צדקה תרומם גוי וחסד לאומים חטאת

An Appreciation of the Mitzvah of Tzedakah*

By Rabbi Yair Kahn

 

1

            The mitzvah of tzedakah is one of the most basic commandments in Judaism.  Already at the dawn of Jewish history, tzedakah is noted as one of the primary traditions Avraham instills within the Jewish consciousness.

כי ידעתיו למען אשר יצוה את בניו ואת ביתו אחריו ושמרו דרך ה' לעשות צדקה ומשפט[1]

Based on this, the Rambam describes tzedakah as characteristic of the Jew:

חייבים אנו להזהר במצות צדקה יותר מכל מצות עשה שהצדקה סימן לצדיק זרע אברהם אבינו[2]

While in the realization of Jewish destiny, tzedakah will be instrumental in the final redemption.

ואין ישראל נגאלין אלא בצדקה שנאמר ציון במשפט תפדה ושביה בצדקה[3]

            The above sources seem to lead to a surprising conclusion: Tzedakah is unique to the Jewish experience, and the singular nature of Jewish tradition and destiny is somehow associated with the mitzvah of tzedakah.  At first glance this appears puzzling, since tzedakah is of a secular social nature pertaining to the general human condition.  What therefore is uniquely Jewish about tzedakah?  Prior to analyzing this issue, certain halakhic aspects of this pivotal mitzvah should be explored.

2

            The Gemara both in Bava Batra (8b) and in Ketubot (49b) indicates that an individual can be forced to give tzedakah.  The rishonim note that this runs counter to the rule:

כל מצות עשה שמתן שכרה בצדה אין בית דין שלמטה מוזהרין עליה [4].

Since the Torah explicitly indicates reward for giving tzedakah,[5] why then does Beit Din have the authority to impose the fulfillment of this mitzvah?  This question assumes that the obligation to give tzedakah is based solely on the mitzvah of tzedakah.  Consequently the ability of Beit Din to enforce tzedakah is limited to the conditions which regulate the enforcement of mitzvot in general.  There are a variety of responses to this question.  Most of the answers accept the premise of the question, and suggest various distinctions as a solution.  The Ketzot Hachoshen[6] however, rejects the entire assumption thereby totally sidestepping the problem.  It is upon the opinion of the Ketzot that I would like to focus.

            The Gemara in Bava Batra (8a) states that an orphan is not required to give tzedakah.  The reference is obviously to a katan younger than bar mitzvah.  Since a katan is not obligated in any mitzvot, tzedakah included, this ruling seems trivial and in fact unnecessary.  More surprising is the pesak of the Rama[7] which mentions circumstances in which the katan is obligated to give tzedakah.  How can a katan who is exempt from mitzvot actually be liable to such an obligation?  The simple understanding that the obligation to give tzedakah is based solely on the mitzvah seems insufficient.

            Moreover, the Gemara in Ketubot (48a) deals with the parallel category of  shoteh.  A shoteh is one who is exempt from the observance of mitzvot due to a mental deficiency.  According to the Gemara, Rav Yosef rules that Beit Din can collect tzedakah from the estate of the shoteh without his consent.  This opinion poses an obvious difficulty.  If a shoteh has no obligation to fulfill mitzvot, why does Beit Din force him to give tzedakah?  Nevertheless, the opinion of Rav Yosef is accepted by the halakhah.[8]  Apparently, there is another factor, aside from the mitzvah which can obligate tzedakah.

