Where Heaven and Earth Kiss - Scholarly Publishing Collective

JJE 5.1_03_Mayse.indd Page 68 23/07/19 3:15 PM

doi: 10.5325/jjewiethi.5.1.0068 Journal of Jewish Ethics, Vol. 5, No. 1, 2019Copyright © 2019 The Pennsylvania State University, University Park, PA

Keywordstheology and ethics, tort

law, environmental

ethics, Jewish law and

legal theory

Where Heaven and Earth Kiss

Jewish Law, Moral Reflection, and Environmental Ethics

AbstrActGlobal climate change and environmental

disaster are one of the most pressing ethical

and existential crises of our day. This articles

examines the intricacies of rabbinic tort law

(nezikin) with an eye to contemporary questions

of pollution and environmental degradation.

Taking up three case studies, it outlines the

basic thrust of the rabbinic sources and their

medieval interpreters, then demonstrating their

relevance for contemporary ethical debates and

considering their legal and moral implications

for our industrialized and globalized economy.

These sources demand behavioral changes

and a reverence for the world grounded in

personal and communal responsibility. The

Talmudic sources—read through the lens of

aggadah—offer a prescriptive vocabulary for

environmental activism from the heart of

Jewish legal literature.

Ariel evAn MAyseStanford University

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Where Heaven and Earth Kiss | 69


IntroductIon

Global climate change and the impending environmental disaster represent one of the greatest moral and existential crises of our day. Seeking to grap-ple with this unprecedented challenge, Jewish scholars, philosophers, and activists have produced excellent work on ecology and environmental eth-ics across the past decades.1 These books and essays, which are constructive and programmatic as well as descriptive, address a wide range of core issues regarding our relationship to the natural world. These include far-reaching theological meditations, as well as specific reflections on ethical food produc-tion and consumption, the biblical prohibition against wanton destruction (bal tash’hit) as a paradigm for environmental sustainability, and the question of responsible investing—whether or not mutual funds that include destruc-tive, immoral or corrosive industries should be permitted by Jewish law.2

The present article engages with many of these questions from a somewhat different perspective, examining the intricacies rabbinic law (halakhah) with an eye to contemporary questions of environmental pollution.3 I aim to demonstrate that thinkers and activists should draw upon the categories of Jewish tort law (nezikin) for constructing a pro-gressive ethical voice on issues of environmental degradation. Science has shown us that global pollution and the over-consumption of resources dam-age our world and its inhabitants, altering our fragile ecosystem in ways that destroy property, injure human beings and animal life and harm our common inheritance. We see humanity’s capacity to fundamentally trans-form this world, and our feckless behavior may threaten the sustainabil-ity of higher life on this planet as we know it. I am arguing that the legal traditions of Judaism, interpreted together with our legacy of spiritual, theological and philosophical reflection, will help us formulate a response to this imminent crisis.

In contributing to the conversation around Jewish environmental ethics with a voice that is deeply grounded in the sources of halakhah, I offer a series of modest case studies plucked from Talmudic literature. These are meant to be illustrative and exemplary rather than exhaustive. The first of our readings focuses on the concept of esh (“fire”), a rabbinic category of torts that encompasses damages caused by inanimate objects or forces that have been set in motion. The second case study refers to bor (“pit”), another major class of damages that includes stationary objects that harm individuals who come into contact with them. Our third and final group of rabbinic sources emerges from the second chapter of the Talmudic tractate

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70 | journAl of jewish ethics


Bava Batra, which discusses the permissible proximity between residents of a city—and their businesses—as well as issues of liability emerging from damage between them.

In each of these three excurses, I seek to outline the basic thrust of the classical rabbinic sources and their later medieval interpreters. I then attempt to demonstrate their relevance for contemporary debates over environmental policy and ethics, considering their legal and moral impli-cations for a highly industrialized and globalized economy. These founda-tional categories of tort have clear limitations, as they are operative within parameters governed by burden of proof and causation. An incident may be forbidden by halakhah even though it not an actionable tort, and, as we shall see, something can be actionable and nonetheless permitted. Such bound-aries may shape the applicability of these laws, but they do not fully define the ethical and religious mandates that underpin the halakhah. We there-fore conclude with a brief discussion of the balance between liability and exemption in Jewish tort law, exploring the manner in which rabbinic liter-ature underscores ethical and spiritual responsibility even as the Talmudic sages recognized and challenged the limits of legal liability.

The present article dives deeply into the details of Jewish law and its con-ceptual structures in order to articulate a contemporary ethic regarding environmental pollution. Rather than mining Talmudic sources for ethical insights while tossing out the finer points that govern its laws, I am inter-ested in what universal moral lessons might be yielded by a close reading of these particular sources. My purpose is therefore constructive as well as descriptive.4 I am deeply concerned by the intellectual and spiritual myopia found in many religious circles, and am disappointed that my own commu-nity has, on the whole, absented itself from the religious voices that speak out against climate change and environmental degradation.5 I hope, fur-thermore, that the vision of Talmud study as commanding moral and spir-itual reflection on the issue of environmental ethics will serve as a point of entry for concerned individuals to whom rabbinic law is a foreign subject.6

envIronmentAl ethIcs And the bAlAnce of HalakHaH And aggadaH

I should say that examining Talmudic law with an eye to environmental ethics is not necessarily an obvious pursuit. Reading the passages about rampaging oxen, haystack fires, and murderous pits, subjects that seem

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quite removed from our immediate situation, does not necessarily pres-ent itself as an opportunity for sophisticated moral reasoning or ethical reflection.7 The approach to study favored in most Talmudic institutions in which these tractates are studied remains the highly conceptual and formalistic mode of analysis—called lomdus or lamdanut—that emerged in Lithuania yeshivot and made popular in America by the influential Joseph B. Soloveitchik.8 Building upon the work of scholars like David Hartman, Eliezer Berkovits, and Emmanuel Levinas,9 I have argued that Talmud and the literature of halakhah must be studied as an opportu-nity for ethical reasoning, spiritual development, and ultimately moral action in the world.10 Seeing the Talmud with these eyes allows the stu-dent to confront deepest questions of existential and moral meaning. Such a lens transforms the rabbinic texts from abstract sophistry into a religious quest, a personal journey of self-formation through which one comes to reflect upon the critical moral and philosophical questions of our present day.11

Reading and teaching these rabbinic texts to engage with issues of theo-logical and moral significance requires scholars to reclaim the non-legal dimensions of Jewish thought—called aggadah—as an equal partner in the conversation.12 Rather than two inviolate domains that never speak to one another, law and theology must be treated as fundamentally intertwined.13 “The manner in which one understands the content of mitzvah colors one’s whole conception of the God with Whom that relationship is being built,” claimed David Hartman. “It affects our notions of worship, of imitatio Dei and walking in God’s ways, of what pleases our beloved God over and above what is strictly required.”14 Mobilizing Talmudic tort law in addressing the environmental crisis demands that we infuse our reading of these legal sources with our tradition’s store of sacred narratives, expansively defined as the theological reflections and moral reasoning from the Hebrew Bible up to modern philosophy.15

Reintegrating halakhah and aggadah into a complementary framework entails the close examination of the non-legal material included in a given Talmudic unit.16 It also means expanding the scope of one’s discussion of a particular rabbinic ruling to encompass the aggadah found through-out the entirety of classical rabbinic literature, invoking such passages to complement—and challenge—one’s reading of legal precept. Discussing tort law within the search for environmental ethics requires us to read these legal sources in light of the innumerable rabbinic teachings that

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expound the values of environmental stewardship, such as the following well known passage:

Consider the work of God; for who can heal that which is damaged?” (Eccl 7:13). When the blessed Holy One created the first person, He took him and showed him all of the trees of the Garden of Eden, saying, “Consider my works—how beautiful and wonderful they are. All that I have created, I have created for you. Pay heed to this! Do not damage or destroy my world, for, if you do, who will heal it after you?”17

The brooding spirit and moral conscience of these theological sources must be brought to bear in reinterpreting the laws found in the world of rabbinic tort law. The world-affirming aggadah will help us to apply the halakhah such that it strives to point us toward the highest moral standard, reminding us of the divine mandate to preserve God’s creation.

Folding aggadah back into legal discourse also means looking beyond the boundaries of classical rabbinic literature and into broader realms of Jewish thought. The fields of philosophy and Kabbalah were the inheritors of the tradition of rabbinic aggadah for medieval Jewish intellectuals.18 The teachings of Jewish mysticism—and of Hasidism in particular—will be particular helpful in championing the cause of environmental ethics.19 The Hasidic masters articulated a radical understanding of divine imma-nence, unabashedly describing the physical world as saturated with God’s presence:

The blessed Creator made everything and is everything. In each moment, without ever ceasing, God bestows blessing upon His creatures and upon all the worlds above and below . . . constantly forming, revitalizing all of life, moment to moment; all is from the blessed Holy One, who is perfect and all-inclusive.20

The cosmos shimmers with sacred vitality, a creative divine life-force that unites all being. This divinity is manifest in the beauty of each flower, bird, and waterfall. Such a world is surely not meant to be thoughtlessly trodden upon or slowly destroyed through relentlessly mining its resources. This vision of God’s presence in the physical world, incorporated into our rich

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legacy of mystical aggadah, shows us how to ask new questions of ancient Jewish legal literature in search of contemporary relevance. Re-grounding these values in the language of halakhah thereby demands that we act with conviction in light of the theology and moral claims expressed in the aggadah.

Must we draw the line here? May we? In thinking of Talmudic law as a source of moral reasoning and environmental ethics, rabbinic hal-akhah and aggadah must be joined by a broader range of modern phil-osophical and theological voices. We should, for example, engage with the arguments of the distinguished twentieth-century philosophers like Ian Barbour and Hans Jonas.21 Arguing that medieval and early modern ethical paradigms cannot be applied to a globalized world of industry and technology, Jonas notes that the concept of responsibility “nowhere plays a conspicuous role in the moral systems of the past or in the philosophical theories of ethics.”22 This paradigm must change, said Jonas, because “a kind of metaphysical responsibility beyond self-interest has devolved on us with the magnitude of our powers relative to this tenuous film of life, that is, since man has become dangerous not only to himself but to the whole biosphere.”23 Ancient models, suggests Jonas, are no longer suffi-cient for addressing the new reality in which human beings have endowed themselves with the capacity to destroy life on this planet. Ignoring this truth, whether because of false modesty or abject denial, may have dire consequences indeed.

Our reading of the Talmudic sources must also expand to include the important work of individuals like Lisa Sideris, a contemporary scholar whose arguments for religious environmental ethics are eco-centric rather anthropocentric. Sideris claims that many modern religious thinkers have ceded “too much territory and authority to science and its alleged mythic potential.”24 The idealized vision of science that has been uncritically adopted by many contemporary humanists has created a new human-centered mythos, a narrative that replaces ancient religious paradigms but is equally capable of fostering arrogance and effacing the concern for environment and its inhabitants. This nouveau éthique represents an “overtly human-centered and human-exalting worldview,” claims Sideris, which “is inimical to genuine appreciation, wonder, and concern for the natural world.”25 For this reason she has sought to articulate a nature-centered environmental ethic rooted in religious discourse that

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accepts the findings of modern science without capitulating to its claims to displace all other modes of humanistic knowledge.26

Pushing beyond a largely anthropocentric tradition and thus reshaping our rituals would, of course, represent a radical paradigm shift for Judaism.27 Some Jewish thinkers have indeed staked this claim, arguing that halakhah must evolve in light of modern ecological concerns. “I would extend the concept of idolatry,” claimed Rabbi Zalman Schachter-Shalomi, “to include the issue of toxic things and pollution.”28 Schachter-Shalomi also suggested that we revise dietary laws in order to emphasize the values of emphasize sustainability and environmental stewardship.29 Other Jewish thinkers have been less willing to surrender the central place of humanity in aggadah and halakhah even as they foreground the values of environmental stewardship. Echoing the reflections on human creativity in the writings of Hartman as well as Soloveitchik, Alan Mittleman has recently suggested that creation in “the image of God connotes a likeness based on free, creative action. Our dignity is found in our activity and—even before we are able to act—potential for full personhood.”30 Such sentiments are mirrored in the works of Rabbi Yuval Cherlow, who argues that belief in humanity’s creation in God’s image demands the highest ethical standards and requires that we apply the halakhah to safeguard the wondrous world that has been entrusted to our care.31

Our present reality demands that we face an impending ecologic crisis resulting from centuries of increasingly callous and short-sighted behavior. My argument is as follows: there is indeed grave urgency in reading halakhic sources so that they resonate with the broader principles of environmental concern evinced in the aggadah. Attempting to develop a Jewish environ-mental halakahah requires us to read the legal sources deeply and carefully, but it is attention to brooding voice of aggadah—broadly construed—that will push us beyond the vision of Jewish law as an isolated, formalistic and totalizing system with internal principles that operate independently of all other values.

