Your Money or Your (Religious) Life: A Back-Door Device to Extend Local Authority

June 1, 2010 by Yitzchok Adlerstein

Rabbi Yisrael Salanter, according to some accounts, worked out an unusual pre-nup with his bride-to-be.  They divided up their married life into two universes, agreeing that each should be the ultimate authority in one of them. Mrs. Salanter would direct all the pedestrian matters of the household, including raising the children that would hopefully follow.  R. Salanter, the iconic founder of the Mussar Movement[1] in 19th century Europe, would be the final voice regarding “matters of Heaven.”  Asked years later how it all had worked out, the Rebbetzin remarked wistfully, “He kept to the agreement.  Somehow, though, every decision that came up always turned into a matter of Heaven.”  Similarly, centuries earlier a number of decisors came up with a serious device to extend local authority by turning some cases of monetary law into matters of Heaven.

The different domains within Jewish law share certain principles and proof-texts.  Legal discussion of any area of the law frequently draws from seemingly unrelated domains.  Yet, real differences separate the universes of monetary law – dinei mamanot – and “matters of Heaven,” the sundry prohibitions termed issur v’heter.  Dinei mamanot are tried by panels of three judges,[2]  while issur v’heter decisions are typically rendered by a single decisor.  Monetary matters generally require testimony by two witnesses; a single witness suffices in issur v’heter.  There is broad license to apply the principle of rov to issur v’heter, assigning unknown objects to the majority subset of a population.[3]  This is not true in regard to dinei mamanot.[4]  Halachah demands that we err on the side of prudence in regard to issur v’heter.[5]  When in doubt about some precept in Torah law (d’orayta, rather than rabbinic), we are instructed to take the stricter route to escape the dilemma.  There is no such rule regarding monetary law.[6]

Another difference between matters of money and matters of Heaven pertains to the ability of communities to legislate and enforce local ordinances.  Bava Batra[7] gives broad sanction to townspeople to regulate weights, measures, prices, and wages, and to enforce their ordinances.  It is not at all clear from the Talmudic text just who these “townspeople” are who may legislate and enforce.  Two chief positions emerged in the medieval literature.

Rabbenu Tam[8] restricts the Talmudic passage to legislation agreed upon earlier by consensus.  Individuals who later violate town ordinances may be punished.  No new ordinance, however, may be made at the expense of a dissenting minority or even individual.  Ra’avyah[9] argued that a majority of the townspeople suffices to create new legislation, which would then be binding and enforceable, even over the objections of a dissenting minority.  Significantly, Ra’avyah explicitly allows for the elected town governors – the tuvei ha’ir – to vote in new measures as long as the townspeople are aware of their proceedings.[10]  Their pronouncement is seen as the equivalent of the majority of residents so long as a majority does not protest their conclusions.  While Rabbenu Tam denies a local court the power to condemn private property to enforce a local ruling, Ra’avyah allows it.  He argues that on the local level the tuvei ha’ir have the same recourse to the law of hefker beit din as the greatest halachic authority of a generation has on the national level.[11]  Effectively, a minority protest that the local authority could not override their rights in Talmudic law would fail, because the power to condemn property would artificially strip them of those rights.

Briefly, the view of Rabbenu Tam greatly restricts the power of local entities to control local affairs, except in areas in which Talmudic law could be shown to apply.  Raavyah’s approach allows a town to democratically react to new circumstances not regulated by the Talmud.

Shulchan Aruch’s codification of this issue remains somewhat indeterminate.  Rama[12] writes that the custom is to regard the tuvei ha’ir in their locale as the analogue to the greatest court on the national level, and they may thereby employ hefker beit din to condemn property.  This hews closely to the opinion of Raavyah.  Rama next cites those who disagree and maintain that a local authority cannot change preexisting practice save by acclamation – a position consistent with Rabbenu Tam.[13]  Nonetheless, he writes, we ought to follow the custom.[14]  Rama apparently does not firmly decide between the two opinions so much as observe that communities generally have conducted themselves like Raavyah.  This is borne out by a responsum of the Nodah B’Yehudah[15] placing the burden on each local executive group to demonstrate that the town custom was, in fact, to grant the power to legislate anew to that group.

