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Published online by Cambridge University Press: 25 June 2014
The academic discourse regarding welfare policy has generally been dominated by views focused on the distribution of resources and welfare. In recent years, another school of thought, known as “relational egalitarianism,” has emerged and shifted the focal point of social welfare policy from traditional redistribution to other aspects of social status. In this article, I will analyze a similar paradigm shift that occurred in the fashioning of the institution of the second tithe in the classical sources of Jewish law. The institution of the second tithe is ostensibly irrelevant to social welfare policy both from the internal perspective of Jewish law and from the external general-theoretical perspective. From the Jewish law perspective, it is not normally conceived of as an institution with a social-welfare goal, and from the general theoretical perspective, it seems to be an anachronistic institution that cannot enrich the modern theoretical discourse. In this article, I will try to expose the social role that was imbued in this institution through its reconstruction by the Sages. I argue that the concealed and indirect mechanism for the promotion of social goals may promote the social status of individuals in society more effectively than conventional social welfare mechanisms. In this respect, the reshaping of the second tithe may provide inspiration for enriching the arsenal of possible relational egalitarian social policy prescriptions.
1 For example, see the statement made by Obama Administration former Director of the Office of Management and Budget Peter Orszag regarding the centrality of studies on income inequality, such as the Thomas Piketty and Emanuel Saez study on income inequality, in guiding the Administration's social policy: “[Saez's]work on income inequality and taxation has helped me to shape my own thinking on these matters, and it had no small influence on the President's Budget.” Peter Orszag, Congratulation to Emanuel Saez, Office of Management and Budget (Apr. 27, 2009, 01:47 PM), http://www.whitehouse.gov/omb/blog/09/04/27/CongratulationstoEmmanuelSaez/. Although Piketty and Saez are economists and not philosophers, their work seems consonant with later-described philosophical views that social policy should focus on the redistribution of material resources. Annie Lowrey, French Duo See (Well) Past Tax Rise for the Richest, N.Y. Times, Apr. 17, 2012, at A1 (describing Saez's and Picketty's views).
2 Anderson, Elizabeth, What is the Point of Equality?, 109 Ethics 287, 288 (1999)CrossRefGoogle Scholar.
3 Anderson, supra note 2, at 287–88; see also Cohen, G. A., On the Currency of Egalitarian Justice, 99 Ethics 906, 922–23 (1989)CrossRefGoogle Scholar. The “space” and “currency” refer to the attributes and characteristics with which a distributive theory is concerned and the units in which it measures and ranks different distributional outcomes.
4 See infra note 29 and accompanying text.
5 This argument is premised on the view that it is better to achieve redistribution through private law than to do so through mechanisms designed especially for redistribution, such as welfare payments. See Lewinsohn-Zamir, Daphna, In Defense of Redistribution through Private Law, 91 Minn. L. Rev. 326, 330–31 (2006–2007)Google Scholar. There is, however, a fundamental difference between the principal argument critiquing the failure of conventional welfare mechanisms to obtain the objective at which they are aiming and my argument. While the main argument for redistribution through private law is that it “disguises” redistribution and thus eliminates some of the harmful side effects of redistribution such as infringement of dignity and self-respect, my argument is not aimed at concealing the redistribution taking place; rather, it is aimed at other objectives, namely, promoting the status of the worst-off without redistributional tools.
6 Habermas, Jürgen, Religion in the Public Sphere, 14 Eur. J. Phil. 1, 17 (2006)CrossRefGoogle Scholar.
7 Id. at 10.
8 Id. at 9–10.
9 Dworkin, Ronald, What is Equality? Part 2: Equality of Resources, 10 Phil. & Pub. Aff. 283, 333 (1981)Google Scholar.
10 Cohen, supra note 3.
11 Arenson, Richard, Equality and Equality of Opportunity for Welfare, 56 Phil. Stud. 77 (1989)CrossRefGoogle Scholar.
12 Philippe Van Parijs, Real Freedom for All: What (If Anything) Can Justify Capitalism? (1995).
13 Anderson, supra note 2, at 288.
14 Arenson, Richard, Rawls, Responsibility, and Distributive Justice, in Justice, Political Liberalism, and Utilitarianism 80, 80 (Fleurbaey, Marc & Weymark, John A. eds., 2008)Google Scholar.
