Chancellor's Parashah Commentary
Parashat B'har 5763
May 17, 2003 15 Iyar 5763
Rabbi Joshua Heller is the Director of Distance Learning at The Jewish Theological Seminary.
Chapter 25 of Vayikra, which makes up the bulk of Parashat Be–har, deals with essential laws of economic justice in an agrarian society. No member of the Jewish people may be relegated to lifelong slavery or landless serfdom. Ancestral plots are not to be sold out of the family forever, but rather returned in the Jubilee year. Even though slavery is permitted, a Jewish slave must go free in the seventh year. One may not cheat another in selling or buying, nor earn a profit at the expense of one in need by charging him interest. And yet, there are troubling limits to the scope of this ethical tradition.
These noble sentiments are both magnified and circumscribed by the language used to convey them. Terms like amitekha, your neighbor, ahikha, your brother, and related forms appear over fourteen times in this chapter. To some extent, they serve to remind the reader for the reason of these commandments – one must see others not through the impersonal lens of dollars or shekels but as members of a community, of a common family. They also serve a more troubling role, as they appear to limit the scope of the commandments to one's interactions with one's fellow Jews, to the exclusion of non–Jews.
This distinction reflects an essential tension found throughout the Biblical text and the Jewish ethical tradition that flows from it, between the universal and the particular. The Bible repeatedly demands legal fairness, charity, even love, for the stranger, the foreigner. And yet in many other cases, either the plain sense of the text, or voices of rabbinic interpretation, demarcate the boundaries of the Jewish legal system to exclude the rights or property of non–Jews. This trend within Jewish legal thought is not only troubling in the abstract, but also has at times been a negative factor in the relations between Jews and their neighbors.
To take one example with historical resonance – one Jew may not lend another money at interest (Leviticus 25:35–37) or pursue a loan after the sabbatical year, which cancels all debts. However, these restrictions do not apply to loans to non–Jews. Christians in many parts of medieval Europe applied the Biblical verses in a parallel way to lending in their own communities, creating a reliance on outsiders, like Jews, for loans. By furthermore excluding Jews from trades and land ownership, they created an environment in which moneylending and finance, became important, if not stereotypical, economic activities for some Jews in those areas.
The literary shadow of Shylock haunted Jews for generations, but has lost much of its power in a modern economy built on consumer credit. The Biblical commandment was intended to apply in situations of poverty, "if your kinsman is in dire straits" (Leviticus 25:35), and not to commercial loans or financing of luxury purchases, and modern sensitivities follow the same trend. There is, and should be, opprobrium applied to lenders who prey on the indigent living from paycheck to paycheck, but mortgages, student and car loans make it possible for many to enjoy a more comfortable lifestyle than would otherwise be possible. They are not poor substitutes for charity, but aids to luxury.
A more difficult example arises from the verse "When you sell property to your neighbor, or buy from the hand of your neighbor, a man shall not wrong (al tonu) his brother" (Leviticus 25:14, my translation) words that prohibit one from charging an unfair price in real estate transactions. The Talmud (B.T. Bava Metzia 47b) uses the word "the hand" in the verse to expand its meaning beyond real estate to prohibit price gouging in transactions of movable goods, which pass "from hand to hand." In fact, it goes even further (Bava Metziah 58b), taking a parallel verse (Lev. 25:17) as a reminder that it is forbidden to "cheat with words" even if no money is exchanged, so that one may not ask a merchant the price of something that one does not intend to purchase, or remind a repentant sinner of his previous misdeeds.
At the same time, the same words "brother" and "neighbor" are used to limit the commandment to transactions within the Jewish community. Interpreting those words, the Talmud (T. B. Bekhorot 13b) assumes that there is no similar penalty for overcharging or otherwise cheating non–Jews. Other texts (like Bava Kama 113a–b) go even further in their reading of this and other passages. They entertain the possibility one is not obligated to return a lost object to a non–Jew, or to pay taxes to the civil authorities. Perhaps it is permitted to steal from gentiles outright?
Sages in many generations and countries, from the Talmudic sages, through medieval scholars like Maimonides and the early German pietist Judah Hehasid, and even contemporary writers, have felt the need to address the question with the strongest possible rhetoric. Codified Jewish law prohibits engaging in intentional fraud or theft, irrespective of the victim's religion, as well as evading taxes that are set by a legitimate government.
Despite the objections and stipulations of many sages and teachers, this justificatory theme survived in Jewish legal texts and folkways, and persists even today among the unscrupulous. Sometimes, the context is relatively innocuous. There are plenty of retail businesses where a landtzman might be spared the markups or spurious extras that a typical customer would expect as part of the hard sell. In other cases, it is more insidious. For instance, within certain circles there is no moral stigma attached to defrauding the secular government of this country, or even that of Israel, in support of institutions that would otherwise be circumspect about the smallest point in Jewish law.
One factor which is often blamed for this unfortunate trend is a desire to overcome the real and perceived disadvantages that Jews faced as a minority culture. If, during times of severe persecution, oppressed Jews had to deceive their neighbors in order to observe their faith, would it not be difficult to condemn the same types of practices in other aspects of their lives? If members of the surrounding culture took "finders keepers, losers weepers" as their social norm, would it not be an undue burden to hold to ourselves to a higher standard? When taxes were levied arbitrarily, even punitively, by local functionaries, was it wrong to conceal hard–earned assets? In a case where a Jew and a non–Jew had a legal dispute, the Jewish courts would have no jurisdiction, and the gentile courts might or might not be predisposed to rule equitably. Why not wink at the opportunity to take matters into one's own hands?
Rabbi Ishmael and Rabbi Akiva each address this last question in the Talmudic discussion. Rabbi Ishmael suggests that in such a situation it is appropriate to use akifin (subterfuges) to accomplish what could not be accomplished through the legal system. Rabbi Akiva responds that one may not do so, even if one believes that one is entitled to do so, because it would lead to a desecration of the divine name. If the Jews are God's people, then even the perception of wrongdoing reflects negatively not only on one's own reputation, or that of entire community, but on God's holy name itself.
Therefore, the Talmudic ruling follows Rabbi Akiva. We may use the fullest extent of Jewish or secular law to press our claims, but we may not go beyond it at the expense of others, and in fact must show even greater rectitude than interpretation might allow. Even if the narrowest reading of the Torah would not obligate a Jew to return a lost object to a gentile, or would not penalize someone who engaged in deceptive practices against them, God demands more. Sometimes imbalances of power make it difficult for us to think of others using the term ahikha, "your brother," but in such cases we must still apply the term amitekha, "your neighbor." The sanctification of God's name demands no less.
Rabbi Joshua Heller