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Land, Liens, and Ts'Daqah

Published online by Cambridge University Press:  15 October 2015

Earl Schwartz
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Extract

It is often noted that the term “ts'daqah” is derived from the Hebrew word for “justice.” However, this observation is rarely accompanied by a historically valid definition of the sort of justice assumed to inform Jewish sources on the issue. The dichotomizing of “ts'daqah” and “charity,” commonly offered in place of such a definition, oversimplifies the complex connotations of both terms. The observation that “justice” is “obligatory” or “compulsory,” whereas “charity” is a voluntary act of love, also falls short. It is true that halakhah tends to be expressed in terms of obligations rather than rights, and that this tendency has played a major role in shaping rabbinic sources on support of the poor. As Moshe Silberg notes in the course of his analysis of the moral underpinnings of Jewish law, “[the halakbah] is not primarily concerned with the indebtedness to the claimant, but with the obligation to the debtor, with his religio-moral obligation … and it is only as though in a side effect, as a secondary result of the process, does the claimant receive his money.” Nevertheless, “obligatory giving” is by itself an incomplete characterization of the conceptual structure of ts'daqah.

Moreover, beyond these theoretical considerations, confusion concerning the meaning of ts'daqah also has practical implications. The term is frequently misapplied by Jews to describe any contribution to a not-for-profit organization (excluding taxes), regardless of how the contribution is actually used. Jewish communal fund-raisers regularly refer to contributions to sundry funds and projects as ts'daqah, whether the ultimate destination of a contribution is assistance to poor people, construction of a new swimming pool at a Jewish community center, or the salary of a fund administrator.

Type
Articles
Information
Journal of Law and Religion , Volume 14 , Issue 2 , 2000 , pp. 391 - 404
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2000

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References

1. Rabbinic sources distinguish between “ts'daqah,” defined as monetary assistance to the poor, and g'milut hasadim, referring to assistance given in the form of personal service or goods, regardless of the recipient's economic condition. See Jastrow, M., Dictionary: of the Targumim, Talmud Babli, Yerushalmi and Midrashic Literature 1263 (Judaica Press, 1971)Google Scholar; “ts'daqah,” and Moore, George F., Judaism in the First Centuries of the Christian Era vol 2 at 170–73 (Harv U Printing Office, 1927)CrossRefGoogle Scholar, concerning the distinction between ts'daqah and g'milut hasadim, and the early history of the terms; cf., Mishnah Rishona (Ephraim Yits'chak of Przemysl, Galicia, 19th century) on Pe'ah 8:7: “The reference here is not to the poor person's tithe (taken in kind), but rather, to ts'daqah ….”

2. Note, for example, Maimonides' careful distinction in Guide of the Perplexed, part 3, ch 53 between “tsedek,” denoting the giving of everyone their due, and the special moral connotations of “ts'daqah.” Similarly “ts'daqah”, at the conclusion of the litany “Avinu Malkenu”. clearly refers to an act of “charitable kindness” since, as the text explains, “ein banu ma'asim (“we have no deeds” (which would justify your showing us clemency)). In this context ts'daqah seems to be precisely that assistance for which one asks when all claims of “just” treatment have been exhausted.

3. As, for example, the following:

Although the English word “charity” has been used as the translation of the Hebrew word “ts'dakah” in the heading of this section, it must be stressed at the outset that this translation does not convey the real meaning of the Jewish concept of giving assistance to others. “Ts'dakah” has the same root as “tzedek”—justice—since acts of assistance are looked upon in Jewish thought primarily as a rectification of a social imbalance. They are not merely prompted by mercy or personal pangs of conscience, but rather constitute the fulfillment of the obligations that flow from wealth.

Tamari, Meir, With All Your Possessions 248 (Free Press, 1987)Google Scholar.

4. Silberg, Moshe, Talmudic Law and the Modern State 68 (Burning Bush Press, 1973)Google Scholar.

5. Information taken from Connecting Jewish Lives, United Jewish Fund & Council of Greater St. Paul, 1999.

6. Max Kadushin devised the term “value concept” in connection with his description of the “organic” nature of rabbinic thought. He defined value concepts as connotive general ideas of moral value, “dynamic elements of personality, focal points in a continuous process of valuation” that are concretized in moral action. Value concepts are social in origin, but are made determinate by the action of the individual. Kadushin, Max, Worship and Ethics: A Study in Rabbinic Judaism, 20–26 (Bloch, 1963)Google Scholar.

7. Or “any right to, or interest in land which may subsist in another to the diminution of its value, but consistent with the passing of the fee …. A claim, lien, charge, or liability attached to and binding real property.” Black's Law Dictionary (West, 1968).

8. “Tanakh” is the common Jewish term for the Hebrew Bible.

9. Brown, F., Driver, S.R., Briggs, C., Hebrew and English Lexicon of the Old Testament 841–42 (Clarendon Press, 1979)Google Scholar.

10. The term would appear to be used in this way in the Elephantine papyri (5th century B.C.E.), Daniel 4:24 (4:27 in some translations), and the third ch of Sirach; see Moore, , Judaism in the First Centuries at 171 (cited in note 1)Google Scholar.

11. Including the offering of interest free loans and the inclusion of the poor in festive celebrations, for example, Deut 15:7-11, 16:9-12.

