Rabbis Condemn Smoking*
Rabbi Saul J. Berman, Rabbi Reuven Bulka, Rabbi Daniel Landes
and Rabbi Jeffrey R. Woolf
1. Since it is an established fact that all tobacco smoke constitutes a definite and immediate danger to one’s health, such activity is in violation of the Torah’s injunction against harming oneself.
2. Since scientific research has shown passive smoking by those in the presence of smokers to be equally dangerous, it constitutes a public danger and assault (Habalah). Therefore smoking must be banned in all public arenas such as synagogues, schools, mikva’ot and all public functions.
3. Those who choose to continue smoking rely on shomer peta’im hashem: In light of contemporary medical knowledge, this idea no longer obtains.
Over the course of the past twenty-five years, it has become increasingly clear that the smoking (or ingesting) of tobacco, constitutes a serious, inevitable danger to the user. The ingesting of tobacco smoke has been intrinsically linked to heart disease, stroke, lung cancer, pancreatic cancer, and dozens of other fatal and potentially fatal illnesses. Indeed, at present, it is the overwhelming opinion of the medical research community, that tobacco smoke in any amount will render immediate damage to the human physiology. Over the course of the past five years, it has also been conclusively demonstrated that non-smokers who inhale the smoke of other people’s cigarettes are at a real and significant risk of contracting the very same illnesses as the smokers themselves. In recognition of this fact, an increasingly large number of governments and government agencies have banned smoking in the presence of or in proximity to non-smokers, out of concern for the health rights of the latter. In light of this situation, it is both relevant and urgent that the halachic dimensions of this question be re-examined.
II. Passive Smoke (ETS)
It is axiomatic according to Torah Law, that one individual is not allowed to harm another. This point is discussed extensively in the Gemara and summed up in the Shulchan Aruch as follows: It is forbidden for one man to strike his fellow, and if he does so, he violates a negative commandment, as it is written, “Lest he add etc,” and if the Torah was strict with regard to the striking of the wicked, a fortiori regarding the striking of the righteous, and he who raises his hand to strike his fellow, even though he does not do so, he is deemed to be a wicked person. In light of the above-cited scientific evidence, it is clear that the infliction of injury on another party, by means of tobacco smoke, constitutes assault. Indeed, even prior to the publication of the lion’s share of the scientific evidence concerning “passive smoke,” the late Rabbi Moshe Feinstein æö"ì asserted that people harmed by the smoke of others were empowered by Halacha to sue for damages. As he himself wrote: “But the matter (i.e. the legal implications of “passive smoke”) is far worse, since smokers actually commit assault... And it is obvious that were the courts competent to adjudicate torts, they would be empowered to enforce collection of their estimate of the suffering caused [by the smoke], and if [the complainant] had become ill therefrom, he would be entitled to compensation of medical expenses, even if he had not incurred direct damages due to absence from his employment.” It might be objected, though, that such a conclusion is only germane when the damage done by ETS is substantial enough to warrant suit for damages. This, however, can hardly be the case in a short period of exposure to someone’s smoke, on an ad hoc basis. Such a conclusion, however, cannot be maintained. For independent of the possibility of incurring financial damages, assault constitutes a forbidden action according to the Torah, irrespective of whether there is significant damage inflicted or not. The point is summed up in the Shulchan Aruch: “If he struck his fellow with a blow which inflicted damage less than the value of a penny, he receives stripes (malkot) [as punishment], since no monetary obligation is incurred thereby.” Since, as already noted, temporary exposure to ETS has immediate, deleterious effects on one’s health, it is clear that it is forbidden to allow smoking in the presence of non-smokers, even on a short-term basis. What is more, in light of the immediate effects of ETS on the physiology of the non-smoker, it seems clear that even if he or she is not immediately irritated thereby, he may not forgo his prerogative and allow another person to smoke (mehilah). This is due to the well-known fact that an individual is not allowed to harm himself. Finally, the upshot of several key rulings in Halachic literature makes it clear that preventing the generation of ETS, and its attendant damage to the health of those who inhale it, is not simply the responsibility of the smoker and the non-smoker, but rather that of the community generally, and especially that of the court (Bet Din). For example, Rambam writes, that over and beyond the obligation to erect a fence around one’s roof (ma’akeh), the Sages forbade many things which are injurious to one’s health, “and anyone who violates them and says, ‘I will place myself in danger and what business is it of other people [should I do so],’ ...one inflicts him with ‘Stripes of Rebelliousness’ (Makkot Mardut).” Upon this passage the Aruch HaShulchan comments, that the Rambam does not intend to imply that since the punishment is rabbinic in nature, so is the crime. “For certainly this involves the violation of a Torah prohibition, it is only that one cannot receive normal stripes (malkot) for it, just as there are many Torah prohibitions for the violation of which no malkot are administered.” And the Yaffe LaLev adds that not only is the crime of injuring oneself punishable, this fact plainly establishes that it is the obligation of the court to ensure that such behavior is not pursued. In light of the above, it is clear that rabbis and communities are obliged by Halacha to ban smoking at all functions and meeting, buildings and facilities under their jurisdiction, pursuant to the sacred trust to secure the observance of Torah Law and to protect the physical and spiritual welfare of their members.