15 Anderson, supra note 2, at 290.
16 Id. at 293.
17 Cohen, supra note 3.
18 See Anderson, supra note 2, at 293 (summarizing the different views).
19 Id.
20 Id.
21 Id.
22 Id. at 289.
23 Id. at 305.
24 Id. at 306.
25 Wolff, Jonathan, Fairness, Respect, and the Egalitarian Ethos, 27 Phil. & Pub. Aff. 97, 106 (1998)CrossRefGoogle Scholar.
26 Wolff, Jonathan, Fairness, Respect and the Egalitarian Ethos Revisited, 14 J. Ethics, 335, 339 (2010)CrossRefGoogle Scholar.
27 Anderson, supra note 2, at 336.
28 As women were generally not landowners in early Judaism, I use the masculine form throughout.
29 For scholarship aimed at deriving tax policy applications of the biblical tithe, see Chodorow, Adam S., Agricultural Tithing and (Flat) Tax Complexity, 68 U. Pitt. L. Rev. 267 (2007)Google Scholar. For an explicit statement regarding the irrelevancy of second tithe to modern public policy, see Chodorow, Adam S., Biblical Tax Systems and the Case for Progressive Taxation, 23 J.L. & Religion 51, 82 (2008)CrossRefGoogle Scholar (“It is difficult to see how one could argue that this tithe reflected or rested on a judgment regarding the fair allocation of communal obligations.”).
30 Excluding commandments that are directly related to the Sabbatical (which are not interchangeable with any other commandments) there is an additional commandment that is not performed on an annual basis—namely, Net'a Reva'i (Leviticus 19:23). According to the commandment of Net'a Reva'i, after planting a tree, one cannot eat the fruits of the tree for the first four years. In the fourth year, one must bring the fruits to Jerusalem to be eaten—similar to the second tithe. Although one must wait four years, this cannot be seen as a non-annual commandment. The four years are only the lapse of time one must wait from the triggering event—the planting of the tree, but this is not a commandment performed on a non-annual cycle. It is interesting to note that in the case of Net'a Reva'i, there is no hint in the plain text of the Pentateuch that the fruit of the fourth year should be eaten in Jerusalem. The Sages are the ones who equated treatment of the fruit of Net'a Reva'i with the fruit of the second tithe—not only in how the fruits are eaten, but in general rules of how the fruit should be treated, for example, in sales. This might reinforce the argument that the Sages' motivation for requiring that the fruit be brought to Jerusalem is the counteraction of the practice of ownership derived from self-production. Such counteraction is especially relevant in cases of planting trees, the paradigmatic case of capital formation that can be used as a means of production.
31 Deuteronomy 14:22–23 (King James) (emphasis added).
32 Id. at 26:12 (King James).
33 The term ma'aser ani (poor tithe) was coined by the Sages. In the Pentateuch there is no mention of a donation that is directed only toward the poor; rather, the poor tithe is directed also toward the Levites and the widows, even if they are rich. Although the Sifre on Deuteronomy 109 has interpreted the verse to apply only to poor widows, it is possible to interpret “widow” as applying to any widow. R. Yehuda interprets the verse “do not take a widow's clothing on account of a debt” (Deuteronomy 24:17) as applying to any widow, even to a rich widow (bBaba Mezi'a 115a).
34 Sifre on Deuteronomy 109 (Hammer, Leuven trans., 1986) (emphasis added)Google Scholar. The same source contains a disputing opinion from R. Eliezer ben Jacob regarding the source from which it is learned that the second tithe is interchangeable with the poor tithe and not the first tithe: “R. Eliezer ben Jacob, however, says: Not necessarily, for Scripture says elsewhere, And Unto the children of Levi, Behold, I have given all the tithe in Israel for an inheritance (Num[bers] 18:21)—just as an inheritance cannot move, so cannot first tithe move.” However, there is no dispute regarding the fact that the two are interchangeable. Id.
35 Josephus Flavius, IV The Antiquities of the Jews, ch. 8, § 2. (Whiston, William trans., 1777)Google Scholar.
36 See infra note 63.
37 On the similarities between Roman law and Jewish law in both the Tannaitic and Amori'ic sources, see Boaz Cohen, 1 Jewish and Roman Law: A Comparative Study 17–24 (1966)Google Scholar.
