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 Man–Environment Relations in Halakhic Sources: Three Circles

 Man–Environment Relations in Halakhic Sources: Three Circles

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GLOBAL WARMING ACCORDING TO JEWISH LAW



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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.



3.1. THE LOCAL CIRCLE

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



3.2. THE PUBLIC CIRCLE

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



Mishnah, Bava Batra, 2:1.

Ibid., 2:2.

16

Ibid., 2:3.

17

Ibid.

18

Ibid., 2:9.

14

15



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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

Ibid., 2:8.

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).

25

Bava 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.

19

20



GLOBAL WARMING ACCORDING TO JEWISH LAW



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3.3. THE GLOBAL CIRCLE

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.

4. Principles for Removing Modern Nuisances

Following are several applicable principles:



4.1. URBAN ENVIRONMENTAL PLANNING29

Serious ecological nuisances will be removed from the town up to a distance from

which they will no longer cause harm. Town planning should include the allocation of industrial areas located at a distance from town, to ensure that industrially

related activities will not take place within city bounds.30 Cottage industry can



Nachmanides (Spain, thirteenth century), in his commentary on Deuteronomy

22:6, acknowledged the possibility that man could bring about significant changes

to Creation: “This too is a commandment prohibiting the killing of an animal and

its young on the same day. Alternatively, the text prohibits the extinction of an

entire species, even if it permits slaughter of animals within a given species. One

who kills the mother and her young on the same day or captivates them when they

are free is considered as if he had eliminated an entire species.” In this statement,

Nachmanides undoubtedly was ahead of his time, since in the Middle Ages there

was no technical scientific ability to foresee how mankind’s actions could indeed

harm nature. Many suppose that the notion that human activity could affect

nature was first conceived of in the nineteenth century, with the publication of

the essay by George Perkins Marsh, “Man and Nature,” in 1864. See Botkin DB

(1990) Discordant harmonies: a new ecology for the twenty-first century. Oxford

University Press, Oxford, p. 32.

29

Glicksberg S (2001) The attitude of Jewish law to public nuisances. M.A Thesis, Touro

College, Jerusalem, pp. 9–52; Zichel M (ed) (1990) Ecology in Jewish sources, Bar

Ilan University, Ramat Gan (Hebrew), pp. 87–104.

30

Bava Batra, 2:7–9.

28



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take place within town, but adequate distance must be maintained from residential

homes.31 These distances will be determined by experts, who will set regulations

on this matter.

The aesthetic appearance of the town should be strictly kept,32 including

open spaces surrounding the town. Even stricter regulations will be maintained

concerning towns with a public standing like Jerusalem.

However, prevention of existing nuisances is not enough. One should also

plan the prevention of potential nuisances which could evolve in the future into

serious hazards.33

4.2. SCIENTIFIC CRITERIA IN IDENTIFYING AND LOCATING A NUISANCE

The process of identification and assessment of hazards and their damage is a

Halakhic-legal process, which can be learned from studying the various Mishnayot, the commentators on them and the decisors following them. This process

can be incorporated into the management of modern-day hazards, including some

“global” hazards.

A number of stages can determine whether the removal or prevention of a

certain nuisance is effective or not. The process is as follows34: First, the nuisance

must be identified as one that the Sages or Poskim would have acted upon to

prevent. Even when it comes to modern nuisances which are not specifically mentioned in the texts, experts (using scientific criteria) can possibly characterize

them as such.35 Activity deemed by expert opinion as hazardous will be distanced

or prohibited altogether.

A subsequent stage consists of the assessment of the severity and extent of

damage, since not all activity levels or dosages are actually hazardous. This

examination will also be made according to expert opinion.36 The next stage will

be to determine the distance to which the nuisance will be distanced, if at all, also

according to expert opinion.37

Ibid., 2:3.

The definition of aesthetics will change according to time and place. See, Glicksberg, Moed, pp. 1–11.

33

Bava Batra 17b; Maimonides, Mishneh Torah, Laws of Neighbors, Chapter 9,

Halakha 10.

34

For detailed discussion, See, Glicksberg, Ph.D. Dissertation, pp. 222–246. (n. 11).

35

Thus, for e.g., in Responsa Tziz Eliezer, 15:39, which prohibits cigarette smoking,

following his review of scientific findings, from which he learned that cigarette

smoking indeed was a health hazard.

36

Responsa Ribash (Rabbi Isaac bar Sheshet Barfat), 196; Responsa Tashbetz

(Shimon Ben Tsemah Duran), 4:57.

37

The Rama (Rabbi Moshe Isserles), Choshen Mishpat 155:20.

31

32



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