By Rav Yosef Greenwald
Current Government Policies in the Eyes of Halacha Part 2: The Economy1
In the previous article of this series, we began to discuss the position of the Torah on certain government policies that have been subject to dispute recently, and focused on the question of immigration policies. We also discussed the notion that according to halacha, a government, or malchus, kingdom,in the terminology of the halachic sources, has a responsibility to set up a system of law that it feels is suitable for itself as well as for the people in the country. In addition to the notion of a government setting policies for the country, we also mentioned the idea of a takanas hatzibbur, an enactment or rule made by the citizens themselves for their own benefit. This is also valid in halacha, and allows the people themselves to decide on certain policies that are best for everyone, and impose them as binding on the population.
In this article, we will focus on the Torah’s approach to economic policies, and whether the Torah supports a free trade type of economy, where competition is uninhibited, or a protectionist policy of attempting to ensure that the financial well-being of the citizens of that country takes precedence. Like immigration, this issue has been at the heart of the political debates of the past few years, and has important implications for the United States moving forward.
The validity of a takanas hatzibur would seem to dictate that there is no specific “correct” or “incorrect” policy according to halacha, as the government and citizens have the right to choose what policies they feel are appropriate in their locale. However, it is still worthwhile to examine the sources and see whether there seems to be a moral preference for one of the types of policy over the other.
The Ruling of Rav Huna
There is a famous source in the Gemara that appears, at least on the surface, to address this issue directly in tractate Bava Basra (21b). Rav Huna states that one who lives in a mavoi, or alley,2 and sets up a business (the example in the Gemara is a mill), and then another resident of the mavoi sets up the same business there, the first one can prevent the second from operating his business. The logic he gives for this ruling is that the first one can tell the second, “you are cutting off my livelihood.”
The Gemara then attempts to support the position of Rav Huna from a ruling of Rabbah bar Rav Huna that if a fisherman sets up nets with bait to catch fish, other fishermen must distance themselves from him. Here too, although the second fisherman has not actively taken any fish from the first, he may not set up his nets nearby, which is similar to the ruling of Rav Huna, who limits the possibility of competition. However, the Gemara responds that this does not necessarily support Rav Huna, as the case of the fish is different: Once the fish see the bait, they will go to it, since they are attracted to bright color of bait in his net. Therefore, it is considered as if the first fisherman has already netted the fish, and the second is viewed as if he is actively taking the fish from the first. If so, then this ruling would apply even if Rav Huna’s opinion is not accepted.
Limiting Competition or Preventing the Loss of Livelihood?
At first glance, this statement of Rav Huna and the accompanying discussion in the Gemara appears to be focused on the basic theme of protectionism and non-protectionism. Rav Huna seems to be supporting a protectionist economy in that we want to protect the business of one person and not allow competition that could be harmful to him, while the other opinion supports a free-trade style economy where anyone can open up competing businesses.
- Minding My Own Business?
However, this understanding may not be accurate, as evident from the continuation of the Gemara, where it ultimately concedes that Rav Huna’s statement is subject to a machlokes Tanna’im in a baraisa, and Rav Huna follows the opinion of Rabban Shimon ben Gamliel. The tanna kamma in the baraisa though, holds that only one who does not reside in that town can be prevented from opening a business in this mavoi. However, a resident of the mavoi cannot be prevented from opening up a competing business, and may open a store or bathhouse directly opposite an already existing one. The reason given by the tanna kamma for this ruling is that the second can say: “Ata oseh b’soch shelcha, v’ani oseh b’soch sheli,”“you can do as you wish within your property, and I can as I wish within my property.” Since neither is directly stealing from the other store, there is only competition for potential customers; the tanna kamma, whose opinion appears to be accepted as the halacha,holds that there is nothing wrong with it.
How exactly do we understand the idea of “you can do as you wish within your property, and I can do as I wish within my property?” Is this a consideration based on issues of proper economic policy, or is it based on something else? A deeper and more comprehensive look at the Mishnayos and sugyas in Bava Basra chapter 2 appears to indicate that the discussions therein do not revolve around what are defined as proper and improper business practices. That topic is discussed in the Mishnayos and Gemara at the end of Bava Metzia chapter 4 (60a). We find there rulings about honest and dishonest pricing, pricing wars, luring customers improperly, etc. For example, there is a machlokes there about whether a storeowner is allowed to lure customers to his store by giving kernels or nuts to children to entice them to shop at his store, and the halacha is in accordance with the Chachamim there that it is permitted.
