In 1939 Ella
Fitzgerald recorded “T’Ain't What You Do (It's The Way
That You Do It)”[1] with Harry James and
Jimmie Lunceford. Classic swing. It begins:
When
I was a kid about half past three
My ma said "Daughter, come here to me"
Said things may come, and things may go
But this is one thing you ought to know...
Oh 't ain't what you do it's the way that you do it
'T ain't what you do it's the way that you do it
'T ain't what you do it's the way that you do it
That's what gets results
My ma said "Daughter, come here to me"
Said things may come, and things may go
But this is one thing you ought to know...
Oh 't ain't what you do it's the way that you do it
'T ain't what you do it's the way that you do it
'T ain't what you do it's the way that you do it
That's what gets results
It’s unlikely
that Sy Oliver and Trummy Young, who together wrote “T’ Ain’t What You Do…” had
Talmud on their minds, but the title fits a sugya that begins on Baba Batra 7b
with a mishnah about community assessments.
The mishnah
discusses building improvements on communal property of two kinds: a common
courtyard adjoining several residences, and a city. This post is concerned with
the first of the two. It was common for people to live in homes that opened
onto a common courtyard. In order to control who has access to these areas, people
would often construct walls, gates, and doors with crossbars. The Talmud’s
discussion of this topic has resonance today, as we see gated communities popping
up across the landscape of American cities. The context and reasons proffered
today are not identical with those of two millennia ago, but neither are they
entirely different. An examination of Talmud’s concerns can help us sort out
the issues we face in our own society.
Nearly two
decades ago, Edward J. Blakely and Mary Gail Snyder (authors of Fortress America: Gated Communities in the
United States) wrote in Architecture
of Fear that gated and walled communities, once the province of the
affluent, are increasingly becoming the preference of the middle class:
It has
been over three decades since this nation legally outlawed all forms of
discrimination in housing, education, public transportation, and public
accommodations. Yet today, we are seeing a new form of discrimination—the
gated, walled, private community. Americans are electing to live behind walls
with active security mechanisms to prevent intrusion into their private
domains. Increasingly, a frightened middle class that moved to escape school
integration and to secure appreciating housing values now must move to maintain
their economic advantage. The American middle class is forting up…This
segregation by income and race has led groups within the hyper-segregated
environment to wall and secure their space against the poor, as in Pacific
Palisades on the California coast, to protect wealth, or, as in Athens Heights
in inner-city South Central Los Angeles, to protect property values[2]
In 1998 Blakely
and Snyder noted that gated communities are often built as “security zones”
against crime—and not only for the affluent.[3]
This
phenomenon is not limited to the United States. Zaire Zenit Dinzey-Flores
notes:
Residential gates for the rich have
also led to the rise of gates for the poor—in favelas in Brazil, South
African townships, peripheral urban migrant settlements in China, and even in
some public housing developments in the United States. The built environment
sorts and segregates people, physically and symbolically distinguishing
communities from one another. Whether one is locked inside or kept outside is
determined by one’s race, class, and gender. In both kinds of gated
communities, controlled access points restrict movement in and out.[4]
Security housing clusters, and even entire cities, with
walls, gates, doors, and locks are hardly a new phenomenon. In the ancient
world, cities were walled to stave off invasion. Smaller communities erected
barriers to keep out thieves.
But what about the poor who do not live behind gated
communities? In the world of the ancient Near East, a world without governmental
welfare subsidies, food stamps and SNAP[5],
Child Nutrition Programs, and Medicare, the poor were dependent, primarily, on four
sources for sustenance: (1) The Ma’aser
Oni (the poor tithe mandated by Torah[6]); (2)
Pe’ah (the corners of the farmers’
field were left unharvested for the poor to glean[7]); (3)
the shemittah (sabbatical) year harvest[8] that
was permitted the poor; and (4) tzedakah. The first three are sporadic and not
dependable on a daily or even yearly basis. Therefore the mainstay of the poor
was always the largess of the local community: the day-to-day handouts that
sustained individuals and families who couldn’t make ends meet. And this where
we meet a discussion in Talmud about the needs of the poor that teaches us that
“T’Ain't
What You Do (It's The Way That You Do It).”
(I’ve
added [A], [B], and [C] as references, to make the discussion that follows easier
to…well, follow.)
MISHNAH: [A] [A resident of a
courtyard] may be compelled [the Hebrew term can also mean “coerced” or
“forced”] to [contribute to] the building of a gatehouse and a door for the
courtyard. Rabban Shimon b. Gamliel says: Not all courtyards require a
gatehouse. [B] [A resident of a city] may be compelled to contribute to the
building of a wall [around the city], a door, and a cross bar. Rabban Shimon b.