The dawning of the Anthropocene sheds a new light on legal traditions by bringing the concern of the non-human environment found in rabbinic traditions to the fore. The challenges of thinkers like Jonas and Sideris are well-taken and their concerns are reflected in this article, but, as we shall see, Talmudic law is far from toothless in the face of ecological catastro-phe. I am trying to resuscitate the traditions, and recapture something from within them that can be constructively applied to contemporary

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environmental issues.32 Through focusing on God as the source of all value and life, Aggadah demands action and concern even beyond the letter of the law. Moreover, the non-halakhic provides a theological, philosophical and mystical lens through which to re-visit these ancient discussions and to deploy them the service of our stewardship of God’s world.

dAmAge In motIon: Arrows And wIldfIres

Our first case study focuses on the rabbinic category of damages grouped under the rubric of “fire” (esh). This grouping of torts is one of the major classes of damage (avot nezikin) identified in the opening Mishnah of Bava Kamma.33 Many of the defining characteristics of esh are gleaned from the biblical source: “When a fire is started and spreads to thorns, so that stacked, standing, or growing grain is consumed, he who started the fire must make restitution” (Ex. 22:5).34 Rabbinic law defines esh as inclusive of any property which, animated by an external inanimate force (such as wind), becomes mobile and damages the property of others. Though not a living beast like an ox or a grazing animal, also listed in the Mishnah as avot nezikin, “fire” represents a category of damage caused by objects that have the power to act upon other entities in the world.

Highlighting the passive ambiguity of “when a fire is started and spreads,” rabbinic exegesis rules that one’s liability extends even to harm caused by a fire that spreads of its own accord (me-atsmo).35 The fire’s kin-dler is obligated to pay for damage even if the blaze consumes something unexpected, though the sages debate the one’s liability for harm caused to objects hidden away in uncommon or unusual places.36 The Talmudic sages present further qualifications, limiting responsibility to cases in which the fire’s escape was a live option rather than a totally unexpected develop-ment. They define a set of preventative thresholds that, if correctly set in place and yet are overcome by the fire, exempt the fire’s owner from lia-bility. These include restraining walls, necessary distance between the fire and the others’ property, and other safeguards against ordinarily occurring wind.37

The heavy hand of obligation and liability, however, is rarely lifted. “Why does it say, ‘When a fire is started and spreads out’?,” declares the Mekhilta. “The verse renders [one liable for] accidental [harm] just like willful [damage] (ha-ones ke-ratson), for unintentional [damage] together with intentional (she’eino mitkaven ke-mitkaven).”38 The one who started the

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fire is considered a culpable tortfeasor even in cases of accidental or unwill-ing damage. The hazardous nature of fire is such that the law assumes that an individual should foresee that the blaze may well be carried along by wind. One must take the precautions necessary to prevent its escape, and, if every effort is not made, he remains liable for a fire’s damage to persons and property.

The issue of remoteness of damage is a critical subject in tort law, and it often becomes a defining factor in determining the limits legal liability.39 How, then, are we to characterize damage caused by a fire vis-à-vis the one with whom it originated? Do we liken the harm caused by an individ-ual’s fire to damage caused one who steps into the domain of another and actively burns his property? Or, rather, is the harm comparable to a negli-gent person who does not take adequate pains to rein in a damage-causing agent?

This question of the remoteness of damage undergirds one of the most important and well-known discussions in Bava Kamma. The following dis-agreement lies at the heart of that section:

Rabbi Yohanan said: “[One is liable to pay for the damage of] his fire because it is [considered to be] his arrows (esho mishum hetsav)”

Reish Lakish said: “His fire is [considered to be] his property (esho mishum mammono).”40

The biblical verse from which these halakhot are derived begins by describ-ing the blaze but concludes by placing liability of “he who started the fire.” The rabbis take this to mean that restitution is due because the fire is reckoned an extension of the person himself. This damage, argues Rabbi Yohanan, is likened to one who shoots arrows into the domain of another.41 Reish Lakish, by contrast, claims that the fire moves by its own power—or that of the wind—whereas the arrows are driven by the person himself. The ensuing damage, therefore, is far-removed from the original owner and should be considered nothing more than errant property run amok.

Why does it matter which of these two positions we endorse? If we follow the opinion of Reish Lakish, we would significantly limit one’s obligation by training our eyes on negligence and focusing on the fire as a footloose prop-erty. If we rule in accord Rabbi Yohanan, however, an individual who damages by means of fire—or anything like it—is likened to one who causes injury to others or their property with his hands. Jewish law distinguishes between

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damage caused by a person (adam ha-mazik) and the harm indirectly brought about by one’s property (mammon ha-mazik).42 Rabbi Yohanan’s position therefore requires the unwitting villain to pay for loss of work (shevet), heal-ing (ripui), and anguish (tsa’ar) in addition to the original damage (nezek).43 Such harm is considered an act of criminal neglect, damage for which one is indeed liable even though it was caused unintentionally.

In exploring the opinion of Rabbi Yohanan, the Talmud admits a limita-tion of the comparison to arrows: such projectiles cannot travel indefinitely, whereas the fire can continue to burn and spread without limitation.44 How do we view damage that happened after the direct effect of the fire has con-cluded, such as harm caused after it has been diminished? The Talmud sug-gests that if one erected a protective barrier around the fire that collapses for an unrelated reason, then the person who set the blaze is liable only as if the fire were his property (mishum mammono).45 In such cases, one incurs the lesser degree of financial liability.

Preserving a distinction between damage meted out to human beings and to the property of others, the classical halakhah follows the ruling of Rabbi Yohanan. Maimonides summarizes the discussion as follows:

If a fire advances and damages a person, causing harm to him, then the one who set the fire is liable—for the damage, for his loss of work, for his healing, and for his anguish— because it is as if it damaged him with his arrows. If it harms his animal or his cistern [i.e. the damaged party’s property], then he is only liable to pay for the damage.46

But what if an individual tried to constrain his fire or set it up far away from the property of others? One who takes proper cautions and honestly seeks to contain the blaze is generally no longer obligated for the harm it causes.47 If a fire escapes the retaining wall intended to restrain it, the judges must estimate the size of the barrier and that of the fire—as well as the proximity of combustible fuel. The one who set the fire is exempt if by all rights the blaze should not have progressed. The law makes no such excul- patory provisions, however, in the case of more substantial fires:

If the flames were large, however, reaching up and curving outward due to their great height, and if there were trees around, then we do not estimate [what was necessary to contain it]. Even if [the fire] moved a thousand cubits, he is still liable!48

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A smoldering or compact fire can reasonably be expected not to overcome uncommon obstacles, and therefore we cannot hold its owner liable for the unpredictable damage it caused. We must assume that a potent and sizable fire, however, can cross great distances or rise above significant boundaries. In this case, the liability for damage is nearly unlimited.

And what if the barrier surrounding the fire collapses for some other unconnected reason? “If one could have repaired the fallen fence but fails to do so,” rules Maimonides, “then he is liable. To what may this be com-pared? To an ox that went out and caused damage; he should have kept watch over it and prevented it from damaging.”49 This comparison to the free-wheeling ox suggests that one retains only a limited liability (mishum mammono) in such cases. This ruling, however, makes it clear that one’s responsibility extends even to cases in which a chain of events has been set in motion but there remains a window of opportunity to prevent further harm. If the individual fails to do so, either because of outright negligence or unwitting indecision, then he is obligated to pay for the full extent of damage cause by his fire.

What might be considered a corollary of “fire” in our day? We need no such source to condemn criminal acts as the “arrows” of arsonist, of course, but the recent blazes in Northern California remind us of the devastating power of fires. Such infernos, started by downed power lines and human error, are increasing as weather patterns become more extreme and rain-fall diminishes.50 The conditions that allow for these fires are exacerbated through human negligence, because of lackadaisical inspections, poor sup-ply lines or insufficient preparation. In such cases, liability may extend to the private corporations, the municipality, and perhaps even to a local water company.51 Halakhah provides a language for addressing the question of liability of those who neglectfully create the necessary preconditions in regions that are particularly prone to catastrophic blazes.52

The rabbinic category of esh—inclusive of inanimate damage-causing forces that harm persons or property while in motion by means of an exter-nal force—also provides us with a precedent vocabulary for speaking about a wider range of modern environmental pollutants.53 These might include caustic and toxic chemicals, proven carcinogens and other sorts of harmful waste that carried by the wind, leached into groundwater or otherwise dis-persed through the atmosphere.54 The region known as “Cancer Alley” along the Mississippi River is a humanitarian tragedy in our own backyard, and one that is of our own making. There are many such places all over the world,

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however, in far-off places that bear the brunt of the environmental degra-dation produced by our industrial economy. The Toxic Substances Control Act of 1976 and its various amendments seek to restrain the introduction of harmful forces into the domestic environment. But even such laudable leg-islation may be insufficient to ensure that our world remains habitable for coming generations. Rabbinic halakhah declares that, as esh and as “arrows,” the one who releases (or enables the release) of such damage-causing agents is to be held liable in full for the harm they wreak upon other individuals.

The category of esh may well include the toxic waste produced by agri-cultural pesticides and overspray, by chemical or power plants, by mining operations and refineries, and by other industries that shed persistent pollutants or corrosive byproducts that move with the wind or other nat-ural forces55 Materials such as asbestos or radiation, whether from active industry or construction debris or nuclear waste that has been improp-erly decommissioned, are other possible modern analogues of “fire.”56 The harmful effects and aftershocks upon human health and property are readily visible,57 and, although it may be difficult to assess causality for this damage,58 the sources explored above require the responsible parties to be held culpable especially when the disastrous results were foreseeable.

Mechanical failures that release such hazardous materials cannot always be avoided, and we have noted that halakhah demands only limited liability in such cases. But many cases of acute environmental disaster were pre-ceded by obvious warning signs—fallen fences, in the rabbinic idiom—that were flagrantly ignored. Cutting corners, poor oversight, and decisions made with profits in mind rather than public safety or environmental preservation lead directly to calamity and exacerbate the limitations of technology.59

Rabbi Jacob ben Joseph Reischer (1670-1733) was presented with a case that highlights the complexity of the issues of foreseeability and liability that arise in our modern correlates of esh. In the dispute brought to his attention, two individuals had been riding in a wagon that was packed chock full of cotton. One of them was smoking a pipe, paying no mind to the protestations of the second individual or his warnings to get down from the cotton-filled cart in order to exercise his habit. When an unusual burst of wind arose, sparks fell from the pipe and the ensuing fire consumed the totality of their merchandise. After emphasizing that rabbinic courts may indeed adjudicate cases of esh in the post-Talmudic era, Rabbi Reischer writes as follows:

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When the uncommonly strong wind came along, he should have paid mind and removed the smoking tobacco from his hand and the wagon—particularly because the first person protested against him. Since he did not do this, even though he did not blow into it at all [i.e. kindle the flame], it is like the case of one who brings the fire [near to a pile of wood].60 He is obligated to pay for the damage from the best of his property.61

Plausible deniability is refused to an individual who engages in something as flagrantly dangerous as smoking whilst sitting upon a tinderbox. Objections of innocence become all the more irrelevant when one has been warned of the potential danger of his actions. Rabbi Reischer’s answer makes it clear that companies or individuals whose policies skirt harm by a very thin mar-gin must remember that, when foreseeable disasters transpire as a result of one’s fire and “arrows,” they will be held liable by the moral voice of halakhah.

stAtIonAry dAmAge In the PublIc reAlm

Our second rabbinic category of damage is that of the “pit” or “cistern” (bor), another of the four primary categories outlined in the first Mishnah of Bava Kamma. The class of damages assembled under this rubric, derived in rabbinic exegesis of Exodus 21:33-34, are defined as those caused by objects that sit in one place and harm those who encounter them.62 Such objects are always dangerous, and one must keep watch over it and pro-tect others from damage: “If one places something dangerous (takalah), this is a sub-category (toledah) of bor. If a person or beast is damaged, the one who placed it must pay full damages, whether he rendered [the dangerous object] ownerless (hifkir) or did not.” The harm caused by the pit or other such things is considered easily foreseeable by rabbinic legislation.

