Beyond the Letter of the Law: The Jewish Perspective on Ethical Investing and Fossil Fuel Divestment

Climate change resulting from the use of fossil fuels poses a grave threat to human and non-human life. Because a real national response to climate change has been stymied by political inaction, cultural inertia, and the concerted effort of fossil fuel companies, environmental organizations have encouraged universities, towns and cities, religious communities and other organizations to divest from fossil fuel investments.

In Judaism, ethical investing is part of traditional Jewish morality. Within the sources are two questions that are central to the issue of divestment:

Is it mandatory to divest from products (like tobacco and fossil fuel) that are not illegal but are, clearly, harmful?

To what degree is a minority shareholder morally responsible for the actions of a corporation when they are unable to exercise any significant control?

Several fundamental Jewish theological concepts bear upon these questions. Firstly, since God created the universe only God has absolute ownership over Creation (cf. 1 Chronicles. 29:10-16). Humans do not have unrestricted freedom to misuse Creation as they are tenants, not owners. Since human ownership of Creation is not absolute, the use of even private property cannot be divorced from morality. A product may be legal, but if it is harmful, its use is not ethical.

Secondly, Creation is ordered and harmonious, exists to serve God (cf. Psalm 148), and reflects God’s wisdom (cf. Proverbs 8:22-31). All of God’s creations are part of this order, including humans. Thirdly, humans have a special place and role in this order by being created in God’s image, (Hebrew: tzelem elohim. cf. Genesis 1:28). Tzelem elohim implies that humans are God’s agents created to actualize the divine presence in Creation through godlike characteristics and responsibilities even as they are allowed to use Creation for their own benefit within the limits established by God (cf. Genesis 2:14).

Lastly, the concept of tzedek (justice/equity) is expressed in numerous rules which attempt to correct the imbalances in Creation that humans inevitably generate. (cf. Exodus 22:24-26, Leviticus 25:36-37, Deuteronomy 23:20-1). The Jewish tradition requires justice/equity to operate in all aspects of life, including government and the economy. There is no separation of ownership and liability: investments make us property owners with both rights and responsibilities in how we use our holdings. These responsibilities include preventing both immediate and potential harm.

Biblical and rabbinic sources on these responsibilities are usually concerned with single owners or small partnerships. But since the 16^th century when stock markets and shareholder-owned corporations began to boom, Jewish religious authorities started to address shareholder responsibility.

Since a corporation is created to limit the liability of its shareholders, it became a matter of great discussion as to what is considered ownership and who is subject to the rules of responsibility. Many authorities held that since most shareholders do not have power over the company’s actions or policies they are not “owners” in the classic sense—they cannot be held morally responsible. Only executives can be morally responsible since they have the power to control the actions of the corporation.  However, another opinion holds that since collective shareholder action can cause a change in a corporation’s policies, all shareholders must be considered owners, subject to the rules of ethical responsibility.

The classic Jewish ethical responsibilities of a property owner include not profiting from prohibited activities such as theft, and not causing harm to another person’s health. Even though the production of energy from fossil fuels is not illegal, it could be considered immoral from a Jewish perspective to invest in fossil fuels because of the immediate damage it causes to Creation and human health.

But ethical responsibility extends even further. The general principle of the obligation to save and preserve life is called pikuah nefesh (cf. Leviticus 18:5 and Babylonian Talmud Sanhedrin 74a). This principle forbids us from knowingly harming ourselves (Leviticus 19:28) and mandates the proper disposal of waste from industrial production (see Deuteronomy 23:13-15, Mishnah Baba Batra 2:9). The law of the parapet (Deuteronomy 22:8) is also an example of a general principle which requires us to prevent immediate and potential harm (cf. Moses Maimonides, Mishnah Torah, Laws of Murder, 11:4).

One of the most relevant principles to shareholder responsibility is the application of the law in Leviticus 19:14 which prohibits putting a stumbling block before the blind. Since ancient times this law was interpreted as prohibiting intentionally giving bad advice and assisting someone in a wrongdoing. This principle allowed Maimonides to forbid the sale of weapons which may be used for violence or robbery (Mishnah Torah, Laws of Murder 12:12, 14). Some apply this principle to investments.

Even if investing in carbon-based energy companies does not strictly violate Jewish ethics, there is another principle which would demand our action: Lifnim m’shurat ha-din, “[going] beyond the letter of the law,” based on Deuteronomy 6:18: Do what is right and good in the sight of the Lord. The Jewish tradition understands that justice may sometimes require more than what the law demands. Therefore, even if our investments are technically not immoral, Jewish justice calls upon us to act in a higher moral capacity.

One of the central problems in how we confront the environmental crisis may be the inability of ethics to account for relationships that are distant in time and space. In pre-modern times one’s ethical interactions were physically and temporally immediate. The power of modern technology has impacts on people and non-human life on the other side of the world and in the distant future. The carbon that is emitted today will remain in the atmosphere for between one hundred and a thousand years, causing climate change for many future generations. It is therefore a moral necessity to reduce the ethical distance between our actions and their impact. Ethical investing in sustainable energy and divesting from carbon-based energy companies is one step in that direction.

Rabbi Lawrence Troster is the Coordinator of Shomrei Breishit: Rabbis and Cantors For the Earth and the Rabbinic Scholar-in-Residence at GreenFaith.