Gamliel says: Not all cities require a wall. [C] How long must a person reside
in a town to be counted as a citizen of the town? Twelve months. If, however,
he purchases a house there, he is immediately considered to be a citizen of the
town.
Before moving to
the Gemara, let’s examine this tripartite mishnah.
[A] The Rabbis
tell us that people who live around a shared courtyard can be compelled to
contribute money to build a gatehouse and a door to enclose the courtyard.
Since the gatehouse and door benefit everyone, the cost is shared among all the
residents, even if not all of them desire it.
Rabban Shimon b.
Gamliel demurs a bit by pointing out that a gatehouse is not always needed, and
therefore it is not always permissible to compel people to contribute to its
building. Perhaps his concern is what micro-economists term the Shared-Cost
Effect, defined by the Oxford Index (of Oxford University Press) as, “The
consequence that a market in which one person chooses the product and another
person pays for it will be less price sensitive than a market in which the same
person both chooses and pays.” The example given by my economics professor in
college hits close to the home of this mishnah: If a group of 15 homeowners
living on a private street decide to repave their road, the cost will be borne
by them all communally. Each will contribute, say, $10,000, but enjoy the
benefit of the $150,000 road. As a result, they are more likely to choose an
even more expensive project, since each one pays only a fraction but benefits
from the whole. This is especially the case in which a small sub-group makes
the decision for the entire group. Could it be that Rabban Shimon has this
concept in mind and is concerned lest a small group imposing unnecessary and
costly assessments on others because their personal benefit/cost ratio is high?
[B] The mishnah next
takes up the question of three improvements to a broader community: a city. In
particular, the mishnah has in mind three elements that would ostensibly
improve the security of the city: a wall, a door, and a cross bar, which would
serve to prevent people from entering against the desire of the residents. In
the case of the crossbar, I think we’re talking about something like this:
The Rabbis tell
us that it is permissible to require people to contribute funds for the wall, door
and crossbar. Rabban Shimon, however, points out that not every city needs a
wall, again suggesting that it is not always permissible to compel people to
share the cost.
[C] Finally, the
mishnah asks: At what point is a person living in a city considered to be a
citizen for the purposes of requiring them to contribute financially to the
construction of gatehouses, doors, walls, and crossbars? The answer is 12
months if you rent; immediately if you purchase a house.
We are talking
here about a type of taxation, though we might prefer the term “assessment.”
The mishnah addresses an assessment akin to those paid by owners of
condominiums. The image this conjures up of walls and gates certainly inspires
comparisons with gated communities popping up all over the country. If the
residents feel that certain improvements are desirable, how is it determined that
they are needed and that everyone must share the cost?
The mishnah
leaves us wondering about a number of things: Does everyone have to pay for
these constructions? What if some people desire the improvements and consider
them necessary, but others disagree? Do all people benefit equally from the
improvements? If not, does that make a difference when it comes to who pays? Do
rich and poor pay equally?
Gemara will
begin to answer these questions. In this blog post, we take up the opening
section of the Gemara:
GEMARA: This is to say that a
gatehouse is an improvement? There was a certain pious man (chasid) with whom Elijah would converse
until he made a gatehouse; then Elijah no longer conversed with him. This is
not a difficulty [i.e., contradiction]. In the one case, [the gatehouse the
Mishnah permits is located] inside [the door of the courtyard]; in the other
case [the gatehouse that caused Elijah to stop conversing with the pious man is
located] outside [the door of the courtyard]. Or, if you want you may say that
[the Mishnah-authorized gatehouse] is [built] outside [the door to the
courtyard] and yet there is [still] no difficulty: this [gatehouse that caused
Elijah to stop conversing with the pious man] had a door; that
[Mishnah-authorized gatehouse] had no door. If you want, you may say that this
[gatehouse] has a door and this presents no difficulty: This [gatehouse to
which Elijah objected] has a lock; that [gatehouse which the Mishnah
authorized] has no lock. If you want, you may say that this one and that one
[each[ has a lock and still there is no difficulty: The lock of this [gatehouse
to which Elijah objected] is on the inside; the lock of this [gatehouse
authorized by the Mishnah] is on the outside.
Gemara will
attend to some of the questions we raised, but first it presents its own
pressing concern, which we get a whiff off through a short story about a man
whom the prophet Elijah visited regularly until the man erected a gatehouse for
his courtyard. What is Elijah doing here? Tradition holds that Elijah has a
special concern for the poor. I Kings 17:1-16 tells the story of a poor widow who
feeds Elijah and in return God insures that her flour and oil containers never
run out.
