The Challenge of Wealth

By Dr. Meir Tamari

In all discussions concerning damages, it should be clear that halakhah keeps a clear distinction between those caused to property and those caused to the human body. This is not a difference of degree but rather a radical one of quality, the difference between damaged assets, and injured or dead human beings created in the image of G-d. There is no death penalty or bodily mutilation for theft or damage to property, nor imprisonment for fraud or theft. This stands in contrast to Roman law, Moslem law and even that of modern Western countries; the latter till the 19th century practicing both of these forms of punishment. For a short period in the 16th century, owing to the severity of such crimes, Jewish communities in Central Europe instituted imprisonment, yet this was an abnormal phenomenon. In contrast, conceptually, there is no financial punishment in Judaism for causing death or injury to other people. Regarding both, the Torah requires action exactly corresponding to the damage, either the death of the perpetrator or physical injury. This is neither deterrent nor punishment. Rather this is the way for the perpetrator to achieve atonement and to do teshuvah for degrading the Image of G-d. It is true that the Oral Law explained that the biblical 'eye for an eye' in our sedrah, refers to monetary compensation. However, this was only because the other crimes mentioned in the neighboring verses, spoke of monetary punishment. Another idea is that it being completely impossible to exact identical punishment, not only technically but also because of factors like age, health, skills etc., we can only exact monetary compensation.

Our concern is not murder but only death or injury caused to people in the course of business activity, either by our own actions or through our assets.

Regarding fatal consequences, our model is that contained in the verses Ex. 21:13, Numbers 25:22 and Deut.19: 5. When one caused death through acts such as the axe head that flew off while felling trees, one was forced to go into exile to one of the cities of refuge. There is no reason to doubt that this would apply to cases where death occurred through use of a dangerous product or even to those cases where normally no damage occurs, yet death results if for example, the product is used with unclean water. Recently, I asked Rav Elyashiv if one could make public the information that one's corporation was guilty of causing damage or even death. This would be similar to the case of the whistle-blower in the tobacco companies. The answer was that not was it permissible but it was forbidden to continue to work there. Even though we no longer have such cities, damage caused even without intention has to be punished, if conscientious consideration was able to foresee the possibility, if not the probability of such fatal results. After all, the image of G-d has been erased. Harav Ovadiah Yosef, basing himself on the opinion of the Rosh regarding a horseman galloping through a street, forbade a Cohen who had killed somebody while driving contrary to the law, from participating in Birkhat Cohanim, the blessings by the Priests (Yechaveh Daat, part 5, section16). Another teshuva, imposed the obligation of raising orphans on the principal of a commercial traveler, who met his death while traveling on his behalf; there was no suggestion of any neglect or intent, yet the death could not go without repentance. Jewish owned corporations would not by these yardsticks be allowed, for instance, to construct roads, housing projects, bridges etc, where the possibility of fatal accidents due to flawed infrastructure existed, even if local standards allowed it.

Far more common, however, are the cases where damage to the health of people is caused by the pollution of air, land or water by industrial and commercial activities. Here halakhic principles that are recognized in the case of conflicts between two individuals or even between the individual and society, have been changed in view of the Divine Image that lies in the human being. The concept that each person can do within their own property that we saw in last week's sedrah doesn't exist in these cases. Chazakah, the idea that one can acquire rights by the mere tacit agreement of the other party, over time, does not apply to health hazards. So too, health hazards are the exception to the rule that the economic welfare of society may take precedence over environmental benefits in cases of mere difficulty, displeasure or marginal discomfort. Even the generally accepted sanctity of contracts has been waived with regard to damages to health.

Already some 2000 years ago, communities had the obligation to apply zoning laws to prevent damages to health and to the aesthetic welfare of the citizens, as we read in the mishnah. "The [accumulated] carcasses [the abattoirs or refuse yard] the graveyard and the tanneries have to be removed from the city 50 amot. Tanneries may be constructed even beyond these limits only on the eastern side of the town [from which a wind seldom came]"(Baba Kama, chapter 2, mishnah 9). From this basis halakha required that plants which cause dust, smog or smell and similar pollutants, may not operate except at the distance required to prevent damage. This applies even where the damage is not the direct result of the technological process or is moved by a normal wind. Usually, people are exempt if damage is transferred by normal natural forces, or where they have taken normal precautions (Shulchan Arukh, Choshen Mishpat, Section 155, section34).

It may well be that the economic gain to the community from the polluting plant may be very great, so that there may be reluctance to remove it. This is the usual argument for enabling hazardous or environmentally damaging firms to operate or for the establishment of environmentally unfriendly industries. Such a case was brought in 16th century Turkey before Rabbi Shlomo Cohen." The damage caused to the townspeople by the vats used by the dyeing industry is extremely great and has to be considered as similar to that of smoke and bad odors. However, since the textile industry is the main basis for the livelihood of the people of this town, it is incumbent on the neighbors to suffer the damage. A later authority held that this ruling was only the result of our being in Galut, where we were unable to the zoning laws into effect. In our own land, halakha would prevent the environmental danger to health by siting the plant properly (Shemesh Tzedakah, Choshen Mishpat, section 34, subsection 11).

Copyright © 2002 by Rabbi Meir Tamari and Project Genesis, Inc.

Dr. Tamari is a renowned economist, Jewish scholar, and founder of the Center For Business Ethics (www.besr.org) in Jerusalem.