Rabbenu Tam and Raavyah come together in one area.  Mordechai[16] writes that Rabbenu Tam’s rejection of new legislation does not apply in cases of migdar milsa – when the tuvei ha’ir find it necessary “to curb a matter [of community-wide sin],” i.e. to create some enactment as a preventive against transgression.  Sema[17] confirms that there is no dispute between Rabbenu Tam and Raavyah in regard to the right of the tuvei ha’ir to safeguard the community against transgressing existing law by making new enactments.

The source of this migdar milsa license is a Talmudic statement[18] which declares that the court may inflict lashes and even execute an accused in cases that are not mandated by Torah law.  This is appropriate when the court needs to erect a “fence around the Torah.”[19]  It points to occasions upon which this license was used.  In the time of the Syrian-Greek occupation of the Land, a court executed someone who rode a horse on Shabbat, even though this was not a violation of Torah law, but only of a rabbinic infraction.  The anti-religious oppression by the Hellenists was wearing down the people, who were slipping in their observance.[20]  The execution sent a powerful message to the people.  Similarly, a husband was flogged for performing a lewd act, albeit with his own wife, and therefore not legally deserving of such a punishment.  Again, the Talmud justifies this extra-legal punishment as required by the needs of the day, and falling under the migdar milsa provision.[21]

Maharik[22] defines the limits of migdar milsa.  “It is plain and apparent that nothing is considered migdar milsa save in matters of Heaven, where the generation is wanton in transgressing the words of the Torah, and they [i.e. the court] wish to put up a fence [around the law].”  He cautions that  by “matters of Heaven” he means to specifically exclude “takanot/ remedies for the city or community alone,” referring to measures similar to the financial enactments that are under discussion in that responsum.[23]

The Chatam Sofer[24] extends this definition of migdar milsa in an intriguing way.  He considers the legality of an enactment made by a community over the objections of the community’s own rabbi.   To fund the community chest, a tax had been placed on every measure of meat sold.  The collection of this tax were outsourced – sold to tax farmers responsible to turn over proceeds to the town coffers, presumably after taking a portion of it for their efforts.  Some townspeople circumvented the tax by importing meat in from other towns where there was no tax in effect.  To protect itself from the shrinkage of tax revenue, the community retaliated by banning the import of meat.  A few protested.  So did the rabbi, who found particular hardship on the import ban.  Meticulous about what meat met his halachic standard, he would rarely be able to buy meat if restricted to the local supply.  Nonetheless, he abided by the ban.  He did, however, eventually turn to the Chatam Sofer for a ruling.[25]

After considering the opinions of both Rabbenu Tam and Raavyah, Chatam Sofer argues that we need not rule one way or another in the case at hand.  He cites Maharik[26] that there is no question that a community is obligated to legislate anew in order to prevent violations of issur v’heter even according to Rabbenu Tam.  The townspeople act as partners in the financing of the community enterprise.  Every person benefits from community expenditures, in effect drawing from the community chest.  Every person who does not contribute as expected to the community chest in effect violates the prohibition against theft!  He benefits from the monies paid into the community chest by the tax farmers without reimbursing them by paying the meat tax.   The community clearly has the right and duty to prevent wholesale theft by legislating the ban on imported meat.  Although Maharik had seemingly differentiated between monetary issues facing the community and matters of Heaven, Chatam Sofer insightfully points out that this distinction is valid only in creating a new assessment.  Once it is in place and accepted, violating it is no different than violating any other Torah precept.  Stealing is not simply a monetary matter, but a matter of Heaven as well.[27]

Chatam Sofer’s position, in effect, is that setting tax rates and regulations is a monetary matter, and requires acclamation according to Rabbenu Tam.  Non-payment of a previously legislated tax, however, moves the question from a monetary matter to a “matter of Heaven,” regarding which it is perfectly legitimate for a community to legislate by majority.

This insight is not strictly his own.  It was stated hundreds of years earlier in Responsa Re’em.[28]  Unlike Chatam Sofer, however, Re’em sees theft only in the shirking of the personal obligation to pay taxes imposed by the community.  Chatam Sofer goes beyond that, and sees theft in benefiting from services offered by the community, while not contributing to defray their expense.

With the establishment of the State of Israel in 1948, the obligation to pay taxes became an issue in certain communities that refused to recognize the halachic authority of a secular state.[29]  Chatam Sofer’s thought carries enormous weight in some of those communities.  His ruling ought to have broad implications in shaping attitudes towards payment and evasion of taxes, since citizens benefit from a large number of government funded programs.[30]  Similarly, a common rationalization in some communities to be less than scrupulous about reporting taxable income sees the payment of taxes as akin to failing to return a lost object, rather than overt theft.  The Chatam Sofer’s approach should be effective against this problematic behavior.