The owner of a pit is responsible for covering it up and thereby shield-ing others from its damage.63 The Mishnah rules that one cannot be held liable for damage caused by a hole that has been correctly covered.64 But how, then, does a properly-protected bor cause harm to an animal or a person? The Talmud suggests that the covering became worm-eaten, per-haps in a way that was invisible to an observer. The individual—or his animal—steps upon the top of the pit, thinking it safe, and therefore the owner of the pit is obligated to pay for the damages. The Talmud also

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poses another solution: the individual covered his pit in a limited fashion, such that the protection could support light animals but not heavy ones. If there is a reasonable probability that these large animals (a camel, in the Talmudic example) might tread upon the cover of the bor, then the owner of the pit retains liability because of negligence in placing a flimsy support upon its opening.65

Why is an individual obligated for any damage caused by his pit or a cis-tern? The harm seems quite removed from the owner, and perhaps entirely preventable if the person or animal had been watching where they were going. The Talmud describes bor as a class of damage that requires a lesser degree of protection and regarding which one must reach a higher thresh-old of error to prove dereliction of duty.66 And, in all cases, the pit’s owner is exempt from paying for damage caused to inanimate property (kelim).67 On this question of the owner’s responsibility, Rabbi Isaiah di Trani comments as follows: “The [damage produced by] the bor is indirect (gerama),68 but God made the person liable in this case of indirect [damage] as if he had per-formed the deed with his very own hands.”69 Liability for the bor, he claims is triggered by divine fiat. This makes it impossible for the individual who spawned the menace to plead innocence or to claim that the damage was only indirect.

Much of the Talmud’s discussion of bor focuses on the responsibility held by the one who dug the pit, likened by the verse to the “owner” (ba’al) of property. But where does liability fall if multiple individuals share owner-ship of an uncovered bor through a partnership? If the first partner failed to cover up the pit and the second partner encounters it without erecting the proper safeguard, bor fails to cover without covering it as well, the Mishnah rules that the second is liable rather than the first. This remains true if the first individual covered up the pit only to have the safety-mechanism rot—the second partner is still liable if he comes upon the pit and refuses to conceal it once more.70

In such cases, liability extends only to the most recent partner who encounters the bor without protecting others from its potential harm.71 Maimonides, however, presents an interesting caveat in his reformulation of the law:

Until what point is the second partner liable alone? Until the first partner becomes aware that the pit is uncovered, and in the span of time necessary to hire workers and cut down trees and cover it up.

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If anything dies [in the pit] during this time, then only the second partner is obligated for it.

Both of them are obligated to pay, however, for anything that dies in it after this time, since both were criminally negligent.72

The unknowing first partner cannot be held responsible if the second part-ner is alert to the hazard posed by their pit. If both of them are aware of the situation, however, and neither takes the necessary steps to protect others from the damaging object, then both are required to pay the indemnity. All knowledgeable parties are considered derelict in their duty to shield others from hazards of the pit.

Another characteristic of bor that will become important for our discus-sion of environmental ethics is the notion of cumulative potential to inflict harm. The Shulhan Arukh summarizes the Talmudic debate as follows: “If one digs a pit that is ten handbreadths [deep], and another comes along and makes it twenty, and another comes along and makes it thirty—all of them are liable.”73 Each of these pits were sufficiently deep to kill an ani-mal on their own (ten handbreadths or tefahim), and therefore the various owners are all considered liable for any and all deaths. The law is different, however, if the various increments of the pit do not all enjoy the requisite measure: “If one dug a pit of less than ten handbreadths, even one less, and another came along and made it ten—whether he dug down another handbreadth, or built up the side of the pit—the second person is obli-gated.”74 The individual who adds the necessary depth, turning the pit from an annoying hindrance into a lethal object capable of killing an animal or a person, becomes liable.

The Talmud includes a discussion as to whether or not one may essentially wash their hands with the inanimate dangerous object by attempting to render it ownerless (mafkir).75 The sages restrict this to certain cases of truly accidental damage, emphasizing that the pit’s owner remains liable and the dangerous object remains under his aegis—perhaps even as his property—even if the object is in the public domain.76 An individual generally cannot place something dangerous in the public domain and then divest owner-ship from it, washing his hands with whole affair and claiming to absolve himself of responsibility.77 The version of this discussion preserved in the Yerushalmi seems to point to this message even more explicitly. If one puts a wild animal in the middle of the road, argues the Yerushalmi, then all agree that there is nothing he can do to absolve himself of responsibility.78

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Most cases of bor involve a completely stationary object, but the Talmud does refer to something called a bor ha-mitgalgel (a “moving pit”), an object that is propelled through human or animal power and doing damage once it comes to rest.79 Talmudic examples of such things include a knife, a stone, or a heavy load that are shifted from one place to another.80 When in motion, the liability is shifted to the one who moves them, but, once the objects cease, the original owner is again obligated for any damage that they cause.81 If such objects were not doing any damage in their place, however, then the person who moves them—thus rendering them acutely dangerous—is liable.82

The cistern or pit is only one of the paradigmatic examples of a dam-aging agent placed in the public domain given in the rabbinic sources. Broken potsherds left in a public thoroughfare is another example of bor. Rabbi Meir argues that one who leaves this sort of broken detritus must pay for the damages. The sages claim, however, that such a person is “exempt according to human law and liable according to the laws of heaven.”83 The Talmud lists a number of supererogatory practices meant to alleviate dam-age even beyond the letter of the law:

The early pious ones would bury their thorns and their glass pieces in their fields, digging to the depth of three handbreadths so that they would get in the way of the plow. Rav Sheshet would toss [his thorns] into fire, and Rava would toss them into the Tigris [River].84

Certain people, it seems, went above the call of duty to safeguard against damage caused by their potentially hazardous property. Citing the Yerushalmi, the Tosafot suggest that those who buried their thorns at such a depth did so because they were concerned that the plow might bring them to the surface and thus enable them to harm others.85

The Mishnah rules if one puts fruit in another’s domain without permis-sion, he is obligated if those fruits cause damage to the other individual’s livestock.86 The Talmud notes that, “One who places poison (sam ha-mavet) before one’s fellow’s animal is exempt according to human law and liable according to the laws of heaven.”87 Poison is different than potentially harm-ful food, it seems, since the former is not meant to be eaten. The owner has limited plausible deniability and is therefore not obligated in all cases. With things that are meant to be ingested, however, one can assume that they might be picked up by the animal.

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This case of the imperfectly—or impermanently—covered bor provides an interesting way of thinking about hazardous materials and industrial waste.88 The category of esh encompasses pollutants that are set in motion by natural ecological forces and encroach upon the domain of another. Bor, by contrast, includes stationary hazards that have been dumped into public land—as well as those placed by one individual upon the another’s property. Uncovered former quarries and industrial sites are an obvious modern corollary of bor, and the rabbinic sources demand that the respon-sible parties protect others from their damage.

We might also think about “pits” that are made dangerous or deadly because of materials they hold, not just because of the size of the hole. This might include hazardous materials that have been improperly disposed of and superfund sites, land so contaminated by waste and other persistent toxins human that it poses a significant risk to human and animal life. The category of bor may cover moving pollutants that once had a purpose, but, when obsolete and tossed aside, wreak havoc in the environment and its inhabitants. Items from micro-beads to plastic wrappers, straws, disposable bottles, objects that move about and become the mountains and islands of trash that sully our waterways and destroy human and marine life. The example of the “early pious ones” and the other rabbinic sources demand that such things be discarded and decommissioned in such a way that they are rendered entirely harmless.

The class of damages grouped under the rubric of bor also gives us a way of thinking about damage caused by garbage, manure, or compost, as well as all sorts of liquid waste or industrial runoff.89 “One who pours water into the public domain and others are damaged by it,” says the Mishnah, “is liable for their damage.” In a statement by Maimonides based on a barayta, we read:

All those who open their gutters and flush their cesspools into the public domain are not permitted to dump the water into the public domain during the summer months, but they are permitted to do so during the rainy season. And yet, if they damage a person or an animal, then they must pay full damages.90

This text provides interesting precedent for everything from the illicit flushing of private septic systems to all kinds of industrial waste that stream forth into the public domain.

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Municipal waste might be different, because everyone approves of it—at least tacitly—and accepts its benefits.91 One cannot release toxic runoff or hazardous liquids, however, at a time when they will remain undiluted and poison the common areas. Even in the rainy season, one must take respon-sibility by paying for any the damage caused by this dumping.

Such prohibitions against allowing hazardous runoff surely apply to industrial dumping and considerations of how many parts per million of a pollutant represent the threshold of acceptability. But might these sources also refer to other types of riparian pollution caused by businesses or pri-vate individuals? And what about oil spills? The disaster of the Deepwater Horizon, leased by BP and owned by Transocean Ltd, leaked some four million barrels of oil into the waters of the Gulf of Mexico and caused the death of eleven individuals.92 BP paid an enormous and historic fine of over $60 billion for their gross negligence. It is hard to know, however, if even this cost was enough to cover the loss of life, utter devastation to the environment that will be felt for decades to come. Many other oil catastrophic spills have not triggered such a hefty fine or frantic cleanup efforts. The unspeakable cost to maritime life, to human life and industry, goes unrecompensed.

The fundamental issue of environmental degradation comes to the fore in Rabban Shimon ben Gamliel’s remark regarding the idea of bor as it per-tains to flushing out one’s gutters: “Those who ruin the public domain and damage it, must pay! The first one [who takes possession of the property], may keep it.”93 This is a rather expansive statement ruling, applying liability even if the parties have obtained permission to dump. The rabbinic court has the prerogative to forfeit ownership of all damaging things that have encroached upon the public sphere as a fine against such behavior. One may be allowed to do something, such as dumping garbage, but he remains liable if in doing he ruins public land or causes damage to another individual.94

These critical issues come to the surface in a recent responsum by Rabbi Menashe Klein, though he does not explicitly invoke category of bor.95 Rabbi Klein was presented with a situation in which children were throwing sand upon flowers in a public area. This caused the blooms to wither and die, so the residents posted a sign claiming that such was tantamount to steal-ing from the public (called lo tigzol). He notes that it is strictly forbidden to cause such damage to the flowers. It cannot be compared to stealing from the community, but Rabbi Klein asserts that throwing the sand is surely prohibited—either as direct or indirect (gerama) damage.

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The conclusion of this teshuvah holds the seeds of something much deeper, especially when combined with the details of bor (and esh) detailed above. Rabbi Klein notes that parents must take responsibility for pre-venting the children from harming the flowers. Most human beings—and especially children—cannot be expected to naturally accord themselves with the highest ethical bar, and for this reason oversight is totally nec-essary. One is simply not allowed to throw things into a public place that will decimate life, destroy the efforts of others, or cause environmental degradation. This is true of ornamental flowers, but how much more is it true of crops, of drinking water, or of public spaces such as national parks or state land.

PermIss Ible ProxImIty

Industry is not, of course, forbidden by Jewish law, even if businesses create a certain level of noise, air, or water pollutants. As noted in the Introduction to this article, halakhah sets clear boundaries on what level these may reach, determines where businesses may be located in relation to private homes, and sets demands how the owner of a business must clean up damage- causing agents and safeguard others against their damage. Cities are meant to be livable, and the rabbinic sources evince a calculus that seeks to balance economic productivity with human flourishing.96 The subject of our third case study, on the potential breakdown of healthy relationship between neighbors and the permissible proximity between business, is thus separated, if slightly, from the realm of pure tort law.97

The second chapter of the Talmudic tractate Bava Batra addresses what might be called zoning laws, rabbinic ordinances that govern issues such as noise pollution and foot traffic. They describe the circumstances under which one may dig close to the property of another person and the neces-sary precautions one must take in preventing damage.98 The rabbis of the Mishnah were concerned with the fact that certain businesses may degrade the world around it. One of these ways is material pollution:

A permanent threshing floor must be distanced fifty cubits of the town. One may not make a permanent threshing floor within his own domain unless his ground extends fifty cubits in every direction. And one must distance it from one’s fellow’s plants and from that person’s furrow so that it will not cause damage.99

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Ordinary winds can be expected to carry the chaff and other detritus from the threshing room for a significant distance. These particles and material will harm crops and human beings, causing damage, reduce property value, and other things of this nature. For this reason, the sages demand that the owner of the threshing floor distance it from the city by a minimum of fifty cubits.

