by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion
We learn of the obligation of the individual to protect the public domain from a story included in the Tosefta (Bava Kama 2:10):
It happened that a certain person was removing stones from his ground onto public ground when a pious man found him and said, “Fool, why do you remove stones from ground which is not yours to ground which is yours?” The man laughed at him. Some time later he was compelled to sell his field, and when he was walking on that public ground, he stumbled over the very stones he had thrown there. He then said, “How well did that pious man say to me: Why do you remove stones from ground which is not yours to ground which is yours?”
One who threw stones into the public domain…
The above quoted Tosefta teaches us something quite remarkable, viz. that the terms “private domain” and “public domain” are not necessarily identical to the concepts “mine” and “not mine.” What was once my private domain might one day not be mine, while the public domain will always remain my domain.
The Interrelationship between Man and his Environment
The story is related by R. Aryeh Levine, the famous “prisoners’ rabbi” (Simcha Raz, A Tzadik in Our Times, trans. Charles Wengrov, Jerusalem 1976, 108-109).
“I recall the early days, from 1905 onward, when it was granted me by the grace of the blessed Lord to go up to the holy land, and I came to Jaffa. There I first went to visit our great master Rav Avraham Y. Hacohen Kook (of blessed memory), who received me with good cheer, as it was his hallowed custom to receive everyone. We chatted together on themes of Torah study. After the afternoon service, he went out, as was his custom, to stroll a bit in the fields and gather his thoughts; and I went along.
On the way, I plucked some branch or flower. Our great master was taken aback; and then he told me gently, “Believe me. In all my days I have taken care never to pluck a blade of grass or flower needlessly, when it had the ability to grow or blossom. You know the teaching of the Sages that there is not a single blade of grass below, here on earth, which does not have a heavenly force telling it Grow! Every sprout and leaf of grass says something, conveys some meaning. Every stone whispers some inner, hidden message in the silence. Every creation utters its song (in praise of the Creator).” Those words, spoken from a pure and holy heart, engraved themselves deeply on my heart. From that time on, I began to feel a strong sense of compassion for everything.”
Rav Kook’s attitude toward each individual plant and to the creation in general is based upon a comprehensive philosophical approach to man’s relationship with nature . This position was well articulated by the noted mystic R. Moshe Cordovero (1522-1570) in his work Tomer Devorah (Ch. 3, end):
“One’s mercy must extend to all the oppressed. One must not embarrass or destroy them, for the higher wisdom is spread over all that was created: inanimate, vegetable, animal, and human. For this reason were we warned against desecrating food stuffs ... and in the same way, one must not desecrate anything, for all was created by His wisdom - nor should one uproot a plant, unless there is a need, or kill an animal unless there is a need.”
Protection of the Environment and the Love of Man
In addition to the rules governing man’s relations with his fellow man, which are based upon the biblical imperative “Love your neighbor as yourself” (Vayikra 19:18), norms were established for man’s treatment of plants, animals, and even the inanimate elements of nature.
The above verse also serves as the basis for a person’s duty of care not to injure other human beings. In the words of Lord Atkin in a landmark British House of Lords judgment, Donoghue v. Stevenson :
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, who then in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”
When approaching the subject of environmental protection, we must be careful to maintain the proper balance between preservation of the environment and the protection of man. The proper balance in this context is certainly not one of equality between man and nature. The relationship between man and nature is one of ownership - albeit limited. In our enthusiasm for protecting the environment, we must not forget man’s interests or his role in the scheme of creation. Love of nature cannot take precedence over love of man.
In this connection , it is worth recalling that the first comprehensive and methodical attempt to pass legislation governing the preservation of the animal kingdom and the natural world was the Nazi regime (indeed, the first law passed through the German Reichstag was a law outlawing Shechita…). While this does not detract from the importance of protecting the environment, it does illustrate that the love of nature and hatred of human beings are not necessarily contradictory. In the words of the Prophet Hoshea (13:2): “They that sacrifice men kiss calves.” We must always avoid at all costs the error of those who were known as lovers of animals yet perpetrated the worst crimes imaginable against their fellow men.
The proper balance must also be maintained between individual interests and the interest of the public. Sometimes an individual’s act may harm the community, as when a person builds a factory that pollutes the environment with industrial waste (and as in the case cited by the Tosefta at the beginning of this article). Sometimes, however, it is the community that is interested in a factory even though this may constitute a serious infringement upon a particular individual’s ability to enjoy his own home and surroundings.
When discussing the “quality of the environment,” we must remember that the environment also comprises the people living in it - individuals and community. Protection of the environment, by itself, cannot solve conflicts of interest, though it can extend the range of factors considered when seeking solutions to problems. Solutions must, in the final analysis, be based upon economic, social, and moral considerations.
Next Column: Overexploitation of the Earth’s Resources and Shemita
 In our last column, we noted how Rav Kook saw in man’s return to Nature a revival of man’s natural attributes, in explaining the yishuv hada’at (tranquillity) which a person receives from beautiful sounds, sights and smells.
 See my article, “Tu Bishvat and Environmental Protection,” in Edition 22 of this publication.
To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net
Jewish Law in our Times > Environmental Protection
moshe, 3/13/2005 4:02:48 PM