Communal Responsibility
Halacha places high importance on a community's responsibility to one another. A community is halachically obligated to fund communal needs. These needs include security needs; a community is required to build a wall and gates. These needs also include religious needs; a community is required to build a synagogue and ensure that is well stocked with a sefer Torah and seforim.[1] The community is mandated to build these structures even if a majority does not want them- all that is necessary is for one member of the community to ask for them.[2]
Rationales behind Communal Responsibility
Extent of Communal Responsibility
A big component of the halachic discussion around how far communal responsibility extends comes from a crucial Tshuva of the Maharik. This Tshuva of the Maharik is quoted by the Rama[5] and by many generations of Achronim, thereby making it a really focal point for the discussion of communal responsibility.The Maharik argued that in a case where there is a risk to the Jewish people of a region, all Jewish communities are required to pitch in. We will structure the article around the Tshuva and the response of other poskim in order to examine how poskim viewed the question.
Background of Maharik's Ruling
In the late 1470s- a major blood libel broke out in Regensburg. The city of Regensburg imprisoned seventeen leading members of the Jewish community. After repeated negotiations the city of Regensburg agreed to release the imprisoned Jews in exchange for the payment of an immense sum; 23,000 florins. The Jewish community of Regensburg asked all the other communities of Germany to assist in paying the expense. The Rabbonim of Germany in turn asked the Maharik, Rav Yosef Colon (1420-1480), over whether they were obligated to pay. It is to these rabbonim that the Maharik directed his ruling.
Ruling of the Maharik
The Maharik noted that were the blood libel not to be stopped, it would lead to the persecution of other Jewish communities in Germany. The Maharik said that any community that would potentially be a target of the blood libel was obligated to contribute to stop the libel from spreading in Regensburg.
In the Maharik's exact worlds
It is according to my humble opinion that all those communities (the Jewish communities of Germany) which are fit to be considered and almost certainly, that God forbidden, also upon them should pass the poisoned chalice, if this matter is not repaired as much as possible. The law is that they (the other Jewish communities at risk of blood libel) too should bear the burden, for because the safety of the holy community of Regensburg is their safety, and the opposite, the opposite, God forbid.[6]
Proof of Maharik
The Maharik brought proof from the Gemara in Bava Metzia 108a- the gemara there how to assess the expenses for an urban gutter. A gutter must be regularly cleaned in order to allow outflow. The Gemara says that if the downriver community cleans the gutter- the city's residents must contribute to the downriver community's expenses. If the gutter is clogged, the downriver community is first at risk of potential flooding. If the gutter is overfilled, next at risk are the residents of the city. Rashi explains that since the city is saved from potential danger of flooding by the gutter cleaning, it is liable to contribute to the expenses of gutter cleaning.
Maharik's Response to Potential challenges
The Maharik extends this analogy to his case. If the dangerous situation in Regensburg is not resolved, the catastrophic wave of anti-Semitism will engulf all of Germany.
The Maharik notes a potential challenge to his comparison- he is comparing the physical phenomenon of flooding with the social phenomenon of anti-antisemitism. It is among the laws of physics that if too much rain occurs the gutter will flood. There is a certain and predictable danger of flooding. In contrast, the wave of persecution is not inanimate- but the product of human decisions and thereby more uncertain.
But here the danger is not so certain, that one can doubt and say maybe this false libel and slander won't spread in other places.[7]
In response, the Maharik responds with two arguments. The first is a chillingly prophetic analysis on the spread of antisemitism.
We see that, because of our many sins, all of their plots on us are to overpower and ambush us, and Hashem in his great mercy will save us from their hands- every situation like this (of antisemitism) is a certain danger.[8]
The Maharik argues that the current expression of antisemitism in Regensburg is not merely a one-of, but rather an expression of deeper antisemitism that lurks behind the seemingly calm exterior of German society.
The Maharik goes on to say, that even were antisemitism to be a rare threat- Chazal viewed any threat as deserving attention. As chief example, the Maharik notes that communities can nonetheless obligate all of their citizens to pay tax against any threat no matter its likelihood.
Orphans are exempt from paying all Jewish communal taxes, except for urban expenses which benefit the orphans, including the the security expenses of the city. The Gemara lists among the security expenses an enigmatic Turzina. The Aruch explains that Turizna means that the community "purchases horses for the knights so that they can ride outside of the city to see if invaders are coming."
The Maharik argues that if even orphans are required to contribute to a warning system for a potential threat, then that means that even avoiding a potential threat counts as a security expense.
