This survey deals with those Jewish sources which have particular reference to environmental matters, and the restrictions upon the actions of the individual both in his own private domain and in public places, to the extent that they affect his nearest neighbors and the community in general. Four general observations may be made:
(1) According to the Bible, the earth has not been given over to man's absolute ownership to use and abuse as he wishes; he merely acts as a custodian to maintain and preserve it for the benefit of his contemporaries and future generations; stress is laid on the influence exerted by the environment on the mind and spirit of man. The special talmudic approach to the individual's duty to protect and preserve public property is illustrated by the story told in the Tosefta of the man who threw boulders from his land onto the public highway. A pious person (ḥasid) chided him: "Dolt, why are you throwing stones from a place which does not belong to you to one which does?" The man was scornful of the hasid. Eventually,
(2) Protection of the public is a constant motive.
(3) Although the regulations in the Talmud are cast in typical casuistic form, a number of general principles or basic guiding rules may be inferred, which are capable of extended application in the light of existing conditions.
(4) Although many of the rules fall within the specific context of what may be termed tort concepts, such as private nuisance, they have clear public law projections because of the religious character of Jewish law.
The Protection of Nature
THE FALLOW YEAR
The idea of preserving nature clearly inspires the biblical command concerning the fallow year (Lev. 25:1–5).
Maimonides in his Guide of the Perplexed (3:39) explains as one of the reasons for the fallow year "that the earth shall increase its yield and recover its potency." The clearly religious nature of the commandment extends its immediate utilitarian purpose and turns it into a general overriding principle of the widest application to the natural environment as a whole.
THE PROHIBITION OF WASTE
The peculiarly Jewish religious attitude towards nature is also to be seen in the rule forbidding the purposeless destruction of things from which human beings may derive benefit. The prohibition covers the destruction of animal and vegetable life as well as inanimate objects.
The reason for the prohibition in connection with fruit-bearing trees (see below) is given by the author of Sefer ha-Ḥinnukh in the following words: "to inculcate in our hearts a love of the good and the beneficial so that it becomes part of us and we separate ourselves from evil and destructiveness. That is the way of the pious, of those who observe religious practice – they love peace and rejoice in the well-being of their fellow-men, not even a mustard seed will they destroy" (Commandment 529).
THE FELLING OF FRUIT-BEARING TREES
The Bible prohibits the felling of fruit-bearing trees in time of war (Deut. 20:19), and the halakhic Midrash to this verse extends the prohibition to failing to irrigate the trees. The rule, however, is not confined to destruction in time of war, but is of more general application. Maimonides states it in the following terms: "Fruit-bearing trees growing in the countryside are not to be cut down, nor are they to be deprived of water so that they dry up and wither. Whoever cuts down (such trees) is liable to the penalty of flogging, and this not only during times of siege, but whenever they are wantonly destroyed. They may, however, be cut down if they damage other trees or a neighbor's land, or because it is too costly to maintain them. The Torah only forbids wanton destruction" (Yad, Melakhim 6:18; cf. Talmudic Encyclopaedia, S.V. Bal Tashḥit).
The rule is further extended to all objects, including buildings, unless their demolition is necessary for essential human needs. A case of the destruction of trees in the Bible which appears to contradict the clear proscription contained in Deuteronomy (II Kings 3:19) is regarded by Rashi and Kimhi as exceptional in view of the special circumstances, in which higher national considerations were involved.
THE REARING OF SMALL CATTLE IN EREẒ ISRAEL
The Mishnah proscribes the breeding of small cattle except in Israel (BK VII:7), and the Talmud comments that it refers to "small cattle, but not to large, since intolerable restrictions are not imposed on the community, and whereas small cattle can be imported, large cattle cannot" (BK 79b). Rashi ad locum explains the prohibition by saying that the purpose of the regulation was to encourage settlement of Ereẓ Israel, and small cattle crop the soil so closely that it is impaired; they are also inclined to stay and trespass on the land of others.
The seriousness with which the prohibition was regarded from a religious (public) viewpoint is illustrated by the following incident related in the Talmud: There was once a pious person who suffered from heart disease. His doctors advised him to drink warm milk each morning, and for this purpose he acquired a goat which he tied to his bedpost. Some days later, friends came to visit him and when they saw the goat tied to the bedpost they said: "An armed robber is in the house of this man. How can we go in to him?" When on the point of death, he himself declared: "I know that I have not sinned except as regards the goat, when I transgressed against what my colleagues had said." Further it is reported that R. Ishmael said: "My father's family belonged to the landowning class in Upper Galilee. Why were they ruined? Because they pastured their cattle in the forest… but there was also a small field nearby (belonging to another) and they led their cattle on to it." In the talmudic period the regulation was extended to the Jewish settlement in Babylon (BK 80a).