III. Active Smoking
Based upon the above presentation, it ought to be equally apparent that if ETS is forbidden according to Halacha, owing to its not only being a nuisance but actually constituting an immediate danger, the same must be said a fortiori of active smoking. And, indeed, this is the published opinion of both Rabbi Hayyim David HaLevi, the Sephardic Chief Rabbi of Tel Aviv, and of Rabbi Eliezer Waldenberg, both of whom are outstanding contemporary Halachic authorities. They both base themselves upon the prohibition against harming oneself and upon the explicit statement of the Rambam that the Rabbis have the authority to ban any action which harms one’s health. The one authority who consistently refused to prohibit “active smoking” per se, was the late Posek HaDor, Rabbi Moshe Feinstein æö"ì. While he strongly urged people to stop smoking, and discouraged others from developing the habit, he held tenaciously to the position that smoking could not be banned on purely halachic grounds. In light of the preeminent position occupied by Rabbi Feinstein, any proposal to ban smoking on purely halachic grounds must perforce address his objections thereto. Rabbi Feinstein heavily based his inability to forbid smoking on the argument, that when a specific action possibly entails an element of danger, and people are willing to take that risk (which albeit is only a risk) one cannot forbid people from that action for “the God Protects the Simple” (Makom SheDashu Bo Rabim, Shomer Peta’im HaShem). As he wrote in his last responsum on the subject: To generalize the principle of “the God protects the simple” which appears in Shabbat (129b) and in Niddah (45a) relates to two cases where there is some risk of danger and [nevertheless] people are not careful [to avoid them], though it certainly is true that in an average case of possible danger it is forbidden to rely on this principle... [nevertheless] it appears obvious that as regards something which does not entail any negative effects upon the health of a large number of people... even though it does exert harm upon a distinct minority, there is still no prohibition to eat them not with standing the possible danger involved, since the majority are not harmed therefrom... And cigarette smoking is akin to such things, since those who are accustomed to smoke enjoy it very much, and suffer from the lack of cigarettes more than the lack of certain types of good food, and even more than total food deprivation for an abbreviated amount of time. [What is more] the danger (kilkul) of becoming ill from this is in any case very small, afortiori is the possibility of developing cancer and other life threatening illnesses exceedingly small... and in a risk like this one applies the rule, “God protects the simple...” The upshot of Rabbi Feinstein’s presentation is that the rule of Shomer Peta’im HaShem applies when two conditions are present: 1) The activity in question only presents a possible danger to the individual and 2) Most people are willing to take the risk involved in pursuing that activity. At the time that Rabbi Feinstein wrote this responsum, both of these factors seemed to indicate Halachic license to smoke. Today, however, in light of the scientific evidence published in the two decades since this responsum was written, and based upon Rabbi Feinstein’s explicit definition, it is clear that neither of these considerations obtains any longer. First, the danger involved in smoking is not merely possible, it is inevitable. And while death from lung cancer may well only affect a minority of smokers, damage to the cardio-vascular and pulmonary systems is immediate and inevitable. Thus, we have entered into a situation in which smoking is a definite danger (Bari Hezeka). Similar conclusions may be reached regarding the second element in Rabbi Feinstein’s equation, i.e. the willingness of people to take the risk involved in smoking. Here there seems to have occurred a substantive change. Over the past ten years a large anti-smoking educational effort has been undertaken by the American Cancer Society and the Office of the Surgeon General of the United States. The results of this campaign have been that large numbers of people have stopped smoking, while others have not cultivated the habit because of the risks involved. Clearly, then, smoking is no longer a Davar SheDashu Bo Rabim. Each of these considerations, taken both separately and together, leads us to one ineluctable conclusion. Namely, that based upon present research and the stated argument of Rabbi Moshe Feinstein, the smoking of cigarettes constitutes a blatant violation of the Torah’s commandment against inflicting harm on oneself and hence is absolutely prohibited according to Jewish Law.