38 See Barry Nicholas, An Introduction to Roman Law 153–57 (1962); Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 59 (1985).
39 Chanoch Dagan has broken modern conceptions of property into three categories: The first is the formalist account of property, which defines property according to incidences. The second is the substantive account of property, such as Hofeld's bundle-of-sticks theory (i.e., the idea that property consists of several distinctive rights that are only nominally tied together by name). The third is the realist account that he himself suggests, which combines both elements. Although this account does not define property through a close list of incidences, it does find a connection among the different elements in the value that the property institution aims at promoting in the particular context. See Chanoch Dagan, Property: Values and Institution xi–xii (2011). Although this paper is proceeding with the formalist conception in which the Sages have transformed the status of the landowner from an owner of the fruits to a non-owner of the fruits, there seems to be a deep connection between Dagan's account of property and the reconstruction of the status of the landowner in relation to the fruits of the second tithe described above. One might claim that the Tannaims's actions fit more neatly into an understanding of property as different institutions rather than as a lever that can only be turned on or off.
40 Regarding the link between the conception of property in Roman law and Blackwell's conception of property, see Epstein, supra note 38.
41 1 William Blackstone, Commentaries *138. Thomas W. Merrill notes that Blackstone's definition of property is incongruent with the later definition of property he provides in 2 Commentaries *2, where he describes property as the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” Merrill places each one of these definitions into a distinct category of property conceptions. The former is categorized as a “single-variable version of essentialism,” which focuses on exclusion, and the latter is categorized as a “multiple-variable version of essentialism.” Merrill has also questioned the link scholars have claimed exists between the Roman conception of property and the three elements mentioned in Blackstone's former definition, in which “free use” and “enjoyment” seem to be redundant. See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 734–36.
42 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).
43 mMa'aser Sheni 1:1 (Soncino ed., 1952)Google ScholarPubMed.
44 tMa'aser Sheni 1:1 (Neusner, Jacob ed., 1986)Google Scholar.
45 mMa'aser Sheni 3:1; see infra note 50.
46 mMa'aser Sheni 2:7 (Soncino ed., 1952)Google ScholarPubMed.
47 Id. at 2:8.
48 The conceptual distinction between exchange and use value lies at the heart of the Marxist theory of value. See Karl Marx, Capital: A Critique of Political Economy 138–77 (Fowkes, Ben trans., 1990)Google Scholar.
49 This dimension is reminiscent of the central feature of ownership that Hegel focuses on: property as the realization of the owner's freedom. G. W. F. Hegel, Elements of the Philosophy of Right §§ 41, 44–46 (Wood, Allen ed., 1991)Google Scholar.
50 Regarding how commodification may enhance autonomy and personhood, see Dagan, Tsilly and Fisher, Talia, Rights for Sale, 96 Minn. L. Rev. 90, 108–10 (2011)Google Scholar. The Mishna's distinction between “partial commodification,” in which the fruits are exchanged for money, and “full commodification” in which the fruits are mixed with money in one side of the transaction, may serve as a good example for Dagan's main argument that on the spectrum between alienability and inalienability, there are several different combinations of the two that may be best in different contexts. This argument may overlap to some extent with the distinction Dagan and Fisher make between commodification of resources and commodification of interactions. Id. at 102–03.
51 James E. Penner, The Idea of Property in Law 49 (1997).
52 See id. at 71.
53 Katz, Larissa, Exclusion and Exclusivity in Property Law, 58 U. Toronto L.J. 275, 290 (2008)CrossRefGoogle Scholar.
54 mMa'aser Sheni 2:1 (Soncino ed., 1952)Google Scholar.
55 It should be noted that similar features could be found in additional halachic categories such as the limitations on use and transfer of the fruits of the Sabbatical and the geographic requirement of eating all Kodashim Kalim in Jerusalem. To sustain the claim that the purpose of each one of the restrictions in second tithe is to uproot ownership demands a thorough comparison to these other halachic categories. Nonetheless, the grouping of all restrictions in one institution and alongside the temporal interchangeability of second tithe with poor tithe reinforces the claim that the objective of these elements in the context of ma'aser sheni is the uprooting of ownership. The rabbinic agenda of uprooting ownership is also reflected in the literary structure of the tractate of second tithe. It is the only tractate in the Order of Seeds that opens with the list of restrictions that pertain to the fruit. See mMa'aser Sheni 1:1.