Talmudic literature is also concerned with the environmental impact of latrines and the disposal of waste, a necessity of human life but a compli-cated issue for urban and rural communities alike. This is, in part, an issue of water pollutants. Rabbi Ya’akov ben Asher ruled that a latrine must be placed at least fifty cubits from a well, noting explicitly that the obliga-tion to establish the distance is incumbent upon the latrine’s owner.100 This responsibility cannot be displaced with a claim to have been there first. The latrine also causes damage because of the off-putting sight and the terrible smell, which is why open latrines are identified as a particular problem.101 Rabbi Yosef Katz, the brother-in-law of Rabbi Moses Isserles, was asked about whether a synagogue that was near a latrine might be able to force the latter to move. Rabbi Katz also ruled that there is no pri-ority in cases of an intolerable smell, especially when the affected area is a public space. In seeking to balance the costs, however, Rabbi Katz notes that the owner of the latrine can make a claim for recompense in having to move it.102

Concerns of air pollution takes several forms in classical halakhah, including the pollutant force of unpleasant smells.103 Though we might not immediately consider odors to be on par with other agents of damage, the rabbinic sources display concern for the impact of fetid smells:

Animal carcasses [i.e., slaughterhouses], graves and tanneries must be distanced fifty cubits from a town. A tannery may be made only to the east of a city.

Rabbi Akiva says: One may set it up on any side except the west, and one must distance it fifty cubits [from the town].104

Insufferable smells damage the area by reducing property values and making the surrounding region less livable. Though it may have been less clear to city-dwellers of Late Antiquity, such odors may be harbingers of other invidious pollutants or hygienic concerns. When one wishes to erect an industry known to produce significant smells, one must account for

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environmental factors and gauge how the wind will distribute the smell or how the relative heat of the winds may—or may not—intensify the problem.

Air pollution from neighboring property or from nearby industry also takes the form of smoke, one of the most invidious and common pollutants. The rabbinic sages were concerned about fire damage that might result from inordinate proximity between ovens and residences, but they were also worried about the way smoke reduces the quality of life and causes outright damage.105 Medieval authorities suggest that the interdiction of smoke in Talmudic sources refers only to fumes that are hazardous because they are significant or constant.106 The Shulhan Arukh notes that one may ask the offending party to stop even if the smoke is only occasional, though Rabbi Moshe Isserles claims that there is no legal basis for one to do so. It is noteworthy that blackening the walls or other kinds of material pol-lution do not seem to be included in prohibition of damage by smoke.107 Only direct and outright human damage is considered, though perhaps this might be revised in light of scientific knowledge demonstrating the delete-rious effects of such persistent pollutants.

Such issues of noxious smoke and odors continue to appear in the responsa literature with remarkable frequently. Some of these teshu-vot offer further rationale for the limits enumerated above. Rabbi Meir of Rothenberg, for example, was asked to rule about a bathhouse that was built near a synagogue and disturbed the occupants with the smoke that it produces. Because the fumes were produced infrequently (i.e., not daily), Rabbi Meir argued that it cannot be considered a problem.108 Rabbi Shlomo ben Aderet distinguished between the voluminous smoke produced by professional ovens and that of ordinary householders, not-ing that neighborhoods would be impossible if we were to prohibit the latter.109 Such cases are important because they evince concern for the injured party while recognizing the impossibility of creating a commu-nity in which all damage, large or small, is prohibited. Living in the close proximity demanded by human civilization entails individual compro-mises as well as benefits.

Stepping into the modern era, the question of cigarette smoke—in many ways a microcosm of larger issues of pollution—provides a different help-ful analogue together with the sources above. Rabbi Moshe Feinstein ruled that although smoking is itself not proscribed by halakhah, one is prohib-ited to smoke cigarettes where the noxious fume and pollutants will bother others.110 And, moreover, he argued that one who has been harmed by

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secondhand smoke may sue the responsible party for the damages incurred. Recent rabbinic rulings have declared smoking forbidden by Jewish law because of the scientifically proven hazards to one’s health,111 and similar arguments could easily be made regarding polluting industries whose harm is well documented by medical research.

The Mishnah evinces concern for the ways that certain industries will pollute other industries, not just homes or individual persons. A dovecote, for example, must be built at least fifty cubits from the city, since the birds will consume or damage all agricultural growth within their flight zone.112 The Mishnah also rules that “a pool for soaking flax must be distanced from vegetables, and leeks from onions, and mustard plant from bees. Rabbi Yose permits mustard plant.”113 All three of these industries must be distanced because they have an effect that goes beyond their border: the water used in soaking flax will damage other adjacent crops, planting leeks and onions in adjacent beds may compromise the taste of the latter, and the proximity of the mustard plans may ruin the quality of the bee’s honey.114

Rabbi Yose, here as elsewhere in Bava Batra, claims that the party likely to be injured is required to distance himself, not the other way around.115 He argues that one might have thought that it should be forbidden to raise bees if they are liable to cause damage to crops.116 But we are permitted to do so and, since the owner cannot be expected to follow the small insects and prevent them from harming another’s property, the obligation is prag-matically incumbent upon the party who fears that his crop will be dam-aged and has a vested interest in preventing it.117

All of these businesses and activities must be distanced from one another, at least according to the majority rabbinic opinion, with an eye to fore-seeable wind and other external forces.118 If one fails to do so, the Talmud likens the damage caused by the polluting industries or activities to arrows that are senselessly launched into another’s domain.119 Even the cautious Rabbi Yose admits that liability rests with the tortfeasor in these cases of direct cross-border damage. Maimonides writes as follows:

To what shall this matter be compared? To someone standing upon his own property and shooting arrows into his fellow’s yard, saying, “I am doing this within my own domain!” We stop him from doing so! And so too, regarding all of the distances mentioned above: if he did not move [the object] far enough away, it is as if he has damaged with his arrows!120

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This kind of damage has the potential to harm industry or economic pro-ductivity, diminishes property values, impacts crops, and significantly decrease another person’s quality of life even beyond the threshold of what is bearable. In such cases, one cannot claim priority, saying “I was here first.” Nor can one claim that he is simply to do things on his own property.121 One must be mindful of how the things one does on his own property impact the human life, animal life, and the environment around you. Much like the fire that spreads, one is liable for the damage caused by his property.

In a globalized world and with our current understanding of science and pollution, we might seek to apply these laws and regulations rather dif-ferently.122 We cannot control the diffusion of smog or air pollution. Such forces spread out without mercy, and our environmental policies need to address that fact. The numbers of ells and cubits given in rabbinic law that predict the extent to which certain kind of industries are not magic numbers. They are meant to be estimates of what is the farthest reach of a particular damaging force. Rabbi Asher ben Yehiel gave the following pro-grammatic ruling in a responsum:

“For its ways are ways of pleasantness and all its paths are peace” (Prov. 3:17). The Torah insists that a person should not do something on his own property that causes harm to his fellow. In respect to all those damages regarding which the extent to which they must be distanced was not clarified in the Talmud, they must be removed to a distance where they will not harm. . . .123

We must look into the effects of each industry in the modern world and be mindful of its effects near and far, as in our economy the direct impact may stretch many miles and perhaps even across the globe. We share resources of air, land and water, and we will be linked by a common fate if we pollute them. Industries will be impacted, our public spaces will be debased, and our shared world will be fundamentally transformed. The halakhah mandates that we identify those things that cause damage, whenever it might strike, and take pains to prevent them. Taking these laws and applying them to our current situation, halakhah could—and should—be formulated such that it represents a moral force in the global-ized economy, one that is mindful of the human and environmental costs of pollution.

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the ethos of resPonsIb Il Ity And the l ImIts of l IAbIl Ity

We have thus far explored the contours of three broad rabbinic categories of damage, examining their intricate details with an eye to contemporary relevance. Stepping back from the trenches, we may now consider more fundamental questions of liability and exemption that appear in Talmudic tort law. Jewish legal sources, on the whole, attribute a terribly high degree of responsibility to the human being. An early passage in Bava Kamma reads as follows:

A human being is always considered prone to damage (mu‘ad), whether unintentional or intentional, whether [the person is] awake or asleep. If he blinded another person, or broke vessels, he must pay full damages.124

An individual that harms another must make amends because one’s culpa-bility is total and uncompromising: restitution must be made for any and all harm regardless of the circumstances that surround it. The Talmudic and medieval sages debated the extent to which this ruling must be qualified, suggesting that liability may not extend to all cases of unwitting or unin-tentional damage.125 The central thrust of this source, however, seems to reflect a powerful message of uncompromised obligation for one’s deeds.

This vision of absolute liability in Jewish law perhaps reflects a theolog-ical foundation that considers humanity unique among the works of cre-ation. According to Rabbi Samson Rafael Hirsch (1808-1888), the person is unlike any other sentient being, and is therefore obligated to preserve oth-ers from harm and to safeguard the world. He explains:

Man, in taking possession of the unreasoning world, becomes guardian of unreasoning property and is responsible for the forces inherent in it, just as he is responsible for the forces of his own body . . . Thus is the person responsible for all the material things under his dominion and in his use; and even without the verdict of a court of law, even if no claim is put forward by another person, he must pay compensation for any harm done to another’s property or body for which he is responsible.126

Rabbi Hirsch’s philosophical argument claims that one’s liability for damage is triggered even without a claimant bringing suit, because an individual is

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morally obligated to make restitution and pay for the harm intendent of any legal ruling. Earlier we noted the dangers of the anthropocentric worl-dview, but this passage presents one of the positive aspects of such think-ing. Humanity is enjoined from causing any kind of harm because we are singular beings among God’s many creations. Our charge to cultivate the world and insured its continuity are expressed in the particulars of rabbinic tort law, and the absolute ethical obligation to watch over the natural world with diligence stems from our unique place in the cosmos.

Rabbinic law goes quite far in extending these obligations and under-scoring that the prohibition against causing damage extends beyond mak-ing post facto amends. Halakhah forbids one to cause any harm, claims Maimonides, a prohibition that remains in effect even if one makes full restitution for the damage he has caused.127 Echoing this point, Rabbi Moshe Sofer ruled that we follow the more stringent opinion in cases of doubt (safek) regarding damages because obligation to protect others from harm stems from the verses: “Be exceedingly careful for your soul” (Deut. 4:15) and “Do not stand upon your fellow’s blood” (Lev. 19:16).128 Halakhah even commands an interdiction of keeping dangerous items—such as aggressive animals or broken equipment—on one’s own property, extend-ing the commandment to build fence upon one’s roof to include protecting others from any hazardous substances or objects.129

The Talmudic sages, however, understood that total, uncompromising liability for one’s damage can impede commerce and become a roadblock to functioning human society. Halakhah recognizes that payment or fine is not necessarily appropriate in cases of unintentional or indirect damage. Rabbi Ya‘akov ben Asher summarized this point in the introductory remarks to his summation of the laws of damages:

Just as it is forbidden to steal and thieve money from one’s fellow, so is it forbidden to damage the property of another. Even if one does not benefit from this, he must pay because has damaged another—whether intentionally or unintentionally.

This is not the case if [the damage] was due to a circumstance beyond his control, such as if an object fell from the roof and caused harm because of an uncommon wind.130

Damage may be compared to thievery, perhaps because both threaten to destroy the moral and social fabric of community. Paying restitution has

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an important role in restoring social bonds, even if the damage was unin-tentional. There are limits to this obligation, however, because one is held responsible for unwitting damage if the harm was realistically foreseeable.131

Maimonides, like Rabbi Hirsch, interprets the whole of religious tort law and the ensuing monetary obligations as reminding human beings to take care of the objects that belong to them and to others. The categories of damages grouped under the rubric “fire” and “pit” represent forces that are considered within our control and must therefore be carefully controlled:

All of them [i.e., the laws of torts] are concerned with putting an end to acts of injustice and with the prevention of acts causing damage. In order that great care should be taken to avoid causing damage, man is held responsible for every act causing damage deriving from his possessions or caused by an act of his, if only it was possible for him to be cautious and take care not to cause damage.

Therefore, we are held responsible for damage deriving from our beasts, so that we should keep watch over them; and also for damage from “fire” (esh) and from a “pit” (bor), for these two belong to the works of man, and he can keep watch over them and take precautions with regard to them, so that no harm is occasioned by them. These laws contain considerations of justice (ha-yosher) to which I will draw attention.132

Damaging agents characterized as “fire” and “pit” are that can—and should—be overseen in an effort to make sure that they do not cause harm. There are limitations, however, which depend on the type of object, the relative positions of the tortfeasor and the one who was damaged, and so forth. Further exemptions are put forward in cases of damage “with regard to which it is impossible to take precautions” or of harm that is considered uncommon.133 An individual cannot be held morally responsible or finan-cially liable for the damage in these unforeseeable circumstances. When taken as a whole, Maimonides, reading of the Talmudic materials highlights the cautious moderation that is inherent much of the rabbinic project.

