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Saturday, January 19, 2008

Freakonomics on Shemita and the Law of Unintended Consequences

The always-interesting Freakonomics guys (Steven D. Levitt and Stephen J. Dubner) had a fascinating column in this weekend's NYTimes Magazine. It covers the law of unintended consequences and links some seemingly unrelated topics:
What do a deaf woman in Los Angeles, a first-century Jewish sandal maker and a red-cockaded woodpecker have in common?
I recommend reading the column to find out - as well as to catch how the Shemita-year device of Heter Mechira figures into the discussion. Though their point - that every action can incur all manner of unexpected results - might seem obvious, it doesn't make reading about some specific unintended consequences any less interesting.

This is the relevant passage from the column as regards to Shemitta and Heter Mechira:
How long have such do-good laws been backfiring? Consider the ancient Jewish laws concerning the sabbatical, or seventh year. As commanded in the Bible, all Jewish-owned lands in Israel were to lie fallow every seventh year, with the needy allowed to gather whatever food continued to grow. Even more significant, all loans were to be forgiven in the sabbatical. The appeal of such unilateral debt relief cannot be overestimated, since the penalties for defaulting on a loan at the time were severe: a creditor could go so far as to take a debtor or his children into bondage.

So for a poor Jewish sandal maker having trouble with his loan payments, the sabbatical law was truly a godsend. If you were a creditor, however, you saw things differently. Why should you lend the sandal maker money if he could just tear up the loan in Year Seven? Creditors duly gamed the system, making loans in the years right after a sabbatical, when they were confident they would be repaid, but then pulling tight the purse strings in Years Five and Six. The resulting credit drought was so damaging to poor people that it fell to the great sage Hillel to fix things.

His solution, known as prosbul, allowed a lender to go to court and pre-emptively declare that a specific loan would not be subject to sabbatical debt relief, transferring the debt to the court itself and thereby empowering it to collect the loan. This left the law technically intact but allowed for lenders to once again make credit available to the poor without taking on unwarranted risk for themselves.

The fallow-land portion of the sabbatical law, meanwhile, was upheld for centuries, but it, too, finally gained a loophole, called heter mechira. This allowed for a Jew to temporarily “sell” his land to a non-Jew and to continue farming it during the sabbatical year and then “buy” it back immediately afterward — a solution that helped the modern state of Israel keep its agricultural economy humming.

The trouble is that many of the most observant Israeli Jews reject this maneuver as a sleight of hand that violates the spirit of the law. Many of these traditionalists are also extremely poor. And so this year, which happens to be a sabbatical year, the poorest Jews in Israel who wish to eat only food grown on non-Jewish land are left to buy imported goods at double or triple the regular price — all in order to uphold a law meant to help feed the poorest Jews in Israel.
They make an interesting point. When the Shemitta-year law of forgiving all debts created a situation in which those who needed loans were being refused in pre-Shemitta years, thus harming those (the poor) who most needed the reprieve ostensibly offered by Shemitta, Hillel instituted a system whereby that unintended consequence could be averted. However, while the law of Shemita that commanded that all fields must lie fallow may have allowed poor Jews living in Israel to help themselves to produce during that year, the similar though admittedly far more recently instituted Heter Mechira has not at all been accepted among Charedi Jews. This has created a situation where the Charedim, some of whom number among the poorest of Israeli citizens, instead spend their meager funds on imported produce to avoid buying fruits and vegetables grown on Jewish-owned land with a Heter Mechira - or worse, these families are forced to go without much in the way of fresh produce altogether.

Now, the fact that that individual Halachot might have unintended consequences is far from a Chiddush. I think it's fair to state that just about every law - whether religious or secular - will have some unintended or unplanned-for consequence. Nor should that fact necessarily be a criteria to attempt to change normative Halacha. That said, there is a halachic concept of considering the societal or financial fallout of a psak before rendering it. I have personally seen such a practice in action, when in a situation that forced me to ask a Shaila of a quite eminent Rav regarding the need to replace a certain kitchen appliance that had been rendered unkosher. When I posed the question to the Rav, his first ruling was that we were required to replace a certain component of the appliance only, as opposed to the entire appliance. When I mentioned that I had researched the pricing and found it almost as expensive to do so as to replace the appliance entirely, he paused, told me he was unaware as to how costly the component in question was, and told me to call him back later that evening after he did some research. When I called back later that evening he had decided on a more lenient ruling, and told me how to perform a technique to kasher the appliance instead of replacing the component or the appliance entirely. At first blush, that might seem to be a cop-out of sorts, a less than strict adherence to Halacha in the face of what might have amounted to a bit of financial discomfort. But clearly this very learned Rav felt comfortable amending his ruling based on the hardship a stricter ruling might cause. I should probably add, however, that the same Charedim who do not hold of Heter Mechira might very likely not hold of the ruling I received regarding my kitchen appliance. I will also add the the usual disclaimers regarding how one ruling has absolutely nothing to do with the other aside for the seeming differences in flexibility when it comes to the question of a strict adherence to halacha when it imposes financial hardship.

