|Photo by: Marc Israel Sellem /The Jerusalem Post|
Depriving of livelihood - Part 2
By LEVI COOPER
Balancing between the quest for morality and the desire for economic efficiency often requires legal intervention.
I t is always interesting when hassidic writings find their way into legal
treatises. Though the two realms – hassidism and law – are not necessarily
divorced from one another, jurists do not ineludibly buttress their legal
arguments by referencing hassidic works. One example of citing hassidic writing
in a legal work is how a hassidic jurist responded to a case of depriving
someone of his livelihood.
In his commentary on the Bible, Rabbi Yitzhak
Eizek Yehuda Yehiel Safrin of Komarno (1806-1874) wrote that depriving someone
of his livelihood is akin to murder. This understanding was based on the fact
that the Hebrew phrase “ ish ahiv ” (every man’s brother) appears three times in
the Bible (Genesis 9:5, Zechariah 7:10, Joel 2:8). The first occurrence refers
to actual murder, and the Komarno rebbe suggested that the other two occurrences
should be read in this light. Thus, thinking evil of another person in a way
that may arouse harsh judgement against him is akin to murder (based upon
Zechariah 7:10). So too, depriving someone of his livelihood is as heinous as
murder (based upon Joel 2:8).
This reading of the text can be understood
in a midrashic sense. We might say that the Komarno rebbe offers this
interpretation in order to condemn undesirable conduct, such as taking away
another person’s source of income.
But depriving people of their
livelihood is not only a moral issue. Economic models suggest that the greatest
aggregate efficiency can be achieved by allowing free-market competition. Alas,
in a laissez-faire system, some people may lose their source of income as they
are replaced by more efficient people. Balancing between the quest for
morality and the desire for economic efficiency often requires legal
Rabbi Yisrael Nissan Kupersztok (1858-1930) was a Polish
jurist who grew up with the Warka Hassidim and later identified with the
Aleksander Hassidic dynasty. Rabbi Kupersztok was asked a complicated question
about rights to operate a water mill that was owned by a non-Jew and leased to a
Jew. The details of the legal question are not necessary for the present
discussion; suf- fice it to say that two people were claiming the right to
operate the mill. Rabbi Kupersztok ruled in favor of the initial operator and
explained that the sec- ond operator was forbidden from encroaching on the
livelihood of the first operator. The basis of this ruling was his
interpretation of the legal concept called ma’arufya – the protection afforded a
Jewish lessee from competition when the lessor is a non-Jew, in order to protect
the income of the lessee.
Once Rabbi Kupersztok ruled on the matter of
law, he added some thoughts from hassidic masters. Rabbi Yehiel Dancyger of
Aleksander (1828- 1894) had ominously warned that according to tradition it was
a dangerous matter to deprive a person of his livelihood. Rabbi Kupersztok then
refer- enced the explanation of the Komarno rebbe that equated taking away a
person’s income with murder.
Why did Rabbi Kupersztok add these hassidic
references? The ruling was based on the right to ma’arufya, not on the
foreboding warning of hassidic masters.
The case occurred sometime
between 1881 and 1888, when Rabbi Kupersz- tok served in the town of Rozan,
approximately 70 kilometers north of War- saw. The parties had turned to the
rabbi for the ruling, and each party had argued its case before him.
Nevertheless, there was no guarantee that the losing side would accept the
ruling. There was no formal mechanism, such as a writ of execution, that would
ensure that the parties followed the jurist’s decision. There were many
factors that could influence the outcome: the goodwill of the parties, the power
of the community to enforce rulings, the standing of the jurist and so on. In
addition to his decision, a jurist might therefore choose to try to convince the
parties or encourage them to heed his ruling.
In this case, it appears
that Rabbi Kupersztok added the hassidic reference in order to exhort the second
operator of the mill to obey the judgment. Lest the second operator was
considering the possibility of ignoring the ruling, Rabbi Kupersztok reminded
him that depriving someone of his livelihood is a perilous path. He might be
prepared to ignore the rabbinic ruling, but would he be prepared to commit
The writer is on the faculty of Pardes Institute of Jewish Studies and
is a rabbi in Tzur Hadassah. He is currently a post-doctoral fellow in Bar-Ilan
Uni- versity’s Faculty of Law.