- Limitations on the Use of one’s Home
However, the primary subject of Bava Basra chapter 2 is nizkei shechenim, relations between neighbors. In these cases, each person works inside his own house, and has not directly damaged his neighbor’s house. Nevertheless, the actions performed may bother or damage his neighbor in some way. For example, in one case (Mishna, Bava Basra 20b), a person operates a bakery inside his first floor house, which generates a significant amount of heat. The heat does not directly damage anything, but if a second floor neighbor stores certain kinds of food products there, then the heat of the bakery may be harmful to it. The Mishna rules here that the baker may not open his bakery in his house if the second floor neighbor’s storeroom already exists there. In another example (Mishna, Bava Basra 17a), one has a pit containing chemicals used for cleaning clothing, which creates a high acidity level, and can potentially eat through the wall to the neighbor’s property, causing damage. The Mishna here rules that one must leave a minimum distance between the pit and the neighbor’s wall to prevent damage.
In the formulation of the Nesivos HaMishpat (C.M. 155, 156), certain actions are objectively considered to be maaseh mazik, actions of damage. Just as when throwing a rock at someone, or pouring water onto the floor and causing a flood that damages the apartment below, one has created a damaging physical force, so too when one creates a smell or heat (that is not objectively quantifiable as damage), it may still at times be considered actual damage that must be avoided. This is so even though the person is simply making use of one’s own living space as one sees fit (oseh b’toch sheli).
A modern example of such a case may be operating a business with a high decibel level in a residential area, such as simcha hall. In this case as well, the loud music emanating from the hall late at night when residents are trying to sleep may cause significant distress, making it difficult for them to remain inside their homes, as well as a potential decrease in the property value. These types of damages are considered substantial, and are classified as nizkei shechenim, damages caused by neighbors, which may be forbidden and cause liability in some cases.3 Chazal understood4 that we must create boundaries and limitations to a person’s use of his home in order to avoid damage to others.
There are some limitations to these restrictions. One of the most important is that actions that may potentially cause long term damage or indirect damage are permitted, according to the halacha.5 In this case, we impose the idea of oseh b’toch shelo mentioned above, and say that as long as the distress or damage is not immediate, one can do as he likes in his own home. However, damage that is halachically classified as gira didei, a direct physical force (literally: his arrows), is forbidden.6
- Is Nizkei Shechenim Deoraisa or Derabanan?
Although it would seem that the concept of nizkei shechenim is rabbinic in origin,the Chasam Sofer, in a famous teshuva, argues that destroying another’s livelihood (yored l’umanus chaveiro) is actually deoraisa. The Torah states (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.
When one lives in a community, with neighbors, there will always be things that one family or individual(s) do that may inconvenience others, and each side must learn to live with this to some extent. However, there must be a red line, where the use of one’s own property in a manner that prevents the other from living normally is forbidden, as neighbors deserve some level of privacy, security, and quiet. The Chasam Sofer appears to be saying that it is Chazal’s imperative to establish this boundary, and that this is what the Torah refers to in the above pasuk.7
- Properly Understanding the Discussion in Bava Basra
With this background, we can now better understand the issues at play in the sugya of Rav Huna and the businesses in the mavoi. It would seem from this whole category of nizkei shechenim, of which the case of opening up a second business in a mavoi is included, that the issue is as follows: Chazal supported competition in most cases, and permitted one to use his own property to provide a livelihood for himself, even when it may detract from the business of another. The only issue is where one uses one’s property in a manner that takes away another’s ability to use his own space. This is not an issue of protectionism, but rather of Chazal viewing one who does so as violating gezel, theft, in a certain sense.
This is evident from the Gemara’s case of the fishermen cited above. In that case, the Gemara noted that all would agree it is forbidden to set up one’s net and bait too close to one who is already set up, since the fish are already beginning to go to the bait of the first fisherman. Rashi explains that the second fisherman is essentially appropriating the fish of the first, and it is considered equivalent to actual damage .8 It seems that Chazal here essentially created a subtle form of gezel, in that the fish were considered very close to the first fisherman’s property, and were still taken away by the second. This is the basis for a number of halachos of shchenim based on zechus kedima, that whichever one preceded the other has the rights, and the second is considered as if he is stealing if he attempts to do something that could harm the first.
This approach, as indicated by Rashi, is adopted by the Ramban as well. In addition, Tosafos (Kiddushin 59a s.v. marchikin) also appears to agree with this understanding. Tosafos compares our case to the notion of ani mehapech b’chararah, a poor man who is turning a coal over, which is Chazal’s description of one who convinces another to sell an object to him after the other had already agreed to sell to someone else (the same would apply to similar, non-sale cases too). According to Tosafos there, the idea seems to be the same: Chazal refer to one who takes an opportunity from another as stealing, just like one who actually takes an object from another.
Rishonim discuss a similar case known as maarufya: If some Jews in the ghetto staked a claim on providing livestock or metals to the local ruler, then if those individuals have a monopoly on such a practice, others are not allowed to lure customers away due to concerns of gezel. It is telling that the Rema (C.M. 156:5 ) cites the Mordechai and others who discussed this case of maarufya in tandem with the issue of members of a mavoi opening multiple conflicting businesses. If so, it seems clear that our issue is not one of limiting economic opportunities (which is discussed in the Shulchan Aruch C.M. 237), but rather about actually stealing another’s livelihood.