Some might also find it interesting that the very same Rav who gave me my kitchen appliance psak does not approve of eating produce grown with Heter Mechira. So in the interests of full disclosure, I must note that the OrthoFamily ourselves do not purchase Heter Mechira fruits and vegetables.

Go figure.

(A previous post on Heter Mechira.)

51 Comments:

Anonymous Anonymous said...

Great post. Can we dare to hope that this means you're back?

10:41 PM  
Blogger mother in israel said...

According to my rabbi, importing produce from Europe is often *cheaper* than buying locally grown produce. But the charedi rabbinic leadership appointed a few individuals to be in charge of the distribution, and they artificially jacked up the prices.

1:12 AM  
Blogger Ezzie said...

Fascinating article and fascinating post. Thanks.

1:27 AM  
Blogger MDmom said...

if i lived in chu"l, i'd probably not buy heter mechira either. you have many other options. if i stick to otzar haaretz, we'd be extremely limited as to selection as the stores near me who carry it don't have all that much there. i won't buy badatz because i will not buy from arabs. and i will not accept that my family not eat fresh produce for more than a year. so this mdfamily does buy and eat heter mechira.

5:44 AM  
Blogger orthomom said...

if i lived in chu"l, i'd probably not buy heter mechira either. you have many other options

I understand and point well taken. I do, however, visit Israel frequently enough for it to be a real decision as opposed to a theoretical one. Also, my point was really that while the Rav in question ruled more leniently on one matter, he rules more strictly on the Heter Mechira issue.

7:32 AM  
Anonymous Anonymous said...

OM:
Can you define "psak" and Shaila"?

Thanks!

8:08 AM  
Anonymous Anonymous said...

Great great topic. Also great treatment both by the freakonomics guys and you, OM.

8:09 AM  
Anonymous Anonymous said...

Shaila: Halachic question posed to a Rabbiinic authority.

Psak: Ruling on such a Shaila.

HTH!

8:10 AM  
Anonymous e said...

Great point, and the whole post gave me what to think about...As an aside, part of the reason that many charedim don't use heter mechira is because in order to sell something, there has to be real intent to sell, and many will say that with heter mechira this condition isn't there.
Also-I think that the forgiving of debts actually was only intended for the yovel year-the 50th year.

9:25 AM  
Anonymous Anonymous said...

IS OM really back? And with real posts, not just fluff? Say it's so?

9:39 AM  
Blogger DAG said...

E..the forgiving of debts was every Shmittah...the return of property was every Yovel

10:29 AM  
Anonymous Somewhat Anonymous said...

"The appeal of such unilateral debt relief cannot be overestimated, since the penalties for defaulting on a loan at the time were severe: a creditor could go so far as to take a debtor or his children into bondage."

Umm... did I miss the part of the Torah where it says you can put a debtor or his kids into bondage?

Ostensibly this is a reference to Eved Ivri, but the only time someone is sold as an Eved Ivri against his will is in the case of a thief who cannot afford to repay, not any other debtor. A person may also sell himself as an Eved Ivri, but that is voluntary.

Also consider that the rules for treating an Eved Ivri are pretty generous towards the Eved...

10:51 AM  
Blogger seraphya said...

Tikkun Olam is important which is the reason behind prozbul. Its a way to go back after the psak was made, or even to abrogate a Torah rule for the purposes of society.

4:06 AM  
Anonymous AM said...

heter mechira was instituted in the late 1800s because it was considered pikuach nefesh. The farmers would starve without it, and that's why R Yitzchok ELchanan Spektor (the godol hador at the time) agreed to it as a necesarry measure. I think the original stipulation was that the fields would be sold and worked by non-jews.
The main objection to heter mechira was related to "Lo Tachenem" a prohibition in the Torah against selling land in Eretz Yisrael to non-jews. Those opposed felt that by selling you would violate a Torah prohibition to remedy a rabbinic prohibition. (Most poskim hold that shmitta today is d'rabannan)
With regard to chutz la'aretz, it was never pikuach nefesh, so perhaps the heter would not apply.
I heard R' Herschel Schachter say that Rav Soloveitchik instrutced Rabbi Genack and the OU not to rely on heter mechira for this reason.
I think most Kashrus agencies follow the smae reasoning.

8:17 PM  
OpenID rivster said...

Terrific post...and thanks for sharing the NYTimes article too.

So glad that you're back!

3:08 PM  
Blogger Jameel @ The Muqata said...

I heard R' Herschel Schachter say that Rav Soloveitchik instrutced Rabbi Genack and the OU not to rely on heter mechira for this reason.