            We have already noted that the courts can enforce payment of tzedakah.  The exact nature of this enforcement was debated by the rishonim.  In order to solve the aforementioned problem posed by the clause כל מצוה שמתן שכרה בצדה, Rabbenu Tam claimed that only verbal pressure could be used.  Most rishonim however agree that the Gemara in Ketubot (49b) cannot support this opinion.  Consequently, the Rashba felt that actual physical pressure could be applied.  This opinion is consistent with the standard procedure of enforcing mitzvot.[9]  However, the Rambam[10] and the Ran both maintained that Beit Din could actually confiscate property.  This would appear to go beyond the normal parameters of enforcing mitzvot.[11]

            The Ketzot explained that tzedakah is not merely a mitzvah but a monetary debt as well.  Accordingly, even one who is exempt from observing mitzvot (i.e. shoteh, katan) may nonetheless, in certain circumstances, be forced to pay their debts.  The debt of tzedakah may be translated into "shi'abud" - a lien on property.  Consequently, if one refused to pay his debt of tzedakah, it would be reasonable to confiscate his property in order to collect this debt.[12]  Furthermore, if we accept this thesis, we can solve our initial difficulty.  Where explicit reward is mentioned, the mitzvah cannot be enforced. However, there is no reason to assume that debts generating from the mitzvah should likewise be canceled.  Beit Din cannot compel observance of the mitzvah of tzedakah, but the debt of tzedakah can and should be collected.

3

            This concept of "the debt of tzedakah" requires elucidation.  It runs counter to our intuitive perception of charity as a moral category, voluntary in nature.  Yahadut, however, has a different understanding of tzedakah.  The Rambam[13] already noted that the term "tzedakah" is derived from the root "tzedek" - justice, and not from "chesed" - lovingkindness.  However, it is clear that tzedakah cannot be understood as a clear-cut monetary debt.  The Gemara in Bava Metzi'a (82a) clearly states:

דאמר ר' יצחק מנין לבעל חוב שקונה משכון שנאמר 'ולך תהיה צדקה' אי אינו קונה משכון צדקה מנא ליה.

The additional letter "he" according to Rav Soloveitchik zt"l denotes a weaker, softer form of justice.[14]

            In order to develop a deeper appreciation of the Jewish concept of tzedakah, I will briefly analyze two opposing alternatives.  In the capitalistic system individual ownership is absolute; charity, therefore, is voluntary.  I have no obligation to give charity.  I owe the poor nothing.  Due to my generous nature or sense of moral obligation, I, by my own volition, decide to offer something of mine to the poor. Within this system it is obvious that categorizing charity as a debt is absurd.  Socialism, on the other hand, would be very sympathetic to such a concept.  Even if private property is recognized, the individual as part of society is responsible to society’s demands.  He is therefore monetarily obligated to fund society’s causes, which include the support of the needy.  Hence we can understand the justice which creates the debt of tzedakah, however we have difficulty appreciating the letter "he."  In what way is this debt weaker, softer, more subtle?

            In Parashat Behar, the Torah mentions two seemingly socialistic laws in which the absolute nature of private ownership is challenged.  Firstly, land in Eretz Yisra'el cannot be bought forever.  It returns to the original owners at Yovel.  Secondly, a person cannot be enslaved forever, rather he must be granted freedom after six years.  In both cases the reasons given by the Torah are not social but Divine.

והארץ לא תמכר לצמיתות כי לי הארץ.

And the Land should not be sold for eternity since the Land is Mine.[15]

ויצא מעמך... ושב אל משפחתו ואל אחזת אבתיו ישוב כי עבדי הם אשר הוצאתי אותם מארץ מצרים.

And he shall go from you... and return to his family and he shall return to the estate of his fathers for they are My slaves whom I have taken out of the land of Egypt.[16]

The limitation of private ownership in both cases is not based on the overriding social needs, i.e. to prevent a rift between rich landowner and peasant, slaveowner and slave.  Rather, it is the ultimate absolute Divine ownership which curtails the extent of the limited mortal role.

            Both the capitalistic and socialistic systems are secular in nature, relating in variant ways to the nature of individual man’s relationship to society.  The legal system in each is based on some form of social contract.  The Jewish legal system, on the other hand, is not a secular system, but part of a broader religious one.  The Torah is not limited to the religious sphere, but is active in the social arena as well.  This social involvement determines the Jewish legal system as well as behavioral norms.  Throughout Choshen Mishpat there are laws which are determined by religious moral considerations rather than secular legal ones.  Hezek re'iyyah, kofin al midat sedom, and certain dinei ona'ah are just a few laws which can be better understood in this light.