In our reading of these ancient sources in light of issues of contemporary environmental ethics, it is important for us to consider these exceptions and the limitations together with the enduring voice of obligation. Each of the primary categories of damages has a specific class of damage from which the owner remains exempt.134 Halakhah may hold one responsible

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for negligence that sets off a nearly-unstoppable chain of events, but rab-binic law is also sensitive to the fact that damage is—at times—accidental or incidental.135

The Talmudic sages are also alert to the issue of causation, a central ques-tion in environmental law and establishing liability. Rabbinic discussions introduce two contradictory opinions regarding a concept called gerama ba-nezikin or “indirect damage.” The idea that one is “exempt for damage caused by indirect action” (gerama ba-nezikin patur) appears in a discussion of fire that spreads as wind fans its flames, a case regarding which the Mishnah declares that the fire’s owner is no longer liable.136 Regarding the Mishnah’s ruling that one must may not leave a ladder within four cubits of a dovecote, the Talmud records, “This teaches that it prohibited to cause even indirect damage (gerama ba-nezikin assur).”137 This contradiction is made even more complicated by the introduction of an ambiguously similar rabbinic category described as garmei (sharing a common root with gerama), understood by many Talmudic exegetes as a form of indirect damage that is more foreseeably causative in nature.138

Classical rabbinic halakhah follows the more lenient position in which one is not held liable in cases of indirect damage.139 This ruling, however, should not be taken as a carte blanche for indirect damage, especially since the more causatively-driven damage (garmei) dictates liability rather than exemption.140 Moreover, even though rabbinic halakhah takes this more lenient position, the more stringent position should be reconsidered anew as an ethical or moral obligation, and that taking the lenient position in the face of current ecological crises is irresponsible and untenable.

Many scholars have suggested that halakhah demands that we follow the stipulations of secular civil law, holding a tortfeasor culpable even when the Jewish sources limit liability or permit a harmful action because of lack of provable causation or foreseeability.141 This position is particularly rele-vant given that the primary actors in most cases of modern environmental law are non-Jews.142 This fact, however, need not constrain the impact of the present argument. As Elliot Dorff has argued with eloquence and precision, Jewish law may indeed be read as putting forward an ethical message for issues of civic and moral concern that extends far beyond the boundaries of Jewish community.143

A different claim to liability—and prohibition—emerges from the attempts by medieval and modern authorities to identify the origins of the principle of indirect damage. In explaining its source, they reveal their take

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on the moral scaffolding behind the rule. Rabbi Meir Abulafia, for example, locates the underpinnings of indirect damage in the prohibition against placing “a stumbling block in front of the blind” (Lev. 19:14).144 Rabbi Elhanan Wasserman grounded the principle in the well-known Talmudic dictum: “what which is hateful to you, do not do to others.”145 These derivations—or perhaps, justifications—bespeak an ethos of responsibility that undergirds the halakhah even when strict liability is limited or cur-tailed by partial or unprovable causation.

This issue of indirect damage, problematic and murky as it is, is critically important for this conversation because most cases of environmental pol-lution do not involve a single person lifting up a bucket of toxic chemicals and dumping them into a public thoroughfare or waterway. Such incidents do happen, of course, although environmental degradation is veiled by rap-idly expanding layers of bureaucracy and distance. Ours is a world of an ever- increasing “responsibility gap,” extending from vast corporate structures to the emergent field of autonomous machines.146 Legal ownership of objects in such a reality can be difficult to establish in classical rabbinic law,147 and questions of corporate liability in halakhah are an even more complicated matter.148 Any attempt to define the culpability of modern polluters in the eyes of Jewish law will, of necessity, be forced to tackle these thorny issues in detail beyond the scope of the present article.

The ethical responsibility of a corporation in regard to ignorance, negligence, and outright maleficence is debated in legal scholarship as well as modern rabbinic discourse.149 Rabbi Zvi Pesah Frank (1873–1960), for example, argued that corporations do not exist in the eyes of halakhah; each member or stakeholder is considered a full partner in the organiza-tion and is therefore obligated for any damage caused by the whole.150 More recently, Rabbi Asher Weiss argued that a company is subject to the same moral demands levied upon a private person:

Corporations possess intrinsic legal personhood, as we have explained. Therefore, it seems to me that in regard to the prohibition of thievery and stealing and all similar matters—which are rational commandments that concern interpersonal relations—it is utterly obvious that such commandments are incumbent upon the company. It is forbidden for it to steal, and for others to steal from it. It is totally clear that this body, which is composed of decision makers with free choice, must conduct itself according to the ways of justice and integrity.151

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Rabbi Weiss distinguishes between biblical commandments that are observed due to divine fiat alone (such as the interdiction of leaven on Passover, keeping the laws of the Sabbath, and so forth) and ethical com-mandments that are rooted in the relationships between human beings. Thievery was linked to the prohibition against causing damage by Rabbi Ya’akov ben Asher in his comments above, and it is here given as by Rabbi Weiss as a paradigmatic imperative regarding moral behavior of a company. His opinion regarding the personhood of corporations may be that of the minority among contemporary rabbinic scholars, but it is a position sup-ported by many and well attested in the literature of halakhah. This moral and legal liability would, I believe, extend equally to many of the categories of damage explored in the rabbinic sources above.

The competing jurisprudential values of liability and exemption strain against one another in Talmudic discussions of tort law. One voice preserved in this antimony seeks ever-greater degrees of responsibility, whereas the other demands that we limit obligation—especially in cases of mitigated or indirect damage. Neither value is universally dispositive. The attempt to balance of these ethical and legal principles is key to the project of halakhah, and technical or formal analysis remains necessary in order to judge each case on its own terms. Principles such as the exemptions of indi-rect damage do provide a necessary counterweight to the values expressed in much of the Talmudic discussions of torts, curbing individual culpability in the service of other ethical or economic goals. The assertion of liability, however, is an extremely strong voice in the rabbinic corpus. It engenders a dominant sense of accepting responsibility—and legal liability—for harm that befalls the body or property of another human being.

The complicated moral fabric that undergirds rabbinic halakhah rises to the surface with the admission that responsibility and liability are not always coterminous.152 The notion that one may be “liable according to the laws of heaven” (hayyav be-dinei shamayim) even though one is exempt from human legislation” appears frequently in these Talmudic discussions of torts.153 The principle suggests an admission—begrudging, perhaps—that there are places that the law cannot go in forcing liability or payment. This does not displace one’s ethical and religious obligation to make restitution and prevent such damage in the first place. The idea of “liable according the laws of heaven” offers a vision of enduring moral responsibility even in instances that cannot be adjudicated by human court and therefore do not trigger a fine nor command recompense.

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The brooding voice of our theological legacy becomes even more important in such cases, especially because the overarching principle of exempting indirect damage makes very little legal or moral sense when applied to cases of negligence or carelessness. Humanity as a whole will pay a heavy price if we fail to address the issues of environmen-tal degradation. Hans Jonas reminded us that we have flexed our grim power to destroy “whole biosphere,” and this means, I believe, that our application of indirect damages must be fundamentally rethought. “In a free society, all are involved in what some are doing,” said Abraham Joshua Heschel. “Some are guilty, all are responsible.”154 We, as human beings whose over-consumption and wasteful practices contribute to the entropy of our ecosystem, cannot avoid our culpability for disas-trous levels of environmental degradation. Together with the readings of rabbinic tort law advanced above, this voice makes it clear that our moral responsibility extends far beyond the limits of de facto liability. They are like arrows shot from the bow. Everything from hazardous pol-lutants to excess waste wreak havoc upon sentient life and tragically degrade the world around us. For this we are liable before the One even when exempt in the eyes of the law.

conclusIons

The present article represents an attempt to demonstrate that the details Jewish tort law have something to say about the contemporary environ-mental crisis. I have no pretensions of having done exhaustive work on this subject, nor have I sought to provide a seamless corollary between these rabbinic discussions and modern issues of pollution. Such work is best left to others.155 My aim has been to spark conversations and to inspire us, as a community and as individuals, to take action in light of these values. This reading of the Talmudic sources demands behavioral changes along with a significant shift away from a utilitarian treatment of the natural world toward a reverence that is grounded in personal and communal responsi-bility.156 These legal sources—read through the lens of aggadah—offer a dif-ferent prescriptive vocabulary for the mandates of environmental activism from the heart of Jewish literature.

Rabbinic literature describes the laws of damages as critical to a sta-ble society. Human beings flourish only when their lives and property are protected from harm.157 Peering beyond this utilitarian or instrumentalist

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approach, the Talmud refers to the Mishnaic Order of Nezikin as the “Order of Redemption” (Seder Yeshu‘ot).158 A community that lives in accordance with the moral principles and legal precepts, claim the rabbis, will be closer to God’s vision. Secular law has dealt with these issues to some degree, but I firmly believe that the ethical voice of Jewish law should demand a higher standard of moral conduct than that prescribed in secular civil law.159 As a religious voice of obligation and responsibility, halakhah must always be a force of courage, compassion and integrity in striving to create a better world.

Our tradition teaches that we become partners with God as we formulate the halakhah and seek to construct the world in light of its values.160 “A judge whose verdict accords with truth in the deepest sense is likened to a partner of the blessed Holy One in the works of creation.”161 Such judgment sustains the world and fashions a society infused with God’s values. Our ongoing partnership with God, manifest in the inheritance of the earth, is insoluble. “The earth is all of one piece,” declares the Talmud,162 and Maimonides rules that “if a piece of land cannot be divided, no partner may force the others to reclaim his stake.”163 Our partnership with the Divine is unbreakable, but it therefore demands that we take an active role in ensuring the continuation of life on this world.

As human beings, we are also guardians (shomrim) charged with shielding God’s world from harm. “And Y-H-V-H God took man and placed him in the Garden of Eden, to cultivate and protect it (le-shomrah)” (Gen. 2:15).164 Perhaps this verse is meant to be read as a legal injunction as well as a theo-logical narrative, demanding that we preserve this verdant and life-giving world.165 A rabbinic midrash suggests that the Temple was destroyed, in part, because of our failure to fulfill this command.166 Rather than greedily clamoring to extract the material resources of this world and use them for our own desires, we are called to serve as custodians of the planet. This vision is driven by the engine of aggadah but anchored in the responsibili-ties defined by the law.

The interweaving of nomos and theology appears in one of our very own discussions of rabbinic torts. When challenged to offer a teaching that involved both halakhah and aggadah, the sage Rabbi Yitshak Nafha offered the following homily:

“If a fire breaks out, and catches in thorns” (Ex. 22:5)—even if it breaks out on its own. “The one who set the fire must surely make

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restitution”—the blessed Holy One said, “I must pay for the fire that I kindled. I set a fire in Zion, as it says, ‘He has kindled a fire in Zion that will devour its foundations’ (Lam. 4:11) and in the future I shall rebuild it with fire, as it says, ‘I will be a wall of fire around it, and I will be the glory in its mist” (Zech. 2:9). There is a tradition: The verse begins with damage caused by property and ends with damage caused by the body, teaching you that a person is liable [for harm cause by fire as if he were shooting] arrows.167

God had the courage to take responsibility—and liability—for destruc-tion wrought. This is proven in the language of law, using the concept of “arrows” recalled above. Do we also have the courage to take moral and legal responsibility for the world that is being destroyed by our “arrows?” Will we wait until the tipping point, until the magnitude of the destruc-tion becomes fully apparent, or will we change our course and thus become redeemed?

It is tempting to foist our burden of responsibility upon others. We may wish to blame previous generations for our present situation, or demand that change come from the next generation rather than from us. “A guard-ian that entrusts his charge to a second guardian remains liable,” declares Rabbi Yosef Karo.168 As we look forward to the next generation, my own children among them, we must remember that our liability is by no means absolved by the passage of time. We have the opportunity and the obliga-tion to act in the present moment, and history will not judge us favorably if we continue to ignore our culpability. “Let us go up at once and take pos-session [of the land]; for we are able to accomplish it” (Num. 13:30). With courage and conviction, we can take responsibility for the earth that we have been entrusted to our care.

“But if,” says Rabbi Moshe Isserles in response to the ruling above, “the guardian entrusts his charge to another guardian in front of the origi-nal depositor, and the latter does not object, then the [first guardian] is exempt.”169 Handing over the world from one generation to another is met with no protest from the original Depositor, who has left it in our care. We live in a historical moment in which God’s face seems to be utterly hidden. Perhaps, as the Talmud suggests, God weeps at the degree of human iniquity and callousness.170 But this hiddenness that allows for human agency, and, moreover, demands that we are active agents in constructing our lives and the lives of our planet.