In the world of
the Talmud, it’s not unusual for Elijah to return to earth and visit people; he
often attended the Study House of R. Yehudah ha-Nasi (BT Baba Metzia 85b). When
Rabbah b. Abbahu is unable to find enough time to study because he is
struggling to make ends meet, Elijah gives him a financial boost (BT Baba
Metzia 114b). The Rabbis tell us Elijah sits among the leprous beggars at the
gates of Rome (BT Sanhedrin 98a) awaiting the opportunity to herald the coming
of the messiah. Just as the flour and oil never ran out, neither did marvelous
stories about Elijah. Later Jewish folklore is replete with stories of Elijah
returning to the world from his abode in heaven in order to assist poor people.
Isaac Leib Peretz’s “Seven Years of Plenty” is among the most famous and
popular.
Elijah’s
relationship with the pious man, therefore, does not come as a surprise. But in
the next breath, Gemara tells us that after the gatehouse went up, Elijah
stopped speaking with him. What is it about the gatehouse that so bothered
Elijah he stopped speaking with his friend? And why is Elijah’s opinion in this
halakhic matter of such importance? Elijah is not a source of halakhah, but he
has the authority of moral suasion.
We will need to
deduce Elijah’s objection from the four possible explanations that follow in
Gemara because the text does not tell us directly. Let’s take them in turn.
Perhaps the structure of the Gemara is easier to see if laid out in this way:
A.
Mishnah
permits people to construct gatehouses at the entrance to shared courtyards,
but clearly Elijah objects to the gatehouse the pious man constructed. There
appears to be a contradiction here between what Mishnah allows and what Elijah
approves.
B.
There
must be a difference between the style of gatehouse permitted by Mishnah, and
the style of gatehouse Elijah finds objectionable. What could the difference
be? Mishnah does not say, so Gemara conjectures four possibilities:
#1.
Elijah
objects to a gatehouse located insight the door to a courtyard, while Mishnah
permits a gatehouse located outside the door to a courtyard.
But if you claim that in both
cases the gatehouse was built outside the courtyard door, let’s suppose that
the difference is:
#2.
Elijah
objects to a gatehouse with a door; Mishnah permits a gatehouse without a door.
But if you claim that in both
cases the gatehouse had a door, let’s suppose the difference is:
#3.
Elijah
objects to a door that locks; Mishnah permits a door that does not lock.
But if you claim that in both
cases the door locked, perhaps the difference is:
#4.
Elijah
objects to door that could only be opened from the inside; Mishnah permits a
door that can be opened from the outside (as well).
Gemara is
concerned about people outside the courtyard being able to gain access to the
people inside the courtyard. It is troubled by people walling themselves off
from the poor who might be seeking much-needed tzedakah such that they cannot
hear them. It would seem that it’s not what you do, but how
you do it. Building a gatehouse is not, in and of itself, a problem, but where
you locate it makes a world of difference. If the gatehouse is inside the door
of the courtyard, it presents a double barrier between a poor person in need of
funds and the people living inside the courtyard. When the poor person calls
out, there is a good chance he might not be heard through two barriers.
But—perhaps,
Gemara reasons, the pious man in the story did
build the gatehouse inside the door of the courtyard. What did Elijah
object to in this case? Gemara offers a second alternative: Perhaps the problem
Elijah saw was that the pious man built a gatehouse that itself had a door,
which a poor person might be hesitant or afraid to open, and therefore could
not gain access to the courtyard and the people in it. In this scenario, we are
to understand that the Mishnah intends a gatehouse without a door.
But—if you claim
that both gatehouses had a door, which implies that Mishnah permits a gatehouse
to have a door, then what is the difference between the two cases? Gemara
offers a third alternative: Perhaps the gatehouse door built by the pious man
has a lock, preventing a poor person from entering and seeking help, while the
gatehouse permitted by the Mishnah does not have a lock and therefore allows
the poor access to the courtyard.
But—you will
claim that both the gatehouse constructed by the pious man and the gatehouse
which Mishnah permits have locks on the door, Gemara offers a fourth and final
alternative: The pious man designed his gatehouse so that the lock opens only
from the inside of the courtyard, thus barring people outside from entering;
the gatehouse authorized by the Mishnah would locate the lock on the outside,
so a poor person could open it and enter.
If your head is
not yet spinning from all these possibilities, let’s return to the underlying
concern, as illustrated by Elijah’s disassociation with the pious man. It is
deemed of great importance that a poor person be able to gain entrance to the
courtyard, the place he will find people who might offer him alms. He needs
assistance, and they need to fulfill their obligation of tzedakah. Win-win. The
primary message I hear in this short passage of Gemara is that there is no one
element that prevents the mitzvah of tzedakah from happening: not the
gatehouse, nor the door, nor the lock. It is how they are arranged that spells the difference between what
Mishnah authorizes and what Elijah disapproves. We need to take care how we do things and what the end result
is.
