B’OR HA’TORAH 9 (1995)
Yehudah (Leo) Levi was born in German y and educated in the USA. While earning
his doctorate in physics at the Polytechnical Institute of Brooklyn (1964), he studied
intensively with great Torah sages at the Gur Aryeh KoleL and received rabbinical
ordination there. In 1970, with his wife and three sons, Levi settled in Jerusalem,
where he founded the electro-optics department of the Jerusalem College of Technology. (See "Hi -Tech in a Torah Frame" in BHT SE for a description of this unique
school.) From 1981 to 1988 Levi served as rector of the college.
Professor Levi has published over 100 articles in scientific, technical, and Jewish'thought journals , two large volumes of Applied Optics (Wiley, 1968 and 1980) and
A Handbook of Tables for Applied Optics (CRC, 1974), as well as many Jewish
works which study the practical law combined with philosophic discussion. Among
these titles are: Vistas from Mount Moriah: A Scientist Views Judaism and the
World (Gur Aryeh , 1959); Halachic Times for Home and Travel (Rubin Mass, 1992); Torah and Science Their Interplay in the World Scheme (Feldheim , 1983); Torah Study : A Survey of Classic Sources on
Timely Issues (Feldheim, 1990); and, with Rabbi Aryeh Carmell, a three-volume study guide in Hebrew to
Seder Zraim of the Jerusalem Talmud. Mul Etgarey Ha'Tikufa, the book from which this article was taken,
will be published in English translation as Judaism Faces Current Issues.
Yehudah Levi has received the Feder Award for Torah and Science and the Abramowitz -Zeitlin Award for
Jewish Literature. He has served as president of the Association of Orthodox Jewish Scientists in both the
USA and Israel.
The Right to Private Property
by Professor Yehud ah Levi
In the first part of this essay in B'Or Ha'Torah 8E ("Is the Torah Capitalistic or Socialistic?"),
we noted that in some areas the individual cannot efficiently take care of his own needs, and
must hand that task over to organized society, namely government. These areas include internal
security (police and fire departments), external security (the army and intelligence services) and
education of the young, all of which must be financed through taxation.
The Torah's Approach to Taxation
Every community, and certainly every state, needs money for its administration; hence taxes
are necessary. Taxation should be fair, and ensuring that it be so is one of society's major
problems. Clearly, the form of taxation selected will largely be influenced by the country's
general economic system. Socialist countries will set tax rates according to the taxpayer's
means; capitalist countries, according to his benefits. In the latter system, the citizen may be
taxed only ifhe will receive a fair return, or ifhe shares in causing the need for the expenditure.
Today, even capitalist societies compromise on this point and approach the Torah system, as
will be explained later.
84 The Right to Private Property
Halakha (Jewish law) deals with this problem at great length. We offer below selected
samples from its rich literature on the subject.
In halakha we find both the approaches we
have mentioned, as well as a third approach,
likewise based on the capitalist principle,
which fixes tax rates according to the taxpayer's share in creating the need for the expense. Three representative examples of the
way tax rates are determined appear together
in the Bava Kama tractate of the Talmud.
If a desert caravan is threatened by
bandits, defense costs are distributed
according to the wealth each traveler is
carrying, rather than by a uniform head
tax. If they hire a guide to keep them
from getting lost, a head tax is also
levied ... .
If a ship at sea is threatened by a
storm, and heavy cargo must be jettisoned, [the sharing of losses] is assigned
according to the weight of each passenger's goods, and not their value. 1
Let us analyze the guiding principle in
each case. First, in the case of the bandits, if
they attack in order to rob property, and handing it over would save lives, it is primarily the
property and not the lives that are threatened.
Thus, the benefit each person derives from
being saved clearly depends on how much
property he has with him, and each person's
share in costs should be based on that, even
according to capitalist doctrine. Here, capitalism, which assesses according to the benefit
to the taxpayer, and socialism, which measures according to ability to pay, converge.
When members of a caravan hire a guide
to save them from the dangers of the desert,
not only is their property in danger, but also
their lives. Therefore, half the cost is divided
by head tax, without considering individual
B'Or Ha'Torah
wealth, and the other half according to
wealth.
In the case of the endangered ship, only
weight is taken into account, because it is the
weight which generates the danger, and
everyone is required to bear losses relative to
his own degree of responsibility in creating
the problem . Here again, the approach is
strictly legal, free of any socialist considerations.
Another interesting example of a tax imposed according to one's share in incurring
expenses relates to2 defense budgets. According to Mordkhay, because tall buildings are
more visible from afar, they draw greater
attention from thieves. Therefore their owners
must bear a larger portion of internal defense
costs.
Accordingly, the rule in Jewish law regarding a defense tax is that wherever a threat
is chiefly to property, citizens are charged
according to their wealth. In the Diaspora, an
additional rule has been formulated, "Whenever the gentiles impose decrees ... the tax is
assessed according to personal wealth, because the gentiles' chief intention is to seize
money ... but if they come with intent to kill,
expenses are covered by a head tax ." 3
The same applies to financing a city's general needs. Survival needs are covered by a
head tax; taxes to cover conveniences are
collected according to wealth. The reason is
that convenience is worth more to the
wealthy than to the poor, who will not spend
money on it as long as they lack basic needs.
