Thursday, February 19, 2015

“T’Ain't What You Do (It's The Way That You Do It)” / Baba Batra 7b

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

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:
[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)

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