How the Rabbis of the Talmud Recognize and Preserve the Added Value of Public Spaces
This Sunday I found Divinity in dung.
Bava Kama is a tractate of the Talmud concerning the assessment of responsibility, damages and liabilities. When people cause harm to each other directly, by injury or theft, or indirectly, through hazards that they own like wild animals or open pits or fire that’s gotten out of control, how do judges apportion payments of liability? After all, the thin line between barbarity and civilization lies in the rule of law to exact retribution in place of vengeance.
The Talmud goes into great and often confusing, entangled and to many, tiresome and contradictory detail about the difference between intentional and unintentional harm, public vs. private ownership, wild vs. tame, and the parsing of liabilities. We’ve been studying this tractate for over two years in my Sunday morning class. Some of the best and most committed students have lost their patience. Even the most generous among us have started advocating that the next tractate we study must have more spiritual and humane content in it, more aggadah (stories) and less halachah (wrangling over law), just for mercy’s sake.
The rabbis go on for many pages about who is liable and for how much if someone leaves hazards – holes, pots and barrels, thorny hedges … – in public thoroughfares where someone has hurt themselves on it.
Then In Bava Kamma 30, the rabbis turn their wisdom and patience to a consideration of dung and manure in the street. But this isn’t any ordinary dog pile. An owner left it there, hoping it will improve – get composted – from trampling of many feet and airing out. Apparently, some sharp-eyed pedestrians would inspect the dung to see if it was indeed worthy of collecting.
The rabbis turn the matter over.
Q: If someone left dung in the street, is this an ownerless hazard?
A: Yes, unless he was seeking to improve it.
Q: Does the original owner forfeit ownership if he left it in a public thoroughfare?
Q: If the original owner loses ownership, does he still have liability if someone slips on it?
Q: Does that mean that someone else can come along and claim the dung?
Q: If another person claims the dung, what happens if someone slips on it?
A: The new owner is responsible.
Q: If a new owner has claimed the dung, what happens if a third person comes along and claims it?
A: That third person is guilty of theft.
Q: How do I know if someone has claimed a pile of poop left in the street?
A: If he has lifted it more than four amudim (an amud is about 18 inches) he owns it.
Q: What happens if he just turns it over to see if the dung has improved, but rejects it?
A: If he just turns it over to inspect it, it’s ambiguous, because first of all, dung is not able to be improved; manure is. So if you turn over or even lift unimprovable dung, you don’t own it because there was no implicit possibility of added value.
The Rabbis are not just trying to define the responsibilities we have for stuff we leave in public places or how to live well. They are trying to read God’s Mind based on what they incompletely understand from the transcripts He left in Torah and the verbal wisdom he communicated to Moshe in the Oral Torah. But is dung in the streets really on God’s Mind? Why? What redeeming features could there possibly be in it?
A clue lies in the words the Sages use to distinguish among kinds of dung and manure and their added value that are puns for more elevated concepts. Several terms have double meanings: dung and manure (זבל zevel and גלל galal echo זבל zebul princely, elevated and גלל – golel – both ‘turned over’ and ‘redeemed or glorified’. שבח I imagine a nursery owner walking the street, turning over piles of dung with his walking stick. Sh’vach means added value or improvement, is used in financial discussions to refer to appreciation, but also gives us the root for the word to ‘extol’ or ‘glorify’. The Talmud makes an analogy between gufon (the body) and sh’vach (added value) and keren (principal) and ravit (interest). This in turn leads us to explore the shared root between ravit and rabim. Both come from the word for ‘many’. Reshut ha-rabim is the public thoroughfare described in this Mishnah, and it the key to the heart of the matter.
I believe Talmud here makes a deep connection between collective, shared spaces and added value by illustrating the way in which even the lowliest things can acquire or accrue ‘interest’ when left for the public, even if has no, or even negative, intrinsic value. As Rabbi Nilton Bonder explains in his wonderful work, The Kabbalah of Money (Shambhala, 2001)
The rabbis tell us that through money, we establish day-to-day situations that uncover our bigotry and illusions and expose us…Our money is an extension of our reactions and beliefs…and one of the main factors in determining our understanding of reality: how much things and people are worth to us, and how much we are worth to them….It has not come into the world as an means of oppression or an instrument of greed; rather money – surprisingly – arises from the human desire for justice and the hope for a better world.” (Bonder, 6).
Several of the Kabbalistic ideas of money resonate here. For instance, Bonder points to the connection between money and body, and our treatment of it as “dirty.” Indeed, the connection between money and excrement has a long history. See, for instance, Excrement in the Late Middle Ages, Susan Signe Morrison – Macmillan, 2008. See especially her discussion of the connection between “Excement, Money, and Jews” (pp. 36-38). Bonder’s book is, in part, an answer to this long, deeply held bias against Jews. One of Bonder’s main excavations of the kabbalah of money is that it has no value unless it’s put into circulation, i.e., into the “public domain” – reshut harabim.
At the end of their discussion, the Rabbis conclude that if someone lift a pile of improved manure four amudim (6 feet or so), then that person owns it. “And we do not rule this way for the public.”
At first glance this seems shockingly deceptive and duplicitous. What do you mean you don’t let us in on this ruling? Isn’t the whole purpose of your work to elucidate, instruct and rule on fine points of law?
But in this instance, the Talmud is saying something pretty subtle: to rule publicly about the proper ownership of original materials left in public would be to destroy the public commons itself. In other words, if the Rabbis were to make publicly known the true ruling on ownership and theft in the public commons, it would destroy the “commons,” not only making the discussion moot, but also depriving the social good of an aspiration that the rabbis clearly wanted to preserve: shared responsibility for the sake of sh’vach in both senses of the “improvement of value” (through public sharing) and “glorification.”
If the rabbis put the true ruling about ownership of dung out to the public, someone could ‘slip’ on it and be more prone to theft. Instead, they maintain the illusion that the material and/or its improvement is “ownerless.” By putting the dung of this illusion out on the streets, it improves everything.
Is it possible that the rabbis might be suggesting, consciously or unconsciously that a free, robust public domain invokes (evokes? is made possible by? emulates?) the generosity of HaShem, and even when we step in dung on the streets we should be reminded of His sh’vach? That the public space works so well, so peaceably, that it functions as the indispensable means of commerce, is a testament to the orderliness that comes from confidence in laws and the courts to adjudicate them. And a very hefty portion of Talmud is just about that: not only laws governing civil life, but the composition of the courts and their holy obligations (See tractate Sanhedrin).Just circulating in public with a sense of security, especially security from harm caused by other people, despite all the hazards of life, becomes, then, a form of worship, or at least we should walk the streets with a sense of how Divine wisdom makes them possible.