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.)