ר' לוי רמי כתיב לה' הארץ ומלואה וכתיב... והארץ נתן לבני אדם לא קשיא כאן קודם ברכה כאן אחר ברכה.[17]

Hashem has endowed man with legal rights, however these rights are subject to the conditions of the Divine imperative.  The statements in Parashat Behar "since the land is mine" and "for they are my slaves" express this idea.

            The subtle nature of the debt of tzedakah is a derivative of this approach.  From the secular human perspective which recognizes private ownership, there can be only a moral obligation but no debt. However there are two major factors which Avraham Avinu discovered in his relentless search for the ultimate truth.  Firstly, Avraham became acutely aware that the Divine imperative demanded not only religious devotion and worship vis-a-vis Hashem, but moral behavior and sensitivity in relation to fellow man as well.  He understood that the two were inseparable, and were actually two halves of a greater whole.  Consequently he recognized the religious obligation to be sympathetic and responsive to those less fortunate. Secondly, Avraham was cognizant of the overriding and absolute nature of Hashem’s ownership.

מיום שברא הקב"ה את העולם לא היה אדם שקראו להקב"ה אדון עד שבא אברהם.

From the day Hashem created the world there was no man who called Hashem Master until Avraham came...[18]

Although aware that Hashem granted man private ownership, he nevertheless understood that human legal rights were subject to Hashem’s demands.  From the fusion of these two ideas sprang the Jewish concept of tzedakah - tzedek he.  From a technical legal perspective one man is giving of his private property to another to whom he owes nothing.  However from a more profound perspective the first man actually owns nothing, and is merely granted possession subject to the will of a moral and loving God.[19]  It was these ideas that Avraham discovered and taught to his children.  It is this understanding of tzedakah that is unique to the Jewish experience, and is unparalleled in secular universal culture.  Furthermore, the appreciation and internalization of these ideas are characteristic of the Jewish people, and are critical in their covenantal march through history.  Therefore, the fulfillment of this mitzvah is instrumental in the realization of Jewish destiny.

ציון במשפט תפדה ושביה בצדקה


 

 



*    תרגום שיעור שניתן לע"נ חותני ר' ישעיהו פריבס זצ"ל, אחד מבני בניו של אברהם אבינו אשר הקדיש את חייו לעשות צדקה ומשפט.

[1]              Bereshit 18:19.

[2]              Hilkhot Mattenot 'Aniyyim 10:1.

[3]              Ibid.

[4]              Chullin 110b.

[5]              See Devarim 15: 7-11.

[6]              290:3.

[7]              Yoreh De'ah 248:3.

[8]              Rambam Hilkhot Nachalot 11:11, Shulchan 'Arukh Choshen Mishpat 290:15.

[9]              See Ketubot 96a.

[10]            Hilkhot Mattenot 'Aniyyim 7/10

[11]            See Ramban Bava Batra 175b who argues on this point.

[12]            See Kesef Mishneh Hilkhot Mattenot 'Aniyyim 11:11.

[13]            Moreh Nevukhim 3:53.

[14]            The word tzedakah (צדקה) can be reduced to tzedek-he (צדק-ה).  Tzedek is a juridic category, while the "he" indicates a softening of this justice.  Similarly, the Gemara in Menachot (37a) states that ידכה vis-a-vis tefillin refers to the weaker hand; "ידך" - your hand, "ה" - weaker.   See Yemei Zikkaron pp. 43-44.

[15]            Vayikra 25:23.

[16]            Vayikra 25:41-42.

[17]            Berakhot 35a.

[18]            Berakhot 7b.

[19]            The Divine imperative which generates the debt of tzedakah is described here as being of a universal moral nature.  Nevertheless, it is quite possible that the "debt of tzedakah" is limited to the Jewish community, which is defined in covenantal, not social terms.  It is the covenant which demands from each member of the Jewish community a sense of responsibility to other members religiously, morally and socially.  This idea was developed by Rav Soloveitchik zt"l in a lecture delivered in 1959.