The Maharik brings further proof from the obligation of a city's residents to build a wall. The wall is only built to defend against a potential danger- yet we force all the residents of the community to pay because of the possibility of a threat to the community. On these grounds, ultimately, the Maharik rests his case with the insistence that all of the potential communities in Germany at risk because of the Regensburg Blood Libel must contribute.
The Maharik concludes by placing a decree of cherem and a curse on anyone from the vulnerable communities of Germany who does not contribute to the Jews of Regensburg.
Premises of the Maharik's Argument
Given the wide scope of the Maharik's arguments- I have restated a bullet point order of his assumptions so as to provide an easy summary.
Here is a summary of the Maharik's assumption on the realia.
- The Blood libel in the community of Regensberg can be resolved by the Jews of Regensburg arranging a payout with the local government there
- Were the Jewish community of Regensburg not to arrange a financial settlement, Jewish communities all over Germany would be at risk
The Maharik's argument is as follows
- If there is a danger that presently is harming A, and if not resolved will harm A, and from there harm B
- Both A and B must jointly pay to prevent the danger- since both are at risk
- The Maharik proves this from the gutter case of Bava Metzia 108a.[9]
- This is so even if the risk is not certain because all risks of danger are considered certain risks
- The Maharik proves this argument Bava Batra 8b- since orphans are given a wide series of tax exemptions, but are nevertheless required to pay for scouts lest an invader, come- that indicates potential danger is a source of obligation.[10]
- The Maharik also proves this from Bava Batra 7b- we force all inhabitants of a city to contribute to build a wall out of concern for potential danger.[11] We force even those who are not inhabitants of the city but own property in the city, because their property is subject to danger. This implies that merely being subject to shared danger is the source of the obligation to pay, not a preexisting relationship.[12]
- This fact is crucial, since the other Jewish communities of Germany do not have a formal relationship besides their shared country
Explanations of the Maharik's Ruling
After the Rama included the opinion of the Maharik in the Shulchan Aruch- many commentators discovered a seemingly contradiction within the Rama. The Rama describes a case of person who, while trying to save his himself or his property, also ends up saving other people. Do the other people owe the rescuer anything? The rescuer was saving his own items, not solely doing a magnanimous deed. The Rema writes that in such a case, the rescued person pays the rescuer if one of the following two conditions are fulfilled
- The rescuer had to spend additional money to save the other person, more than he would have spent had he saved only himself
- The rescuer performed the rescue with intent to save the other people
This ruling of the Rama flatly contradicts the Rama's citation of the Maharik. In the Maharik case neither condition was applicable
- The Community of Regignsburg spent no more on behalf of the other communities
- The Community of Reginsburg paid with intent to save itself
Explanation of the Shvut Yaakov
The Shvut Yaakov answer the question by challenging its premises.[13] The Maharik case is dealing with a community, while the rescuer case is dealing with private individuals. The Shvut Yaakov says that community have far wider powers to demand compensation than individuals.
The Shvut Yaakov premises this distinction on the principle of Kdeira Debei Shutfei. The Gemara explains that in a certain case, a community can cut down a privately owned tree and pay the tree owner later. How can the community appropriate the tree without even paying for it. The Gemara cites the rationale of Kdeira Debei Shutfei- a phrase that literally means a dish owned by many partners. The Rashbam explains that in a case where a dish has multiple cooks, each cook assumes that the other cook will take responsibility for the dish. Ultimately the dish will not be cooked, because each person will pass off responsibility. In order that community's behave proactively, the community is permitted to chop down and raise the money later. The Shvuut Yaakov states that in a case of communal danger- halacha incentives a speedy response lest no community take action. Therefore- the first community to respond is awarded compensation.
Explanation of the Netivot Hamishpat
The Netivot Hamishpat links the ruling of the Maharik to a wider rule about partners.[14] The Netivot explains that anytime two people need the same thing; each party can force the other to contribute. If one party does the essential task- then the other person must compensate the doer. If the task is not essential, then the conditions of the Rama apply. The Netivot says the Rama's case is one where the rescued could have been saved without the rescuer. The Netivot explains that the Maharik's case is where the other communities could not be saved without the intervention of Regensburg. It is interest
Opponents of the Maharik's Ruling
The Maharik's wide conceptual leap was deeply controversial in the generations to come. Most of the attackers viewed the Maharik as not having strongly grounded his ruling in the Talmudic text. They attributed this perceived carelessness of the Maharik to the exigencies of the crisis in Regensburg. The Masah Melech wrote "love causes the straight line to be crooked, that is the order of the law."[15] The Masah Melech viewed the Maharik's ruling as resulting from the Maharik's empathy with the brutal suffering of the Jews of Rothenburg, at the expense of a proper reading of the law.