This message is
reinforced by the fact that our story tells us that Elijah’s erstwhile
confederate is a chasid (“pious
person”). If our chasid built a
gatehouse in such a way that Elijah refused to converse with him and severed
their connection, is he truly a chasid?
Pious people don’t do impious things, do they? The passage serves as a warning
to us: It’s far too easy to rely on “it’s permitted” (the letter of the law)
without considering the ramifications and consequences of what we are doing.
God instructs
Moses: Do what is right and good
(ha-yashar v’ha-tov) in the sight of Adonai… (Deuteronomy 6:18). What purpose
does this verse serve, given that Torah has specified literally hundreds of
mitzvot for Moses and the Israelites to follow? Both Rashi and Nachmanides
explain that this verse tells us that merely doing what is required is
insufficient; we are to live in such a way that we act lifnim mishurat ha-din (“beyond the letter of the law”). This means
that we are obligated to consider the consequences of what we do and weight
that along with the purpose of the mitzvot. The chasid did what Mishnah permits, but not how Mishnah intended it.
I once heard a
story told of Rabbi Chaim Soloveitchik: A poor man approached him the day
before Pesach and asked if it were permissible to use milk, rather than wine,
for the Four Cups at the Seder. Rabbi Soloveitchik reached into his picket and
gave the man five rubles. “So much?” his wife asked. “Surely one ruble is
enough to buy wine.” “Yes,” he replied, “that is true. But if this man feels he
needs to use wine because he cannot afford milk, he cannot afford proper food
for the seder either, so I gave him enough to buy the food and wine he needs.”
According to the mitzvah of tzedakah, one ruble would have sufficed, but Rabbi
Soloveitchik had the insight to understand that what was needed was more.
Ultimately,
halakhah will not insure that we do the right thing; only we can do that.
© Rabbi Amy
Scheinerman
[2]
Blakely, Edward J., and Mary Gail Snyder. “Divided We Fall: Gated and Walled
Communities in the United States.” Architecture
of Fear. Nan Ellin, ed. New York: Princeton Architectural Press, 1997.
[3]
“They may be center city or suburban, in rich or poor areas, but gates are
primarily a protection from some threat, real or perceived… They are looking to
protect themselves from crime and from traffic, wanting their homes secure,
their streets safe to walk on, their children protected from speeding cars and
predators. Sometimes unwilling, sometimes unable, to flee to the higher ground
of the suburbs, they shore up in place.”
Blakely, E.J., and M.G. Snyder. (1998).
"Separate places: Crime and security in gated
communities." In: M. Felson and
R.B. Peiser (eds.), Reducing crime through real estate
development and management, pp. 53-70.
Washington, D.C.: Urban Land Institute.
[4]
Zaire Zenit Dinzey-Flores, “Gated Communities for the Rich and the Poor,” Contexts (Fall 2013). The full article
can be read at:
http://contexts.org/articles/gated-communities-for-the-rich-and-the-poor/.
[5]
The Supplemental Nutrition Assistance Program serves low-income individuals and
families.
[6]
Deuteronomy 14:28 mandates the ma’aser
oni (tithe for the poor): “At
the end of three years you shall bring forth all the tithe of your produce in
that year, and shall lay it up inside your gates; And the Levite, because he
has no part nor inheritance with you, and the stranger, and the orphan, and the
widow, who are inside your gates, shall come, and shall eat and be satisfied;
that the Lord your God may bless you in all the work of your hand which you
do.” (See also Deuteronomy 26:12.) The ma’aser
oni was also known as the “third tithe” and amounted to 1/10 of produce
grown in the third and sixth years of the sabbatical seven-year cycle. While
certainly a help to the poor, this was hardly sufficient to sustain them, and
needless to say, Deuteronomy 15:4 (“There should be no poor among you, for
Adonai your God will bless you in the land that God is giving you for an
inheritance to possess”) had not been fulfilled by 135 C.E. when there was no
longer a means for collecting the ma’aser
oni. The Gemara is written in Babylonia between the 2nd and 6th
centuries; there is no longer a system for collecting and distributing
agricultural tithes.
[7] "When you [plural] reap the
harvest of your land, you [singular] shall not reap all the way to the corner
of your field, or gather the gleanings of your harvest. You shall not
pick your vineyard bare, or gather the fallen fruit of your vineyard; you shall
leave them for the poor and the stranger; I the Lord am your God. You
shall not steal; you shall not deal deceitfully or falsely with one
another." (Leviticus 19:9-11)
[8] “Six years you shall sow your
land and gather in its yield; but in the seventh you shall let it rest and lie
fallow. Let the needy among your people eat of it and what they leave let the
wild beasts eat. You shall do the same with your vineyards and your olive
groves.” (Exodus 23:10-11)