Bava Kamma 047

6:
Double restitution. Over the years I have mentioned on several occasions that the division of the bible into chapters is not of Jewish origin at all: it was the work of the English archbishop Stephen Langton (1150-1228 CE), and in several places he made a complete mess of the task: separating the first three verses of Genesis 2 from Genesis 1 is an obvious example; but the chapter division in the passage that will now concern us displays a complete ignorance of halakhic jurisprudence. The Torah [Exodus 21:37-22:3] establishes rules for dealing with theft:

What concerns us here is the very last part of the ruling of the Torah. Put simply it is as follows: if a thief is apprehended and is sued by the owner of the stolen property (see the Discussion section below to understand why the offender must be sued) he must make double restitution. That means that if what he stole was worth 1000 dinars he must repay the person from whom he stole 2000 dinars: the original value plus a 'fine' of 100%. (Later development by the sages determines that if the thief cannot afford to pay the fine but can return the original value the owner must make do with that.)

The Torah exemplifies the theft by referring to "ox or ass or sheep", but our present mishnah clarifies that this does not mean that only these animals are the subject of the law: they are only examples of anything at all that has been stolen.

To be continued.

In BK 044 I wrote:

In all these cases the person who digs the pit is also a trespasser. This even includes Sam, because he has no right to endanger the public in this manner. (We recall that the public domain belongs to everyone and must therefore be kept free of all hazards.)

Jim Feldman writes:

Your expansion of Bava Kamma 044 made sense until you got to item 6. The text makes no mention of the digger being a trespasser. Sam, for example, might be repairing a sewer under orders from the municipality. His right to dig the pit would be unquestioned, but he is responsible for putting up a protective enclosure and, if he had to interrupt the work, to cover the opening. It is this responsibility that the Mishnah and Torah and your item 7 address. I have no idea where you got the idea that Sam is a trespasser or that he had no right to dig in the public way. The other examples from the Mishnah do not absolutely imply a trespass. Purpose and permission would dominate that discussion but responsibility for the safety of the public is always there.

I respond:

In order to understand why I (and the sages) dub Sam a trespasser in this case Jim would have to forsake his conceptualizations of public and private ownership, and general law enforcement. And that is something that I have no reason to expect. My explanation will take some time, but I think that it is worthwhile to try to explain. During the nearly 15 years that we have been studying together in this study group we have covered many differing aspects of halakhic jurisprudence (especially when we studied Tractate Sanhedrin, a decade ago). But one element, essential to modern concepts of the rule of law, has never been discussed by us: that element is a police force. The reason why this has not been discussed is because no such element existed in either the biblical set-up or in the later halakhic system. (And please don't quote to me Deuteronomy 16:19 which commands us to establish "judges and police": Rashi explains that the 'police' referred to in this verse are what we today would call bailiffs, officers of the court whose task it is to see that the judgements of the court are carried out.)

Halakhic jurisprudence knows of no policing element in society – neither law prevention nor detection. All law enforcement – even the most heinous of crimes – was in the hands of the people. In order for an offence to be judged the victim must sue the offender in court. (The Torah even introduces the concept of the 'blood avenger' together with the 'city of refuge' to encourage those accused of murder to give themselves up and have a fair trial: rather than be killed by an incensed relative of the deceased why not escape to a city of refuge? There in a trial at law you might be found innocent or guilty of manslaughter only.)

After this long introduction let us return to Sam. There is no municipality responsible for the maintenance of public facilities. Besides, as we have pointed out earlier in our study of this tractate, the public thoroughfare belongs to everybody. That does not mean that it belongs to no one: it means that each individual may treat the street as his own, to "do his thing" there, provided he does not obstruct this privilege for others. If Sam digs a hole in the street for his own personal use he is, in fact, trespassing, because he is using 'someone else's' property ("everyman") for an illicit purpose. The only way that this offence can be brought to judgement is when some other user of the public thoroughfare sues Sam as a trespasser. There is no police officer who will tap Sam on the shoulder and remonstrate that "you can't do that there 'ere!"

This has been a very long response and quite off topic, in a sense. I hope it has been useful.