The Chatam Sofer also succeeds in enlarging the area in which local communities can legislate against the wishes of a minority.  While his finding is not quite as comprehensive as that of R. Yisrael Salanter, who could turn anything into a matter of Heaven, Chatam Sofer’s approach does offer an important strategy for communal groups trying to find halachic support for rulings that are supported by most, but not all, of its citizens.  Where the purpose of proposed legislation is to close loopholes and otherwise assure that citizens will pay for the services from which they benefit, their measures should be accepted beyond cavil.  Dipping into the communal cookie jar without making the expected contributions, says the Chatam Sofer, is very much a matter of Heaven.

* Sydney M. Irmas Adjunct Chair, Jewish Law and Ethics, Loyola Law School, Los Angeles.

[1] Mussar movement refers to a Jewish ethical, educational and cultural movement (a “Jewish Moralist Movement”) that developed in 19th century Orthodox Eastern Europe, particularly among the Lithuanian Jews.

[2] Sanhedrin 2a.

[3] In a typical application of rov, a cow that was slaughtered but not checked for organic defects that might make it terefah can be eaten, presuming the animal to come from the majority component of the bovine population that is free of such defects.

[4] Bava Kama 27b.

[5] Rashba Kiddushin 73a, s.v. Mamzer  and Rambam Hilchot Tum’at Met 9:12 famously disagree as to whether this requirement is itself a matter of Torah law, or a rabbinic extension.

[6] There is, however, a vigorous discussion as to why every matter of monetary law is not automatically governed by the protocols of issur v’heter.  If the court has insufficient evidence to rule definitively, and therefore awarded property to one party on the basis of possession, why should he be able to keep it?  Given that there is some legal doubt, holding on to the property against the claim of the opposing party means that the first party is taking a chance of violating a Torah law against theft!  See R. Yehohnatan Eybeschutz, Urim Ve-Tumim, Kitzur Takfu Kohen to par. 23-43; 1 R. Yehudah Hakohen Heller , Kuntrus ha-Safekot § 6; 5 R. Shimon Shkop, Sha’arei Yosher 1.

[7] Bava Batra 8b.

[8] R. Yaakov Ben Meir (France, 12th century), cited in Mordechai (R. Mordecai Ben Hillel, Germany, 13th cent.) to Bava Batra § 480.

[9] R. Eliezer Ben Yoel Halevi, cited in Mordechai,  Id. § 482.

[10] Id.

[11] Id.

[12] Choshen Mishpat § 2.

[13] Id.

[14] Id.

[15] 1 R. Yechezkel Landau (Prague, 18th century), Responsa Nodah B’Yehudah  § 20, cited in Pitchei Teshuva, Choshen Mishpat § 2:5.

[16] Bava Batra § 480.

[17] R. Yehoshua Falk Katz (Poland, 16th century), Sefer Me’iros Einayim, Choshen Mishpat § 2:13.

[18] Yevamot 90b.

[19] Id.

[20] Rashi, ibid., s.v. Tzrichah.

[21] Yevamot 90b.

[22] R. Yoseph Colon Ben Shlomo Trabotto (Italy, 15th cent.), Responsa Maharik § 180.

[23] Id.

[24] R. Moshe Sofer (Bratislava, 19th century), Responsa Chatam Sofer, Yoreh Deah § 5.

[25] Id.

[26] Maharik § 1 and § 180.

[27] Id.

[28] R. Eliyahu Mizrachi (Constantinople, 15th cent.), Responsa Re’em 57 s.v.Umei’ata.

[29] Perhaps by way of rationalization, they pointed to the view of Ran  (Nedarim 28a, s.v. Be-mocheis ha-omeid) that secular law has no application in the land of Israel, preferring this view to that of Rambam (Hilchot Gezel 5:11) who disagrees.  See  5 R Ovadia Yosef, Responsa Yechaveh Da’at § 64.

[30] 4 R. Yaakov Yeshaya Blau,  Pitchei Choshen § 1:2 n4, p. 14 s.v V’od nireh appears to overlook this earlier source when he speculates that evasion of taxes imposed for the purpose of providing services to citizens might be forbidden even in a society not bound by dina demalchusa requirements.