56 mMa'aser Sheni 2:2 (Soncino ed., 1952)Google Scholar.
57 tMa'aser Sheni 1:3 (Neusner, Jacob ed., 1986)Google Scholar.
58 1 Blackstone, supra note 41, at *138.
59 Penner, supra note 51, at 103 (“We can now reformulate the right of property, or the right of exclusive use, to take account of the element of alienability: it is the right to determine the use or disposition of a thing in so far as that can be achieved or aided by others excluding themselves from it, and includes the rights to abandon it, to share it, to license it to others (either exclusively or not), and to give it to others in its entirety.”); see Hanoch Dagan, Property at a Crossroads 23–34 (2005) (in Hebrew) (labeling such conceptions of property as “Property as Sovereignty” conceptions).
60 mMa'aser Sheni 3:5 (Soncino ed., 1952)Google ScholarPubMed.
61 bMegilah 26a (Soncino ed., 1952)Google Scholar.
62 bBaba Qamma 82b (Soncino ed., 1952)Google Scholar.
63 One might suggest that the reconstruction of the second tithe is part of a wider objective of watering down the role of the temple after the destruction and filling the vacuum with alternative practices and institutions in which the holiness of the temple plays no role. The classic example of such a move made by the Sages is the ordinances of Raban Yochanan Ben Zachai, mRosh ha-Shanah 4:1–4. The greater emphasis on practices linked to social ends after the destruction of the temple may be reflected in the following Mishnah in tractate Hands:
R. Tarfon answered: Egypt is outside the land of Israel, Ammon and Moab are outside the land of Israel: just as Egypt must give tithe for the poor in the seventh year, so must Ammon and Moab give tithe for the poor in the seventh year. R. Eleazar B. ‘Azariah answered: Babylon is outside the land of Israel, Ammon and Moab are outside the land of Israel: just as Babylon must give second tithe in the seventh year, so must Ammon and Moab give second tithe in the seventh year . . . R. Joshua said: behold, I shall be as one who replies on behalf of Tarfon, my brother, but not in accordance with the subject matter of his arguments. The law regarding Egypt is a new act and the law regarding Babylon is an old act, and the law which is being argued before us is a new act. A new act should be argued from [another] new act, but a new act should not be argued from an old act. The law regarding Egypt is the act of the elders and the law regarding Babylon is the act of the prophets, and the law which is being argued before us is the act of the elders. Let one act of the elders be argued from [another] act of the elders, but let not an act of the elders be argued from an act of the prophets. The votes were counted and they decided that Ammon and Moab should give tithe for the poor in the seventh year.
mYadayim 4:3 (Soncino ed., 1952)Google Scholar. The Mishnah points to two prevailing practices regarding the tithe that should be given in foreign countries in the Sabbatical year. In Israel, no tithe is given because no one owns the land during the Sabbatical. One practice is the “old practice” in Babylon, in which second tithe is given in the Sabbatical, and the other practice is the “new practice” in Egypt, in which the poor tithe is given. The contrast between the “old practice” and the “new practice” may be connected to the historical function of the temple. The “old practice” dates to the time of the temple and, thus, emphasizes and prioritizes the religious act directed toward the holiness of the fruit, Jerusalem, and the temple. The “new practice” may have appeared after the destruction of the temple and, thus, prioritizes the social practice of giving to the poor. Such prioritization reflects the shift of the Sages from a focus on practices centered around the holiness of the temple and Jerusalem, to a focus on practices centered around social goals of giving to the poor. This account explains why the timing of the establishment of the practice is crucial for its form and scope of implementation. Regarding the literary structure of this Mishnah, see Kahana, Menachem, I'yunim Be'its'uva shel hamachloket bamishnah u've'megamoteha 73 Tarbiz 51, 51–64 (2003) (in Hebrew)Google Scholar. (I thank Dr. Haim Shapira for pointing out to me both this Mishnah and the article by Prof. Kahana.) The unique phenomena I have pointed to in the context of the laws of the second tithe is that the Sages do not attempt to undermine the centrality of Jerusalem in the practice, but they do alter the role of Jerusalem, from functioning as the most holy place to functioning as a “no-man's-land.” Such remodeling of halachic institutions is very close to the mytonimyzation Ishay Rosen-Zvi points to in the Sages’ remodeling of the institution of Sotah. See Ishay Rosen-Zvi, The Rite That Was Not: Temple, Midrash and Gender in Tractate Sotah 257 (2008) (in Hebrew).
