Jewish Law in Our Times

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

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15 - ôThere is no Beauty like the Beauty of Jerusalemö

In our last two columns, we discussed the beauty of the landof Israelin general and of the Levitical Cities in particular. However, there is one particular city whose beauty is unsurpassed. “There is no beauty like the beauty of Jerusalem” (Avot De’Rabbi Natan 28). “Ten measures of beauty descended to the world - Jerusalemtook nine of them and all the rest of the world took one” (Kiddushin 49b). “The fairest of sites, the joy of all the earth… the great king’s city” (Tehillim 48:3).

But Jerusalem’s natural beauty requires looking after, and, indeed, we find a number of regulations and customs that were instituted by Chazal in order to preserve the splendour of the city and the quality of life of its inhabitants.

In Gemara Pesachim (7a), we find that “the marketplaces of Jerusalem are usually swept each day” and among the “ten things were said about Jerusalem” (Bava Kamma 82b) we find included the following practices: “we do not make garbage dumps in Jerusalem because of the creeping creatures (that naturally thrive there)… we do not make kilns in the city because of the smoke (which would blacken the city wall and mar the beauty of Jerusalem).”

“We Do Not Create Gardens and Orchards in the City”

A further regulation is that “we do not create gardens and orchards in the city.” The rationale for this is that gardens and orchards would bring in their wake piles of decayed matter created by the need to uproot and discard the dead plants and weeds (which in turn would mar the beauty of the city), or alternatively because to maintain a garden also involves fertilizing it (which in turn would create a tremendous stench in the city - see Rashi on the word “sirachon”). Only ‘the Rose Garden’ could be maintained!

The implication of this regulation is that in cities outside of Jerusalemthere is no such restriction on creating gardens and orchards, in which case sowing and planting are prohibited only on the open space outside of the city, but are permitted within the city. If, in fact, this is true, it follows that it is even fitting and beneficial to plant trees in Eretz Yisrael: “Whoever plants trees in Eretz Yisrael, even non-fruit bearing trees, is praiseworthy, because the air quality is thus improved!” (Rabbi Yitzchak HaLevi Herzog, second Chief Rabbi of Eretz Yisrael, Heichal-Yitzchak OC 10).

Chazal clearly wished to preserve the cleanliness of Jerusalemand the health of its inhabitants, as well as the pleasing appearance and orderly life of the city.

The Rambam writes in Hilchot Beit HaBechira (7:14):

Jerusalem is holier than all other walled cities...The following restrictions were enacted in regard to Jerusalem: No corpse is left within it overnight. Human bones cannot be transported within it. Homes cannot be rented within it. A resident alien may not be given the opportunity to settle in the city. No graves may remain within it except for the graves of the House of David and the grave of Huldah, the prophetess, which were there from the days of the first prophets.

We should not plant gardens or orchards within the city. It cannot be sowed or plowed, so that it will not smell foul. No trees may be maintained in it, except for a rose garden which was there from the days of the first prophets. We may not maintain a garbage dump there, because of creeping animals. We may not have balconies or protrusions extending into the public domain because of Tum'at Ohel. We may not create furnaces within it because of the smoke...

A house in the city which is sold is never designated as the permanent property of the buyer. A house in the city is never designated as leprous. It cannot be judged as an apostate city. An Egla Arufa is never brought from it. [The last four apply] because [Jerusalem] was never divided among the tribes.”

The opening words of the Rambam allude to the fact that the requirement for extra special care in respect of these ten virtues for which Jerusalem was praised is in some way connected with the city’s holiness!

May Trees Be Planted in JerusalemIn Our Times?

We mentioned earlier Chazal’s ruling against the creation of gardens and orchards in Jerusalem, in view of the ecological hazards caused by natural waste products and the pungent stench emitted therefrom. Chazal wanted to protect the natural beauty and splendour of Jerusalem, “the epitome of beauty and joy of all the earth, the great king’s city,” to which people flocked from all ends of the world on the festival pilgrimages, for the purpose of fulfilling their obligation to offer sacrifices in God’s House or to have matters adjudicated upon by the Sanhedrin which sat in the Lishkat HaGazit.

The Tosefta (Negaim 6:2) adds one further restriction, also mentioned by the Rambam (cited above): Jerusalemmay not be planted or sowed or plowed due to the decay thereby caused; nor may trees be planted in the city. By contrast to the planting of gardens and orchards, no reason is given by either the Tosefta or the Rambam to explain why trees may not be planted in the city. In reliance on this ruling, Rabbi Ishtori HaParchi rules stringently in his 13th century work (Ch. 6, “Caftor Va’Ferach”) to prohibit the use of lulavim that grew in Jerusalem, “in sin,” even nowadays after the Temple’s destruction and the exile of the Jewish People!

By contrast, the 16th century Posek, Rabbi David ben Zimra (Radbaz II:4233), justifies the practice of those who are not concerned (already in his day) with the special sanctity of Jerusalem, on the grounds that Jerusalem was only sanctified for all times in respect of Biblically mandated matters, “but Rabbinical prohibitions only remain in force where the reason for which they were enacted continues, and if the reason no longer applies, neither does the original decree!” The Radbaz continues:

“The reason for the prohibition on planting gardens and orchards is so that Jerusalemwill not smell foul and repulse pilgrims and visitors on account of its pungent stench, but now that Jerusalemis controlled by the non-Jews this reason does not apply… As for the prohibition against planting trees, the reason for this is because of Ohel Hatumah [the tumah conveyed by the tree’s overhanging branches to objects and persons under the same roof as, e.g., a human corpse, which in turn impedes visits to the Temple], which is not relevant nowadays when there is no Beit HaMikdash or Aliyah LaRegel…”

Rav Yaakov Emden (Mor Uketzia O.C. 4245) also disagrees with the stringent opinion of the Caftor Va’Ferach: “The ten sanctities only applied to Jerusalemin peaceful times, on account of the splendour and holiness of the Templethat stood there.” In practice, therefore, throughout the generations, the residents of Jerusalemfollowed the lenient ruling on planting gardens, orchards and trees.

 

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, 8/3/2005 3:38:45 PM
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