September 1996--A proposed expansion of a major Calgary thoroughfare, which will require expropriation of residential properties, is viewed by some as a threat to the local Jewish community and its institutions.
Although I have not yet been persuaded that the municipal plan to expand 14th Street will lead to the imminent decline of Calgary's Jewish community (as suggested by some recent comments recorded in this newspaper), I do appreciate that any project involving major road building will cause inconveniences to those residents whose property lies in the path of the bulldozers.
Of course this is not a new or unique problem. Most societies have had to cope with these sorts of conflicts, where benefits to the majority are achieved at the expense of a minority.
Jewish legal literature discusses several scenarios in which a public thoroughfare impinges on the property of individuals. In most cases, the interests of the public are given overriding priority.
A classic case that is discussed in the Talmud involves a public road that passed through a privately owned field, prompting the field's owners to take matters into their own hands by diverting the road to an alternate route through the same field. In such an instance, the rabbis ruled that not only would the public have the right to hold on to their original road, but the owners would be penalized by having to forfeit the replacement road as well!
As representatives of the public interest, the Jewish courts saw themselves as the custodians of far-reaching powers that could be traced back to Biblical times. Indeed they cited the precedent of Joshua and the tribal chiefs of his day, who had exercised similar authority when apportioning the promised land among the tribes of Israel.
More problematic were the extensive powers assigned to the Jewish kings with regard to the expropriation of property for personal or national purposes. The biblical precedents appear ambivalent in their attitude towards royal power. Even as he was seeking to alarm the people with the prospect of rapacious leaders who would "take your fields, and your vineyards, and your oliveyards," the prophet Samuel was introducing measures designed to prevent the kings from exercising arbitrary authority over the citizens' property.
Some commentators pointed to the biblical account of how the wicked monarchs Ahab and Jezebel had to arrange for the judicial murder of Naboth in order to confiscate his vineyard. Did this not demonstrate that even tyrants did not have the authority to seize private property at will, even if they were prepared to offer compensation!
The Mishnah appears to be more generous about authorizing the king to confiscate property: "The king is permitted to break down fences in order to obtain access, and none may protest. No limits are set to the dimensions of the King's roadway." Commentators add that this prerogative also extends to the demolition of buildings.
Medieval halakhic authorities were of several minds when it came to defining the scope of these royal powers. It would be interesting to speculate on the degree to which their positions on this question might have been influenced by their cultural and political environments.
Thus Rashi, who lived in a feudal society where power was wielded arbitrarily by kings and barons, extends the king's right of expropriation even to matters of personal convenience.
A very different approach was professed by Maimonides, whose depictions of royal conduct are always guided by rationality, echoing the Platonic ideal of the "philospher king." In Maimonides' view, the king is permitted to seize private property only in time of war or other urgent necessity, and the owners must be fairly compensated. Some interpreters subjected these rights to further conditions; e.g., that the expropriated lands be returned to their original owners if no longer needed.
Thus, the threat of possible expropriation hovers over all property owners.
Under the circumstances, we can better appreciate the interpretation that Rabbi Simeon ben Lakish applied to the prophet Amos' image "As if a man did flee from a lion" (5:19).
As understood by Rashi, this simile can be applied to the distressing plight of "a man who went out into his field, and there encountered the municipal surveyor"!
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