Possible Exceptions to the Rule
- Ruining the Livelihood of Another
In truth, the explanation given is not 100% definite, as there is a responsum of the Rema where he appears to take a different approach. He was asked about litigation between two non-Jewish publishers, both of whom wished to publish editions of the Rambam. The Rema forbade the second publisher from publishing the Rambam and claimed that this too was an issue of maarufya, despite the fact that this appears to be a regular case of economic competition, not ruining another’s livelihood or nizkei shechenim.
However, it seems from the language in his responsum that he felt that competition is generally permitted. However, he explains that all would agree that if certain economic damage (bari hezeka) will be caused to one of the parties, it would still be forbidden. Moreover, the Ri Migash (Bava Basra 21b) comments on the case of the fishermen that there too, competition is permitted, and the case where it is forbidden is only where the second will completely take all of the fish, leaving the first with none. These sources, then, might indicate that the halacha believes that if a second business will strongly impact negatively on the first, such that it will ruin its economic viability, then this is also equivalent to actively destroying the store, and would be forbidden to due to Chazal’s perception of gezel in these cases.
This approach may also be supported by the following Gemara (Sanhedrin 81a). The Gemara states that when Yechezkel refers to defiling another’s wife (Yechezkel 18:5-9), it refers to one who encroaches upon the livelihood of another. The idea seems to be that one who takes away another person’s ability to earn a livelihood in a field of his choice is considered as if he took his wife, since both a wife and a livelihood are considered mates of a person that accompany him through this world. This comparison clearly does not view encroaching on another’s livelihood as related to the regular issues of competition, but rather as unfairly taking something from someone else.
We can conclude, then, that Chazal most likely did support free trade and competition in most cases. This is the implication of the Mishna in Bava Metzia (60a) referenced above, that according to the Chachamim, it is permitted and encouraged for storeowners to distribute incentives and sales to potential customers. This is because free trade and competition is good for the populace and considered part of business. Moreover, there may not even have been different approaches among the amoraim about this: Even those who appear to limit the permissibility of competition in some cases are probably basing this on the issue of gezel .9
However, as mentioned, we do find poskim taking responsibility for preventing unfair competition in a number of specific areas where they felt it was important for them to take a stand if it could affect other’s livelihoods significantly or on a large scale.
- Chezkas Yishuv
One example of such cases was the notion of a chezkas yishuv: Since living space was generally tight in the Jewish ghettos, rules were established as to how to decide which families had precedence if an opening was available. Various halachic factors, such as yerusha, inheritance, the ability to sell it, played a role in this question. In this case, they set up this system to protect the community. Consequently, even if one contestant for the open spot offered higher taxes to the local duke, the Maharik and the Rashba both forbade him from taking the spot if someone else had precedent according to the halachic standards established. Accordingly, in this case, the motivation for these Rishonim was not a protectionist perspective on the economy, but rather protecting the Jewish kehilla, community, to live safely.
- The Printing Press
Another realm where poskim often took stands was, as mentioned previously, competition with regard to printing of sefarim. When a new sefer was printed, many rabbis would give both a haskama, endorsement, of the sefer itself, as well as a cherem kadmonim, declaration of a form of excommunication, against anyone else who prints another version. Although this may appear to be no more than a standard anti-competition clause, the Chasam Sofer (6:57) views these charamos as strictly designed to promote Torah in the world, and the custom of doing so was binding. The reason for this is that if an author or printer cannot cover their costs of publishing, they will refrain from printing sefarim altogether, thus causing a dearth of Torah sefarim.10 The Maharam Banet, the rav of Nickolsberg in the early 1800s, argued with the Chasam Sofer and claimed that there was no halachic precedence to limit the printing of sefarim, and should not be any problem with multiple printings, even if it will be difficult for the first printer to make a living.
- Copyright Law
In contemporary times, a good example of where there may be an economic need to issue a ruling limiting free competition is the case of copyright law. From a halachic perspective, it is difficult to find a strong, direct precedent for the idea that a person’s creative idea cannot be copied and patented by another. However, the need for such a limitation began a few hundred years ago, when the world began to become more technologically oriented. If a person had thought of a creative idea as to how to develop a new technology or service of some sort, he essentially owned the ability to produce it. If he was the only one who knew how to do it, he would have a monopoly on the service. Although the person may not be rich in property, his net worth may be very great, as he has potential to create many such products in the future. However, if anyone else would copy his idea, they might essentially destroy his ability to make a living using this idea that he patented. Therefore, it was understood that perhaps there needed to be a takanas hatzibbur to ensure that people are able to make a livelihood and not have their ideas taken by others.
