“One who refuses to give tzedaka or who gives less than he should, is coerced by the court and is given lashes until he gives what he was estimated to be able to. And they go down to his fields in his presence and levy the amount estimated.”
(Maimonides, Hilchot Matnot Aniyim, 7:10)
By Rabbi Meir Kahane ZT”L
October 14, 1977
There is no Hebrew word for “charity” and the Hebrew word that is commonly used to mean “charity” tzedaka in fact means nothing of the sort. Charity has a connotation to it, a very definite smell of condescendence. The person who gives charity is doing a favor to the pauper. It is not a thing he must do; it is not an obligation; it is a thing that he does out of the goodness of his heart – and the pauper prays that his luck finds him meeting the good man on a day that he had not quarreled with his wife or been cursed at by his employer.
Charity is a favor done by people who are in a good – a charitable – mood. There is no such concept in Judaism. One does not do tzedaka or give tzedaka because one is in the mood to do so; because one feels charitable; because one is touched by the pauper's plight. Tzedaka is not a favor; tzedaka is not a voluntary act; tzedaka is not impelled by the wellsprings of mercy. Tzedaka comes from the Hebrew word tzedek – justice, righteousness. It is just that a person gives to the poor. It is right that he do so. It is obligatory and mandatory because the money that he gives is not his to withhold.
When the giving to the poor is mere charity, a voluntary obligation that sprouts from noblesse oblige, the court cannot whip the one whose feelings of charity are frozen that particular morning. The sheriff cannot levy and execute judgment on a man's field if he merely refuses to be kind. But when the property is not yours to do with as you wish; when title to it lies not in you but in someone else; when your possession and right to use the property are conditioned on an obligation to give it to the poor, then the refusal to obey the condition, the refusal to do what one legally must, brings forth the natural legal consequences – coercion and action by the state to compel the individual to fulfill his obligations.
Unto the L-rd is the land and all that is in it. He is the Creator and the Owner; in Him is the title vested and man is his tenant farmer and tenant property possessor. A hundred conditions accompany this right of possession. Food? Give to the Kohen (priest); give to the Levite; give from your field's corner, from the sheaves that dropped, from that which you forgot – to the poor; make a blessing before eating that which you are allowed to eat, after exempting from your mouth all that which is forbidden. Money? Tzedaka – a minimum of ten percent.
There are a score of ideologies that discuss property and all come down – in the end –to the acceptance of private property. Whether it be the most laissez-faire Ayn Randists or the most communal communists, in the end, that which comes into the hand of the individual through either his own labor or through the blessing of the state is his, to do with what he wants. Torah recognizes no such concept. There is no private property. There is only the property that belongs to its Creator and we are permitted to use it under the most exacting of circumstances.
Let those who steal, those who cheat in business, those who defraud and take that which is in the possession of someone else, those who refuse to hear the needy cry out and to give what is due them – remember all this. Neither their property nor their very bodies are theirs. And in the end, those who take that which is not theirs and those who refuse to give that which is not theirs will see the Great Court come and take back all that belongs to the Judge.
Now, what Rabbi Kahane says is really not so novel at all. He can be summarized as saying:
(1) Tzedaqa is an obligation (tzedeq is justice), whereas charity is optional
(2) God owns everything and gives it all to us on condition. There is no private property, but only property that God has lent to us.
(3) "And in the end, those who take that which is not theirs and those who refuse to give that which is not theirs will see the Great Court come and take back all that belongs to the Judge."
It is the third point that concerns us, and the RambaM as well, for these are dealing with practical, political details.