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Much of the work in this article focuses on the impact of one’s actions vis-à-vis the environment when causing damage to another person or harming the community as a whole. The model of the guardianship, in con-trast, offers a legal vocabulary that would enable us to speak of our respon-sibilities to the planet and to future generations more broadly. As guardians of the earth, our obligation to ensure the continued safety of the planet includes preventing the destruction of resources, wildlife, and the natural environment regardless of the immediate impact on a particular individual. The lens of stewardship encompasses the entire community rather than concentrating only on active polluters and those who can—and should—oppose them, extending responsibility even to passive or bystander non- intervention. Expanding the reading of these sources from a homiletical flourish into a sustained interpretation will be critical for my project. The exigencies of time and space, however, mean that it must remain a task for another day.

In bringing this particular conversation to a close, let us take up the verse chosen by Maimonides to serve as the epigram for the book of the Mishneh Torah dealing with torts: “Incline my heart to Your testimonies, and not to unjust gain” (Ps. 119:36). Various forms of the word translated as “unjust gain” (batsa) appear throughout the Hebrew Bible, always in reference to spoils taken by violence, ill-gotten advantage or selfish profit.171 Maimonides’ use of this verse as a devotional frame for his summary of tort law suggests that all damage—both accidental and intentional—that remains unaddressed will become a significant and enduring moral failure. “One who wishes to be pious,” says Rav Yehudah, “must fulfill the laws of damages (nezikin).”172 We must study these laws carefully, allowing their ethical message to challenge us and to shape our behavior as we strive to fulfill our role as defenders of God’s beautiful world and partners in its sustained existence.

ArIel evAn mAyse is an assistant professor of religious studies at Stanford

University and rabbi-in-residence of Atiq: Jewish Maker Institute. He previously

served as the director of Jewish studies and Visiting Assistant Professor of Modern

Jewish Thought at Hebrew College in Boston, and a research fellow at the Frankel

Institute for Advanced Judaic Studies of the University of Michigan. He holds a

PhD in Jewish studies from Harvard University and rabbinic ordination from Beit

Midrash Har’el in Israel. His research examines the role of language in Hasidism,

the renaissance of modern Jewish mysticism, and the relationship between

spirituality and law in Jewish legal writings.

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notes

To Devorah Schoenfeld, for teaching me to ask these questions of the Talmud, and to have them asked of me. I wish to thank David Rue, Hava Tirosh-Samuelson, Dov Linzer, Arthur Green, Ysoscher Katz, Michael Broyde, Zalman Rothschild, Alex Weisberg, David Miron-Wapner, and Leora Nevins, along with the anonymous peer reviewer, for their extremely helpful comments and critique. All remaining errors and infelicities reflect my own shortcomings.

1. For a few such works, see Hava Tirosh-Samuelson, ed. Judaism and Ecology: Created World and Revealed Word (Cambridge, MA: Harvard University Press, 2002); Jeremy Benstein, The Way Into Judaism and the Environment (Woodstock, NY: Jewish Lights, 2006); Martin D. Yaffe, Judaism and Environmental Ethics: A Reader (Lanham, MD: Lexington Books, 2001); Arthur Waskow, ed. Torah of the Earth: Exploring 4,000 Years of Ecology in Jewish Thought (Woodstock, NY: Jewish Lights, 2000), 2 volumes; Ellen Bernstein, ed. Ecology & the Jewish Spirit: Where Nature and the Sacred Meet (Woodstock, NY: Jewish Lights Publishing, 1998); and Yonatan Neril and Evonne Marzouk, eds., Uplifting People and the Planet: Eighteen Essential Jewish Lessons on the Environment (N.p.: Canfei Nesharim, 2013). See, more broadly, Roger S. Gottlieb, A Greener Faith: Religious Environmentalism and Our Planet’s Future (Oxford: Oxford University Press, 2006); Richard C. Foltz, Frederick Denny, and Azizan Baharuddin, eds., Islam and Ecology: A Bestowed Trust (Cambridge, MA: Harvard University Press, 2003); and Bron Taylor, Dark Green Religion: Nature Spirituality and the Planetary Future (Berkeley: University of California Press, 2009).

2. See Shmuly Yanklowitz, ed., Kashrut and Jewish Food Ethics (Academic Studies Press, forthcoming); and Jill Jacobs, There Shall Be No Needy: Pursuing Social Justice Through Jewish Law and Tradition (Woodstock, NY: Jewish Lights, 2009), esp. 179–91; Jann Reinhardt, “An Ethics of Sustainability and Jewish Law?,” De Ethica: A Journal of Philosophical, Theological and Applied Ethics 1, no. 1 (2014): 17–35; Eilon Schwartz, “Bal Tashchit: A Jewish Environmental Precept,” Environmental Ethics 19 (1997): 355–74; and Mark S. Schwartz, Meir Tamari, and Daniel Schwab, “Ethical Investing from a Jewish perspective,” Business and Society Review 112, no. 1 (2007): 137–61. See also Alex Weisberg’s forthcoming work, “Before There Was Nature: Land, Ethics, and New Materialism in the Early Rabbinic Laws of the Sabbatical Year,” PhD diss., New York University, 2019; and, more broadly, Aryeh Cohen, Justice in the City (Brighton: Academic Studies Press, 2012).

3. For other such attempts, see Dov Berkowitz, “Air Pollution, Halakhah, and Communal Activism,” Tsohar 15 (2003): 103–12 (Hebrew); Daniel Sperber, “New Areas of Religious Responsibility: An Essay,” Conversations 31 (2018), https://www.jewishideas.org/article/new-areas-religious-responsibility, accessed July 17, 2018; Bernstein, Way Into Judaism and the Environment, 88–93, 127–31; David Golinkin, “A Responsum Regarding the Environment and Air Pollution,” Responsa in a Moment 3, no. 2 (2008), https://www.schechter.edu/a-responsum-regarding- the-environment-and-air-pollution, accessed July 2, 2018; Nahum Rakover, Environmental Protection: A Jewish Perspective (Jerusalem: Institute for the World Jewish Congress, 1996); Shlomo E. Glicksberg, “Ecology in Jewish Law: Between

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https://www.jewishideas.org/article/new-areas-religious-responsibility

https://www.schechter.edu/a-responsum-regardingthe-environment-and-air-pollution

https://www.schechter.edu/a-responsum-regardingthe-environment-and-air-pollution



the Universal and the Particularistic: The Trend of Delimiting ‘Environmental Laws’ to the Land of Israel,” Hebrew Union College Annual 82 (2012): 249–268; and the articles in the journal Ha-Sevivah be-Halakhah u-ve-Mahshavah, published since 2004 by the Israel Ministry for Environmental Protection.

4. This article may rightly be seen as a mystically inflected contribution to what Chaim Saiman has described as “neo-lamdanut” in his “Talmud Study, Ethics and Social Policy: A Case Study in the Laws of Wage-Payment as an Argument for Neo-Lamdanut,” Villanova Public Law and Legal Theory Working Paper Series (2014). 225–61.

5. Cf. Norman Lamm, “Ecology in Jewish Law and Theology,” Faith and Doubt: Studies in Traditional Jewish Thought (New York: Ktav, 1972), 162–85.

6. See Hartman, Heart of Many Rooms, 93–114.7. See J. J. Finkelstein, The Ox that Gored (Philadelphia: American Philosophical

Society, 1980).8. Chaim Saiman, “Legal Theology: The Turn to Conceptualism in Nineteenth-

Century Jewish Law,” Journal of Law and Religion 21, no. 1 (2006): 39–100; Mosheh Lichtenstein, “‘What’ Hath Brisk Wrought: The Brisker Derekh Revisited,” The Torah u-Madda Journal 9 (2000): 1–18; and Yosef Blau, ed., The Conceptual Approach to Jewish Learning (Jersey City: Ktav Publishing House, 2006). See Joseph B. Soloveitchik, Halakhic Man, trans. Lawrence Kaplan (Philadelphia: The Jewish Publication Society, 1983), 19–20; and idem, And From There You Shall Seek, trans. Naomi Goldblum (Brooklyn: Ktav Publishing House, 2008), 108.

9. See Eliezer Berkovits, “Law and Morality in Jewish Tradition,” Essential Essays on Judaism, ed. David Hazony (Jerusalem: Shalem Press, 2002), 7; Eliezer Berkovits, Not in Heaven: The Nature and Function of Jewish Law (Jerusalem and New York: Shalem Press, 2010); David Hartman, A Heart of Many Rooms: Celebrating the Many Voices within Judaism (Woodstock: Jewish Lights, 1999), 121; idem, A Living Covenant: The Innovative Spirit in Traditional Judaism (Woodstock: Jewish Lights, 2010), 98; Emmanuel Levinas, Nine Talmudic Readings, trans. Annette Aronowicz (Bloomington: Indiana University Press, 1990), esp. 4–5; and Laurence L. Edwards, “‘Extreme Attention to the Real’: Levinas and Religious Hermeneutics,” Shofar 26, no. 4 (2008): 36–53. See also Solomon Freehof, “The Responsa Literature and A Treasury of Responsa (New York: Ktav Publishing House, 1973); Eugene B. Borowitz, Exploring Jewish Ethics: Papers on Covenenant Responsibility (Detroit: Wayne State University Press, 1990); David Novak, Halakhah in a Theological Dimension (Chico: Scholars Press, 1985). See also the Central Conference of American Rabbis responsa CARR 17–19, available online at: https://www.ccarnet.org/ccar-responsa/carr-17-19/, accessed July 9, 2018; and Shim’on Gershon Rozenberg, Faith Shattered and Restored: Judaism in The Postmodern Age (Jerusalem: Maggid Books, 2017), esp. 41–65.

10. See Ariel Evan Mayse, “Like a Blacksmith with the Hammer: Talmud Study and the Spiritual Life,” Search for Meaning, ed. David Birnbaum and Martin S. Cohen (New York: New Paradigm Matrix, 2018), 369–409. The present article seeks to give concrete expression to the theoretical scaffolding detailed in that earlier piece. See also Michael Rosenak, Roads to the Palace: Jewish Texts

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https://www.ccarnet.org/ccar-responsa/carr-17-19/



and Teaching (Providence, RI: Berghahn Books, 1995); and Isadore Twersky, “What a Jew Must Study—And Why,” Visions of Jewish Education, ed. Seymour Fox, Israel Scheffler, and Daniel Marom (Cambridge: Cambridge University Press, 2003), 47–76; Jon A. Levisohn and Susan P. Fendrick, eds., Turn It and Turn It Again: Studies in the Teaching and Learning of Classical Jewish Texts (Boston: Academic Studies Press, 2013); and Jane L. Kanarek and Marjorie Lehman, eds., Learning to Read Talmud: What It Looks Like and How It Happens (Boston: Academic Studies Press, 2016).

11. See also Hava Tirosh Samuelson, “Jewish Environmental Ethics: The Imperative of Responsibility,” The Wiley Blackwell Companion to Religion and Ecology, ed. John Hart (Hoboken, NJ: John Wiley and Sons, 2017), 179–94, as well as the other essays therein.

12. This point has been argued by many twentieth-century Jewish thinkers; see Avraham Yitshak Kook, Abraham Isaac Kook: The Lights of Penitence, the Moral Principles, Lights of Holiness, Essays, Letters and Poems, trans. and ed. Ben Zion Bokser (New York: Paulist Press, 1978), 196–98; Avinoam Rosenak, The Prophetic Halakhah: Rabbi A. I. H. Kook’s Philosophy of Halakhah (Jerusalem: Magnes Press, 2007) (Hebrew); Hayyim Nahman Bialik, “Halachah and Aggadah,” Revealment and Concealment: Five Essays, ed. Zali Gurevitc (Jerusalem: Ibis Editions, 2000), 45–87; Abraham Joshua Heschel, God in Search of Man: A Philosophy of Judaism (New York: Farrar, Straus and Giroux, 1976), 320–47. See also Barry S. Wimpfheimer, Narrating the Law: A Poetics of Talmudic Legal Stories (Philadelphia: University of Pennsylvania Press, 2011); and Moshe Simon-Shoshan, Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah (Oxford: Oxford University Press, 2012).

13. See Ariel Evan Mayse, “Neo-Hasidism and Halakhah: The Duties of Intimacy and the Law of the Heart,” A New Hasidism: Branches, ed. Arthur Green and Ariel Evan Mayse (Philadelphia: The Jewish Publication Society, forthcoming).

14. Hartman, A Living Covenant, 100.15. Robert Cover, “The Supreme Court 1982 Term—Foreword: Nomos and

Narrative,” Harvard Law Review 97, no. 1 (1983–1984): 4–68.16. For an interpretation of the Talmudic discussions of damage caused by fire that

incorporates aggadah together with the halakhah, see Levinas, Nine Talmudic Readings, 178–97. See also Elliot N. Dorff, “Borowitz on Halakhah, Aggadah, and Ethics,” Journal of Jewish Ethics 1, no. 1 (2015): 59–76.

