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The Torah Learning Library of Yeshivat Chovevei Torah

The Legacy of Enclosure

What Biblical Workers’ Rights can Teach us about Privatizing the Public Domain

by Tadhg Cleary (Posted on September 8, 2022)
Topics: Torah, Sefer Devarim, Ki Tetze

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The law locks up the man or woman 
Who steals the goose from off the common 
But leaves the greater villain loose 
Who steals the common from off the goose.
The law demands that we atone 
When we take things we do not own 
But leaves the lords and ladies fine 
Who take things that are yours and mine.
The poor and wretched don’t escape 
If they conspire the law to break; 
This must be so but they endure 
Those who conspire to make the law. 
The law locks up the man or woman 
Who steals the goose from off the common 
And geese will still a common lack 
Till they go and steal it back.

Written anonymously, this poem expresses the frustration with the process of enclosure which gradually evolved in Europe from the 16th to 19th centuries. “Enclosure” is the legal term for the appropriation of waste and common land into private hands. Between the 16th to 19th centuries in Europe, enclosure turned huge swaths of communally-owned land into private holdings. Free grazing and farmland for commoners became the private property of lords and business people. 

Marx and others prefer to term this “land-grabbing” and “class robbery”. Indeed, riots and mass civil unrest erupted as a result. Those who could no longer support themselves in the country were forced to migrate to cities and take waged jobs in the burgeoning industrial economy – often for low pay and under horrific conditions. 

From an economic perspective, however, enclosure was an unmitigated success. Common land was used incredibly inefficiently, and chronically over-farmed. Privatizing the land maximized its potential, and wealth production exploded. Everyone benefits when society as a whole is wealthier – there is more capital to be spent, traded, and invested. 

The problem is that privatization also deprived the common person of one of the major means to access the wealth produced, so that the share of society’s wealth became slowly concentrated in a smaller and smaller number of hands. Wealth production exploded, but over time wealth inequality also radically increased. This effect of privatization was never compensated for.

***

In Parashat Ki Teitzei, Moshe continues to describe Am Yisrael’s divinely mandated society. Despite its commitment to social justice and welfare, a Torah society is not a socialist utopia – “to each according to his need, from each according to her ability”. Surprisingly, the Torah promotes radical private ownership. With the exception of Yerushalayim, there is arguably not a single inch of public land in Eretz Yisrael – the entire land was to be divided equally by lottery among every qualifying citizen. 

To be sure, measures like remission of lands in the Yovel do aim to ensure a very large proportion of society are in the landed class. But there will still be a significant unlanded population – Gerim (foreigners, proselytes), Levites, widows, people forced to sell their land etc.. 

Woven throughout the Parasha, there are in-built protections for this class – the forgotten sheaf, the dropped ear of grain, the deformed cluster. In other places in the Torah, there are further resources allocated for the poor – tithes of the third and sixth year, the corner of the field, the obligations of Tzedakah.

These are not, rightly understood, imperfect duties of charity. The Gemara (Bava Metzia 11a) discusses the concept of Gezel Ani’yim (theft from the poor). Impeding the impoverished from accessing these resources is not a failure to give charity, it is theft of property to which they have a right.

Let’s closely examine one of the mitzvot in this class in Ki Teitzei (Dev. 23:25-26):

כִּי תָבֹא בְּכֶרֶם רֵעֶךָ וְאָכַלְתָּ עֲנָבִים כְּנַפְשְׁךָ שׇׂבְעֶךָ. וְאֶל־כֶּלְיְךָ לֹא תִתֵּן: כִּי תָבֹא בְּקָמַת רֵעֶךָ וְקָטַפְתָּ מְלִילֹת בְּיָדֶךָ וְחֶרְמֵשׁ לֹא תָנִיף עַל קָמַת רֵעֶךָ:

When you enter your peer’s vineyard, you may eat your fill of grapes, but do not collect them in your vessel. When you enter your peer’s field, you may pluck ears by hand, but do not raise a scythe against your peer’s crop.

The consensus position in the Torah She’B’Al Peh is that this right is only extended to a hired worker. However, from the plain text of the Torah this is not clear at all. 

