Unlike the sources of Jewish thought, Jewish civil law, which contains the laws concerning nuisances, is fundamentally anthropocentric: The Halakha seeks to protect the individual and society from various hazards.
Generally, the Halakhic discussions can be described according to three circles of reference: local, public, and global. Regarding the first two circles, Halakha offers an organized legal doctrine. Indeed, in the absence of updated scientific knowledge available to the religious scholars of the relevant period in which this genre was created, no clear guidelines were formulated on the management of modern environmental issues, including global ones. However, within the framework of reference to the local and public circles, in the reality addressed by scholars of the Mishnah and Talmud periods, Halakhic foundations were laid, not only concerning modern hazards, but even the third circle of reference.
The Halakhic approach does not speak in terms of rules (conceptualization) but of cases (casuistics).13 However, the modern posek (decisor) is accustomed in many instances to analyze situations referred to by earlier sources, to convert the cases to principles, which then could be applied to a changing reality.
The main corpus of these discussions is found in the Mishnah, in the second chapter of Bava Batra Tractate, which actually consists of the last section of the original Nezikin (damages) Tractate. As nuisances are the main focus of this chapter, consisting of 14 verses, or Mishnayot, its central principles will therefore be the focus of discussion here.
The novelty of this chapter, even prior to going into its details, is the very fact that it prohibits not only acts that harm another's body or property, but also
12 Although, as we have shown elsewhere, it seems that the sources of Jewish thought did in fact influence Halakhic rulings, even if indirectly, by establishing a stricter norm, demanding a higher measure of piety and going beyond the letter of the law. See Glicksberg S (2005) Ecology in Jewish law: preventing personal environmental damage. Ph.D. Dissertation, Bar-Ilan University, Ramat Gan, pp. 273-276, 312-313, 315-317 (Hebrew).
13 L., Moscovits, Talmudic reasoning: from casuistics to conceptualization, Tubingen 2000.
ones that detract from ones' quality of life or tranquility. Nuisance laws, therefore, introduce the concept that quality of life is also a "protected interest," which is legally protectable.
Here, we will first describe the two first circles and will then describe in brief some principles derived from them, and which could serve as a platform for an applicable Halakhic doctrine for the management of modern environmental hazards, including global ones, which go beyond the responsibility of the individual or the local public, and relate to the world at large.
Some examples: The Mishnah requires the distancing of hazardous materials from the neighbor's property: "A man should keep olive refuse, dung, salt, lime, and flint stones at least three handbreadths from his neighbor's wall or plaster it over."14 The Mishnah makes similar demands on ones' conduct toward his upstairs neighbor: "An oven should not be fixed in a room unless there is above it an empty space of at least 4 cubits. If it is fixed in an upper chamber, there must be under it paved flooring at least three handbreadths thick, or for a small stove one handbreadth."15
And so also in the following Mishnah: "A man should not open a bakery or a dyer's workshop under his neighbor's storehouse, nor a cowshed. In point of fact the rabbis permitted [a bakery or dyer's workshop to be opened] under wine, but not a cowshed."16 The Mishnah also requires the protection against noise: "One may protest against the opening of a shop within the courtyard and claim, 'I cannot sleep due to the noise of those entering and exiting'.17
The Mishnah protects not only the individual's property and quality of life but also the public and its property. For reasons of protection from air pollution, the Mishnah requires the distancing of various hazards from inhabited settlements: "Animal carcasses, graves and tanneries must be distanced 50 cubits from a town. A tannery may be set up only to the east of a town. Rabbi Akiva says it may be set up on any side save the west, and it must be distanced 50 cubits [from the town]."18 The Mishnah also prohibits air pollution caused by waste, and thus prohibits threshing grain
14 Mishnah, Bava Batra, 2:1.
close to town: "A permanent threshing floor may not be made within 50 cubits of the town. One may not make a permanent threshing floor within his own domain unless his ground extends 50 cubits in every direction, and he must distance it from his fellow's plants and ploughed land so that it will not cause damage."19
A further Mishnah prohibits the planting of a tree near an inhabited area, and even requires its uprooting once planted: "A tree may not be grown within a distance of 25 cubits from the town, or 50 cubits if it is a carob tree or a sycamore tree."20 The Mishnah does not explain the measures taken or the nature of the nuisance. However, the discussion in the Babylonian Talmud on this issue quotes the Amora (Talmudic Sage) Ullah on this, that the preservation of the town's aesthetic beauty is the reason for distancing the trees, so that they will not obscure the view seen from the town, which would detract from the town's beauty. Later, poskim concluded from these sources that the town's aesthetic appearance should be nurtured, and that legal recourse could be pursued to remove any hindrance to this.21
According to the Braita22 quoted in Bava Kama Tractate, on a town with a public standing such as Jerusalem, even stricter demands were made concerning quality of life and the environment: "Ten special regulations were applied to Jerusalem:... that neither beams nor balconies should be allowed to project there; that no dunghills should be made there; that no kilns should be kept there; that neither gardens nor orchards should be cultivated there."23
Why is the planting of gardens and orchards in Jerusalem forbidden? The Talmudic reason, due to "sircha," is explained by the commentator Rashi as noxious odors, which originate either in the weeds thrown out from the gardens or in fertilizer. Thus, the cultivating of gardens and orchards is forbidden to prevent ecological nuisances. However, the modern-day Talmudist Jacob Nahum Epstein used philological comparisons to explain that the Talmudic term actually referred to a "Sandfliege" (sand fly) - a small fly found especially in gardens.24
The discussion in the Babylonian Talmud also explains the prohibition to light kilns, which is due to the smoke rising from them.25
In the Tosefta26 to Bava Batra Tractate, a general rule was formulated by Rabbi Nathan stating that kilns must be kept 50 cubits from any town.27
20 Bava Batra 2:7.
21 On this Halakha and its evolvement, see, S. E. Glicksberg, "The tree as a nuisance, the evolvement of a Halacha", Mo'ed 18 (2008), pp. 1-11.
22 Braita - Tanaic teachings external to the Mishnah.
23 Bava Kama 82:2.
24 J.N. Epstein, "Talmudic Lexicon", Tarbitz 1 (1930), p. 124 (Hebrew).
25Bava Kama 82b. Rashi explains that the smoke would blacken the walls, which would disgrace the city.
26 Tosefta - A collection of Braitas, constituting a supplement to the Mishnah.
27 Tosefta, Bava Batra Tractate, 1:10.
As stated, in the absence of updated scientific knowledge on the capability of mankind to cause real damage to the world and its resources,28 the Sages did not provide precise guidelines as to what is allowed and forbidden. Nevertheless, analysis of the sources, part of which we brought here, raises several principles for implementing a Halakhic nuisance doctrine in modern times. These principles, defined and formulated by Halakhic scholars over centuries, referred originally to the two circles mentioned. However, it seems that they could be implemented also in cases of modern nuisances, even regarding those nuisances which harm not only a neighbor or residential area, but the whole world.
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