64 tMa'aser Sheni 1:11–13 (Neusner, Jacob ed., 1986)Google Scholar.
65 One might argue that it is linked to the second tithe, for the second tithe needs to be eaten in Jerusalem. In the standard case, a person will not be able to eat his second tithe, which consists of a percentage of his annual crops, unless he finds a place to spend the night in Jerusalem. Thus, a law concerning accommodation in Jerusalem is indirectly linked to the second tithe. Furthermore, one might argue that there is some connection between this list of laws. Halakhah 1:13 explains Halakhah 1:12: the skin of animals bought from the money of the second tithe can be taken by the owner's hosts because that permits the second tithe's owner to stay in Jerusalem and keep the commandment. (It is interesting to note that the fact that the Tosefta states that the skin is taken by the hosts and not received by the hosts also seems to undermine ownership by limiting the individual's ability to exclude others from making use of his meat.) The problem with these answers is that the need to stay in Jerusalem, or the ability to offer the skin of sanctified animals eaten in Jerusalem to hosts, is not unique to the second tithe; it is relevant to all festivals in which people are supposed to celebrate in Jerusalem, and to most sacrificial offerings requiring a lengthy stay. Thus, there is a need to provide some other explanation for the specific connection of this law to the tractate of second tithe.
66 Such a view is what Dick Parfit labeled as “leveling down”—reducing the welfare of all individuals for the sake of reducing inequality. In the case of Sabbatical, it is not necessarily true that giving a larger share of the crops to the worse-off will reduce inequality in society. Although it would definitely reduce inequality in the distribution of the produce of the Sabbatical year, it may also increase overall inequality of assets. For example, assume that the distribution for the Sabbatical year was such that the worse-off had two resource units and the better-off had ten resource units. A non-cultivated land in the Sabbatical year produced four units of resources that would be split evenly between the worse- and the better-off, making the distribution ratio 4:12. Cultivated land from which the owner received forty percent of the produce would produce ten resource units from which the worse-off individual would receive four resource units and the better-off individual would receive six resource units. The overall distributive ratio would be 6:16. In the former scenario, the better-off individual ends up with three times as much in resource units than the worst off individual, and in the latter scenario, he ends up with less than three times as much. Thus, although the distribution of resources in the Sabbatical year in the latter case is more unequal than in the former case, it may still decrease overall equality.
67 Such a view of the Sabbatical has been attributed to Maimonides by Rabbi Shagar. See Shagar, Rabbi, Holiness and Cessation from Work in the Sabbath and the Sabbatical, in On the Economy and on the Sustenance—Judaism, Society and Economics (Brener, Itamar & Lavi, Aharon Ariel eds., 2008) (in Hebrew)Google Scholar.
68 The second tithe applies only to the percentage of the produce, and the Sabbatical applies only to agricultural product.
69 Schemmel, Christian, Why Relational Egalitarians Should Care About Distributions, 37 Soc. Theory & Prac. 365, 365 (2011)CrossRefGoogle Scholar.
70 See Hegel, supra note 49, at 20 (“What is rational is actual; and what is actual is rational.”); cf. Fackenheim, Emil, On the Actuality of the Rational and the Rationality of the Actual, 23 Rev. Metaphysics 690 (1970)Google Scholar.
71 Marx, Karl, The German Ideology: Part 1, in The Marx-Engels Reader 155 (Tucker, Robert C. ed., 1972)Google Scholar.
72 One of the most prominent welfare scholars to call for the endorsement of universal welfare schemes at the expense of targeted welfare schemes is Theda Skocpol. See Theda Skocpol, The Missing Middle: Working Families and the Future of American Social Policy 30 (2000). Gøsta Esping-Andersen also endorses the universalistic model as part of his social-democratic regime version of the welfare state, but mostly as it is based on the political-economy rationale of maintaining broad support for welfare programs. Gøsta Esping-Andersen, The Three Worlds of Welfare Capitalism 27–28 (1990).
73 Needless to say, such regulation would cause dead-weight loss, but it might still be desirable depending on the trade-offs between the promotion of social goals and the economic costs of such a policy.