As a result of our discussion here it is apparent that definite action must be taken in order to eradicate smoking from the Orthodox community. This is called for both out of consideration for the health of the smoker, as well as that of the innocent bystander assaulted and harmed by the smoke he generates. In both instances, the community (as represented by the Rabbinate and Batei Din) are responsible for the enforcement of halachic norms regulating the general welfare. As practical steps toward the realization of a smoke-free community, we recommend that our colleagues take the following steps:
1. Smoking should be banned from all synagogues, synagogue functions, Day Schools, Mikva’ot and all other institutions and events under the supervision of the rabbi.
2. Rabbis should themselves cease to smoke, and should publicly educate their congregations as to the medical and Halachic severity of smoking. This should include not tolerating smoking in their own homes and businesses, as this either facilitates or causes assault on others.
3. It must be carefully pointed out that had the present-day research been available, that scholars of previous generations who themselves smoked, would not have sanctioned this conduct.
* RCA Roundtable: 5625 Arlington Avenue Riverdale, New York 10471 R.C.A. Roundtable: Proposal on Smoking
1. Stanton A. Glantz and William W. Parmley, “Passive Smoking and Heart Disease: Epidemiology, Physiology, and Biochemistry,” Circulation, 83 (January, 1991), p. 1. (Thanks to Dr. Fred Rosner for providing us with the periodical literature about this topic.)
2. Ibid, pp. 1, 4-5.
3. Ibid, pp. 1-12. See also, Jonathan Fielding and Kenneth J. Phenow, “Health Effects of Involuntary Smoking,” The New England Journal of Medicine, 319 (December, 1988), pp. 1452-1460; Mohammed-Reza Masjedi, Homayoun Kazemi, and Douglas C. Johnson, “Effects of Passive Smoking on the Pulmonary Function of Adults,” Thorax, 45 (January, 1990), pp. 27-31; G.H. Miller, “The Impact of Passive Smoking: Cancer Deaths Among Non-smoking Women,” Cancer: Detection and Prevention, 14 (1990), pp. 497-503; C. Humble, J. Croft, A. Gerber, M. Casper, C.G. Hames, and H.A. Tyroler, “Passive Smoking and Twenty Year Cardiovascular Disease Mortality Among Non-smoking Wives in Evans County, Georgia,” The American Journal of Public Health, 80 (May, 1990), pp. 599-601; D. Janerich, W.D. Thompson, L.R. Varela, P. Greenwald, S. Chorost, C. Tucci, M.B. Zaman, M.R. Melamed, M. Kieley, and M.F. McKneally, “Lung Cancer and Exposure to Tobacco Smoke in the Household,” The New England Journal of Medicine, 323 (September, 1990), pp. 632-636; S.D. Woodward and M.H. Winstanley, “Lung Cancer and Passive Smoking at Work: The Carroll Case,” The Medical Journal of Australia, 153 (December, 1990), pp. 682-684.
