PROTECTING LIFE, ONE FENCE AT A TIME

“If you build a new house, you shall make a parapet for your roof, and you shall not place blood in your house, if someone falls from it.” (Devarim 22:8)

This verse describes one of the most fascinating mitzvoth in the book of Devarim, that of the ma’akeh, or the protective railing on a roof. Unlike the current era where most roofs are built in an inverted V-shape, in ancient times, roofs were usually flat and were often utilised as a living space. Indeed, the Talmud (Sukkah) often mentions that people would build their sukkot on the roofs of their homes (see also Avoda Zara 3a).  People would also use their rooftops to dry fruits such as dates and figs. In respect of such roofs, the Torah has two mitzvoth, one positive, “you shall make a parapet for your roof” and one negative, “you shall not place blood in your house.” Considering the frequency in which roofs were used, there was a definite chance that someone could fall from them, leading to injury or death. Hence, a railing is required.

Rambam extends this mitzvah to other potentially harmful items (Sefer HaMitzvot, Esin 184): “We were commanded to remove obstacles and dangers from all our dwellings. Therefore, a wall is to be built around the roof, around pits, ditches, and the like, so that one who is at risk will not fall into them or from them. Likewise, all dangerous or unstable places must be built up and repaired until the instability and danger are removed. This is what the Almighty said: “And you shall make a railing for your roof.”  

There is another mitzvah, mentioned earlier in Devarim (4:9) that speaks of dangerous activities in general.  The actual context is the requirement not to forget the Revelation at Sinai but the wording also implies a general warning to take care of one’s body and soul: “Only beware, and protect yourself greatly, lest you forget the matters that your eyes saw, and lest they move from your heart all the days of your life. And you shall impact them to your children and to your children’s children.” Once again, Rambam explains how this mitzvah is observed in the context of his discussion of the roof parapet (Hilchot Rotzeach V’Shemirat Hanefesh 11:4): “Whether it is a roof or any other thing that poses danger, and it is likely that a person might stumble upon it and die—for example, if one has a well or a pit in his courtyard, whether it contains water or does not contain water—he is obligated to make around it a wall ten handbreadths high, or to cover it, so that no one will fall into it and die. Similarly, any obstacle that involves danger to life, there is a positive commandment to remove it, to guard oneself from it, and to exercise great care in this matter, as it is said: “Take heed to yourself and guard your soul carefully” (Devarim 4:9). And if one does not remove it, but leaves obstacles that bring about danger, he has nullified a positive commandment and has transgressed [the prohibition of] “You shall not place blood in your house”.

Thus we see two distinct mitzvoth: 1) To erect a railing around one’s roof or other dangerous place, such as a well; 2) A general commandment to guard oneself from possible harm. The second might include walking under a wobbly ladder or a wall that is starting to collapse, putting coins in one’s mouth and other such behaviour. Rabbi Asher Weiss notes that it appears obvious that the reason for the mitzvah of ma’akeh is the prevention of harm that might occur if dangerous places are not properly protected. This is not an example of darshinin ta’ama d’krah, expounding a rationale for a mitzvah (see Bava Metzia 115a) where the Torah does not offer a reason and the Sages search for one based on logic or some other criteria. Here the Torah is quite explicit: “you shall make a parapet for your roof, and you shall not place blood in your house, if someone falls from it.” But if this is true we are faced with a number of seeming contradictions: The Talmud (Chullin 136a) rules that shuls and Torah study halls are exempt from the need to build a parapet. Furthermore, a house that does not have an area of four square cubits is also exempt from a parapet (Sukkah 3a). And lastly, a house whose inside height is less than ten handbreadths (roughly a metre) does not require a parapet (Bava Kama 51a). If the purpose of the parapet is to prevent injury or death, what difference should it make what the purpose of the building is or how big it is?

The Chazon Ish (Choshen Mishpat, Likkutim 18:2) provides an answer to this question: “It would seem that not every roof is included among the [category of] obstacles, since its potential for causing harm is not so common. One who stands on a roof is, by nature, mindful to be careful and it is also the ordinary way of the world. Just as it is permitted to climb a tree and it is permitted to ascend to build roofs and upper stories without a railing around them, as it is said (Bava Metzia 112a): “Why did this one go up on the ramp, climb the tree, and expose himself to death?” and so forth. Rather, only with regard to the roof of a new residential house does the Torah command the mitzvah of making a railing in order to take precautions against the danger of falling. For this, the conditions of a house are required: an interior space of ten [handbreadths in height], and four by four [handbreadths in area], such that a person lives there. But if one makes use of a roof beneath which there is no dwelling, the Torah did not obligate [building] a railing, and each time he ascends it is considered like one who climbs a tree.”

Rabbi Weiss writes that some misunderstand the Chazon Ish’s explanation and posit that he means the purpose of the parapet is not to prevent harm but that it is ‘simply’ a law of the Torah without rhyme or reason. That is why it applies to some roofs and not others. However, he continues, this is not correct.  Rather “it is clear that this is not its intent. The straightforward meaning of the verse is plainly that we were commanded to make a railing because of the danger. Nevertheless, it is a specific legal ruling, for if we had not been commanded to construct the railing, there would have been room to argue that since anyone who ascends to a roof and makes use of it is alert to the danger of falling, it is his way to be careful. But the Torah introduced a new obligation to be concerned for the danger nonetheless. Moreover, it is inevitable that, over time, someone will eventually fall, due to the constant use of roofs, as the Chazon Ish writes further in his remarks there: “And it may be explained briefly: when we stand on a roof on a single occasion, we do not consider the matter to be a danger; only when it is viewed in terms of continual use is it regarded as a danger. In the case of a pit, where it is impossible to warn [each person], the danger is, by its very nature, constant. But with a roof, since whoever goes up knows to be cautious, there is no constant element—rather, each person decides for himself whether to ascend. The Torah, however, introduced a new perspective, considering it for the owner as if it were a constant matter, and obligating him to remove the hazard.”

The Torah is fully aware that people who ascend roofs do so with care. However, in its incredibly developed sense of respect for human life, the Torah urges the homeowner not to rely on everyday caution. Instead, a railing must be constructed lest any harm befall someone who ascends the roof.

Lee, Chani Merryl & Naomi join me in wishing you Shabbat Shalom.  

Rabbi Liebenberg.

Rabbi’s YouTube message: https://youtu.be/4nYQWajn2os?si=MLsi-iFGw4pRHctW