Close, But No Cigar: The Rights Of The Second Hand Smoker

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Halachic perspectives on second-hand smoke
By: Rav Yosef Greenwald1

Introduction

There has been much discussion on the topic of smoking in halacha over the course of the past century or so.2 One of the unique facets of the halachic discussion on smoking is that the halachic conclusions have evolved over the course of time. This is not because the halachic principles themselves have changed, but rather due to the development and accumulation of medical information detailing the dangers and consequences of smoking. As the medical community has moved toward the conclusion that smoking is clearly extremely dangerous both in the long term as well as in the short term, the poskim have also generally adopted more restrictive positions about the halachic permissibility of this practice. This is because we are enjoined not to engage in any potentially dangerous behavior, or activities that could have harmful consequences for our bodies.3 Since in this case, the halachic issues of avoiding dangerous practices are dependent on the medical positions, it is quite logical that such a transformation would take place.4

The Halachic Background about Smoking

Most poskim initially permitted smoking, as there was scant evidence that such a practice was harmful in any way, and some even believed that it was beneficial to the body.5 Even as recently as the 1960s or so, it still was not yet proven that smoking was definitely dangerous, though it was already clear that it might cause irreparable damage. Rav Moshe Feinstein (Y.D. 2:49) was one of the major poskim to address smoking during that era,6 and ruled that although a certain amount of danger was indeed present, and it was appropriate to refrain from doing so, it was not completely forbidden for someone who had already started and had difficulty stopping.

Rav Moshe supported his ruling by invoking the notion of “shomer pesaim Hashem,” “Hashem protects the innocent” (Tehillim 116:6). The Gemara (Yevamos 12b) cites one Tannaitic opinion that employs this phrase regarding marriage for a girl between the ages of 11 and 12. Although this opinion holds that intercourse during this time can actually cause pregnancy, which is dangerous for a girl at this age, since she is not yet fully physically capable of carrying a child, nevertheless one may engage in relations normally, due to this rule of shomer pesaim Hashem. The Gemara (Shabbos 129a) explains that in a case of dashu bo rabim, an action that is performed commonly by many people, and is considered normal, then even if a certain amount of danger exists, we can trust that Hashem will protect us, and the action is not forbidden. This is because dangerous things do not necessarily happen in every single case of danger.

A practical example of this principle might be whether one is allowed to eat a non-healthy diet. Although this may not necessarily be the best activity for one’s body, it does not violate the directive of protecting one’s physical health and welfare, shemiras ha’guf v’hanefesh. However, a person who has a high cholesterol level, and nevertheless eats a diet consisting of large amounts of cholesterol may indeed have violated this obligation, as the concern here is more acute.

Although the halacha is not in accordance with this opinion in the Gemara Yevamos, the reason for this is because the Gemara concludes that such an 11 year old girl cannot become pregnant, and therefore no danger exists of engaging in intercourse. However, Rav Moshe suggests that the concept expressed within this opinion of shomer pesaim Hashem is still true.7 He therefore ruled at the time he wrote the responsum that since smoking was normative behavior, it was permitted, due to this notion. However, today, more than 50 years later, smoking may not be normative behavior anymore, at least in many locations. Indeed, someone who starts smoking nowadays for the first time is often perceived as engaging in aberrant behavior. If so, the concept of shomer pesaim Hashem may no longer apply with regard to smoking, and Rav Moshe would likely forbid it in current times.

In contemporary times, both Rav Shmuel Vozner (the Shevet HaLevi) and Rav Eliashiv publicized rulings that they believe it is completely forbidden to smoke, as it is clearly dangerous, both in the long term as well as the short term, and in the long term it is also clearly deadly. As mentioned, a person has an obligation, which may even be a negative prohibition, of shemiras haguf, to protect his health and not endanger himself.8

The same logic applies for one who has overly high levels of fat. If he is on a clear collision course with a heart attack, then continuing to consume high quantities of fat may violate the injunction of v’nishmartem l’nafshoseichem. If so, it shouldn’t matter if avoiding such dangerous activities causes financial hardship or spiritual hardship, it is still a halacha that must be kept.9

Another dimension of the issue of smoking that has changed over time is the question of whether one may smoke on Yom Tov. It is well-known that one may cook on Yom Tov for the purpose of eating the food on that day itself (Shemos 12:16Betza 2b). However, the Gemara (Kesubos 7a) notes that only foods that are shaveh lchol Nefesh, equally beneficial to everyone, are included in this allowance. Therefore, only foods that most people might eat are included. In addition, the Gemara (Betzah 22b) discusses the question of mugmar, perfume, which at the time was only a luxury affordable by the rich. Therefore, the Gemara rules that this is not shaveh lchol Nefesh.