17. Kohelet Rabbah 7:13.18. Jacob Katz, “Halakhah and Kabbalah as Competing Disciplines of Study,” Jewish

Spirituality, vol. II: From the Sixteenth-Century Revival to the Present, ed. Arthur Green (New York: Crossroad, 1987), 34–63.

19. David M. Seidenberg, Kabbalah and Ecology: God’s Image in the More-Than-Human World (New York: Cambridge University Press, 2015); and Arthur Green, “A Kabbalah for the Environmental Age,” Tikkun 14, no. 5 (1999): 33–38.

20. A teaching of Rabbi Levi Yitshak of Barditshev, translated in Arthur Green, Speaking Torah Spiritual Teachings from Around the Maggid’s Table, with Ebn Leader, Ariel Evan Mayse and Or N. Rose (Woodstock, NY: Jewish Lights, 2013), vol. 1, 80. On mystical panentheism and environmental ethics, see Arthur Green,

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Radical Judaism: Rethinking God and Religion (New Haven, CT: Yale University Press, 2011), esp. 16–33, 166–94.

21. See Ian Barbour, Ethics in an Age of Technology (San Francisco: Harper San Francisco, 1993), 57–82, 116–145 and 179–87.

22. Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age (Chicago: The University of Chicago Press, 1984), 123. See also Hava Tirosh-Samuelson and Christian Wiese, eds., The Legacy of Hans Jonas: Judaism and the Phenomenon of Life (Leiden: Brill, 2008).

23. Jonas, The Imperative of Responsibility, 136.24. Lisa H. Sideris, Consecrating Science: Wonder, Knowledge, and the Natural

World (Berkeley: University of California Press, 2017), 1; and see also idem, “Evolving Environmentalism: The Role of Ecotheology in Creation/Evolution Controversies,” Worldviews: Global Religions, Culture, and Ecology 11, no. 1 (2007): 58–82.

25. Sideris, Consecrating Science, 2.26. Idem, Environmental Ethics, Ecological Theology, and Natural Selection (New York:

Columbia University Press, 2003).27. Cf. Mari Jørstad, “The Ground that Opened its Mouth: The Ground’s Response

to Human Violence in Genesis 4,” Journal of Biblical Literature 135, no. 4 (2016): 705–15.

28. Zalman Schachter-Shalomi and Daniel Siegel, Integral Halachah: Transcending and Including (Victoria: Trafford, 2007), 52.

29. Ibid., 117–30. See also Zalman Schachter-Shalomi and Netanel Miles-Yepez, Foundations of the Fourth Turning of Hasidism: A Manifesto (Boulder, CO: Albion-Andalus, 2014), 20.

30. Alan Mittleman, Human Nature & Jewish Thought: Judaism’s Case for Why Person’s Matter (Princeton, NJ: Princeton University Press, 2015), 183.

31. Yuval Cherlow, In His Image: The Image of God in Man (Jerusalem: Maggid Books, 2016), passim; and idem, “On Sustainability in Judaism,” Ecology and Environment: Journal for Science and Environmental Policy, no. 1 (2011): 78 (Hebrew).

32. My thanks to Alex Weisberg for helping me to formulate this point more precisely.

33. m. Bava Kamma 1:1, where it is described as hev‘er; and see the definition given on b. Bava Kamma 3b.

34. Biblical citations are based on the NJPS translation.35. b. Bava Kamma 22b.36. b. Bava Kamma 10a, and RaSHI and Tosafot there. See also b. Bava Kamma

60a–61a; and, more broadly, Naphtali Lipschüts, “The Extent of Liability of Negligence,” Proceedings of the World Congress of Jewish Studies (Jewish Thought and Literature) 9 (1985): 79–86 (Hebrew).

37. m. Bava Kamma 6:4–6 and b. Bava Kamma 61a–61b. See Tosafot to b. Bava Kamma 22b.

38. Mekhilta de-Rabbi Yishma’el on Ex. 22:539. See John Cartwright, “Remoteness of Damage in Contract and Tort: A

Reconsideration,” The Cambridge Law Journal 55 (1996): 488–514.40. b. Bava Kamma 22a.

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41. b. Bava Kamma 22b–23a. See the comments of the Nimmukei Yosef on the RIF, ad loc, regarding how to define actions in regard to their origin. Tosafot to Sanhedrin 77a.

42. Mishneh Torah, hilkhot nizkei mammon 1:1; and ibid., hovel u-mazik 1:1.43. b. Bava Kamma 23a.44. The Talmud refers to this as “depletion of one’s arrows” (kalu lo hitzav).45. b. Bava Kamma 23a, and RaSHI ad loc. See also Shulhan Arukh, hoshen mishpat

418:17.46. Mishneh Torah, hilkhot nizkei mammon 14:15; and see Shulhan Arukh, hoshen mish-

pat 418:17.47. See Shulhan Arukh, hoshen mishpat 418:2; and Mishneh Torah, hilkhot nizkei mam-

mon 14:16.48. Mishneh Torah, hilkhot nizkei mammon 14:3; following the position of Rav on

b. Bava Kamma 61a. See RaSHBA’s comments, ad loc; and Liora Elias Bar-Levav, “Talmudic Redaction, Transmission, and Exegesis: The Example of the Columnar or Creeping Fire,” Tarbiz 71, no. 3/4 (2012): 371–389 (Hebrew).

49. Mishneh Torah, hilkhot nizkei mammon 14:4; b. Bava Kamma 23a.50. Howard C. Kunreuther and Erwann O. Michel-Kerjan, “Climate Change,

Insurability of Large-scale Disasters and the Emerging Liability Challenge,” NBER Working Paper No. 12821, issued in January 2007, http://www.nber.org/papers/w12821, accessed June 27, 2018.

51. See P.H. Winfield, “The Myth of Absolute Liability,” Law Quarterly Review 42 (1926): 37–51; Allan F. Smith, “Municipal Tort Liability,” Michigan Law Review 48, no. 1 (1949): 41–56; Gary Sellers, “State Tort Liability for Negligent Fire Inspection,” Columbia Journal of Law and Social Problems 13 (1977): 303–350; and Edson R. Sunderland, “The Liability of Water Companies for Fire Losses,” Michigan Law Review 3, no. 6 (1905): 442–57. See also Ulrich Beck, Risk Society: Towards a New Modernity, trans. Mark Ritter (London: Sage Publications, 1992).

52. See Mishneh Torah, hilkhot nizkei mammon 14:7 and m. Bava Kamma 6:4.53. See the definition in Shulhan Arukh, hoshen mishpat 418:1: “Anything similar to

this—that is, a person’s property that moves and causes damage—is included as a sub-category and follows the law of esh.” Talmudic examples of the sub-categories of esh (toledot) include a stone, a knife or a heavy object placed atop of a building that falls with an expected wind and damages something when it is falling. See b. Bava Kamma 3b; and Shulhan Arukh, hoshen mishpat 418:1.

54. Edward J. Schwartzbauer and Sidney Shindell. “Cancer and the Adjudicative Process: The Interface of Environmental Protection and Toxic Tort Law.” American Journal of Law & Medicine 14 (1988): 1–68.

55. Benjamin Shmueli and Yuval Sinai, “Liability Under Uncertain Causation-Four Talmudic Answers to a Contemporary Tort Dilemma,” Boston University International Law Journal 30 (2012): 449–95.

56. W. Noel Keyes and John L. Howarth, “Approaches to Liability for Remote Causes: The Low-Level Radiation Example,” Iowa Law Review 56 (1970): 531–76.

57. See b. Bava Batra 2b and Tosafot, ad loc. See also b. Gittin 53a.58. Albert C. Lin, “Beyond Tort: Compensating Victims of Environmental Toxic

Injury,” Southern California Law Review 78 (2004): 1439–1529

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59. See Andrew Hopkins, “Was Three Mile Island a ‘Normal Accident’?,” Journal of Contingencies and Crisis Management 9, no. 2 (2001): 65–72.

60. See Mishneh Torah, hilkhot nizkei mammon 14:7.61. She’elot u-Teshovot Shevut Ya’akov, vol. 1, 136.62. The verses read: “When a man opens a pit, or digs a pit and does not cover it,

and an ox or an ass falls into it, the one responsible for the pit must make res-titution; he shall pay the price to the owner, but shall keep the dead animal.”

63. See m. Bava Kamma 5:5; and Mishneh Torah, hilkhot nizkei mammon 12:2.64. m. Bava Kamma 5:6 and the discussion on b. Bava Kamma 52a.65. Mishneh Torah, hilkhot nizkei mammon 12:4–5.66. See b. Bava Kamma 55b.67. b. Bava Kamma 28b. Mishneh Torah, hilkhot nizkei mammon 13:2.68. On the concept of “indirect damage,” see below.69. Tosafot RID to b. Bava Kamma 53a.70. m. Bava Kamma 5:6l and RaSHI on b. Bava Kamma 52a.71. The Talmud qualifies these cases, identifying the time in which liability is

transferred as the moment that the first partner “passes the bucket”—that is, use of the cistern—to the second partner. See b. Bava kamma 51a–b; Mishneh Torah, hilkhot nizkei mammon 14:7.

72. Mishneh Torah, hilkhot nizkei mammon 14:7.73. Shulhan Arukh, hoshen mishpat, 410:14. See b. Bava Kamma 10a and 51a. See also

the differing explanations of Rabbenu Yonatan (cited in the Shita Mekubetset on b. Bava Kamma 10a), and Menahem Me’iri’s comments, ad loc.

74. Shulhan Arukh, hoshen mishpat, 410:15.75. b. Bava Kamma 29b and 6a.76. b. Bava Kamma 29b. See also Nimmukei Yosef on RIF b. Bava Kamma 1a, and

RaSHBA on b. Bava Kamma 2a; cf. Tosafot on b. Bava Kamma 3b.77. See b. Bava Kamma 19b, and Tosafot ad loc. See also She’elot u-Teshuvot Divrei

Shalom, hoshen mishpat, vol. 3, no. 126.78. y. Bava Kamma 3:2.79. b. Bava Kamma 6a.80. Mishneh Torah, hilkhot nizkei mammon 13:3.81. Shulhan Arukh, hoshen mishpat 411:6.82. Shulhan Arukh, hoshen mishpat 411:3.83. b. Bava Kamma 56a; Mishneh Torah, hilkhot nizkei mammon 13:7; and Shulhan

Arukh, hoshen mishpat 412:4.84. b. Bava Kamma 30a. See also Mishneh Torah, hilkhot nizkei mammon 13:21.85. See the Tosafot on b. Bava Kamma 30a.86. m. Bava Kamma 5:2.87. b. Bava Kamma 47b and 56a.88. See Jacobs, There Shall Be No Needy, 183–84.89. See also m. Bava Kamma 3:3 and b. Bava Kamma 30a. See also b. Bava Kamma 6a

and Mishneh Torah, hilkhot nizkei mammon 13:15.90. See Mishneh Torah, hilkhot nizkei mammon 13:13; b. Bava Kamma 6a and 30a.91. See ReMA in Shulhan Arukh, hoshen mishpat 417:1.

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92. Ronen Perry, “The Deepwater Horizon Oil Spill and the Limits of Civil Liability,” Washington Law Review 86 (2011): 1–68.

93. m. Bava Kamma 3:3, and the comments of Ovadia Bartenura ad loc. See also Rashi on b. Bava Kamma 30a.

94. b. Bava Kamma 30a.95. Meshaneh Halakhot, vol. 12, no. 447. The responsum was penned in 1991.96. On the special qualities of Jerusalem and things that are prohibited because of

them, see b. Bava Kamma 82b; and Mishneh Torah, hilkhot beit ha-behirah 7:14. See also Minhat Asher, vol. 1, no. 93; and Zvi Ilani, “Efficiency Considerations in Handling Ecologic Nuisances in Halakhic Literature as Compared with Modern Economic Theories,” Shenaton ha-Mishpat ha-Ivri: Annual of the Institute for Research in Jewish Law 16/17 (1990–1991): 27–87 (Hebrew).

97. It is telling that Maimonides groups these laws together under the heading of hilkhot shekhenim, whereas the Arba’ah Turim and Shulhan Arukh refer to them as nizkei shekhenim.

98. See Yeshayahu Bar-Or, “Distancing from Environmental Damages” Ha-Ma‘ayan (Tishrei, 2011), https://www.machonso.org/hamaayan/?gilayon=19&id=797, accessed June 27, 2018 (Hebrew).