SEWAGE AND ODOR
The injunction of the Bible providing for the sanitary disposal of human waste (Deut. 23:13, 14) is formulated in a more comprehensive fashion by Maimonides: "It is forbidden to withdraw within the camp or to any chance place in the open fields, but it is a positive precept to set aside a special place for the purpose…. Likewise it is a positive precept that each one shall have with him a spade as part of his military equipment so that he can dig a hole for his needs and thereafter cover it up" (Yad, Melakhim 6:14, 15). In his comment upon this command, the author of Sefer ha-Ḥinnukh stresses in a still wider perspective the importance of cleanliness as a means for promoting the life of the spirit. "It is very well known that cleanliness is one of the virtues that conduces to holiness of mind" (Commandment 566). The precept is not confined to military camps, but applies to all human settlements (TJ Eruvin 5:1). Within the context of the Jewish law of
The rabbis were stringent about public places being made insalubrious. They distinguished between summer and winter. "Nobody has the right to open up his drains or clear his cesspits in the summertime; that may only be done during winter" (BK 6a). Rashi explains that during summer it is pleasant out of doors and therefore wrong to make the place unsightly and malodorous, whereas this consideration does not apply to the rainy season.
The same passage also provides that although the disposal of sewage may be permitted, any injury caused thereby must be compensated for. The same rule is laid down by the Codes (Maim., Yad, Nizke Mammon 13:13; Sh. Ar., HM 104:31).
The Mishnah also prohibits pollution by industrial effluent. "Flax water must be kept away from vegetables" (BB 11:10), and the principle underlying it is naturally of general application.
The ruling of the Mishnah (BB 2:9) that "carrion, graves, and tanneries must be 50 cubits from a town" is ascribed to the bad odor which they emit, and for the same reason the Mishnah states that a tannery may be sited only on the east of a town, since the winds prevailing in Israel are northwesterly. The odors of privies are also included (BB 23a). These instances given by the Talmud are merely examples, and all like instances are comprehended in the prohibition. Thus R. Asher b. Yehiel (1250–1327, Germany-Spain), replying – inter alia – upon a geonic responsum regarding water pollution, gave a ruling about stagnant water which penetrated a neighbor's house and gave off an offensive smell (Responsa 108:10; cf. Tur HM 155:20–26; Sh. Ar. 155:20).
On the other hand, the rabbis composed a special benediction on fragrant odors "which give enjoyment to the soul and not to the body" (Ber. 34b).
Air pollution is also the subject of a number of mishnaic provisions. "A permanent threshing floor must be kept at a distance of 50 cubits from a town. One should not set up a permanent threshing floor on his own property unless there is a space of 50 cubits in every direction" (Mishnah BB 2:8). Rashi explains that the prohibition is because of the chaff which is injurious to humans and is also liable to affect sown fields. The same applied to all industrial waste, and Maimonides states that it applies to any operations which create dust, whatever the direction of the prevailing winds (Yad, Shekhenim 11:1).
Among the ten regulations enacted on entering Ereẓ Israel is one which, in order to preserve the amenities of Jerusalem, proscribed the erection of kilns which emit smoke and blacken the surrounding buildings (BK 82b). R. Nathan in the Tosefta generalized this rule by providing that kilns must be kept 50 cubits from any town (BB 1:7), and smoke damage is included among those injurious acts to which no legal title can be acquired by prescription (BB 23a). The geonim later did not prescribe a specific minimum distance for removal, but insisted that kilns must always be kept at such a distance that the smoke will not be a source of injury or give rise to any nuisance or annoyance (cf. S. Assaf, Teshuvot ha-Geonim 10:32).
The particular significance of smell, smoke and similar sources of damage are explained by Naḥmanides in the 13th century: "Since they cause injury to the person no prescriptive right can arise, for that only applies to pecuniary damage. Pools of water, lime, stones, and debris will affect only the fabric of a person's house and he may well acquiesce therein, even if real damage is done. Smoke, however, and privies give rise to damage and annoyance to the person, and no prescriptive right can be acquired" (Novellae to BB 59b).