Now then, we must realize that RambaM is taking a few conditions as givens, and we must make these implicit conditions explicit:
(1) The beit din is a local, communal one, i.e. a local, communal institution
(2) The beit din has authority only because the community has granted it authority
The first point means that this is not some ultramontanistic ("beyond the mountains") government without any familiarity with the people. Rather, it is a local institution, and both it and the people are intimately familiar with each other. It would be similar in this way to a qibutz. Commenting on the RambaM, Rabbi Yosef Karo (the author of the Shulhan Arukh) writes in his Kesef Mishnah that RambaM's source is Bava Bathra, page 8. On page 7b, the Mishnah states (according to the Soncino translation), "How long must a man reside in a town to be counted as one of the townsmen? Twelve months. If, however, he buys a house there, he is at once reckoned as one of the townsmen." This Mishnah and the accompanying Gemara are discussing the sorts of building improvements which a man can be coerced into supporting, such as the building of a protective wall around the town, and the Mishnah is saying that a man must be the inhabitant of a town in order for him to be coerced into supporting its infrastructure. This corroborates my argument that the RambaM is speaking of a local, communal beit din, and not an ultramontanistic national government. Similarly, in RambaM's Hilkhot Sanhedrin, we read (according to the text of Mechon Mamre):
1:1: מִצְוַת עֲשֵׂה שֶׁלַּתּוֹרָה לְמַנּוֹת שׁוֹפְטִים וְשׁוֹטְרִים בְּכָל מְדִינָה וּמְדִינָה וּבְכָל פֶּלֶךְ וּפֶלֶךְ, שֶׁנֶּאֱמָר "שֹׁפְטִים וְשֹׁטְרִים, תִּתֶּן-לְךָ בְּכָל-שְׁעָרֶיךָ" (דברים טז,יח).So the beit din is a local, communal institution, not an ultramontanistic one.
My translation: It is a positive commandment from the Torah to appoint judges and officers in every administrative/legal jurisdiction/locality (lit. medinah) and in every region/zone/area (lit. pelekh), as it says, "Judges and offices you will appoint for yourselves in all your (city) gates (lit. sh'ar'ekhah" (Deut. 16:18).
1:3: אֵין אָנוּ חַיָּבִין לְהַעְמִיד בָּתֵּי דִּינִין בְּכָל פֶּלֶךְ וּפֶלֶךְ וּבְכָל עִיר וְעִיר, אֵלָא בְּאֶרֶץ יִשְׂרָאֵל בִּלְבָד
My translation: We are not obligated to establish courts of law in every region/zone/area (pelekh) and in every city (ir), except in Israel exclusively.
(Note that RambaM replaced medinah with ir, corresponding with sh'ar'ekhah.)
1:8: וּמַעְמִידִין בְּכָל עִיר וְעִיר מִיִּשְׂרָאֵל שֶׁיֵּשׁ בָּהּ מֵאָה וְעֶשְׂרִים אוֹ יוֹתֵר, סַנְהֶדְּרֵי קְטַנָּה; וְיוֹשֶׁבֶת בְּשַׁעַר הָעִיר, שֶׁנֶּאֱמָר "וְהַצִּיגוּ בַשַּׁעַר מִשְׁפָּט" (עמוס ה,טו).
We establish in every city (ir) of Israel that has 120 or more (male inhabitants?), minor courts (sanhedrei qetana), and they sit in the city-gates (b'sha'ar ha-ir), as it says, "Display justice in your gates" (Amos 5:15).
The second point - that the beit din has authority only if the people democratically grant it - means that the beit din has no authority unless the locals grant it their consent. We know that the rabbis in general have no authority except to declare what the Torah says. Therefore, their rabbinic decrees are meaningless and void unless ratified by the people. Now, tzedaqa is a m'd'oraita command (i.e. from the Torah), but the requirement to give precisely 10% is m'd'rabanan, and furthermore, the beit din's discretion that this man who is not giving enough tzedaqa, ought to give his tzedaqa to so-and-so, this discretion is just that - discretionary. As such, it is similar to a m'd'rabanan (Rabbinic command). That is, it is not a simple case of a Torah law that states exactly what must be done. The Torah says one must give tzedaqa to the poor in general, but it is the rabbis who state how much, and that it must be given to this given, specific poor man in the community, or into this, specific communal tzedaqa fund. So while tzedaqa is indeed m'd'oraita, the court's activity in the area of tzedaqa is more like a m'd'rabanan. As such, it works only if there is democratic consent of the governed.