The situation today is far different than when RYBS might have instructed R' Genack on heter mechira. Today, buying Badatz in Israel could mean that are you indirectly funding terrorists.

3:38 PM  
Anonymous AM said...

Rav Soloveitchik gave those instructions to Jews in chutz la'aretz.
You could argue that in Eretz Yisrael, buying produce from Arabs is contributing to sakanas nefashos, and I am sure that's why many people who normally would not rely on heter mechira now do.
Rav Soloveitchik himself was opposed to heter mechira as was his father and Rav Chaim.
They say that had he taken the cheif rabbinate position9which was offered to him) it would have been a problem.

4:22 PM  
Anonymous Tal Benschar said...

The Freakanomics point about shemitta and prozbul, if you research carefully, is not such a chiddush.

The Torah itself warns a person not to calculate that the Shemitta year is coming, and therefore he will not make loans lest they be cancelled out by Shemitta. The Torah uses very harsh language about this:

hishamer lekha pen yihyeh davar im levavekhah blia'al laimor karva shnas ha sheva shnas ha shemitta ve'ra'ah eincha be'achicha haevyon ve'lo titen lo. . .

"Be careful to you lest there be something wicked with your heart to say the seventh year is approaching, the year of the shemitta, and you eye will be evil with your poor brother and you will not give him . . ." (Deut 15:9)

(Blia'al means very wicked -- in Chumash this is only used one other time, for avoda zara, idolatry!)

The Talmud, in discussing pruzbul, notes that the generation of Hillel violated this Biblical prohibition.

So the Torah was very well aware of the "unintended consequence" -- but ideally required one's faith and fear of heaven to overcome what economists would consider rational self-interest.

6:30 PM  
Blogger G said...

"the poorest Jews in Israel who wish to eat only food grown on non-Jewish land are left to buy imported goods at double or triple the regular price — all in order to uphold a law meant to help feed the poorest Jews in Israel."

"This has created a situation where the Charedim, some of whom number among the poorest of Israeli citizens, instead spend their meager funds on imported produce to avoid buying fruits and vegetables grown on Jewish-owned land with a Heter Mechira -"

--Accordong to halacha the sabbatical laws only come into play every 7th year, what exactly do people think God planned for us to do the other 6?

With all due respect, some of these "unintended consequences" could be avoided by taking responsibility for one's own well being.

9:29 AM  
Blogger Halfnutcase said...

thats true, we are sort of required to save up our resources for the seventh year.

10:46 AM  
Anonymous Rabbi Dr. said...

My favorite example of this is the rabbinic prohibition of purchasing chametz that was owned by a jew over passover. Many big chain stores are owned by jews and so every year after passover, orthodox jews have to figure out which stores they can go to and end up having to avoid more convenient stores and go out of your way to find a good store and often purchase from smaller, kosher stores that are much more expensive.
now, this prohibition was created to punish the store owners who held on to their chametz over passover, but today with all the non-Jews and non-religious Jews who will purchase their chametz without a second thought, the only people who are at all being punished are the orthodox jews who keep the prohibition of chametz! It's extremely ironic.

11:26 AM  
Anonymous Ari said...

beautifully expressed, om.

2:36 PM  
Anonymous zionlover said...

mdmom
I am in complete agreement with your reasoning, no Arabs, no imports....use Otzar Beis Din or hydro vegetables, or other choices.
Orthomom, even if you visit 3x a year, Shmitta will not make a big impact on your diet or pocket.

7:25 PM  
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11:37 PM  
Anonymous Bazman Hazeh said...

As AM pointed out, main objection to heter mechira was related to "Lo Tachenem" a prohibition in the Torah against selling land in Eretz Yisrael to non-Jew. The objectors claimed that a formal sale, however temporary and whatever the intention, was still a technical sale and that by selling you would violate a Torah prohibition to remedy a rabbinic prohibition (as almost all poskim hold that shmitta today is d'rabannan). What the objectors failed to understand is that the alternative of making agriculture economically nonviable for Jews would force them to violate the prohibition of "Lo Tachenem" on a proper and permanent basis and discourage the purchase and settlement of Jews in Eretz Yisroel. For anti-zionist rabbis in the 19th century who wished to punish those early Zionist settlers and discourage emigration to Palestine such discouragement was welcome. (The unintended and unforeseen consequence of discouraging settlement of Jews in Palestine bearing in mind the fate of European Jewry was far worse than imagined). Those zionist rabbis who wished to encourage settlement however came up with the wrong solution to Shemita by the use of Heter Mechira which raises questions of "Lo Tachenem". Instead they should simply have declared that Shemita is at present a rabbinic prohibition which because of current condition of world and Israeli Jewry should be suspended and that it remains a mitzvah to purchase Israeli food and support its farmers and population at all times

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