According to the Tosefta, a person who digs a cistern or water hole for public use may wash his face and hands and feet there, unless there is mud or excrement on his feet. If the cistern and water hole, however, provide drinking water, he may not wash himself at all (Tosef. BM 11:31).
The fear of polluted drinking water is also manifested in the talmudic prohibition against drinking water which has been left uncovered for any length of time, since insects or other harmful matter may have contaminated it (AZ 12b; see also 30a and b).
The protection of water from pollution served as a cause of action against anyone who dug a cesspit close to a neighbor's well. The geonic responsa cite an instance which came before R. Samuel bar Ḥofni of Sura in the early tenth century. Reuven had a well adjoining the boundary of his land. Shimon came along and built a privy nearby at the prescribed distance of three tefaḥim. Reuven sued Shimon for the damage caused to his well water. Shimon defended by claiming that in accordance with rabbinical precept his privy did not adjoin the pit. R. Samuel was asked whether Shimon came along and built a privy nearby at the prescribed distance of three tefaḥim. Reuven sued Shimon for the privy must be removed from the well to a distance even up to 20 amot, at which the well water would not be affected. It was no argument, he added, that the privy had already been built, since no prescriptive right can be acquired when serious damage is suffered.
Noise is an actionable civil wrong. According to the Talmud, millstones which create noise and vibrations must be kept at a prescribed distance (BB 18a and 20b). The Shulḥan Arukh extends the principle by making the distance vary with the size of the millstones, and making it apply to noises from other sources (HM 155:7).
An exception is made in the case of a school where the convenience of neighbors must give way to the needs of education (ibid.). This exception is again extended by the Shulḥan Arukh to all activities connected with the performance of religious precepts. In the case of a large school having at least 50 pupils, Rashi and Naḥmanides would, however, enable neighbors to prevent its continuance on account of excessive
AMENITIES OF PROSPECT
The Bible prescribes for an open space to be left surrounding the levitical cities (Num. 35:1–5). Maimonides, in summarizing the law, adds that it applies equally to other towns and cities in Ereẓ Israel (Yad, Shemittah 13:1–2, 4–5). Rashi explains that the reason for this open space, uncultivated, without trees or buildings, is to allow for free passage of air (Sotah 27b). The Sefer ha-Ḥinnukh suggests that since the levitical cities served national requirements (the levites were chosen to conduct divine services and people always came to consult them), they were to be kept pleasant and attractive to add to the luster of the people as a whole (Commandment 342). The same consideration lies behind the mishnaic rule that trees generally are to be kept at a distance of 25 cubits from a town, and carob and sycamore trees up to 50 cubits. R. Solomon b. Adret went further and introduced the rule that townspeople cannot forgo or waive anything which has been prohibited in the interest of the town's amenities.
Major environmental protection problems which concern us today are dealt with extensively in old Jewish sources. They indicate various ways in which spoiling of the environment in its various aspects may be prevented. Rules are laid down with some degree of particularity to control and inhibit the abuse of private rights to the detriment of others, both neighbors and local inhabitants.
Biblical passages dealing with the preservation of nature were elaborated in the Mishnah and Talmud to circumscribe and even remove possible sources of environmental damage. Its importance was emphasized by the fact that the rabbis were not merely content to rely upon the sanctions of the general law, as the law of torts but promulgated enactments specifically devoted to the environment and its protection, such as regulations relating to Jerusalem because of its special status, which were subsequently in part given wider application. Of utmost significance in this regard was the rule that while a particular injury might not be actionable according to the letter of the law, it was, nevertheless, forbidden. Equally important was the rule that no prescriptive right could be acquired in respect of any environmental tort of a serious nature which resulted in injury to the person, individual or collective, as distinct from injury to property, on the basis that no real acquiescence obtains in such cases.
The precise standards imposed by the Talmud to measure and control the injurious effects of the various sources of environmental injury were treated not as absolutes, but according to prevailing conditions, and thus were (and still are) adaptable, as times change. Injury to the environment included not only cases of proximate causation, but also those in which conditions were created which might reasonably give rise to nuisance.
E.C. Freudenstein, in Judaism, 19, 406; N. Lamm, Faith and Doubt (1971), ch. 6; Talmudic Encyclopaedia, S.V. Bal Tashḥit, Behemah Dakah, Gilui, Harḥakat Nezikin; B. Yashar, Ha-Torah v'ha-Medinah, 2 (1950) 59–64; M.Z. Neriah, Shevilin, 1 (1962), 47–49.