Jewish Law in Our Times

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

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6 - Tu Bishvat & Environmental Protection

The Halakhic principle of Bal Tashchit (the prohibition against wanton destruction of anything useful to mankind) is derived from the passage in the Torah which cautions Bnei Yisrael not to devastate the land they are setting out to conquer by destroying fruit bearing trees (Devarim 20:19).

One interesting case brought before the Israeli Supreme Court sitting as the High Court of Justice concerned an appeal against a decision of the Minister of Defence to acquire land belonging to private individuals for the purpose of building a road. There was no dispute that as a result of siting the road as planned, it would become necessary to uproot a large number of citrus trees.

Would Halakha sanction the destruction of the fruit trees in these circumstances? And how did the Supreme Court rule on this issue?

***

Organizations like Greenpeace have earned the respect of the public for their defiant activities to the betterment of humanity. In some countries, the “Greens” have even attained significant political triumphs. However, there have also been occasions where in order to further their cause members of these organizations have caused wanton damage to property and even person (including taking their own lives).

Tu Bishvat, the Festival of Trees, which falls out on this Shabbat, is a perfect opportunity to discuss the central issue that rests at the focus of the ecological debate: what is the relationship between man and nature?

There are 3 basic philosophical approaches to this question: (a) that man is part of the animal kingdom (which, like man, is also capable of appreciating both enjoyment and suffering); (b) that man is part of the natural world (including inanimate objects); (c) that man is a creature who stands above nature. The first two of these approaches forms the basis of the philosophy which underpins modern-day ecological movements; however, while approach (a) acknowledges the independent value of the animal kingdom (“animal rights”) of which man is just one member, approach (b), the “Deep Ecology” model, advocates that the entire natural world has value, with human beings forming only one of its components. According to this model, in which all members of the natural world possess rights, the requirement to preserve non-human life - the animals, the forests, the rivers etc. - requires man to limit human population growth!

Thus in the year 1970, the US Forest Service granted Walt Disney a license to develop an uncultivated valley in the Sierra-Nevada region. One ecological organization filed a petition to prevent a destruction of the natural views that would be caused by transforming the valley into an amusement park. This argument was dismissed by the lower court, but in the run up to the appeal Prof. Christopher D. Stone published a scholarly article entitled: “Should Trees Have Standing? Toward Legal Rights for Natural Objects” which laid the groundwork for a recognition of the legal rights of natural beings: forests, springs, seas etc.

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 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: “They that sacrifice men kiss calves” (13:2).

By contrast, the Torah’s approach and that advocated by modern liberal-humanistic society in its footsteps (model (c) above) elevates man above the animal and natural kingdom by virtue of man’s ability to choose and to make decisions not based on his natural instincts. Thus, at the very beginning of the Torah, man’s supremacy over nature finds expression: “Be fruitful and multiply, and populate the world and conquer it, and subjugate the fish of the sea” (Bereshit 1:28). However, this is not to say that animals are machines (as posited by Descartes), “whose cries when hit are no different from the sound emitted from a bell when it is struck”. Nor does it entitle man to ruin natural views, pollute the atmosphere, exterminate species and violate the harmony of the world in which he lives (which is what happened with the flourishing of the Enlightenment and Technology). For alongside the command to conquer the natural world, the Torah commands us to preserve the integrity of the world: “to work it - and to guard it” (Bereshit 2:15); for if we destroy the world, who will repair it after us? (Kohelet Rabbati 7:28).

In the case cited on page 1, Justice Shilo regretted that there was no possibility to choose an alternative line which would avoid the need to cut down the fruit trees:

“For in early Jewish international law a principle indeed exists forbidding the destruction of fruit trees in the course of besieging a town in time of war (and all the more so in peacetime). The source is Devarim 20:19: ‘When you shall besiege a city a long time, in making war against it to take it, you shall not destroy the trees thereof by wielding an axe against them; for you may eat of them, but shall not cut them down; for man is a tree of the field.’

The reason for this commandment is that ‘we should avoid cutting down trees when besieging a city in order to subdue the inhabitants and bear heavily on them’ (Sefer HaHinukh PC 530). And Rambam notes that ‘when besieging a city… trees bearing fruit are not to be cut down… nor water channels blocked so that they dry up’ (Hilkhot Melachim, 6:8).”

However, Justice Shilo proceeded to qualify these comments, ruling in favor of the Defense Ministry and against the petitioners:

“According to Rambam, however, the Torah only forbade destruction for its own sake, but the trees may be chopped down if that course is more beneficial than leaving them standing, as when they are harmful to other trees and the like.”

In recent years, the Knesset was presented with a draft bill: “Basic Law: Environmental Protection”. This was designed to elevate the value of ‘environmental protection’ to a constitutionally protected value, alongside the values of ‘human dignity and liberty’ and the ‘freedom of occupation’. This, in turn, begs significant questions: How would the courts reconcile these competing values? Would they restrict the freedom of occupation in order to preserve the environment? It is hoped that when the courts come to decide lofty questions of this sort they will interpret the Basic Laws in the spiritof Jewish tradition in general and of Justice Shilo’s judgment in particular, as befits a “Jewish and democratic State”.

* Based on an article by Dr. M. Wygoda, Head of Jewish Law Department at Israel Ministry of Justice, “The Exodus from Egyptand Environmental Protection - Philosophical and Legal Aspects” printed in

the Justice Ministry Parshat Hashavua web-sheet (5761, vol. 12) *

 

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

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Jewish Law in our Times > Environmental Protection
Chagim > Tu B'Shvat

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moshe, 3/13/2005 4:07:29 PM
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