This halakha can be illustrated by an actual case. Villagers wished to lay a pipeline to
1
2
3
Talmud, Bava Kama 116b
Mordkhay on Talmud, Bava Batra, chapter 1, section 475 .
Rosh on Talmud, Bava Batra, chapter 1, section 22.
B'Or Ha'Torah
bring water from a nearby town. The wealthier villagers argued that the water was a
survival need, hence all should pay equally
for the pipeline. But the Tsemah Tsedek ruled
otherwise. He argued that to survive, it was
enough to go on foot to bring water from the
well or the town. The pipeline was only a
convenience, hence the tax was to be assessed
according to wealth.4
Among the religious services each city is
required to supply to its inhabitants are a
synagogue, a Torah scroll, 5 and a Torah teacher for children. 6 It is common practice to
collect for the synagogue according to
wealth, although ostensibly all contributors
benefit equally. After all, everyone has to
pray in a synagogue and hear the Torah read .
The considerations underlying the practice
are as follows. A synagogue is a long-term
investment serving the entire lives of its congregants. Since the rich have closer ties to
their domiciles than do the poor, who tend to
move more freely from place to place, the
rich benefit more. Hence they are charged
according to their wealth. 7
As for wages paid to a communal cantor,
Rabbi Hai Gaon ruled that this debt is partly
assessed by head tax , for everyone needs a
"minimum" cantor. At the same time, the addi-
tional payment a community gives to retain a
cantor with a pleasant voice is in the realm of
luxury and is assessed according to wealth. 8
Thus, in principle , tax collection in Jewish
law is capitalist. But in practice, the taxpayer
is almost always assessed according to his
ability to pay, in keeping with socialist principles .
The Disposition of Property by the Court is
Valid
Only in a general, ideal sense does the
The Right to Private Property 85
Torah recognize an individual's right to his
property as sacred. We have already pointed
out an exception in the realm of taxation.
Beyond this, however, the Torah empowered
the court to enact regulations in accordance
with its understanding of the needs of the
times, even if they contradict Torah law. This
license includes interfering with the right to
private property.
Here we find an explicit halakhic principle, that "the disposition of property by the
court is valid." 9 This empowers the court to
limit or even nullify an individual's right to
his own property .
Our sages used this power to strengthen
religious practice, for example in giving full
legal status to the marriage of a girl less than
twelve years old; 10 in nullifying the remission
of loans in the sabbatical year; 11 and in their
ruling that townspeople are entitled to fix
prices and wages and to enforce their own
ordinances. 12 This represents outright socialist practice and hence constitutes a very economically significant deviation from capitalist
principle . Such steps are not taken, however ,
unless dictated by immediate need, usually
4
Tsemah. Tsedek, responsum 34.
Rosh on Talmud, Bava Batra , chapter I, section 24,
based on the Tosefta of Talmud, Bava Metsia , end
of page 11.
6
Talmud, Bava Batra 21a; Shu/flan tJ..rukh, Yoreh
Dea, 245 :4.
7
Maharam of Padua , responsum 42.
8
Cited by Bet Yosef in Shulhan Arukh, Orah Hayyim
53, s. v. katuv betshuva in the name of Rabbenu
Yeruham, citing Rav Hai Gaon.
9
Talmud, Yvamot 49b. According to some authorities this ruling is original Torah law; cf. Rashba, responsa numbers 775 and 1206, cited by Bet Yosef,
Shulhan Arukh, Hoshen Mishpat 67: 10.
10
Talmud, Yvamot 89b.
11
Talmud, Gittin 36b.
12
Talmud, Bava Batra Sb; also cf. Ritva, Novellae
loc . cit.
5
86 The Right to Private Property
B'Or Ha'Torah
Welfare
when the ethical level of the community is on
the decline. Thus, educational failures sometimes warrant such ordinances; and these ordinances should be retained only as long as
the educational failures remain uncorrected.
Only in one area of taxation does the community levy from each according to his ability in the socialist way, and that is for the
charity fund every town is required to estab18
lish. This fund is intended to aid the townspeople in fulfilling the mitsva (Commandment) of giving charity. Therefore, the size of
each donation has to fit the extent of the
donor's obligations, which depend on his
means.
