Two Views on the Theological Limits of Ownership

Legal theorists consider various questions regarding the nature of property ownership, including the degree to which ownership is a function of title or possession.

From a halakhic perspective there is an additional wrinkle: given a theistic worldview, does God's role as Creator impinge on human property rights in any way? Is Hashem said to own "the earth and all it contains" in the legal sense of the term? This question, in addition to having interesting theological roots - the oft-cited dispute between R. Shneur Zalman of Liadi and the Vilna Gaon concerning tzimtzum mamash comes to mind - plays itself out in a number of sugyot. The opening section of the sixth chapter of Masechet Berachot, for instance, explores the basis for the requirement of birchat ha-nehenin, concluding that anyone who derives benefit from this world without the prior recitation of a blessing has stolen from the Almighty.

Along similar lines, in a moving letter (published in Community, Covenant, and Conversation, pgs. 293-302) Rabbi Joseph Soloveitchik posits that the commandment of redeeming the firstborn is a symbolic gesture declaring that the firstborn son, the father's presumptive heir, belongs not to the parent but to the Almighty.

The above sources leave unresolved, however, whether or not God continues to retain any halakhic property rights after one recites the beracha or redeems the son. Put differently, can we identify instances in which God's ownership interferes with that of a person in a halakhically significant fashion? Although numerous sources can be brought to bear on this question (such as the laws of suicide and chavalah), I'd like to highlight a relevant dispute between Rashba and Ritva. First, though, some background is in order.

In numerous contexts the Gemara introduces the principle of קם ליה בדרבה מיניה: where a single act incurs multiple punishments, the lesser consequence is not enforced. The Gemara in Sanhedrin (10a), however, rules that if false witnesses (עדים זוממין) attempt to put a girl to death for incest and simultaneously to require her father to pay a fine, the witnesses are liable to both punishments. The Gemara justifies this ruling on the grounds of מיתה לזה ותשלומין לזה, meaning that where there are two separate addresses that are the targets of the obligations - in this instance, the father and daughter respectively - the two chiyuvim are sufficiently independent such that one is liable for both.

This limitation of מיתה לזה ותשלומין לזה, however, is seemingly contradicted by numerous sugyot in Shas, including the Gemara Ketubot (30b-31a), which rules that one who ate terumah while at the same time tearing his friend's shirt, is liable to death by the hands of heaven and must pay damages. This is difficult. There seem to be two "addresses" or causes of liability in this case: the death due to eating the food, and the financial liability caused by tearing the friend's shirt. Why, then, does the Gemara nonetheless apply the principle of קם ליה in this instance?

Rishonim offer a variety of resolutions. Rashi (Ketubot 31a s.v. ve-kara) explains simply that the Gemara in Ketubot disagrees with the sugya in Sanhedrin, maintaining that מיתה לזה ותשלומין לזה is not an exception to the exemption of קם ליה. Rabbeinu Tam (cited in Tosafot 30b s.v. Rav Ashi) suggests that the principle of מיתה לזה ותשלומין לזה was never intended as a universal rule governing all cases of קם ליה, but rather is a local halakha applicable to the case of false witnesses in particular.

A third view among rishonim distinguishes between an instance of mita bidei adam and mita bidei shamayim: the principle of מיתה לזה only applies to the former, not the latter. The reasoning underlying this differentiation, however, is opaque. What difference should it make whether the death penalty is to be implemented by beit din or the hands of heaven?

Rashba (Ketubot 30b s.v. Rav Ashi) explains that in fact, anytime the beit din is not involved, the capital punishment somehow is considered to "belong" to my friend as well. Therefore, both cases are considered instances of responsibilities toward a single party, and קם ליה is applied.

Ritva (ibid.), however, while presenting a view that is structurally similar to Rashba, implies that both obligations belong not to the friend but rather to heaven. His reasoning, though, is unclear. In what sense are both obligations directed toward heaven?

Rabbeinu Yonah (Sanhedrin 9b s.v. chazar) explains:

והתירוץ הנכון דהתם גבי תרומה כיון דמיתה בידי שמים הוא דמחייב לא שייך למימר מיתה לזה ותשלומין לזה. שכיון שאין חטא חיוב מיתה כי לשם בלבד לא אמרינן שיהו התשלומין כי הכל לשם

Although his language is terse, Rabbeinu Yonah seems to be positing an astounding idea: in the case of mita bidei adam, it is clear that the death penalty and monetary obligation involve two different addresses. In the instance of mita bidei shamayim, however, in fact the two addresses are truly one: the death penalty is directed toward heaven, and the monetary penalty is also considered to belong to God. Any payment to my fellow man is, in a larger sense, a payment to Hashem. Thus Rabbeinu Yonah and Ritva seem to be suggesting that all money is halakhically considered to belong to God, resulting in the exemption of payment on the part of the individual who eats terumah and simultaneously tears his friend's clothing.

It would appear plausible, then, to suggest that the debate between Rabbeinu Yonah/Ritva and Rashba centers on precisely our opening question: the former maintain that God's ownership indeed places halakhic limits on my own, whereas the latter perhaps denies this interference.

[In an upcoming post, I hope to suggest that Rashba and Ritva's dispute may find echoes in their fascinating dispute concerning coercion for tzedaka.]

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