The Pnei Yehoshua (Shabbos 39b) suggested in his time that smoking was actually shaveh l’chol Nefesh because at that time it was done for health reasons, which he viewed as qualifying as shaveh l’chol nefesh. In the 21st century, however, even In Israel, where smoking is still common in certain populations, it is definitely not shaveh lchol Nefesh. If so, then smoking on Yom Tov should violate the biblical prohibition of cooking on Yom Tov when it does not qualify as ochel Nefesh, and those that still do so today would appear to be inappropriately lenient on a genuine issur deoraisa.10

Secondhand Smoke and Requesting that Others not Smoke Nearby

Although the halacha today should be clear that smoking is problematic, there are other halachic issues that arise related to smoking. Can one who does not smoke request or demand that one who does refrain from doing so in a public area? Rav Moshe Feinstein (Igros Moshe C.M. 2:18) was asked about such a scenario in 1981, by which time the dangers of smoking was already known (though perhaps not the extent of the danger) by a kollel where some members wanted to smoke, while others were disturbed by it. Was it permitted for those that were bothered by the smoke to demand from the smokers that they not do so in the kollel? His analysis of the issue is interesting and very significant, so we will present a summary of it here.

Rav Moshe invokes the rules of nizkei shechenim, the laws of neighborly relations, which are the subject of the second chapter of tractate Bava Basra.11Most of these cases are not cases of regular damage, where one person or animal directly damages or causes a loss to another person or animal, like those discussed in tractate Bava Kamma. For example, the Mishna (Bava Basra 17a) discusses one who has a pit containing caustic chemicals used for cleaning clothing, which creates a high acidity level, and can potentially eat seep through the ground and cause damage to the foundation of his building or his pits dug for water supply. The Mishna here rules that one must leave a minimum distance between this damaging pit and the neighbor’s wall to prevent damage. The mishnayos and Gemara there discuss extensively which cases one is obligated to move back from the wall even if one’s neighbor came later, which cases he may have the right to maintain his operation if he was there first, and other relevant details.

In any case, it seems clear that the types of cases discussed there of Nizkei shechenim are significantly different in terms of the parameters for what is defined as damage from the regular cases of damages. What exactly is the difference between them, and where do we draw the line between the two? The most basic difference between them is that the laws of damages are clearly biblical, and are discussed clearly in the Torah in Parshas Mishpatim (and elsewhere). However, nizkei shechenim appears to be derabanan, as they are not mentioned anywhere in the Torah. There are some opinions though who argue that even Nizkei shechenim may be deoraisa, such as Rabbeinu Chananel (Sanhedrin 7b), the Rosh (Shut 79:5:3), and the Chasam Sofer.12 Nevertheless, even these opinions agree that this category is independent and distinct from the regular halachos of damages.

Rav Moshe explains that forbidding these cases requires a separate source, because, as the Gemara says, adam osek b’toch shelo, a person is engaging in his own pursuits within the confines of his own home, where he can do as he wishes. Regular damage is defined as invading another’s space, such as by throwing a rock through their window, allowing one’s animal to enter their yard and consume their crops, etc. However, an act of damage performed by one who remains in his own space cannot be defined objectively as a maaseh mazik, an act of damage.

Rav Moshe adds that even Rabbi Yosei, who holds that some of the cases of Nizkei shechenim are permitted (see Bava Basra 22b, 25b), agrees in cases of gira dideh, where one’s property causes direct damage, that it is forbidden. In these cases, Chazal imposed a new understanding of the limitations of a person vis-à-vis their neighbor. Although one never left his own property, if he damages in such a manner that the other cannot use his own space, then it is considered as if he damaged or threw him out from his backyard. Although this may sound like a regular case of damage if one’s actions directly caused a loss to the other, in similar, standard cases of gerama, indirect damage caused, one is not liable to pay (though there is an obligation imposed by heaven to pay in that case).