99. m. Bava Batra 2:8.100. See Arba’ah Turim, hoshen mishpat 155:20. See also Jacobs, There Shall Be No Needy,

186–88.101. See Arba’ah Turim, hoshen mishpat 155:56.102. She’elot u-Teshuvot She’erit Yosef, no. 27103. See the overview in Meir Sichel, “Air Pollution—Smoke and Odor Damage,” The

Jewish Law Review Annual 5 (1985): 25–43.104. m. Bava Batra 2:9.105. m. Bava Batra 2:2; b. Bava Batra 20b; and b. Bava Kamma 82b106. Tofafot on Bava Batra 23a and, 25a; and Arba’ah Turim, hoshen mishpat 155:37.107. Shulhan Arukh, hoshen mishpat 155:37.108. She’elot u-Teshuvot MahaRaM mi-Rothenberg, vol. 4, no. 233.109. She’elot u-Teshuvot ha-RaSHBA, vol. 4, no. 45.110. She’elot u-Teshuvot Iggerot Moshe, hoshen mishpat, vol. 2, no. 18. See also ibid., no.

76.; and RaMBaN’s comments on b. Bava Batra 59a.111. “The Prohibition of Smoking in Halacha,” 4 Tammuz 5766, June 30, 2006, http://

www.rabbis.org/pdfs/Prohibition_Smoking.pdf, accessed June 19, 2018. See also She’elot u-Teshuvot Tsits Eli’ezer, vol. 15, no. 39.

112. m. Bava Batra 2:5.113. m. Bava Batra 2:10.114. See also Maimonides’s explanation of this passage in his Perush ha-Mishnah,

and RaSHBA’s discussion of the necessary distance in his comments on b. Bava Batra 25a.

115. b. Bava Batra 18b.116. The rule of providing distance between bees and mustard may be read as pro-

tecting the owner of the mustard, as the bees may be attracted to the plant and come to consume it.

117. RaSHBA on b. Bava Batra 18b and RoSH on b. Bava Kamma 1:1.

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http://www.rabbis.org/pdfs/Prohibition_Smoking.pdf

http://www.rabbis.org/pdfs/Prohibition_Smoking.pdf



118. Mishneh Torah, hilkhot shekhenim 11:1 and cf. ibid., 11:2.119. b. Bava Batra 22b. and 25b. See also the comments of Rabbaneu Hananel and

RaMBaN on b. Bava Batra 22b; and b. Bava Metsia 117a.120. Mishneh Torah, hilkhot shekhenim 10:5121. b. Bava Batra 23a; and Sichel, “Air Pollution,” 35–36.122. Joseph E. Stiglitz, Making Globalization Work (New York: W. W. Norton and

Company, 2007), 133–186.123. Teshuvot ha-ROSH, no. 108:10; based on the translation in Sichel, “Air Pollution,”

34.124. m. Bava Kamma 2:6. See also m. Bava Kamma 1:2, and the two different expla-

nations given by RaSHI.125. See b. Bava Kamma 26b–27b; Tosafot ad loc and Mishneh Torah, hilkhot hovel

u-mazik 1:11; ReMA’s gloss in Shulhan Arukh, hoshen mishpat 378:1; and ibid., 421:4.

126. Samson Rafael Hirsch, Horeb: A Philosophy of Jewish Laws and Observances, trans. Isidor Grunfeld (London: Soncino Press, 1962), no. 360. See also Shmuel Chayen, “Environment, Society, and Economics in the Philosophy of Rabbi Samson Raphael Hirsch and Dr. Isaac Breuer,” PhD diss., Bar-Ilan University, 2010.

127. Mishneh Torah, hilkhot nizkei mammon 5:1. See also Sefer ha-Mitsvot, mitsvot lo ta’aseh, no. 279.

128. She’elot u-Teshutot Hatam Sofer, yoreh deah, no. 241. See also She’elot u-Teshutot Divrei Yatsiv, hoshen mishpat, no. 71.

129. b. Bava Kamma 15b and Ketubot 41b; Sefer ha-Mitsvot, mitsvot aseh, no. 184 and mitsvot lo ta’aseh, no. 298; Mishneh Torah, hilkhot rotse’ah u-shemirat ha-nefesh 11:4; Sefer ha-Hinukh, no. 546. The Talmud records that we are called even to prevent the loss of another’s land, perhaps extending the biblical commandment to return the lost objects to preserving the natural world. See b. Bava Metsia 31a and Deut. 22:3.

130. Arba‘ah Turim, hoshen mishpat, no. 378.131. Denis Binder, “Act of God or Act of Man: A Reappraisal of the Act of God Defense

in Tort Law,” Review of Litigation 15 (1995–1996): 1–80.132. The Guide of the Perplexed, trans. Shlomo Pines (Chicago: The University of

Chicago Press,1963) pt. 3 ch. 40.133. Ibid.134. b. Bava Kamma 23a, 28b, and 61b–62a; Shulhan Arukh, hoshen mishpat 418:13.135. b. Bava Kamma 21b and 52a–b. See Mishneh Torah, hilkhot nizkei mammon 12:5,

and the comments of RAaBaD, Maggid Mishneh and Lehem Mishneh ad loc. See also the opinion of RiVA cited in Tosafot to b. Bava Kamma 52b, and the discus-sion on. b. Bava Metsia 36b.

136. b. Bava Kamma 60a.137. b. Bava Batra 22b138. See b. Bava Kamma 98b and 100a–b. For a full discussion, Encyclopedia Talmudit,

vol. 6, s.v. gerama be-nezikin; Nahmanides’s classical tract Dina de-Garmei; and Shi‘urei ha-Rav Lichtenstein: Dina de-Garmei, ed. Amihai Gordin and David Feldman (Alon Shevut: Yeshivat Har Etsiyon, 2000) See also the idea of zeh ve-zeh gorem in b. Shevu‘ot 33a; and Ketsot ha-Hoshen, hoshen mishpat 386:3.

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139. Shulhan Arukh, hoshen mishpat 386:1 and ReMA’s ruling in ibid., 386:3; and She’elot u-Teshuvot Minhat Asher, vol. 1, 114.

140. Shulhan Arukh, hoshen mishpat 386:1141. See Shulkhan Arukh, hoshen mishpat 369: 6–11, and the gloss of See the sources in

Michael Walzer, Menachem Lorberbaum, Noam J. Zohar, and Yair Lorberbaum, eds., The Jewish Political Tradition: Volume 1—Authority (New Haven and London: Yale University Press, 2000), 431–34. See also Michael J. Broyde, “A Jewish Law View of World Law,” Emory Law Journal 54 (2005): 79–96; Steven H. Resnicoff, “Jewish Law and Socially Responsible Corporate Conduct,” Fordham Journal of Corporate and Financial Law 11 (2005): 681–96; J. David Bleich, “Jewish Law and the State’s Authority to Punish Crime,” Cardozo Law Review 12 (1990–1991): 829–58; Mark Washofsky, “Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity,” Modern Judaism (1989): 289–310; and, more broadly, Gil Graff, Separation of Church and State: Dina de-Malkhuta Dina in Jewish Law, 1750–1848 (Tuscaloosa: University of Alabama Press, 1985).

142. See also the comments of Shabbatai Kohen to Shulhan Arukh, hoshen mishpat 73, no. 39, and the discussion in Aaron Levine, Economic Morality and Jewish Law (Oxford: Oxford University Press, 2012), 75–76 and 90–91. On gerama and non-Jews, see also She’elot u-Teshuvot Ahi‘ezer, vol. 3, no. 37.

143. See, for example, Elliot N. Dorff, “The King’s Torah: The Role of Judaism in Shaping Jews’ Input in National Policy,” To Do the Right and the Good: A Jewish Approach to Modern Social Ethics (Philadelphia: Jewish Publication Society, 2002), 96–113; and idem, “To Fix the World: Jewish Convictions Affecting Social Issues,” Jews and Genes: The Genetic Future in Contemporary Jewish Thought, ed. Elliot N. Dorff and Laurie Zoloth (Philadelphia: Jewish Publication Society, 2015), 403–27.

144. Yad Ramah to b. Bava Batra 26a, no. 107.145. Kovets Shiurim, bava batra, no. 74; based on b. Shabbat 31a.146. Andreas Matthias, “The Responsibility Gap: Ascribing Responsibility for the

Actions of Learning Automata,” Ethics and Information Technology 6, no. 3 (2004): 175–83.

147. See b. Bava Kamma 3b–4a and the Tosafot, ad loc.148. Michael J. Broyde and Steven H. Resnicoff, “Jewish Law and Modern Business

Structures: The Corporate Paradigm,” Wayne Law Review43 (1996): 1685–1818. See also She’elot u-Teshuvot Hayyim Sha’al, vol. 1, no. 45.

149. See Geoff Moore, “Corporate Moral Agency: Review and Implications,” Journal of Business Ethics 21, no. 4 (1999): 329–43; and cf. Manuel G. Velasquez, “Why Corporations Are Not Morally Responsible for Anything They Do,” Business & Professional Ethics Journal 2, no. 3 (1983): 1–18. See also Edwin M. Borchard, “Government Liability in Tort,” The Yale Law Journal 34, no. 1 (1924): 1–45.

150. See also Minhat Yitshak, vol. 1, no. 3 and vol. 4, no. 1. See also She’elot u-Teshuvot Tzofnat Pane’ah, no. 184 and cf. Iggerot Moshe, yoreh de’ah, vol. 2, no. 63.

151. She’elot u-Teshuvot Minhat Asher, vol. 1, no. 105, p. 361. Cf. ibid., no. 106.152. See Peter Cane, Responsibility in Law and Morality (Oxford and Portland: Hart,

2002), 60: “the prime aim of the ‘legal system of responsibility’ is a maximization of the incidence of responsible (law-compliant) behavior, not the imposition of

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liability for irresponsible (law-breaking) behavior. . . . The primary purpose of legal liability—of legal penalties and obligations of repair—is the sanctioning of those responsible for past conduct and outcomes.”

153. b. Bava Kamma 59b. See also m. Bava Metsia 4:2. See Isaac Herzog, “Moral Rights and Duties in Jewish Law,” Juridical Review 41 (1929): 60–70; Asher Golak, The Foundations of Jewish Law (Jerusalem: Devir, 1922), vol. 2, 18–19 (Hebrew); and, more broadly, Moshe Silberg, “Law and Morals in Jewish Jurisprudence,” trans. Amihud I. Ben Porath, Harvard Law Review 75, no. 2 (1961): 306–31.

154. Abraham Joshua Heschel, “Toward A Just Society,” Moral Grandeur and Spiritual Audacity, ed. Susannah Heschel (New York: Farrar, Straus and Giroux, 1996), 231. Italics in the original.

155. On the work of scholars vis-à-vis that of the poskim, see Menachem Lorberbaum, “Hilkheta le-Meshiha?: On the Religious Role of the Philosophy of Halakhah,” in Iyyunim Hadashim be-Filosofiya shel ha-Halakhah, ed. Aviezer Ravitzky, Avinoam Rosenak (Jerusalem: Magnes Press, 2008), 97–115 (Hebrew).

156. See Jacobs, There Shall Be No Needy, 188–91.157. See Arba’ah Turim, hoshen mishpat, hakdamah and 1:1.158. b. Shabbat 31a; and Be-Midbar Rabbah 13:15.159. See Moshe Shmuel Glasner, Dor Revi’i (New York: 2004), hakdamah.160. Soloveitchik, Halakhic Man, esp. 99–138.161. b. Shabbat 10a, and Mekhilta, yitro, no. 2.162. See b. Bava Batra 67a.163. Mishneh Torah, hilkhot shekhenim 1:1 and 4.164. See Norman Solomon, “Judaism and Conservation,” Christian-Jewish Relations

22, no. 2 (1989): 7–25; and Jeremy Cohen, “Be Fertile and Increase, Fill the Earth and Master It”: The Ancient and Medieval Career of a Biblical Text (Ithaca, NY: Cornell University Press, 1989).

165. See Sifrei Devarim, ‘ekev, no. 41; Pirkei de-Rabbi Eliezer, ch. 12; and Targum Yonatan ben Uziel on Gen. 2:15.

166. Eikha Rabbah, petihta 4.167. b. Bava Kamma 60b. See also Levinas, Nine Talmudic Readings, 178–197. See also

Berachyahu Lifshitz, “Aggadah and Its Role in the History of the Oral Law (Torah She-Be‘al Peh),” Shenaton ha-Mishpat ha-Ivri: Annual of the Institute for Research in Jewish Law 22 (2001–2004): 240–41 (Hebrew).

168. Shulhan Arukh, hoshen mishpat 291:26.169. Ibid.170. b. Hagiga 5b.171. See, inter alia, Gen. 37:26; Ex. 18:21; Jer. 22:17; and Isa. 33:15.172. b. Baba Kamma 30a.

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