Jewish Law in Our Times

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

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14 - Beautifying Cities: Israel and the Diaspora Compared!

The Mishnah (Bava Batra 2:7) states that “a tree must be distanced 25 amot from the edge of a city.” The Gemara (Bava Batra 24b) cites Ullah’s reasoning for this law - “for the sake of the city’s beautification.” This is explained by Rashi to mean that it is considered aesthetically pleasing for a city to be framed by an expanse of open land. Therefore, no tree may be planted in the immediate vicinity of a city’s boundary.

In view of the importance of beautifying cities, can people of a particular city declare that they aren’t interested about preserving the beauty of their town?

Distancing a tree from a city: to prevent damage or to beautify the city?

The Rashba writes that an act which is prohibited on account of the city’s beauty cannot be waived by residents of a particular town. We have shown in previous columns how, in general, in Halacha, there are certain types of nuisance which are regarded as too important to be ignored. These include smoke, foul odors, and noise, where the injured party’s failure to protest does not establish the perpetrator’s right to continue his offensive practice. Since the damage in these cases is to the injured party himself - not to his property - and causes him to suffer, the Halacha presumes that he never waives his right to restrain the perpetrator. A similar principle operates for aesthetic values of the city, where residents do not have the power to waive enforcement of ordinances protecting aesthetic standards.

The Rashba proves (Bava Batra 24b, ha de’amar) this by comparing the language of the Mishnah in Bava Batra 2:7 which states: “One must distance a tree 25 amot from the edge of a city” to the language of the following Mishnah which states: “One must distance a permanent granary 50 amot from a city... far enough away that the chaff that flies from the granary does not cause any damage [either by injuring the townspeople or falling on their plants by causing them to dry out].” According to the Rashba, the absence of the words “far enough away [so as not to] cause any damage” from the halacha regarding the tree, teaches that the rationale behind distancing a tree is not because of damage, but out of a concern for beauty, “and anything which is due to beauty - cannot be waived by the people of a town.”

Beauty Only in Israel?!

After citing Ullah’s explanation mentioned above, the Gemara then asks: “But surely this prohibition of planting trees in the vicinity of a city has already emerged from another Mishnah (Arachin 9:8) which states that the inhabitants of a city may not turn fields that are on the outskirts of a city into an open expanse, nor may they turn a city’s open space into fields. Under that law, it is forbidden to plant anything within the 1,000 amah space that borders a city. Why then must our Mishnah forbid planting a tree within 25 amot?!”

The Gemara answers that our Mishnah is needed according to the view of Rabbi Eliezer who maintains that only with respect to cities reserved for Levites is it forbidden to convert the open space into fields and vice versa, because the Torah mandates that the open expanse and fields of the Levitical Cities be preserved. With respect to other cities in Eretz Yisrael, however, Rabbi Eliezer holds that the allocation of land surrounding the city is left to the choice of its owners.

Ramban - Only in Israel

The Ramban, in his Chiddushim to Bava Batra 24b, insists that the beautification of a city applies only in Eretz Yisrael. He proves this from the fact that the Gemara asked the above question only after citing Ullah’s explanation, viz. that the trees must be distanced 25 amot in order to beautify the city, rather than asking this question directly on our Mishnah. The Ramban argues that, were it not for Ullah’s explanation, we might have thought that the rationale behind our Mishnah was the need to distance potential damage. If this were the case, we would then have been able to resolve the contradiction between Bava Batra (25 amot distance) and Arachin (1,000 amot open space) on the grounds that the latter refers to Eretz Yisrael, while the former applies to cities with Jews wherever situated! Once Ullah made it clear that even the 25 amot distance is for beautification purposes:

“it is clear that this regulation applies only to Eretz Yisrael, but outside of Israelthis law is of no consequence, and no regulation was enacted; [to the contrary] - it is far better for such cities not to be beautified!”

Only in Israel, therefore, according to the Ramban, did Chazal enact a special regulation to make the land aesthetically pleasing to its inhabitants. This makes sense when we appreciate that Chazal’s enactments were designed to arrange the lives of Jews living in their natural and appropriate land - Eretz Yisrael. By contrast, the responsibility for the internal arrangements for the non-Jews is the responsibility of their judges and sages (possibly as a subset of the Mitzvah of dinim (laws/courts), one of the 7 Noachide Laws).

Ramah - Also in the Diaspora

The Ramah (Rav Meir HaLevi Abulafia, teacher of the Ramban) disagrees with the Ramban (Bava Batra ibid.). According to Ramah, the law forbidding the conversion of a field into an open space or an open space into a field applies also in Chutz La’aretz - otherwise the Gemara could indeed have answered its question by distinguishing between Eretz Yisrael (1,000 amot) and Chutz La’aretz (25 amot). Clearly, therefore, argues the Ramah, the reason for the open space is not for beautification, but for the needs of the people [wherever in the world they are situated]: “this open space serves as pasture land for the townsfolk’s animals and for their moveable possessions.”

Rambam - In IsraelOnly?

Interestingly, the Rambam cites the halacha regarding the open expanse of land around a city in Hilchot Shemittah Ve’Yovel (13:2-5) - the laws of which clearly only apply in Eretz Yisrael. By contrast, the requirement to distance a tree from the city is cited only in Hilchot Shecheinim (10:1) - laws which apply wherever Jews dwell, whether in Israelor abroad. Having said that, the commentaries on the Rambam seem to limit his words to Eretz Yisrael only.

Conclusion

The majority of the Rishonim thus conclude that the emphasis on beauty applies only in Eretz Yisrael. And, indeed, the reality is that Jewish towns in the Golah did not practise these laws for many years. This in turn diminished the importance of beautifying cities, a practice which was regarded as having little connection with the world of Torah and Halacha, and resulted in the attrition and near disappearance amongst Jews throughout the world of the principles of environmental consciousness as demonstrated by the Mishnah and Gemara in Arachin and Bava Batra.

 

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, 6/30/2005 3:30:10 PM
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