12. Lev 19:9, 23:22; Deut 24:19-21.

13. Lev 25:1-24.

14. Lev 25:23.

15. Buber, Martin, On the Bible 3–4 (Schocken Books, 1968)Google Scholar. Though tenant farming systems are typically devised to provide landowners with the opportunity to exploit their tenants, the God of Israel, unlike the typical landowner (and the typical divinity), is never portrayed in the Tanakh as being cultic dependent upon the servitude of the people. The explicit distinction between the practical needs of the priesthood, which was dependent upon the levies and sacrifices brought by the people, and the absence of any such need on God's part, opened the way to prophetic condemnation of priestly avarice and moral indifference.

16. For example, Essene communism.

17. See Alon, Menachem, Jewish Law: History, Sources, Principals 590–95 (Jewish Pub Soc'y, 1994)Google Scholar, concerning liens in rabbinic sources. Establishing and collecting “a debt in property” appears as a long-standing and halakhically licit procedure by the time of the g'mara. See, for example, Baba Metsia 13b ff.

18. In addition to biblical legislation concerning these four practices, Deut 14:28-29 specifies that a tithe be taken for the landless Levites, widows and orphans (though not specifically “poor people”) every third and sixth year of the sabbatical cycle. Tithing's effect on the subsequent development of the halakbah of ts'daqah has been primarily to set the goal of designating ten per cent of one's income as ts'daqah. It has had a far more modest role in framing an ideational basis for support of the poor, or conveying the type of justice implicit in the term “ts'daqah” and, therefore, will not be a primary focus of this analysis.

19. The Mishnah reads the fourth Hebrew word in the verse as “olim” (“those who go up”) rather than the more conventional “olam” (“from ancient times”). The intended allusion may be to the impoverished gleaners who are struggling to “rise” above their present condition, or to the whole people of Israel who “went up” out of Egypt, freed of the “poverty” of Egypt and bearing the commandments concerning support of the poor.

20. Commenting on this Mishnah, Rabbi Israel Lipshitz (1782-1860) contended that the right to pe'ah, unlike the right to lekel and shikh'hah, did not translate into unlimited access to a landholder's field in the process of acting on that right, noting that “Though pe'ah is also the poor person's share, nevertheless, the poor may not take it without the permission of the landholder.” See Tiferet Yisrael, l.c.

21. It would appear that this was understood to apply lo pe'ah and shikh'hah as well. See Ta'anit 6b and I'yunim on Pe'ah 8:1 (“kol adam mutarim”) in the Jerusalem Talmud, Adin Steinsaltz ed (Israel Instit for Talmudic Pub, 1987).

22. See Iyunim on Pe'ah 8:1 (“mutarim b'leket”) in id.

23. Also note the references in Tiferet Yisrael on Pe'ah 7:8 concerning encumbered property.

24. Pe'ah 7:8. Talmud and commentaries on the point typically revolve around questions of encumbrance and priority, for example, Tos'fot Yom Tov, l.c. “… even if the poor may not enter the vineyard to take olelot until the landholder has harvested, it stands to reason that if it is apparent that they are olelot, the landholder has no claim on them and cannot dedicate them (to the Temple) ….” cf., Tiferet Yisrael, Malekhet Sh'lomo, l.c.

25. Tamari, 252; cf., Mishneh Torah, Pe'ah 7:7: “It is one of our principles that a person cannot dedicate what does not belong to that person. Therefore, when the olelot become visible they cannot be dedicated because they are the property of the poor [mamon aniyim].”

26. For example, pe'ah and olelet. Leket and shikh'hah are only identifiable at the time of the harvest.

27. Cf., Talmud accompanying Pe'ah 7:4 in the Jerusalem Talmud; Bartenura, l.c.

28. Avot 5:12.

29. Avot 3:8; see Brandon, S.G.F., The Trial of Jesus of Nazareth 67 (Stein & Day, 1988)Google Scholar, for the argument that the same conclusion is intended in the “Render unto Caesar” dictum.

30. K'tubot 67b.

31. Scattered references to “ts'dakot,” apparently the plural of ts'daqah, are intriguing. A reference in Rosh ha-Shanah 4b, for example, distinguishes between “ts'dakot” and tithes, but does not elaborate on the distinction, nor the difference between “ts'daqah” and “ts'dakot.” The classical commentaries and reference texts also do not elucidate the significance of the plural form.

32. Yoreh Deah 247, 248.

33. Siftei Kohen, l.c.

34. Gil'yon Mabarsba on Yoreh Deah 248:1.

35. In a similar manner, Mendenhall argues for a law-based interpretation of the root n-q-m (vengeance) in Tanakh. His understanding of the vindicative prerogative of the Sovereign to act on behalf of a disadvantaged subject, as implied in Exod 21:20, is especially relevant to the present discussion. See Mendenhall, George, The Tenth Generation ch 3, especially 90–91 (Johns Hopkins U Press, 1973)Google Scholar.

36. Mishneh Torah, Matanot Aniyim 1:10Google Scholar.

37. An obligatory benediction.

38. See Aracbin 22a, K'tubot 86 a-b, including Rashi on K'tubot 86a, concerning repayment of a debt as the fulfillment of a commandment.

39. One might even suggest that in this way one could, in good conscience, include the na'ar bayeetee passage (“I was once young and now I have grown old, and yet I have never seen a righteous person abandoned nor a descendent of such a person begging for bread”) in bircat ha-mazon.