4. Baba Kamma 91a-b.
5. Shulchan Aruch, Choshen Mishpat 420:1. In an edifying pamphlet on the subject of smoking, Rabbi Menachem Slae enumerates no less than thirty-six commandments (both positive and negative) which are violated by smoking. Among these are the commandments: 1) Not to murder 2) Causing Injury to a Fellow Jew 3) Not to Curse One’s Fellow Jew 4) Not To Lead One’s Fellow astray (Lifnei Iver)
5) Desecration of God’s Name 6) Wanton Destruction (Bal Tashchit) 7) Not to eat Non-Kosher Food. See M. Slae, Smoking and Damage to Health in the Halacha, Jerusalem, 1990, pp. 26-33.
6. The Torah (Deut. XXV:3) sets a limit to the number of strokes which a convicted criminal may receive. If the person administering them exceeds this number, he is himself liable for assault and the damages incurred thereby. See Sanhedrin 85a and Ketubot 36a.
7. Resp. Iggerot Moshe, Choshen Mishpat, II, no. 76.
8. Contemporary rabbinical courts cannot address questions of criminal tort as they lack the required level of rabbinic ordination (semicha). See Shulchan Aruch, Hoshen Mishpat, I:I and commentaries, ad loc.
9. Rabbi Feinstein underscores the immanency of the legal obligation engendered by damage due to ETS, by noting a fundamental distinction between torts (Habalot) and fines (Kenasot), even though adjudication of both requires a court possessed of full rabbinic ordination (mumchim semuchim). In the latter case, says Rabbi Feinstein, no liability exists for the accused, even where it is patently clear that were a competent court extant, that he would be adjudged responsible for the fines in question. This is because in the case of Kenasot it is the court which not only collects the fine, but which also creates the obligation to pay via its rendering of judgment. The instance of torts, however, is different. Here, it is the action of the defendant which generates the obligation to pay. The court merely clarifies the obligation and enforces it. In other words, the role of a court of semuchim is essential in the case of fines and a technicality in the case of torts. The difference, Rabbi Feinstein concludes, is in the instance of whether the defendant might be morally obliged to pay (Latzeit Yedei Shamayim). In the case of torts, where a mere technicality prevents the collection of damages by the plaintiff, there is an obligation to pay. In the case of fines however, since no competent court ever created the obligation to pay, no supererogatory requirement exists either. (Cf. Baba Metzia 91a, Rashi, ad loc, s.v. Rava; Tos., ad loc, s.v. B’va and the important discussion in Ketzot HaHoshen 28:1).
10. See the discussion in Encyclopedia Tamudit, XII, Jerusalem, 1978, pp. 679-746 s.v. Hovel.
11. Choshen Mishpat, Sec. 420:2. See also Aruch HaShulchan, ibid, par. 3.
12. Earlier discussions of the question whether the non-smoker had the right to waive his prerogatives, were based on the assumption that smoking was merely an irritant, or only harmful in the long run. See Tzitz Eliezer, op. cit and the discussion by Rabbi Y. Grubner, Kuntras B’Issur Ishun, HaDarom 53 (1984), pp. 71-83.
13. Choshen Mishpat, ibid, par. 21 and Aruch HaShulchan, ibid, par. 43. Both are based upon the discussion in Baba Kamma 90b. In his formulation, the Rambam makes it clear that the prohibition against injuring oneself is of equal force as that against hurting one’s fellow (Hil. Hovel u’Mazik V:1). A similar position is adopted by the Rashba (Responsa I:616) and the Rosh on Baba Kamma (VIII:13). Others, however, assume that the prohibition is rabbinic in origin (e.g. Bet HaBehirah L’Baba Kamma, ad loc.) See Slae, p. 14 n. 24. This is a decidedly minority opinion, both in terms of the number and stature of those who espouse it.
