of surplus food in order to stabilize prices, the throwing of peeled nuts or loose sweets at a wedding or bar-mitzvah, the use of vegetables as decorations in kindergartens, and the disposal of food leftovers from wedding halls. What other questions could be asked? We are at the very beginning of a lengthy process, so I can only give you a few, fairly simple examples. Should it not be obligatory for the new religious municipalities to have a green migrash around them? Is a religious municipality allowed to plant trees which cause some citizens allergies? How does the halakha deal with saving water? Is the raising of chickens in close coops tsaar baalei haim? In order to imagine how the process of environmental halakha can be developed, we should look at another field of contemporary halakha. Modern medical halakha has rapidly taken shape over the past decades because concerned Jews want a halakhic authority to give a ruling on what is or is not permitted in the medical field; parallel with this, some hospitals and individual practitioners are interested in these rulings. These questions have led to halakhic authorities becoming interested and knowledgeable in the field. There is no doubt that the development of environmental halakha will be a process of trial and error. Each of you can accelerate this process, however, by putting forward questions. Thank you for your attention.