JUDAICA - Wisdom In Torah

main ethically and psychologically oriented. This remains true
for most periods of Jewish history until the emancipation era.
Certain economic factors are simply taken for granted. Not
even Maimonides, who tried to find rationales for many biblical
rituals, considered it necessary to offer any justification
for such a fundamental economic fact as private versus public
ownership. There only was common agreement that good
fortune is bestowed upon man by God’s inscrutable will, while
poverty is to be borne with patience and submission to fate.
Asceticism never became a major trend in Jewish socioreligious
life, although certain groups and individuals practiced it
as a matter of supererogation. Similarly, the postulates of communal
ownership raised by the *Rechabites in the days of Jeremiah
and the *Essenes toward the end of the Second Temple
period were only part of their rejection of alleged departures
from the purity of the old law. But they remained rather ineffectual
fringe movements.
At the same time the “normative” Judaism of the majority
subjected private ownership to severe limitations because
of ethical requirements. From the restatement by Maimonides
of talmudic law, as modified by the subsequent rabbinic literature,
the following categories of property clearly emerge: “(1)
public property belonging to no one and accessible to everybody
for free use, e.g., deserts; (2) public property belonging
to a corporate group, but open to general use, e.g., highways;
(3) potentially private property belonging to no one, but available
for free appropriation, namely all relinquished and some
lost objects; 4) private grounds belonging to the ownerless estate
of a deceased proselyte, equally open to free appropriation;
(5) private grounds not yet taken over by a Jew from a
gentile, open to appropriation against compensation; (6) private
grounds in a walled city, open to everybody’s use but not
to appropriation.” To these must be added the “sacred property”
(*hekdesh) of the Temple of Jerusalem, which, however,
did not apply to the later synagogues; objects placed outside
ordinary use or sale by ritualistic law; as well as the theoretical
claim of every Jew in the world to the possession of four
ells of land in Palestine. Based on the assumption that forcible
deprivation of land never eliminates the rights of the real
owner, the latter legal fiction was of practical significance only
in connection with certain technical restrictions on the formal
transfer of property.
With all their emphasis on private ownership the rabbis
recognized its limitations necessary for the common good.
To begin with, they did not acknowledge the riparian rights
of owners, but considered four ells along all shores as belonging
to the community at large. They also accepted the right
of expropriation for purposes of roadbuilding, the erection
of city walls, and other necessary public works. A city also
had a right to banish certain odiferous trades, such as that
of tanning, outside its walls. Even individuals trying to sell
land had to respect the neighbors’ right of preemption at the
price offered by strangers. In general, referring to an old tradition
going back to the agricultural economics of Palestine
and Babylonia, Jewish leaders placed land outside the range
economic history
of ordinary commodities. During the very era of semicapitalistic
prosperity under Islam, they still believed in the stability
of land ownership as against the fluctuations in the value
of any other property. Going beyond the advice of talmudic
sages that prudent men should invest one-third of their funds
in land, one-third in commerce, and keep one-third in ready
cash, Maimonides, perhaps inspired by the severe business
losses sustained by his own family on account of his brother
David’s shipwreck on a voyage to India, counseled his readers
not to sell a field and purchase a house, or to sell a house
and acquire a movable object. They should rather generously
“aim to acquire wealth by converting the transitory into the
permanent.” The rabbis also greatly stressed the responsibility
of relatives for one another, not only in such dire emergencies
as the redemption of captives but they also generally taught
that “a relative may prove to be extremely wicked, but he nevertheless
ought to be treated with due compassion.”
Other ethical and psychological criteria were employed
in the rabbinic approximation of the doctrine of the just price,
later extensively debated by the medieval Christian scholastics.
No one questioned the community’s right to supervise weights
and measures. Any deficiency, if purely accidental, called for
restitution, but if it was premeditated it was to be punished
severely. Maimonides waxed rhetorical on this subject: “The
punishment for [incorrect] measures is more drastic than
the sanction on incest, because the latter is an offense against
God, while the former affects a fellow man. He who denies the
law concerning measures is like one who denies the Exodus
from Egypt which was the beginning of this commandment”
(Yad, Genevah 7:1–3, 12; 8:1, 20 with reference to BB 89b). The
community also had the right as well as the duty to set maximum
prices whenever conditions demanded it. Of course,
under the general rabbinic doctrine of dina de-malkhuta dina
(“the law of the kingdom is law”) all market regulations by
the state, including the maximum prices set by it, were to be
respected by the Jews too, except when they specifically conflicted
with the divinely revealed Torah. Conversely, in many
areas (for instance in Majorca in 1344) the government specifically
forbade the local market supervisors to interfere in
any business dealings in the Jewish quarter. In any case, with
their inveterate conservatism the rabbis were reluctant to accept
the law of supply and demand as the determining factor
in controlling prices.
A convenient psychological expedient was found in the
theory of “misrepresentation” (*ona’ah). To prevent overcharges
by sellers and, to a lesser extent, the taking of excessive
advantage of an existing “buyers’ market,” the ancient
sages had already established the principle that if the price
paid for an object exceeded or was below its market value by
one-sixth, the sale could be nullified by the injured party. This
rabbinic doctrine of “misrepresentation,” which seems to have
inspired some related teachings of the Church Fathers and,
through them, the Code of Justinian, could prove to be a serious
obstacle under the freer economy of medieval Islam or
modern Europe. An escape clause was opened by the rabbis,
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6 115