The difference between mazik and nizkei shechenim is evident as well from the opposite angle: In the case of a regular mazik, one is only liable to pay for damage once the damage occurred. However, if a neighbor uses his property in a manner that clearly prevents the other from living normally on his own side, then the first must distance himself immediately, even if no damage has occurred yet. Rav Moshe proves this from the case of Rav Yosef (Bava Basra 22b-23a), where one of his neighbors was bloodletting on one side of the fence under his trees (whose shade extended over the fence). Crows then came and consumed the blood on the ground, and then flew up to the dates on the rest of the tree, causing the dates to be smeared with blood, and rendering them inedible in their current form. Rav Yosef insisted that the bloodletters move, despite being on their own property the entire time. He explained that since he had a delicate nature (istenis), and could not bear to have blood-stained dates, even though could simply be washed off. This was sufficient grounds for them to be required to stop.

One final example of Nizkei shechenim is the case of hezek re’iya, described by the Mishna (Bava Basra 2a): If two people are living in one courtyard (that consists of multiple houses), and there is a lack of privacy for both in the yard, each one has the right to demand that they divide the property with a fence, even if the other does not agree. The reason given is that hezek reiya, the harm caused by the ability of one person to see into the neighbor’s property, is considered tangible damage.13 Many commentaries wonder why this type of case, which serves as the introduction to the laws of Nizkei shechenim in tractate Bava Basra, is referred to a hezek, damage. What connection is there between this case and an actual ma’aseh hezek? Rav Issur Zalman Meltzer (in the Even Ha’azel, beginning of Hilchos Nizkei Shechenim) explains that this category imposes a definition of damage that one who makes it difficult for his neighbor to use his own property is in essence destroying it. Therefore, each of these two individuals can issue claims against the other for a certain amount of time.

Based on this analysis, Rav Moshe concludes that smokers clearly may not say they are “osek b’toch shelo” when smoking in public, since it is not their space. Like in the case of Rav Yosef, this is a case where one person’s action prevents a neighbor from the ability to use his own space properly, thereby inconveniencing him. It is therefore included under the rubric of nizkei shechenim, and one is forbidden from smoking in these areas, despite the smoker’s right to be in the room just as much as the non-smoker.14

A variation of this scenario often occurs in shuls during the winter months regarding closing or opening the window. One person who sits near the window may be cold and try to close it, but the rest of the people present may want it open if the heat is on a high setting and the rest of the room is very hot. Alternatively, one person may prefer for all the windows to be open, while everyone else claims that it is too cold. In these cases, the window must be used in a manner that is acceptable for everyone else, and the individual may not decide on his own what to do. If not, then he would violate the property rules of a jointly owned area, even if no action would qualify as a true ma’aseh hezek. A similar approach should be taken with regard to parking in a way that inconveniences pedestrians. If one does so, then he has abused his joint property right at the expense of others, who cannot exercise their rights to use the space appropriately. Therefore, this too should be forbidden due to nizkei shechenim.

In the Part 2 of this series, we will discuss whether a non-smoker who is harmed by the secondhand smoke of a smoker smoking nearby may claim damages from the smoker due to his actions.

1 This article is based on a shiur given by Rabbi Yosef Greenwald.

2 For a summary of the halachic literature on the topic of smoking, including both the opinions that prohibited it even a few decades ago, as well as those that did not forbid it absolutely, see, e.g. the Encyclopedia of Jewish Medical Ethics by Rabbi Dr. Avraham Steinberg, entry of Smoking (Ishun in the more extensive Hebrew version, Encyclpedia Hilchatit Refuit). However, it should be noted that the Encylopedia does not emphasize the fact that most of the more lenient rulings were given in earlier years before much of the current medical knowledge was widely known.

3 See Rambam, Hilchos Rotzeach (11:4) and Rema (Y.D. 116) who prohibit engaging in activities that are dangerous to one’s health, based on the pasuk of v’nishmartem me’od l’nafshoseichem, “you should guard your souls very much,” or shemor nafshecha me’od, “take care of your soul very much” (Devarim 4:9, 4:15).