What all this means is that a man who refuses to give tzedaqa, he cannot be punished by just anyone. He can be punished only by the local, communal beit din, one that enjoys broad, nearly unanimous popular consent. A beit din from another town cannot arrogate itself authority, nor can a self-styled gadol, and waltz on in and start coercing people to give tzedaqa. Coercion for tzedaqa works only for a local, communal beit din that enjoys a broad popular consensus that it is legitimate.
We see this in action in Jewish history. I quote Rabbi Dr. Marc D. Angel's The Jews of Rhodes, where we read (p. 26),
One of the persistent and complex problems associated with haskamoth [communal ordinances] was the question of whether the majority the right to pass an ordinance over the objection of a dissenting minority of the community. Does the majority rule, or is unanimity imperative? Over the centuries this question evoked considerable rabbinic discussion.As Rabbi Angel's larger discussion shows, many (if not most) of these haskamoth were regarding tzedaqa. So the community realized that it could not pass a new haskamah, even for the poor and for tzedaqa, without unanimous approval by the community. In other words, the Jews of Rhodes were concerned with the tyranny of the majority no less than Alexis de Tocqueville and the Federalist Papers were, even regarding the issue of tzedaqa.
It seems the Jews of Rhodes resolved this dilemma by distinguishing between different types of haskamoth. In matters involving an improvement that was needed for the general community, a majority was sufficient to enact a haskamah. But in matters involving taxation, a unanimous decision was required in order to protect individuals from a barrage of levies imposed on them by the majority of the community. In the final analysis, the situation surrounding each haskamah had to be carefully evaluated before determining whether a majority or unanimity was required for its adoption.
Rabbinic law allowed for the institution of herem, excommunication, in order to give communities power to enforce their laws. Yet, herem was more a threat than an actual procedure.
So RambaM's words are not so easy to apply. They are more applicable to a qibutz than to an entire nation. If RambaM's words express socialism, then it is anarcho-socialism, not Marxism. RambaM speaks not of a dictatorship of the proletariat, forcing the bourgeoisie against their wills to pay. In such a Marxist scenario, with the bourgeoisie presumably denying their consent, the beit din in question would be illegitimate and lack any authority to coerce anyone. Only with consent does the beit din have power, and in the case of Marxist dictatorship, the rich would presumably deny their consent. Only in the cases of anarcho-socialism or laissez-faire capitalism - i.e. libertarianism in general - can RambaM's words apply.
Furthermore, RambaM speaks of a case where a man gives less tzedaqa than he should. But RambaM does not speak of a case where a man gives tzedaqa fully - i.e. 10% - only to someone other than to whom the beit din would prefer he give. For example, if I lived in Meah Shearim, and gave 10% of my income to blacks in Darfur, then the beit din might be miffed and annoyed and frustrated at me, but technically, I am giving the proper amount of tzedaqa, and according to RambaM's words, the beit din cannot do anything to me. RambaM is dealing with a very narrow case. Whereas Marxist socialism would have the government dictate exactly how the collectivization must proceed, with dissenters going to the Gulags, RambaM deals only with the very narrow case of a man who gives insufficiently to tzedaqa; he fails to authoritize coercion in the case of a man who gives sufficient tzedaqa but to a recipient not of the beit din's personal choosing. And on top of all that, RambaM does not speak of collectivization at all! He speaks of giving tzedaqa, but he speaks only of 10%, not the 100% that socialism demands.
In short, RambaM speaks of:
(1) A local, communal beit din, not an ultramontanistic national leviathan
(2) A beit din that enjoys broad, popular consent, not a tyranny of the majority
(3) A man who gives insufficiently to tzedaqa, not a man who gives fully to someone other than to whom the government would prefer
(4) Giving 10% of one's wealth to tzedaqa, not the extortionist tax rates that social democracies today levy, and certainly not the 100% tax rate (i.e. collectivization and abolition of private property) that socialism calls for.
