[Avodah] Rights in halakhah

[Micha Berger]

On Wed, Feb 10, 2010 at 01:00:13PM -0500, Zev Sero wrote:
:> Locke wrote about the (positive) rights to Life, Liberty and Property, it
:> is his philosophy which shapted the US, and I'm saying that that's a major
:> piece to the prevelance of the culture of entitlement in these parts.

: On the contrary, those are negative rights.  I can't imagine how you
: understand them to be positive rights.

"Right to life" not "Right not to get killed".

On Wed, Feb 10, 2010 at 12:09:35PM -0600, Chanoch (Ken) Bloom wrote:
: If you're listing "gezel sheinah" and "geneivas da'as", then stam gezel
: should also be on the list. Tangible property rights are so obvious that
: I think we frequently forget that they're rights.

Once you frame your legal system in terms of rights, then ownership
becomes a right. I am not sure that one needs to see property in those
terms.

Related is an issue I raised here a few times, the difference between
baalus and the western concept of ownership. (WHich in turn, was an idea
I developed while we were playing VIDC [Vos Iz Der Chiluk] years ago.
See the discussions at
http://www.aishdas.org/avodah/getindex.cgi?section=M#MC%20VOL%202%20P%2065
http://www.aishdas.org/avodah/getindex.cgi?section=V#VOSS%20IZ%20DER%20CHILLUK%205%20MC%20VOL%202%20P%2065
(the latter is also available as http://bit.ly/9uvBe4 )
and some of the followups went to
http://www.aishdas.org/avodah/getindex.cgi?section=V#VIDC

Once my theory grew, I ended up blogging
http://www.aishdas.org/asp/2007/03/qinyan-and-baalus.shtml

In short, I generalize from the case of making a qinyan to accept
shelichus to argue that qinyan acquires responsibility, and the
priviledges of baalus derives from responsibility.

Not that ownership is a right on property, but it's a duty. However,
one can't have a responsibility without the authority to execute it --
so duty implies the privilege to use.

IOW, in American Law, if my property causes damages, I am responsible
because I own it. In halakhah, I own something because I accepted
responsibility for it.

Of couse, all this is my own sevara, not worht much. I'm just showing
that ownership need not be a rights-centered concept by giving a
counterexample.

Snippets:
    Qinyan

    Although a wedding is called qinyan, and the laws are derived from
    Avraham's acquisition of a field from Efron, there are a number of
    ways it differs from the halakhos of a property transfer....

    Thus, qinyan refers to the work and to the responsibility of repair.
    This would explain why many of us, in less than a month, will be
    performing a qinyan sudar, a kind of qinyan involving handing over a
    small object, usually cloth, to delegate the job of selling our
    chameitz. The rabbi isn't acquiring our chameitz, he can't own it
    any more than the rest of us can. He is assuming the responsibility
    for its sale, to serve as our shaliach, our proxy....

    Ba'alus

    R' Dovid Lifshitz was once approached before shiur by somone who had
    recently bought a co-op. The problem was that the co-op board didn't
    allow him to change the appearance of the outside of his domicile
    from the co-op's standard by hanging a mezuzah.

    Rav Dovid suggested (warning: I can't recall if this was his
    conclusion or a hava amina, a possibility raised to be rejected) that
    perhaps someone who doesn't have the authority to hang a mezuzah lacks
    ba'alus, and therefore wouldn't be obligated to. (In either case, he
    suggested moving to a friendlier venue.) Note the implication: even
    if this lack of ba'alus is not sufficient to remove his obligation,
    it remains that a renter who can hang a mezuzah has more ba'alus
    than an owner who may not. And in any case, a renter doesn't own,
    but is a ba'al with respect to hilkhos mezuzah. Ba'alus is not the
    same concept as that denoted by the English word "ownership".

    ... The ba'al must have the liberty necessary to execute his
    responsibilities that he was qoneh, and thereby has the permission
    to use it for himself. Authority without responsibility is immoral,
    responsibility without the authority to execute it is impossible. A
    person would accept the responsibility in exchange for the right to
    be able to use an object.

    Pragmatics:

    What is the nafqa minah lehalakhah, the pragmatic difference,
    between halachic ba'alus and western ownership?

    We already saw two: ... [Then I add the aforementioned VIDC about
    there is no yerushah of chameitz on Pesach.]

Ownership in the context of a beris might have an entirely different
meaning. From my translation of the intro to Shaarei Yosher
<http://www.aishdas.org/asp/ShaareiYosher.pdf>i (for the Hebrew, see pg
9 of the PDF, 10 lines before the paragraph that begins with the large
"VeKhein", last word, which is also "vekhein"):
    Therefore it is appropriate to think about all the gifts of heaven
    "from the dew of the heavens and the fat of the land" that they
    are given to the Jewish people as a whole. Their allotment to
    individuals is only in their role as caretakers until they divide it
    to those who need it, to each according to what is worthy for him,
    and to take for himself what is worthy for himself. With this idea
    one can understand how charity has the effect of enriching the one
    who performs it, as the sages say on the verse "'aseir ta'aseir --
    you shall surely tithe' -- tithe, so that you shall become rich --
    shetis'asheir". Someone who is appointed over a small part of the
    national treasury who does a good job guarding at his appointment
    as appropriate will be next appointed to oversee a sum greater than
    that, if he is not promoted in some other way. If they find a flaw in
    his guard duty, no fine qualities to be found in him will help, and
    they will demote him to a smaller task. Similarly in the treasuries
    of heaven which are given to man. If he tithes appropriately,
    he satisfies his job of disbursement as he is supposed to conduct
    himself according to the Torah, giving to each as is appropriate
    according to the teachings of the Torah, then he will become wealthy
    and be appointed to disburse a greater treasure. And so on, upward
    and upward so that he can fulfill his lofty desire to do good for
    the masses through his stewardship of the treasury. In this way a
    man of reliable spirit does the will of his Maker.

It would seem that to own something is really to be the part of the
whole charged with making sure it's properly distributed and used.

Tir'u baTov!
-Micha

-- 
Micha Berger             I slept and dreamt that life was joy.
micha at aishdas.org        I awoke and found that life was duty.
http://www.aishdas.org   I worked and, behold -- duty is joy.
Fax: (270) 514-1507                        - Rabindranath Tagore