4 This transformation is emphasized as well in an article by Rabbi J. David Bleich (Tradition Fall 2003), who also summarizes much of the halachic literature on the topic.

5 This includes the Pnei Yehoshua (Shabbos 39b), who is also cited below. However, it should be noted that the Chafetz Chaim (Likutei Amarim chapter 13) actually recommended avoiding smoking.

6 Rav Moshe’s responsum was written in 1963, shortly after the surgeon general’s warning came out stating that smoking could be dangerous to one’s health. However, Dr. Rosner (p.457) notes that Rav Moshe maintained the same position even in 1981 in a responsum addressed directly to him (Igros Moshe C.M. 2:76).

7 The concept does arise in other passages in the Gemara as well. For an extensive analysis by Rav Moshe of this Gemara, especially as it pertains to modern methods of birth control (for which this is the main Talmudic source discussed by numerous poskim), see Igros Moshe (E.H. 1:63).

8 Rabbi Bleich cited above in footnote #4 also argues that all poskim, including Rav Moshe, would agree today that smoking is completely forbidden. It should be noted that some poskim had actually already prohibited smoking for these reasons many years ago, including Rav Efraim Greenblatt (Rivevos Efraim 8:586), Rav Avigdor Nebenzhal (Assia 5745, vol.5), and Rav Eliezer Waldenberg (Tzitz Eliezer 15:39).

9 In contrast, taking drugs is an action that is certainly assur, and is never considered to be normal behavior by which to permit doing so despite whatever other considerations may exist.

10 This is also the opinion of Rav Eliashiv (Kovetz Teshuvos 2:32) and others. Interestingly, Rav Moshe Feinstein (Igros Moshe OC 5:34), in a responsum written about 35 years ago, suggested that although not everyone smokes, since the custom of so many people is to do so, we must take into consideration the minhag yisrael, and this may still be defined as shaveh l’chol Nefesh simply because so many people do itHowever, today, even this observation may no longer be correct, thus possibly changing the halacha. For additional sources on this issue in modern times, see Rav Moshe Shternbuch, Teshuvos V’hanhagos 1:316, Piskei Teshuvos (511:#10-11)

11 This issue was also discussed in a previous article titled, “Current Government Policies in the Eyes of Halacha, Part 2.”

12 The Chasam Sofer argues that Nizkei shechenim is deoraisa based on the Torah’s statment (Devarim 1:16): “V’shaftu bein ish u’bein geiro,” “and they will judge between a person and his geir.” The Gemara (Sanhedrin 7b) explains that the word geir here refers to one’s neighbor, and the point of the pasuk is to teach that neighborly relations are decided by the judges. The Chasam Sofer explains that this reference to neighborly relations refers to the right of Chazal to define the parameters of what is considered to be proper and improper use of one’s property. In other words, Chazal have the right to define which actions performed within one’s property constitute damage to others, and which do not. Although the rules of nizkei shchenim are not truly deoraisa, the Torah gives Chazal the right to define the parameters.

13 Although the Gemara has a considerable back and forth discussion about the exact understanding of the Mishna and whether hezek re’iya is indeed considered damage, this appears to be the conclusion of the Gemara.

14 The Tzitz Eliezer (15:39, 17:22) also addresses a similar case and likewise forbids it for similar reasons. For other poskim who discussed this issue, see Encyclopedia of Jewish Medical Ethics (Hebrew version), entry of ishun, footnote 81-83.

BAIS HAVAAD HALACHA CENTER

5 COMMENTS

  1. Lately many studies have downgraded the danger of second hand smoke. As dangerous as smoking is but the total No Smoking environment that has taken over America might be more politically than scientifically based. By the way I have never smoked in my life so I am not speaking as a defender. See http://www.slate.com/articles/health_and_science/medical_examiner/2017/02/secondhand_smoke_isn_t_as_bad_as_we_thought.html, and https://www.forbes.com/sites/danielfisher/2013/12/12/study-finds-no-link-between-secondhand-smoke-and-cancer/#66d7b36065d4, https://www.cato.org/publications/commentary/secondhand-smoke-charade

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