Ma’akeh and Preventing Danger

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by R. Gidon Rothstein

Parshat Ki Tetzei

The Torah requires us to place a ma’akeh, a fence or girding, around rooftops of our homes, Devarim 22;8. Rambam’s Obligation 184 understands the Torah more broadly, thinks it commands us to protect against all dangers, to the extent possible. In his view, the barrier we put around our rooves, wells, ditches, and backyard pools are an example of how to do so, not the definition of the mitzvah. Arukh HaShulchan Choshen Mishpat 427;6 adds that for in-ground dangers, like wells or cellars, a good covering is as effective as a railing, because the worry is falling into, not off of.

The ‘aseh is paired with Prohibition 298 (retzach, murder, is the way the number is written, as it happens), we are proscribed from leaving dangerous items around, lest people be killed (note: it seems only mortal danger counts as danger, because is there any other kind?). The prohibition is established by other words in the same verse, ve-lo tasim damim be-veitekha, do not place blood/death in your house.

Sefer HaChinukh 546 (547 is the prohibition, with nothing new) phrases it more prescriptively, we are to rebuild and repair any wall or fence where there is likely a problem brewing. He adds what seems clearly to have been Rambam’s assumption, too, the Torah used the roof only because it was a common example. Arukh HaShulchan extends the responsibility to all weakened structures, to remove the danger they present.

Believing in Providence, Acting in Nature

I always enjoy/am stimulated by considering Sefer HaChinukh’s reasons for a mitzvah; here, I think he outdoes his usual high standard. Our mitzvah seems to require us to attend to danger, where we believe in hashgachah, Divine Providence, and Sefer HaChinukh accepts a notably expansive version of it. He quotes Chullin 7b, people do not injure their fingers unless decreed upon them from Above. If God guides all, he wonders why we need to take care of possible dangers. Only those God decides should be hurt would be so anyway.

Nonetheless, he says, the Torah is telling us we all must take action to protect ourselves from “natural” events. Hashem built His world to run and function with natural rhythms, decreed that fire burns, water extinguishes, and so on, including death (one of his examples: if a boulder falls on someone, it is going to crush their skull). At the same time, God gave people intelligence to find ways to secure their surroundings, set up safe environments, and commanded us to use our intellects to avoid dangers that might come our way.

[I haven’t seen this mitzvah in too long, and I think it sets up a balance to other comments of Sefer HaChinukh’s on providence that would be easy to miss. I’m not going to try to decide where he comes out, but for all he many times says Hashem decides what happens to us, he also thinks Hashem decreed the world should work naturally, for us to act within it naturally, I think to spur us to develop our intellects. Many remarkable achievements started with the search for healing or comfort.]

There’s Still Providence

Not that God has abandoned us all to “nature.” There are people so good, so dedicated to God’s purposes in the world, they do not need to pay attention to Nature. Avraham, Chananiah, Mishael, and Azaryah, Sefer HaChinukh  says, were all thrown in a furnace and emerged without a hair having been singed.

Vanishingly few of us can count on that, though, because of our sins [it’s not even clear Avraham and the others counted on that; they just had no other option]. For us, the Torah said to be careful about approaching dangers, not to rely on miracles. We go to war with the same balance, knowing all is in God’s hands while yet also conducting ourselves as if it were fully natural. Both, not one or the other.

Where We Have to Be Careful

Sukkah 3a limits ma’akeh to a house used for human habitation, at least four by four amot (sixteen square, even if one side is less than four, according to Arukh HaShulchan Choshen Mishpat 427;1). “Habitation” means living/sleeping, so Sefer HaChinukh, following Rambam excludes shuls and study halls, because people do not live there. Arukh HaShulchan notes Gra and Sema debated this, because Sifrei seems to clearly include other spaces in the ma’akeh.

Arukh HaShulchan 427;5 held the requirement of ma’akeh was for a flat roof; slanted ones like many houses today are not generally used, he said, and therefore do not need a ma’akeh. [I think this is accepted, and wonder what level of use would change it. In popular culture, people sometimes have windows that lead onto the roof and sit on the slanted part. At what point would we say it needs a ma’akeh?]

Gra held that any space obligated in a mezuzah needs a ma’akeh (a bigger list than Rambam’s), where Sema thought they did not necessarily go together. It might be used enough by people to require a mezuzah, not often enough to need an enclosure on the roof.

Halakha also did not require a homeowner to avoid falls into his/her space; were his rooftop to run underneath some kind of thoroughfare, it would be the road above that would have to put up barriers to prevent falls.

Food, Drink, and Future Danger

In line with the Torah law, Chazal listed some dangers to avoid. Their list focused on drinking water or eating produce which might have deadly elements, but Sefer HaChinukh says they were teaching us to pay attention to whatever might damage us down the road. This invites a conversation he does not entertain, how far down the road, what level of danger. At what point is a behavior disallowed, because it flouts the message of the laws of ma’akeh? Hard to know.

Arukh HaShulchan gives another interesting example, a nursing mother being careful not to leave the infant where she might smother him/her. He recognizes the mother in such a tragedy she would not be considered even a rotzachat be-shogeg, an unwitting murderer, because she was intent on the baby’s welfare, but still thinks she would need significant repentance, and should make sure to avoid the problem by putting the baby in safe circumstances. There is nothing better than care, he adds. [Today, sadly, we have to add having safeguards not to forget a baby in a car.]

I think I’m attracted to this conversation because people have different risk tolerances, and we live in a world where society is quick to insist all such choices or options are equally valid. When it comes to safety, my understanding of Rambam, Sefer HaChinukhArukh HaShulchan, and other sources not directly germane here, is that Torah and halakha want us to be extremely careful with our lives, not just reasonably careful. There’s a range, but it should lean towards safety.

As Arukh HaShulchan 427;8 puts it: whoever says “I’m going to endanger myself, what’s it anyone else’s business?” could be hauled before a rabbinic court and disciplined. One might say, this isn’t a danger, but if it is a recognized danger, a Jew is not allowed to put him/herself into it.

About Gidon Rothstein

One comment

  1. Excellent presentation. You took a topic many might think of as narrow or obscure, and broadened it into a fascinating issue with great contemporary resonance.

    Your last few paragraphs, for me, are really where the rubber hits the road. Because the “danger” of mission creep appears far more dangerous than any other form of harm. In this one example alone, just to cite from your article, the Torah begins with a command to put up a railing (to prevent an easily understood risk of death) and by the end, we are told that no one has a right to determine his own risk tolerance. It’s the same old story: It starts with seat belts, then “rest periods”, then bicycle helmets – now my kids can’t even get things from their class during recess, because the doors automatically lock when closed, in the holy name of “safety”.

    Anyway, great article, as always. Keep it up.

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