Now, of course, in all honesty, I have explained only the RambaM, not Rabbi Kahane. Who knows whether Rabbi Kahane would interpret the RambaM as I have? But the best I can do is to charitably assume Rabbi Kahane interpreted the RambaM in the manner I believe he ought to have, until someone proves to me otherwise. And in case this interpretation of Rabbi Kahane is forced, then I quote Rabbi Moshe Shmuel Glasner's haqdama to the Dor Revi'i:
From these words one can see how much the pure soul of the Hatam Sofer despised this twisted method of study [viz. pilpul, i.e. casuistry], that just for the sake of upholding the words of some Aharon [post-16th-century authority], would distort the words of the Rishonim [pre-16th-century post-Talmudic authorities] in an absurd way in order that we might say that left is right.In other words, Rabbi Glasner says "most forced explanations are true", but only when it is to reinterpret the words of a later authority to fit an earlier authority, or when a later authority knows he is correct and must slightly reinterpret the authority authority. If an indisputable early authority says one thing, then we may slightly reinterpret later authorities to agree with this. Similarly, if a later authority is absolutely sure that he is correct, beyond any reasonable doubt, and that his words are unassailable, he may slightly reinterpret earlier sources to agree with him. But the reinterpretation may only be slight. One cannot twist sources absolutely out of context, to say the clear and obvious opposite of their intentions, nor may one reinterpret a source to agree with someone deceased who, were he alive, we would reject his opinion out of hand. In our present case, I am charitably reinterpreting Rabbi Kahane to agree with what I believe the RambaM says, and I believe Rabbi Glasner would accept my forced interpretation of Rabbi Kahane's words.
Now his holy words require some explanation, because they seem self-contradictory when he writes that he would accept a reasonable explanation even if it is forced, "because most forced explanations are true." This is an obvious inconsistency, because reasoning is the construct of our intellect. So if it is forced, an explanation is not reasonable. And not only that, but at the end of his responsum he himself complains about the forced reading his interlocutor wanted to impose upon the words of the Tosafot, contrary to their plain meaning.
But, it is must be understood that straightforward reasoning was always the mistress whose sovereignty may not be overthrown. Thus, to uphold unassailable reasoning, the Sages adopted forced readings in early texts that seemingly suggested the opposite. So has it been ever since the days of the Mishnah. So we find that the Sages, of blessed memory, of the Talmud, inasmuch as they had no authority to dispute the text of a mishnah or beraita [textual sources of the Tannaim, i.e. Mishnaic authorities] that conflicted with the dictum of an Amora [Talmudic authority], would instead assert that the text of the mishnah was incomplete (hisurei mehs’ra) or was inexact (na’asseh k’mi she’omeir). They thus imposed forced readings on the text of the Mishnah in order to uphold their straightforward and clear reasoning. This is what the Hatam Sofer meant when he wrote that most forced interpretations are true, that is to say, forced interpretations of old texts that we impose in order to uphold the true reasoning of the later sages are, in most cases, true, that is conventionally true. We do this, however, only in situations in which we have no alternative except to contradict and uproot what is reasonable. But that we should do so just to uphold the opinion of some aharon whose reasoning is not compelling, and that just to avoid the conclusion that he was mistaken we should insert his opinion into the opinion of the Rishonim against the plain meaning of their words, or that we should abandon straightforward reasoning and instead pile assumption on top of assumption just to invent concepts that never before existed just to rationalize the words of the earlier authority, against this the Hatam Sofer poured out his scorn. And he properly said that if this later authority were standing before us, we would certainly reject his reasoning based on the text of the Tosafot or the Rashba. And now just because he has passed on and his words have been set in print, are they sanctified unto us so that we may not contradict them either based on another text or on reasoning? Than this there is no greater confusion.