It is said in the name of the Chofetz Chaim that the worst type of theft is “Gezel Shaina” the stealing of sleep. His reason? It is one of the few forms of “theft” in which restitution can never be made.
But is this really theft? There is nothing tangible being stolen, so how can it really be termed theft? And if it is not technically considered theft, is it, in fact, actually forbidden? From the perspective of Jewish law, is it forbidden by Rabbinic decree or by biblical decree?
One might suggest that there are, in fact, two biblical violations at play here. The first one is the abnegation of the positive commandment to love your neighbor. “VeAhavta lerayacha Kamocha” dictates that we not go about waking people up at night.
Another possible prohibition is the prohibition found in the twenty fifth chapter of Vayikra, verse 17: Lo sonu ish es rayahu – You shall not therefore oppress one another; but you shall fear Hashem: for I am Hashem your G-d. Indeed, in the responsa book entitled Keren LeDovid (Orech Chaim section responsa #18), this exact verse is cited as the biblical basis for the prohibition of waking someone up improperly.
On the other hand, the converse can exists as well. Unduly requiring silence on the part of others can seriously affect their business. The constriction might also be a form of oppression mentioned in the verse cited above as well. If this is the case, what then should be the criterion for deciding when silence should be required and when the noise should or could be permitted?
It would seem that the criterion should be based upon the accepted practice in that community. In other words, in a country where it is the accepted practice to fiesta in the middle of the day (in Eretz Yisroel, by the way, many people actually nap between two in the afternoon and four o’clock PM) it would seem that one should not be playing music loudly in an area where sleeping people can hear it. On the other hand, in other countries, this would not be an issue.
By the same token, from a halachic perspective, accepted practice of when people go to sleep at night should be the criterion as to when excessive noise at night should be curtailed as well. Doesa legal noise statute determine the norms?
The idea of normative practice determining the parameters of halachic repercussions is not something that is new. The Ramban in the tractate Avodah Zarah discusses that varying countries may have different social mores as to what constitutes male dress and female dress. Thus, for example, when they used to wear kilts in Scotland, a man wearing the item would not be in violation of the prohibition of wearing female clothing. This would only be true in Scotland at that time. Here, however, it would be a biblical violation.
The issue is also a bit more common then one might think, and comes up often when a builder (or even a Yeshiva) embarks upon a construction project. At what time in the morning is okay to begin work? Who also is the one in actual violation of these prohibitions? In the case of a Yeshiva, is it the person in charge of the Yeshiva or is it the administrator who is handling it? How about the contractors themselves? On the other hand, if a person sleeps until nine AM and demands that the Yeshiva not do any work beforehand, it is possible that that person is in violation of oppressing the Yeshiva.