The Maharik Himself- Contradiction
Among the opponents of the Maharik seems to be the Maharik. In a different tshuva (124), the Maharik was asked to decide a tax case.[16] The Duke of Savoy began to expel the Jews of Savoy.The Jewish community paid off the Duke to prevent the expulsion, and the community in turn taxed its residents to collect the sum. Some property of a nonresident was in one of the houses of the Jews who would have otherwise been expelled. The Jewish community demanded that the nonresident pay the tax, since the nonresident's property would have lost had the Jews been expelled.
The Maharik said that the nonresident was exempt from paying the tax. The Maharik supported his ruling with the gemara's case of jettisoning. The Gemara says that in a case where jettisoning is required, all passengers with cargo jettison in proportion to the weight of cargo they have brought. If a passenger has cargo that weighs ten percent of the total cargo-weight, the passenger is required to throw off ten percent of the cargo which is jettisoned. After the fact, the cargo owners who didn't throw over their cargo must compensate cargo owners who threw off more of their cargo than required. Passengers who have no cargo on board do not need to compensate the cargo owners- because only people who are causes of the danger must pay. The heavy cargo is the cause of the danger which required jettisoning.
The Maharik applies the cargo principle in this case. All inhabitants of the city are "causes" of the potential expulsion. The nonresident was not a cause of the "potential expulsion," and hence is not responsible for the tax imposed to escape the expulsion.
This tshuva of the Maharik is in contradiction to the Maharik's ruling in the Regensburg case. The Maharik in the Regensburg case said that anyone at risk of danger must pay. In this case, the Maharik said that only those who caused the expulsion must pay.
Among the earliest to spot this contradiction was the Chacham Tzvi, who concluded that this Maharik should be understood as being the primary ruling, and a repudiation of his own ruling in the Regensburg case.[17]
The Admat Kodesh argues that the teshuvot of the Maharik must be distinguished by nature of the respective danger. In the Regesnsburg case, "the false accusation that they accused was a case of danger of death were they not to have spent money, as in the case of anti-semitism, and so is found until this very day, that they accuse them and they endanger them in them I the matter." In the case of the Maharik and the Duke (Maharik 124), the Admat Kodesh the danger was only financial. The Duke wanted money out his greed for the wealth of the Jewish communtiy. Therefore the Maharik only obligated the asset holders that the Duke knew about. The Ducal slander was with specific intent, squeezing money out of the Jews of Savoy. Hence, the Maharik limits obligation. In contrast, in the Regensburg case, the accusation was a general antisemitism- hence all Jews in the vicinity must pay to prevent the libel from spreading.[18]
Dispute with the Rashba
The Rashba ruled on a similar case to the Maharik. The Rashba was asked about a situation where two Jews of Marseille were accused of putting on an anti-Christian Purim Play. The nobleman of Marseille fined the collective Jewish community as punishment. The Rashba said that the two Jews who had allegedly performed the play were exempt from compensating the community for the immense sum. The Rasha premised this ruling on the idea that the two Jews were not liable for causing the community to be fined.
However, according to the ruling of the Maharik in the Reginsburg case, anyone at potential risk of danger have to compensate their saviors. The Rashba's two Jewish actors were at risk of harm were it not for the community paying the fine.
Similar Opinions to the Maharik
- ↑ All of this from Shulchan Aruch CM 163:1
- ↑ Rama CM 163:1
- ↑ Teshuva of Sma printed in Sefer Zikaron leMaran Grib Zolti p 325 The Sma argues that the list given by chazal is a set one. in all cases not listed by chazal as being necessary the community can only mandate action on a majority basis. This is in contrast to the Netivot- who views the list as depending on a community changing needs
- ↑ Netivot Hamishpat Biurim 196:3, Mishpetei Uziel, Volume IV, Choshen Mishpat 3:14 This answer argues that obligation does not stem from any decree of chazal. This answer also does not view a community as being different than any other group of people- this answer instead views a community as being merely a big partnership with its own set of needs.
