Can the Mitzva of Tzedaka be Enforced?
This weeks shiurim are dedicated by Joseph and Phyllis Eisenman
in honor of Judah L. Eisenman
In general, mitzvot may be physically enforced even to the point of death; reluctant people can be physically compelled by beit din to perform mitzvot (a principle asserted by the gemara in Ketuvot 86a). However, there is one category of mitzvot that cannot be enforced: those mitzvot about which explicit reward is textually stipulated (matan sekhara be-tzida). For example (as the gemara in Chullin 110 illustrates), kibud av ve-eim cannot be enforced because the Torah explicitly promises long life for proper adherence to this mitzva. Presumably, tzedaka would also be classified as a mitzva of matan sekhara be-tzida and it should therefore be non-enforceable. This seems to be contradicted, however, by two gemarot (Ketuvot 49b and Bava Batra 8b) which describe Rav forcibly enforcing tzedaka collection from unwilling donors. How, then could Rava have enforced tzedaka. How can these gemarot be reconciled?
To solve the contradiction, some Rishonim embrace one gemara and explain away the other. For example, Rabbenu Tam claims that tzedaka CANNOT be enforced, as implied by the categorical statement of the gemara in Chulin inhibiting enforcement of matan sekhara be-tzida. Rava COULD not and DID not physically enforce tzedaka collection, but rather verbally COAXED charity from reluctant donors. Essentially, the gemara in Chulin about non-enforcement is accepted, while the gemarot in Bava Batra and Ketuvot are reinterpreted as merely describing tactics of CONVINCING, not of ENFORCING.
By stark contrast, Tosafot cites the Ritzva, who takes the opposite approach. Rava did indeed ACTIVELY AND PHYSICALLY enforce tzedaka collection, as described by Ketuvot and Bava Batra. The gemara in Chullin DID NOT prevent enforcement, but rather exonerates beit din from CULPABILITY if they CHOOSE not to enforce mitzvot of matan sekhara be-tzida. Since beit din is tasked with mitzva enforcement, it is held accountable for mitzva non-compliance. However, regarding mitzvot whose sekhar is clearly stipulated, beit din are not held accountable if they CHOOSE not to intervene. However, if they choose they MAY intervene, as Rava did, in the collection of tzedaka funds.
By contrast, several Rishonim attempt to RECONCILE the gemarot rather than simply preferring one gemara and reinterpreting the other accordingly. Some located alternate and independent reasons for enforcement of tzedaka. Indeed, the mitzva per se cannot be enforced because the sekhar is explicitly stated, but there are additional facets of tzedaka which allow enforcement. For example, Rabbenu Tam claims that municipal laws allow enforcement of tzedaka collection. Just as the town's residents must contribute to walls, patrols, and other municipal needs, they must also contribute to tzedaka collection. Rabbenu Tam suggests that tzedaka is a binding municipal responsibility ONLY in cities which have legally placed it on the books, but the Mordekhai claims that even without specific legislation, tzedaka obligations are incorporated as civic responsibilities that can be physically enforced. The mitzva of tzedaka is non-enforceable, but tzedaka is obligatory for reasons independent of the mitzva. Charity and welfare are integral elements of social and municipal responsibility, which are enforceable even if the mitzva component of tzedaka is not.
Alternatively, the Ritva (in his comments to Bava Batra, Ketuvot, and Rosh Hashana) claims that the mitzva of tzedaka is unique and enforceable because it benefits the poor person. Unlike standard mitzvot with explicitly stipulated sekhar, which cannot be enforced, this mitzva services the needs of another and therefore can be enforced. This novel idea is morally compelling but legally questionable on two fronts. First, the Ritva does not provide any precedent for the idea of legal enforceability based upon lateral beneficial outcome. While we certainly identify with the poor persons needs and would accommodate or service those needs with all sorts of resources, STRICTLY LEGALLY speaking, tzedaka is a mitzva of matan sekhar be-tzida and should not be enforceable. Second, the classic example of non-enforceable mitzva of matan sekhara be-tzida kibbud av ve-eim ALSO services other people and yet is not enforceable. Evidently, the benefit of others IS NOT sufficient to enable enforcement of matan sekhara be-tzida mitzvot. Obviously, the comparable benefits of kibud av ve-eim and tzedaka can be evaluated and the tzedaka benefit may me deemed more compelling and concrete. However, the Ritva asserts his concept without precedent and without differentiating tzedaka from kibud av ve-eim.