The poskim suggested various different halachic mechanisms to support the notion of copyright:11 The Shoel Umeshiv proposed that there is a halachic concept of intellectual property, but the Noda Biyehuda and the Chasam Sofer disagreed (in the case of printers): They only discussed the physical direct benefit received from the knowledge of printing, but did not appear to accept the notion that a printer could prevent others from copying his printing project due to stealing intellectual property. The Beis Yitzchak, Rav Yitzchak Schmelkes, the rav of Lemberg in the late 1800s, suggested that copyright is valid based on dina dmalchusa, as the country has the right to protect a person. Rav Eliashiv supported the basis for copyright law as being dina dmalchusa, which essentially means that one who violates it is stealing from the owner, and has violated international standards of copyright law.
An important practical difference may arise between the approaches in the case of one who wishes to copy a patent that was created many years before and has now expired (meaning that now anyone can market the same idea). According to the Shoel Umeshiv, even if the patent expires after 25 years, one may still not copy the idea, as it is still the intellectual property of the original creator. However, according to the approach that it is based on dina dmalchusa, if the secular law limits the copyright to 25 years, then that would determine the period for which it is considered theft to copy the idea, but after that time, it would be permissible.
1 Based on a shiur given by Rav Yosef Greenwald
2 This alley is not exactly like an alley today. It generally consisted of a group of people who lived in close proximity and cooperated together in many ways, similar to a small neighborhood.
3 One case where Chazal (Bava Basra 21b) waved these restrictions is a school where Torah is studied (despite possibly causing discomfort to others in the area), due to the great importance of teaching students Torah,
4 Although it is not entirely clear if this category of damage is considered deoraisa, from the Torah, or derabanan, rabbinic in nature, it would seem that it is most likely considered derabanan, since there is no direct reference to it in the Torah.
5 This is the opinion of Rabbi Yosei (as opposed to the tanna kamma) as explained by the Gemara (17b, 22b, 25b) and the rishonim on those sugyas, who is more lenient in these types of cases. The halacha is in accordance with his opinion (see Rambam, Hilchos Shechenim 10:5, Shulchan Aruch C.M. 155:31).
6 The phrase is mentioned in the Gemara (22b, 25b) discussing the opinion of Rabbi Yosei. Many rishonim interpret most of the mishnayos in the chapter that forbid various actions as referring to cases of gira didei, and being agreed upon by all tana’im.
7 Interestingly, although this approach is generally identified as the original idea of the Chasam Sofer, Rabbeinu Chananel (Sanhedrin 7b) actually seems to suggest the same idea. See also the Shut Rosh (79:5:3), who discusses this issue as well. He defines the term paska chiyusa, ruining one’s livelihood (which was the basis for Rav Huna’s opinion, and accepted as halacha to some degree), in the manner described in the text here: Destroying the ability of another to use his property.
8 Some acharonim, possibly the Ketzos HaChoshen, may understand this to mean that an actual Kinyan, acquisition was made on the fish by the first, but the Nesivos argues, and most poskim understand the reference here not to be active, direct gezel.
9 For other discussions of the halachic parameters of economic competition in English, see Rabbi Aaron Levine, “Moral Issues of the Marketplace in Jewish Law,” p.95; Rabbi Chaim Jachter, “Hasagat Gevul,” Gray Matter, p.107.
10 There is a famous story about the Chafetz Chaim who had authored a commentary on the Talmud Yerushalmi that he wished to print. He explained to a relative that the printer would have to print the entire form of each page, the tzuras hadaf, which would be quite expensive, and he wouldn’t be capable of selling enough copies. He would then go bankrupt, and would have to go to America to revamp financially, which he did not want to do. The relative responded that chacham adif navi, a wise person is of greater stature than a prophet, and that the Chafetz Chaim correctly foresaw what would happen, as this is precisely what occurred to the Ridvaz: He published a commentary on the entire Talmud Yerushalmi, went bankrupt, and had to travel to America. However, he actually accomplished a lot during his time there in New York and Chicago, including serving as the catalyst for opening the first day school in New York, the Rabbi Jacob Joseph School (which at the time was on the Lower East Side of Manhattan). Perhaps this was part of the divine hashgacha, providence, that he be in the U.S. at that time.
11 This is only a brief overview of this complex topic, which is beyond the purview of this specific shiur. For a summary of the various opinions on the matter, see Rabbi Israel Schneider, “Jewish Law and Copyright” Journal of Halacha and Contemporary Society, Spring 1991, p.84 and Rabbi Chaim Jachter, “Halacha and Copyright Laws,” Gray Matter Volume 1, p.119, as well asRabbi Yaakov Cohen, Emek HaMishpat Volume 4, Zechuyos HaYotzrim, which is an entire sefer in Hebrew dedicated to this topic.
BAIS HAVAAD HALACHA CENTER