Jewish Law in Our Times

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

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10 - From Smoke to Smoking: Environmental Pollutant and Health Hazard

Jewish legal authorities have considered whether it is prohibited to smoke in places where the smoke might bother others. One authority who absolutely prohibited smoking in public places was R. Moshe Feinstein, the spiritual leader of American Orthodoxy and leading authority on Halacha in the past century. It is his opinion that even if smoking were irritating only to those who are hypersensitive, it would nevertheless be prohibited to smoke in public places (Igrot Moshe, C.M. II:18). As precedent for this, Rav Moshe cites the talmudic case of R. Yosef, who was hypersensitive to noise (Bava Batra 23a).

Smoking and the Hypersensitive

In Bava Batra 23a, the Gemara tells the story of Rav Yosef who had a grove of small date palms, in the shade of which bloodletters would sit (in their own property) while they drew blood. Ravens came and were attracted to the blood, so the bloodletters shooed them away. As a result, the ravens flew into the branches of the palm trees, and ruined the dates by smearing them with blood, whereupon Rav Yosef said to them, “Get these croakers [noisy birds] out of here for me!”

Abaye then said to Rav Yosef, “But the bloodletters are committing no more than incidental damage, which is permitted by the Mishnah?!” Rav Yosef replied, “Thus says Rav Tuvi bar Matnah: The Mishnah informs us that even activities that cause damage indirectly are forbidden” (even though one is not required to pay for incidental damage that results from one’s actions). Accordingly, the bloodletters were required to move away.

“But,” continued Abaye, “surely you allowed them to work there (since you raised no objection to their bloodletting for the past three years)?” Rav Nachman said in the name of Rabba bar Abuha - “There is no chazakah for things which cause damage.”

“But,” Abaye persisted, “surely it was only with regard to smoke and an outhouse that Rav Nachman’s teaching holds true (but in all other sources of damage a chazakah can be established)?!” Rav Yosef replied to Abaye: “since I am sensitive, these [noises/damages] are like smoke or a toilet to me.”

Rav Yosef was a highly sensitive individual who could not bear the thought of using bloodstained dates. He therefore argued that just as there is no chazakah for a smoke or a toilet (to which a neighbor would never relinquish his right to object), there could be no chazakah for bloodletting under his palm trees.

If, based on this Gemara, it is possible to restrain particular actions on the basis of hypersensitivity, R. Feinstein reasons, it is certainly possible to do so where there is pain or injury. Thus, where smoking is harmful to others, it is certainly prohibited.

Smoking and Torah Scholars

On the halachic plane, Rav Feinstein writes as follows:

“[A]s I wrote . . . it is prohibited for smokers to smoke in the study hall if even one person is present who is discomforted from it, even if he is not injured and made ill, certainly if the possibility of illness and injury exists, even if the time lost from Torah study would be greater if the smokers would be prohibited from smoking, as the smokers are forbidden to smoke in the study hall and in any place (in general) where non-smokers are found who protest that the (smoke) injures them, or even if the smoke discomforts them.”

And on the hashkafic level, Rav Zvi Yehudah Kook, the then Rosh Yeshiva of Yeshivat Mercaz Harav, wrote the following letter “to all our brothers and friends in the Beit Midrash and Library” on the second day of Selichot 5737 (1977):

“The request and most pressing need in these holy days of Selichot and Teshuva, days of sincere integrity between man and God and between man and his fellow, is to wean oneself away from and to avoid the habit of smoking leaves of the tobacco plant in our mouths and holy lips as we embark on promoting the splendour of the Torah and the closeness of those who study it.

Praiseworthy is the person who hastens, and who exerts his will power, to do this, to enhance the diligence of Torah and its purity and the display of pleasantness to fellow human beings… Talmidei Chachamim in Eretz Yisrael are called ‘pleasant’ because they have pleasant demeanours and actions… and in this manner bring strength and mutual success to learning, with the help of Heaven, for a Kiddush Hashem and the public good.”

Smoking in IsraelToday

Smoking constitutes a serious environmental pollutant and danger to health. Public awareness of this problem has led to legislation against smoking in public places.

In 1983, the Israeli Knesset enacted the Restriction of Smoking in Public Places Law, which was supplemented in 1994 by an executive order signed by the Minister of Health. The executive order confines smoking in the workplace to specially designated areas where there are no non-smokers, where there is adequate ventilation, and where smoking does not cause a nuisance to other parts of the workplace. The law barring smoking in the last of public places where it had been permitted - shopping malls, schools, airports and lecture halls, as well as restaurants and cafes where a completely separate smoking room is unavailable - went into effect at the end of 2001.

The anti-smoker complains, though, that there is little enforcement of the anti-smoking laws in Israel. Fewer than 1,000 fines for smoking in public places have been issued around the country in the past year by municipal inspectors and police, according to the Israel Cancer Association and the Israel Council for the Prevention of Smoking. All this is despite the reality that 76% of Israelis do not smoke. The organizations are not only demanding an increase to the current NIS310 fines, but also significant financial penalties for owners of public places where the law is broken.

Learning from the Flowers

Picking wildflowers used to be a popular pastime, with some even sold commercially. In the mid-1960s, however, the Nature Reserves Authority, with the help of the Society for the Protection of Nature, published a list of protected wildflowers and launched a vigorous education campaign. The public was urged: “Don’t pick! Don’t uproot! Don’t buy! And don’t sell!” The effort saved Israel’s wildflowers, and three decades later it is considered the most successful nature protection campaign conducted in the country. If the public becomes an equally active enforcer of the anti-smoking laws in public places against transgressors, there is no reason why the same result cannot be achieved in the sphere of environmental protection.

 

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

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moshe, 5/13/2005 3:53:47 AM
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