At the end of last week’s article we remained with the question of whether a person may ask the secular authorities to prevent a yeshiva from blocking a public path if, according to Jewish law, the yeshiva is allowed to block the path.
The first issue which needs clarification is whether one who prevents someone from maximizing the use of his private property is doing anything wrong.
We find in the Gemara (Bava Basra 2B) a concept of damage known as hezeik re’iyo. Some results of this concept are that one may not open a window overlooking his neighbor’s courtyard, or may not open a window or build a wall which will enable him to see into someone else’s window. There are many similar halachos. One of the reasons this is forbidden (See e.g. Sema (378, 4), Even Ho’ozel (Shechainim 2, 16)) is that opening a window or the like will prevent the other person from utilizing his property for certain activities that he would not like to be observed doing. Since the Gemara classifies this as an action which damages the other person and one is not allowed to damage another, we can deduce that one may not do anything that inhibits another person from utilizing his property in any manner that is permitted by Torah law.
Moreover, this concept is the basis for all the rules that Chazal established to govern neighborly relations. The Gemara devotes an entire Perek (Perek 2 of Bava Basra) to discuss relations between neighbors. Thus if, for example, one neighbor wants to plant a tree and the other wants to dig a well, since each neighbor will damage the other, Chazal decided which neighbor may act in the way he desires and which one may not. The Chazon Ish (Bava Basra 11, 1) writes that if, according to Torah law, neighbor A is allowed to do something, neighbor B may not do anything to prevent neighbor A from doing what he is allowed to do. He says that any action taken by neighbor B to thwart neighbor A is classified as an act of damage and is a type of theft.
Based on the above, it would seem obvious that one may not petition the secular authorities to force the yeshiva to leave the path intact. Moreover, one who does so, if successful, would be guilty of damaging the yeshiva and according to the Chazon Ish, is in a sense stealing from the yeshiva.
As we wrote at the end of last week’s article, this issue comes up in many circumstances. For example, often people attempt to prevent someone from building a tall building in their vicinity if it will block their view. According to Torah law (See Sema 154, 38) in almost all circumstances one may not prevent someone from blocking his view because he does not own the view. Therefore, a person may not ask the authorities to refuse another Jew’s plans because they would block his view. (At times, we will see, there is an exception in the case of a tall building.)
If the person who wishes to build wants to change or to make an exception to the existing zoning, then some authorities allow one to object. There are two reasons why this is allowed. One reason is that the owner of the lot never had the right he is requesting. Therefore, the one who objects is not preventing the owner from maximizing the use of his property because he never had that use. Rather, the owner is trying to add a use onto the usage he possessed prior to his request. Furthermore, even according to Torah law one may object by arguing to the authorities that he purchased his property with the understanding that there would only be low buildings in the vicinity.
A basic source concerning the issue of when one can turn to the secular authorities to prevent another Jew from taking an action is a response of the Maharik (Responsa 191).
He was asked to decide a dispute between a money lender who wanted to move into the Italian Jewish community of Montova and the leaders of the Jewish community who were pressuring the secular government to prevent the outsider from moving into Montova and competing with them to lend money. The Maharik ruled that even though (according to Rabbeinu Tam) beis din had no halachic right to prevent the outsider from establishing a business to lend money, nonetheless the community was allowed to pressure the secular authorities to prevent their fellow Jew from establishing a rival business. The Beis Yosef (end of siman 156) expresses his amazement with the Maharik’s ruling, asking how is it that one may use secular authorities to accomplish what he cannot accomplish in a beis din on the basis of Torah law.
In general it is difficult to rely on the Maharik, since many later authorities (e.g. Mabit (3, 31), Divrei Malkiel (3, 157)) side with the Beis Yosef. Furthermore, others (the above-cited Divrei Malkiel and Chazon Ish (Bava Kama 23, 38) limit the Maharik’s ruling to situations where a Jew wishes to use the authorities to prevent a fellow-Jew from gaining a new right (like changing the zoning law) but not to take away a right he already has.
The Avnei Nezer (Orach Chaim 36) was asked to rule in the case of someone who wanted to establish a shul which would compete with an existing shul. The proprietor of the existing shul asked the local authorities to block the establishment of the new shul. The Avnei Nezer cites the dispute between the Maharik and the Beis Yosef, and explains that the Maharik maintains that a person may turn to the authorities to prevent someone from gaining money because he wants to gain the money. The Beis Yosef disagrees because he maintains that preventing someone from gaining money is tantamount to damaging him. The Avnei Nezer ruled that since the new shul in any case needed to get permission from the government, even the Beis Yosef will agree that the established shul may ask the government to turn down the new request as the new shul will affect its income.
In our situation, even the Avnei Nezer will agree that one may not ask the authorities to force the Yeshiva to leave part of their property empty in order to allow people to walk across the yeshiva’s property, because they are effectively asking the authorities to take away from and to damage the yeshiva.