“The Revolution that Started with a Fence”
(updated from Kee Teitzei 5765-2005)

by Rabbi Ephraim Z. Buchwald

The extraordinary number of themes that are found in Parashat Kee Teitzei make it seem as if the Torah, with only six more parashiot before the Five Books of Moses draw to a close, has gotten a “second wind.” As noted in several of our previous parasha studies, parashat Kee Teitzei contains more mitzvot than any other parasha of the Torah. 74 new mitzvot are introduced in this week’s Torah portion, 27 positive and 47 negative.

Especially by those who refer to the Five Books of Moses as the “Old Testament” (implying that it has been replaced by a newer, better version), the 613 laws of the Torah are often regarded as primitive, medieval and out-of-date. The truth is, that some of the mitzvot that are cited in this week’s portion seem, at first blush, to be out-of-date, until they are studied in-depth and understood with the help of the Oral Code. In fact, the remarkable law of מַעֲקֶה–ma’akeh, the requirement to make a parapet or a fence for the roof of a home, demonstrates brilliantly and incontrovertibly how advanced the Torah system of law truly is.

In Deuteronomy 22:8, the Torah declares: כִּי תִבְנֶה בַּיִת חָדָשׁ, וְעָשִׂיתָ מַעֲקֶה לְגַגֶּךָ, וְלֹא תָשִׂים דָּמִים בְּבֵיתֶךָ, כִּי יִפֹּל הַנֹּפֵל מִמֶּנּוּ, If you build a new house, you shall make a fence for your roof, so that you will not place blood on your house if any man falls from it.

More than 3,300 years ago, the Torah was concerned about the safety and security of the people. In a bold initiative, the Torah required every Jew to erect a security fence or other form of barrier around the roof of his house. Since, in ancient times, most roofs were flat, it was customary for people to frequently go up to their roofs, and the lack of a railing to protect them from falling off would put people’s lives in jeopardy. Although the Torah does not describe the precise dimensions of the barrier that needs to be erected about the roof, the Talmud, in Baba Batra 61a, requires the height to be at least ten handbreadths, which is considered to be approximately 40 inches. Later commentaries insisted that Jewish law required that the fence be secure enough to ensure that a child or a heavy person would not be endangered. Furthermore, not only were these rules to apply to residential homes, but also to grain storehouses and barns, where people were also likely to climb up to the roof.

Although the Code of Jewish Law, (Yoreh Deah, 236:22), states that Jews sometimes have a thirty-day period to put a mezuzah on their doors, the barrier protecting a roof or a high porch must be in place before anyone moves into the house. Therefore, it makes no difference whether the home dweller actually built the house, or purchased it already complete, inherited it, or received it as a gift, once it is in his/her possession, he/she must be certain that the house is not dangerous. Consequently, even someone who rents a house, must be certain that the house is safe. While there is a difference of opinion between the various commentators as to whether the owner or the renter is required to pay for the barrier, all agree that the barrier must be in place.

Quite amazingly, our rabbis, 3,300 years ago, expanded the law of ma’akeh, the fence for the roof, to mean more than simply building a literal physical fence or barrier around a dangerous roof. They therefore asserted that the law of ma’akeh teaches that public safety must be insured under all circumstances, in all locations, whether private or public, declaring that in any place where there may be a danger, a fence is to be built. Therefore, any pit or hole that was deeper than ten handbreadths (36″-40″) was required to be fenced off. Anyone who created a peril, such as digging a well in a public area and leaving it uncovered, is in violation of this law. Similarly, proper barriers are required around tall staircases, as well as water holes and swimming pools (Maimonides, Laws of the Murderer, 11:1-5).

Expanding their interpretations even further, the rabbis state that this commandment applies to any dangerous situation, and declared it a violation of Jewish law to drink from a polluted stream, or to put coins into one’s mouth that may cause sickness from contamination. Furthermore, the emphasis in the second part of the verse that warns “not [to] place blood in your house,” is interpreted by Rabbi Nathan that it is forbidden to raise a dangerous dog in one’s home, or to possess an unstable ladder in one’s residence. In effect, the law of ma’akeh required the elimination of any possible danger or situation where people may be injured or hurt (Talmud, Baba Kamma 15b).

It is not unreasonable to interpret the law of ma’akeh today even more broadly by suggesting that the verse “You shall not place blood in your house,” implies that we should avoid exposing the members of our households to excessive violence, the kind of violence that is often found in contemporary movies, television programs, video games, the internet, and in popular books.

 

In order to truly appreciate the Torah’s farsightedness, we need to understand that when the law of “ma’akeh” was first promulgated more than three millennia ago, most nations were living exceedingly primitive and barbaric lifestyles. People commonly sacrificed their children to idols, and held festivals at which gladiators regularly murdered their opponents and drank the victim’s blood. For the sake of entertainment, men were thrown to lions, holy prostitution was practiced in virtually all idolatrous temples, and the sun, the moon, rocks and trees were popular objects of worship. It was in this environment that the Torah adjured the Jews to build fences around their roofs, to make certain that there were no hazardous situations that would endanger a person’s life!

 

This is the social revolution that the Torah began more than 3,300 years ago. It is obvious that when it comes to universal values and ethics, the Torah was there first, long before humankind ever dreamed of humanitarianism and concern for society’s well-being.

 

May you be blessed.