- ↑ Rama CM 163:6
- ↑ Shut Maharik Shoresh 4
- ↑ Continued quotation of the Maharik quoted prior
- ↑ continued quotation from Maharik
- ↑ The Shagat Aryeh (his comments on the Maharik are printed in the back of the Machon Oraita 1988 edition of Shut Maharik) says that the reason for the obligation of the city residents to assist the downstream inhabitants in gutter repair is for a different reason. The city residents harm the resident downstream if the gutter is not repaired, since all the waste will gather on the downstream. Therefore, the city participates in gutter repair not because the city is at risk- but rather because the city is the malefactor. This reading of the Shagat Aryeh removes this Gemara in Bava Metzia as being a proof for the Maharik. The Masah Melech (Masah Melech Chelek 2, Shaar 4) says that the city residents and downstream residents are in a state of partnership because they reside together, which is not so in the case of Regensburg, where the communities are not in partnership
- ↑ The Masah Melech (2:4.4) is not impressed by the Maharik's proof. Orphans are obligated in taxes that relate to protection. Even if that protection is for an unlikely scenario, this does not mean that orphans only pay taxes for certain dangers. The Maharik spins this assumption out of nowhere Shut Mishpatei Shmuel (96) brings a similar objection to the Maseh Melech. Why are we assuming that we can comparing an orphan who is a citizen to someone who is not at all a citizen. An orphan is obligated to pay taxes- someone who does not live in said city has no such obligations. The Maharik seems to view an orphan's obligation to pay for defense not as stemming from a formal tax, but rather compensation to the city for benefit This in turn turns on how to understand the way the Gemara exempts orphans from some taxation. The Gemara says that orphans only pay taxes on what gives them benefit; since, lacking a parent, they lack the legal ability to forgive their money. The Gemara assumes that a resident of a city who pays taxes for what they don't need, thereby forgives the city for taking the money. The Maharik is assuming that the Gemara formally exempts orphans from taxation and only makes them liable for benefit they receive. Hence, the Maharik sees orphan's need to pay for scouts, as proof that protection against an uncertain menace is a benefit. The Mishpatei Shmuel also brings a different line of attack- the fact that a city has scouts watching for raiders does not prove that we are extra strict in being safe against minor threats. You only have scout watching if there is in fact a risk. Further, a big city is at a high risk of being attacked by invaders, so having scouts isn't exactly a crazy thing
- ↑ This argument of the Maharik is bolstered by the context of the Gemara. The Mishna and Gemara in Bava Batra 7b quote a tannaic dispute about the obligation to build a wall. The Tanna Kamma of the Mishna explains that all cities are required to build a wall, whereas Rabban Shimon Ben Gamliel insists that only cities on the border have to build a wall since they are at certain risk of raid. The Gemara explains the opinion of the Tanna kama that "sometimes raiders come." This formulation of the Tanna Kamma implies that we are concerned about danger no matter the uncertain nature
- ↑ The Masah Melech (2:4.4) rejects this argument. He argues that inhabitants in a city are obligated in the expenses for a wall out of their joint state partnership. This state of partnership does not exist in the Maharik's case, where the case, where the communities are not joined into a wider community. The Masah Melech rejects the attempt of the Maharik to pass off the property owner point as a proof that anyone affected by a danger must contribute- the property owner is himself a resident in some respects. Even though the property owner does not live in the city, his property gains value as the city prospers, and hence he is a partner in the city. The Mahari Bruna (268), a contemporary of the Maharik, records a neat formulation that resolves the Masah Melech's rejection. The Mahari Bruna says that "in slanders not relating to money, even in one city, all the countries are in dangers, as was proved, as a result of our sinfulness in the country of Silesia. We see that all of the country is like one city." The Mahari Bruna asserts that the reason that a city builds a wall is because of shared danger, and that in cases of libel, "the country is like one city" In contrast the Maseh Melech views the obligation to build a wall as an inherently city obligation.
- ↑ Shut Shvut Yaakov 1:158
- ↑ Netivot Hamisphat Biurim 196:3
- ↑ Masah Melech Chelek 2, Shaar 4 The Maseh Melech is making a play on words in his attack He uses the expression "ואהבה קלקלה את שורה" an expression which originates in Bereishit Medrish Rabbah Vayira Parsha 55:8, which Rabbi Shimon bar Yochai uses to explain why Avraham saddled the donkey himself during the akeida and why Yosef rode the chariot himself to greet his father. In both cases, great men performed things ordinarily done by servants out of a sense of love. The Maaseh Melech makes a pun on the word "shura" which means order, and follows it with "shuras hadin," which means the strict letter of the law.
- ↑ Shut Maharik Shoresh 124
- ↑ Shut Chacham Tzvi 132
- ↑ Shut Admat Kodesh 1 Choshen Mishpat 72