The Ketzot Ha-Choshen also identifies a separate mechanism for enforcing tzedaka collection. He cites a gemara in Ketuvot (48a) that discusses forced collection of tzedaka funds from someone who has become mentally incapable and from whose estate funds may be appropriated to sustain his family. Obviously, this person is not OBLIGATED in the performance of the mitzva (since he is legally disabled from mitzvot), yet his funds are forcibly appropriated. Evidently, the Ketzot reasons that an actual shibbud or monetary lien for tzedaka collection exists and is actionable. This is novel on two fronts. First, a shibbud is generally oriented toward a specific creditor who can legally prosecute the collection of a shibbud. In the case of tzedaka, however, there is no direct litigant who can personally collect this shibbud. Tzedaka is a GENERAL obligation toward poor people without a specific target. Can a shibbud exist regarding money that does not have this specific target (mammon she'ein la tov'in)? The second novel element is the notion that a shibbud can stem from an imposed mitzva. Typically shibbud emanates from contractual agreement, monetary transfer, or events which require compensation. Can a Torah imposed mitzva morph into a shibbud? If indeed it may, what other mitzvot yield the development of shibbud? (The Ketzot explores this question regarding the mitzva to return objects taken as collateral.)
A final strategy of some Rishonim is to discover enforceability WITHIN the actual mitzva of tzedaka DESPITE its being a matan sekhara btzida. The Ri suggests that although the mitzvat asei of tzedaka cannot enable enforceability, the accompanying lo tasei of lo te'ametz et levavekha ve-lo tikpotz et yadakha (Do not stiffen your heart nor withdraw your hand [from giving]) allow tzedaka to be enforced. In contrast, kibud av ve-eim is a stand-alone asei and cannot be enforced.
This position of the Ri must be placed in the context of an interesting Ramban in Kiddushin (34) about the dynamic between a mitzvat asei and an accompanying lo tasei. The Ramban theorizes that sometimes the lo tasei is merely a reinforcement of the asei rather than an independent principle. He asserts this about several mitzvot asei, including ma'akeh, hashavat aveida, and shilu'ach ha-ken. Although in each instance the Torah stipulates a lo tasei warning against violating the asei, in each case, the lo tasei is a subsidiary of the asei. Practically, then, those who are exempt from the asei are also exempt from the lo tasei, since the lav is ancillary and exists only if the asei is mandated. Presumably, if tzedaka would be built on this model (the Ramban in Kiddushin DOES NOT discuss tzedaka), the Ri's concept would be rejected. If the asei component is non-enforceable because of the matan sekhara be-tzida rule, then the lo tasei could not possibly invite enforcement as a distinct obligator. Presumably, the Ri understood the dynamic between the asei and lo tasei of tzedaka differently than the Ramban understood that same dynamic in the mitzvot of shilu'ach haken, ma'akeh, and hashavat aveida.
The Mishneh Le-melekh poses a similar theory to the Ri that a lo tasei allowed Rava to enforce tzedaka but identifies a very different lo tasei. The Torah prohibits someone from delivering tzedaka with an evil eye or while expressing disappointment or even displeasure. Obviously, such demeanor insults the recipient and ruins the mitzva. Some Rishonim (including the Ramban in his list of mitzvot lo tasei that the Rambam omitted #17) actually nominate this as one of the 613 mitzvot. According to the Mishneh Le-melekh, it was this prohibition (which is clearly autonomous) that allows enforcement of tzedaka. Even if the prohibitions of stiffening ones heart or withdrawing ones hand are merely supplementary and not the basis for enforcement, the separate prohibition of not contributing tzedaka with obvious displeasure an autonomous lo tasei - can serve as the root of Ravas imposed enforcement.