Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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4 - Balancing Interests - Natures Conservation v. Mans Benefit

One of the most difficult questions in the area of environmental protection concerns the question of the balance between the preservation of nature on the one hand and the benefit that is likely to emerge from intermeddling with the natural balance on the other. This benefit may be for convenience purposes: such as paving a road where the view is destroyed in the process. It may also be an economic benefit, such as constructing a factory which destroys the water sources, or which pollutes the air.


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A number of questions which concern the balance between competing interests come within the scope of the Biblical prohibition: lo tashchit (you shall not cut down [fruit trees]), which the Rabbis explained to mean: “The Torah only forbade acting in a destructive manner”(see Rambam, Hilchot Melachim 6:8). In other words, if the benefit that ensues from cutting down the tree is greater than the loss of the tree itself, this is not considered destruction - quite the opposite: it is an act of improvement![1]

The Talmud cites various tests for when a tree may be cut down:

(i) where the value of the wood or other profit a person has by cutting down the tree is greater than the value of the fruit (see Bava Kamma 91b). The Netziv explains the rationale on the grounds that on this particular tree the beams “are themselves the fruit and purpose of the tree” (Shut Meishiv Davar, II:56).

(ii) when the tree damages other trees in the same field (Bava Kamma 92a). One intriguing rationalization of this exception is based on the halacha of the “pursuer” (rodef), in which case the innocent victim being pursued may be saved by killing the pursuer. Another is to explain the permit on the grounds that the trees which are damaged are better than the tree causing the damage (see Shulchan Aruch Harav, Hilchot Shemirat Guf va’Nefesh u’Val Taschit).

(iii) where the tree causes damage to other fields (Bava Batra 26a). The Netziv rationalizes this permit on the grounds that “the damage caused to human beings pushes off the prohibition involved.”

In Time of War

The Rabbis learned out from Pesukim various permits for cutting down fruit trees in time of war: fruit trees may be cut down for the purpose of building a siege, where there are no non-fruit bearing trees (ilanei s’rak) in the vicinity. And even where there are ilanei s’rak nearby, the fruit trees may still be cut down if they are worth less than the non-fruit bearing trees (see Bava Kamma 91b). To these, the Ramban adds that, in time of battle, trees which serve as camouflage for the enemy, or which the enemy exploits for firewood, or the fruits of which sustain the enemy, may also be cut down (Commentary to Devarim 20:19).

The Rambam would appear to disagree with the Ramban, when he emphasizes: “We have been commanded not to destroy trees when besieging a city [even] in order to distress and pain its inhabitants” (Negative Commandment 57). However, in an illuminating article in Techumin 9 (5748), entitled “Halachic Principles in War Ethics,” Rav Avraham Sherman convincingly argues that even the Rambam would agree that the destruction of trees in the battle against the enemy, e.g. to construct the siege or in order to prevent the trees protect the enemy hiding in the woods, or in order to injure the enemy’s food supplies, is totally permissible (where there is no other alternative). Rambam only forbade the infliction of damage for damage’s sake, by those fighters who, in the heat of battle, injure and destroy anything and everything in their wake, including the felling of beneficial trees, purely out of fury and vengeance and animosity, without thinking twice and without considering whether any military benefit will sprout from the destruction.

The Right to Light v. The Right to Grow

Some authorities allow a tree to be cut down where the ground on which it is planted is needed, or in order to build a house in its place (Piskei HaRosh, Bava Kamma, 8:15), provided the profit earned from cutting down the tree is greater than the fruits. In this manner, a tree which impedes one’s ‘right to light’ may be cut down.

Rav Yair Chaim Bachrach (1638-1701) was asked whether: “apricot trees which have sprung up automatically from my ground and are obscuring the light from my window - may be cut down?” He answers (Havot Yair, Siman 195) that: “anything which has a need - may be cut down, because the Torah only prohibited needless destruction… or, alternatively, the Torah only prohibited cutting down fruit trees when ilanei s’rak could just have easily been cut down in their place.” Nonetheless, he states that it appears to him that: “if it is possible for him to cure his damage by cutting down a small number of the obscuring branches, he may not cut down the entire tree; this applies even though in the course of time these branches will continue to grow, forcing him to cut them back again, because for a small amount of discomfort we will not allow him to uproot a negative commandment from the Torah.”

Rav Ya’akov Emden rules that even though, from the strictly legal point of view it is permitted, it is not “the way of the pious” based on the Gemara in Bava Kamma 91b that there is even an element of danger involved, in the words of R. Chanina, who relates that his son only died because he “cut off a fig before its time.”

Rav Emden was asked about the possibility of cutting down a vine planted alongside the Shull in order to expand the Shull: “For our Shull is too small and the only way to expand is to the east, where a vine is planted and will need to be uprooted if the Shull is expanded…” He answers that there is no prohibition involved; nonetheless, he suggests a way in which the tree can be uprooted without any concern - by replanting it elsewhere: “for even though the vine is being uprooted from its place, it is still living, and it can be replanted elsewhere… this is no prohibition involved whatsoever, because it is as if it were planted in its own place!”

Conclusion

Protecting the environment involves protection of the natural balance, which includes, among other factors, the balance between man and the creation. But balance in this context does not mean equality. Balance may entail granting preference to man and his welfare, both physical and spiritual, and spiritual welfare may even take precedence over physical welfare.


Conflicts of interest must be resolved by a careful weighing of values, a process that may sometimes result in absolute rejection of one value in favor of another. Nevertheless, in spite of man’s preferred status, preservation of the environment need not necessarily be the value rejected. In some cases, it is man’s interest that will be rejected in favor of the environment, particularly when the benefit to man is

marginal, and damage to the environment is significant.

Next Column: The Special Nature of the Public Domain



[1] An interesting response by the late Rav Moshe Feinstein (C.M. II 66) uses precisely this distinction to permit plastic surgery for beautification purposes (cf. the divergent opinion of other great Halachists of his generation - see e.g. Tzitz Eliezer 11:41), similar to any therapeutic operation which is permitted, even though it ostensibly ‘wounds’ the body!

 

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