Can You Punch a Protester Blocking Your Commute?
A Shtark Tank gem in the lomdus of Bava Kamma
For the second time this week, I am jumping into controversial waters. (The first adventure was my podcast episode about going up to Har Habayit.)
This post will deal with a halachic question and it’s hashkafic ramifications: If a person comes late to work due to traffic, and the traffic was a result of a road blocking protest, does the protester need to pay damages? A related, juicier, separate question: can the tardy employee get out of his car and punch the protester to get him out of the way? Is this legitimate self-defense?
I usually avoid clickbait and divisive political topics, but this case is directly tied to Shtark Tank. That’s because this sugya is a halachic expression of the Torah’s approach to work. (The place where I discovered this sugya, plus an interesting life hack, is in the footnote.)1
I want to clarify that this is not meant to be practical halacha, and not a post about the legitimacy of the protesters, police, or anyone else. I am not a dayan, and don’t feel the need to weigh in on political issues. But one of the relevant sources in the gemara will suffice to give us a glimpse into this sugya
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A person who damages another person is liable to pay five different payments: nezek (loss of value as if he were a slave), ripui (medical costs), tzaar (pain), boshet (embarrassment), and shevet (loss of work). The gemara on Bava Kamma 85b says that each payment could be incurred independently. How could shevet be caused without any other damages? The gemara describes a case where one person locks another person in a room, causing them to miss work.
The Rosh says that this is only true if the damager brings the victim into the room and locks him up. But if the employee was already in the room, that is a grama, and the damager would not have to pay.
The Ramban and other rishonim might disagree with this. The Ramban (Kuntres Dina D’Garmi) writes that shevet is not even garmi, since there is no disagreement like in other cases of garmi (where Rebbi Meir disagrees with the chachamim). He explains that at the moment a person misses work, it is considered hezek nikar.
ואי קשיא לרבנן דלא דייני דינא דגרמי היכי מחייב והא גורם הוא לבטלו ממלאכתו וגורם הוא לו שלא ירויח, לא קשיא דכיון דהרזקיה מההיא שעתא הוא דאפסדיה עד דפתח ליה והא אמינא דהיזק ניכר נמי הוא ובין לר”מ ובין לרבנן חייב
The Shulchan Aruch (CM 420:11) paskens like the Rosh. But it’s important to understand the nekudat hamachloket here: what exactly are the rishonim arguing about?
It seems clear to me that the machloket between the Ramban and the Rosh is about the liability of the mazik, not about the existence of nezek. My Rebbe, Rav Moshe Stav, used to say that for there to be a chiyuv tashlumin, you need three things: mazik, nizak, and nezek. Getting back to our sugya, the Rosh doesn’t say that a loss of work isn’t nezek. He just says that if the mazik isn’t active, it is considered grama, and the mazik isn’t directly responsible for the nezek. But it seems clear to me that they both agree with the Ramban’s definition: loss of work has the status of damaged property.
And that’s the fundamental idea: the loss of work is considered nezek. It’s like a smashed window. How could that be?
I would like to suggest that the five tashlumin that are paid when man damages man correlate to four parts of a person. There are different aspects to a person’s self, and each part can potentially be damaged. There is physical damage (nezek and ripui), psychological damage (tzaar), emotional self-esteem damage (boshet), and shevet. We see in the payment of shevet that a person’s ability to work is a core part of his identity, just like the others. Therefore, taking away a person’s ability to work is considered actual damage.
This makes perfect sense in light of the fact that man was created and immediately put to work.
ויקח ה’ א-להים את האדם וינחהו בגן עדן לעבדה ולשמרה
We see from here as well that a person’s work is a core part of his mission here on earth.
Based on all this, it would seem to give self-defense rights to the employee running late for work. If we assume that loss of work is nezek, and each moment of lost work is ongoing additional damage, then the damaged person should be allowed to remove this threat that is on him.
Lchora this would be completely independent of any chiyuv. Even if you assume that the protester doesn’t pay (because it’s like the grama of the Rosh, or because the protester isn’t directing his act at one particular person, or any other reason), that should be irrelevant here. The fact is that there is a nizak who is experiencing ongoing nezek, and therefore he should be allowed to defend himself.
Here’s a life hack if you want people to think that you are really smart: read footnotes. Just the footnotes. You can skip the actual book or essay. Footnotes are often self contained bubbles of wisdom, and quoting a footnote in conversation is a power move.
Now that I have revealed my secret, I wanted to give credit to Rav Tzvi Goldstein. A footnote in his recent post triggered brought my attention to this sugya.