14. Hilchot Rotze’ah U’Shmirat Nefesh, XI: 4-5.
15. See Sefer HaHinnuch, nos. 538 and 567.
16. Aruch HaShulchan, Choshen Mishpat, Sec. 427 par. 8. Rabbi Moshe Feinstein, however, takes pointed exception to this interpretation of the Rambam, and argues that the Rambam simply means to exhort people to abandon potentially deleterious habits, and not to prohibit them outright. He does not, however, explain why the Rambam allows stripes to be administered.
17. Cited by Slae, p. 16 n. 42.
18. Of course this is beside the general obligation of the community to secure the general welfare and to rebuke those who violate the norms of the Torah.
19. Confirmation of the propriety of such action is found in the fact that such action was specifically and emphatically advocated by Rabbi Eliezer Waldenberg (See below, note 20). Similar actions have been undertaken by the Lubavitcher Rebbe, Rabbi M.M. Schneerson, the Gerer Rebbe and the Rosh Yeshivah of the Ponevez Yeshivah, Rabbi Eliezer Menahem Shach. The positions of the former two authorities were published in Rabbi Y. Grubner, (above, note 11) pp. 80-83. Rav Shach’s order, banning smoking in the Bet Midrash of Ponevez was published, with an explanatory cover letter, in Slae, ibid, pp. 58-61.
20. Another issue related to the impact of smoking is its effect on the fetus during pregnancy. See the discussion in Slae, ch. III.
21. JTA Daily News Bulletin, 11/28/76.
22. Resp. Tzitz Eliezer, XV, no. 39.
23. Hilchot Rotze’ah U’Shmirat Nefesh, XI: 5.
24. At the conclusion of one responsum (Iggerot Moshe, Choshen Mishpat, II, no. 76) Rabbi Feinstein writes that “it is nevertheless appropriate for every person, especially Bnai Torah, not to smoke, since it presents a potential danger to life (Hashash Sakkanah) and has no redeeming value...” (See the remarks of Dr. Fred Rosner in The Journal of Halacha and Contemporary Society, XX (1990), pp. 61-63). A similar position was advocated quite strongly by Rabbi J. David Bleich in his “Survey of Recent Halachic Periodical Literature,” Tradition, 16 (1976-1977), pp. 121-123.
25. The concept is discussed in Shabbat 129b, Yevamot 72a, and Niddah 31a. See the extensive discussion by Rabbi Grubner (op. cit., pp. 73-77), Rabbi Moshe David Tendler as listed in the exact formulation of this phrase.
26. Iggerot Moshe, ibid. The responsum is dated 8 Sivan 5741 (= 10 June 1981).
27. Rabbi Feinstein is referring specifically to certain types of food which can harm the health of some people.
28. Similar conclusions were offered earlier by Rabbi Waldenberg (ibid); Rabbi M. Halperin (in Assia, book V (1986), pp. 244ff) and Rabbi Reuven Bulka (in Proceedings of the World Conference on Smoking and Health, Winnipeg, 1983).
29. This observation was originally made to us by Rabbi Moshe Tendler. This conclusion does not seek to ignore the large number of people who continue to smoke. At the same time, it appears to us that this population is no longer determinative. First, the issue of Dashu Bo Rabim is a question of societal sensitivity and not absolute numbers. Second, it is difficult to assess the element of free-will involved in “taking the risk” in light of all that we know concerning the nature of nicotine addiction and the addictive personality. As a side issue, which transcends our discussion here, one might be moved to wonder whether at present offering a match to a smoker might not be a violation of Lifney Iver Lo Titen Mikhshol or at least of being Mesaye’a Yedei Ovrei Averah. Also, it would seem reasonable that synagogues ought no longer leave candles burning in their kitchens on Yom Tov, since in light of contemporary social realities, smoking is no longer a Davar HaShaveh L’Chol Nefesh and hence constitutes a prohibited activity (Melacha) on Yom Tov.
30. This line of argument effectively removes Rabbi Bleich’s objections to a purely halachic ban on smoking, as well. See above, note 23.