Indeed, one of the Tanai’im (Isi ben Yehuda) is of the opinion that it refers to a universal right – ‘let all who are hungry come and eat, let those in need come and recline.’ Rav contends that this view is impractical, bordering on impossible – “Isi has not left livelihood for anyone” (Bava Metzia 92a). As people literally eat into the profits of the landowner, it ultimately makes his investment unsustainable. People won’t sow fields if they cannot confidently recover their costs and make a profit, and the land will ultimately lie fallow and unsown. Over and above this practical concern, Rambam highlights the beginning of the verse “ ‘when you enter your peer’s vineyard’ – for were he not hired, who permitted him to enter the vineyard or the field without the owner’s permission?” (Sechirut 12:1)

Even according to the Chachamim, the consensus is that this mitzvah is not really about appropriate working conditions. It is not a duty owed by employers to their employees. The employee may eat more produce than she will be owed in wages. They are only prohibited to eat beyond satiation. Moreover, the Torah explicitly addresses the worker, not the landlord. This is one of the rare occasions where the Torah creates a right, without imposing an obligation. (However, contrast Rambam’s formulation of the Mitzvah in Aseh 201 and the Koteret of Hilchot Sechirut, with his formulation in Sechirut 12:1.)

Obviously, this is a limited right. Some of the limitations are very illuminating. First, the right begins only when the food is fully ripe and extends only until it becomes obligated for the various Tithes. Second, the worker may not juice the grapes she plucks – even for immediate consumption. They must consume the fruit in its natural form. 

Rav Hirsch attempts to explain the idea behind this mitzvah: “while they are growing, the permission only starts when they are ripe, when Nature has finished her work and Man stands ready with “basket and sickle” to take to “himself” that which Nature has completed, and the permission with [harvested produce] lasts as long as they have not reached the stage of being ready for human use as shown by the duty arising to give [tithes]…” (Commentary on the Torah, Deut. 23:25&26)

Perhaps the Halakha is telling us this: on some fundamental level, the resources produced by the world cannot be captured and owned by any individual – they belong to God, after all. Indeed, the commentators point out that elements of Isi ben Yehuda’s opinion are retained in the final Halakha (e.g. the permission to consume more than the value of wages). This ideal is beautiful and appealing, but it’s ultimately impractical in the world we actually live in – as Rav pointed out. Maybe it could work when human populations were very small, but any large, complex society needs to develop robust property rights to succeed.

I think the Torah is trying to toe a very fine line: Private property is legitimate and helpful. In our mission to conquer the natural world, improve it, and make it flourish, we will need to encourage and reward individual ingenuity and industry through private property. But the efficient creation of wealth cannot be our sole concern. We must be concerned about effective universal access to wealth as well. 

Rav Hirsch continues: “At the threshold of Man’s mastery of Nature, so apt to beget the selfish thought “mine, mine own”, God strews the seeds of the thoughts of “duty” in both directions effecting brotherly love and justice, that which is right.” (ad Loc., emphasis added)

Our achievements, our innovations, are never truly in a vacuum. The model of the ‘self-made man’ is a lie. We are all contributors and stakeholders in the planet and the community we share. The Torah’s careful, judicious system of duties to the less fortunate attempts to ensure that we all reap the dividends of these incredible assets – fairly and sustainably.

Never so clearly expressed than in the laborer’s right: when God’s world has finished producing the fruit, but before it is turned into private human chattel – at that transition point between vegetation and produce – then access to the wealth of the world is assured to all. The hired laborer – who has permission to enter the field of the landowner – is guaranteed the right to eat and benefit from the wealth her world has produced.

***

Modern society is moving towards ever-increasing privatization. With unparalleled historical speed, public lands and institutions are being turned over to private interests – often in the name of efficiency and effective economic production. The scope of intellectual property is eating away at the public domain. Some are terming this expansion of IP “the Second Enclosure Movement”. 

The same ills of the first enclosure movement accompany the second – inequality of wealth has never been higher. According to the UN World Inequality Report 2022, the richest 10% of the human population own 76% of the world’s wealth whilst the poorest half owns less than 2%. This inequality in ownership parallels a stark inequality in income (i.e. wealth access): the top 10 percent earns 52% of the income, while the bottom half accesses just 8%.

Is this advancing privatization a good thing or not? I leave that question to political and economic minds much greater than my own. This week, the Torah reminds us: whatever view we take on privatization – we must remember to consider, value, and legislate – not just the efficient, sustainable creation of wealth – but the fair, effective universal access to that wealth as well – “that which is right”.

Shabbat Shalom.