According to the letter of Torah law, acts
of charity and kindness are private mitsvot
(Commandments), incumbent upon each and
every individual by virtue of his being
Jewish 19- and
perhaps even by virtue of his
20
being human. However, charity funds are
mentioned as early as the Mishna.21 This
shows that collection and distribution of charity had largely been delegated to community
appointees, as the Shulhan Arukh (The Code
of Jewish Law) ruled. 22
Actually, the Torah itself imposes ultimate
responsibility for the welfare of the individual
upon the community, i.e. municipal administrations or the courts. By Torah law, no pau-
Cartels and Profiteering
Sometimes our sages did not enact a halakhic prohibition but made do with censure
to limit the negative influences of unbridled
capitalism. Thus, for example, the rabbis limited those who hoard food to sell later at
excessive prices, and, in general, those who
comer the market on essentials and inflate
prices, by invoking the verse, "The L-rd has
sworn by the pride of Jacob, 'Surely I will
never forget any of their deeds.’” 13 O u r prophets cried out against collusive cartels that
oppressed the consumer, "Loose the fetters of
wickedness! Undo the bands of iniquity!" 14
Our sages sometimes used lenient religious rulings to combat profiteering that
takes advantage of religious practice. Thus
Shmuel compelled merchants to lower prices
by declaring defective myrtles acceptable for
the ritual lulav which all Jews are commantled to have on the Sukkot f e s t i v a l . 15
Thus also, when Rabban Gamliel saw that
merchants had raised the price of a bird pair to
twenty-five zuz, he ruled that women had to bring
the commanded offering of two pi- geons or
turtledoves only once after having given birth (even
in cases where
a woman had five births or
miscarriages). The Mishna relates that the day that
Rabban Gamliel is- sued this ruling, the price of
bird pairs
16
dropped to half a zuz.
On the strength of
17
this Mishna, the Tsemah. Tsedek
ruled that
when the fishermen excessively raise their prices,
eating fish on the Sabbath was to be temporarily
forbidden.
13 Talmud, Bava Batra 90b, citing' Amos 8:7. SimiTalmud Bava Batra 90b, citing Amos 8:7. Similarly the institution of mi sheppara ..., a curse pro-
13
nounced on a person reneging on a purchase after
he already paid for it (Mishna, Bava Metsia 4:2).
14
Isaiah 56:6.
15
Talmud, Sukka 34a.
16
Mishna, Kritot 1:7.
17
Tsemah Tsedek responsum 28, cited by Magen Av raham Z42:1.
18
Maimonides, Mishneh Torah, Book of Zraim, Matnot Aniyim 9: 1-3.
19
Deuteronomy 15:7-11. Cf. Maimonides, Mishneh
Torah, Book of Zraim. Mattenot Aniyim 10:1 .
2
° Cf. Rabbenu Yona, Shaarey Tshuva III: 15 and Torat Avraham, page 256.
21
Mishna, Pea 8:7.
22
Shulhan Arukh, Yoreh Dea_ 256: l.
B'Or Ha'Torah
per can be forced to leave a city without
having eaten first. We know that this was
actually practiced because it is alluded to in
discussions of the Torah's treatment of unsolved murders. 23
, Here we find the origins of Israel's contemporary welfare system. The social welfare
program of any modern state becomes an
integral part of its general tax structure. This
situation requires care, since charity collection is supposed to be based on the donor's
means, while public welfare taxation is calculated chiefly according to the benefits accruing to the taxpayer.
In Summary
From our discussion it emerges that the
Torah approach is built upon what could be
called a capitalist apparatus animated by a
spirit today labeled socialist. The Torah edu-
The Right to Private Property 87
cates a Jew in a way that enables him to
benefit from the efficiency of capitalism but
largely saves him from the negative symptoms associated with it. In the realm of taxation, where economic philosophy is reflected,
it has been demonstrated that the Torah approach is formally capitalist, while in practice
taxes are assessed in a socialist way.
At the same time, the Torah is sufficiently
flexible to allow individuals or groups to
adopt other economic systems. Essentially, it
is not the system that determines success but
the spirit that sustains it. Without the true
Torah spirit, any system will lead to corruption .
23
Mishna , Sota 9:6 and Talmud there (45b-46a), citing Deuteronomy 21 :7.
24
Mishna, Avot 5; 14. The explanation given here was
inspired by Meir Tamari, In the Market Place (Jerusalem: Targum/Feldheim, 1991).
25
Ezekiel 16:48-49.
The Mishna describes four attitudes toward property rights.
"Whoever says, 'What is mine is mine, and what is yours is yours,' is average. Some say,
however, this is the behavior of Sodom ." 24
What, essentially, is the dispute here? "What's mine is mine, and what's yours is yours"
defines capitalism, and it is this the sages of the Mishna seem to be arguing over. Yet, in light
of our conclusion, there is probably no disagreement at all. The first sage refers to one who
opts only for the capitalist apparatus, shunning its spirit. The second comment, however, refers
to one who chooses capitalism, including its spirit. In other words, the first sage refers to one who
insists on his monetary rights, yet recognizes the duties linked to those rights. The second
refers to one who insists on his rights but does not recognize his duties vis-a-vis others .
"Behold this was the iniquity of thy sister Sodom; she and her daughters had pride and surfeit
of bread ... yet she did not strengthen the hand of the poor and needy." 25
The Mishna continues, "What's mine is yours, and what's yours is mine - this is the
ignoramus." In denying his own right and th t of others to ownership, this person misunderstands the will of G-d Who awards us property to expand our personalities so that we can
better devote ourselves to serving Him. By arbitrarily nullifying this right, he is shirking the
task assigned to him.
On the other hand, "Whoever says, 'What's mine is yours, and what's yours is yours,'" not
insisting on his rights all the way, but consecrating what he has acquired to others and
simultaneously honoring their rights, is a saint.