Dr. David J. Schnall
Jewish tradition exhibits a keen appreciation for the imbalance that typically exists in social relationships. Especially in the financial and economic realm, it tilts in favor of those absent privilege and prerogative whose weakness may result in their abuse. While these include the widow, the orphan and the poor, objects of compassion in most religious codes, the tradition also bids us recall the renter, the consumer, the borrower and the employee. In large measure this consideration grew from their tendency to be less affluent and to have fewer rights than their counterparts in the commercial equation. However, aside from their material or legal status, their position in a transaction was seen to put them at a disadvantage and this merited the protection of both public authority and religious norms.
This bias toward the weak in the context of social equity is hardly more evident than in the parameters they forged in the relationship between workers and their employers. The tradition operates from the assumption that a laborer was needy, that his living was hand to mouth, and that he depended upon his daily wage to support his family. For this reason alone the sages explain, he gave his very spirit to the task taking undue risk and subjugating his freedom to the whim of another.
Yet the rabbis also understood that workers often could be lazy and unmotivated. They might take unfair advantage of their employer’s absence and exhibit disloyal and insubordinate behavior. Neither could one depend upon their enthusiasm for the task or their concern for the product and equipment under their care. Close supervision was the proactive rule alongside a detailed schedule for liability in cases of damage or loss, which were frequent.
Our intent in this paper is to provide an overview of several major legal and philosophical instruments employed in structuring a workplace to balance these concerns. This will allow us and to consider the base from which they grew and the values that they represent. In so doing we will employ:
- Biblical sources defining the inherent freedom of the worker, expanded and elaborated through Talmudic text and its interpreters,
- the role of prevailing market conditions and business practices as a presumed clause to the labor contract, and
- the reciprocal responsibility of workers to serve their employers in a diligent and competent fashion.
Before entering the substance of this analysis, however, it would be well to provide a brief introduction to the structure and development of Jewish social and economic tradition. It is worthwhile noting, that Jewish law developed in several, overlapping phases. In antiquity and early classical times Jews lived as an independent national entity on their own land, though frequently under the hegemony of an imperial power or in precarious diplomatic balance between two competing Empires. To complicate matters, they contended with expatriate populations, i.e. ethnic Hebrews living under foreign rule yet growing in numbers, wealth and influence outside the Land of Israel. Here an indigenous political and administrative hierarchy emerged, first around a confederation of tribes led by local judges, military leaders and prophets, followed by a monarchy, priesthood and centralized religious structure. Despite the auspicious beginnings signaled in the Biblical narrative, this was a stormy period marked by violence, civil war, palace intrigue and internal strife.
In its middle periods molders of the tradition were driven from their land, robbed of their national identity and forced to seek physical survival and cultural continuity among host cultures varying from suspicious isolation to violent hostility. In general, even benign overlords looked upon Jews as an alien corporate presence best left unto themselves. In large measure their governance, their regulation and the provision of their services were assigned to indigenous communal structures almost by default. An excessive royal tax was typically exacted from the community as a whole in return for the safety of its membership under the protection of the local nobility or ecclesiastical authorities.
In the absence of secular nationalism, the individual had neither a political identity, nor a social or legal standing outside his community. Consequently, leaders of medieval Jewish communities, known as kehillot, maintained control over their adherents through economic, religious, commercial and social sanctions. A loosely aligned network of kehillot emerged, stretching through Europe, the Mediterranean region, the Near East and North Africa.(1)
With the advent of more amenable secular polities in the wake of the French Revolution, this influence receded. Members of the Jewish community entered the general culture en masse, notably in the United States and Western Europe. The number of loyal adherents was severely curtailed as a result, and the tradition was forced to broaden its scope in response to contemporary challenges. Change was signaled in the emergence of voluntary or associational, rather than corporate patterns of affiliation, alongside a Jewish national renaissance expressed as political Zionism and modern Israel.(2)
Based on this experience, Jewish law and tradition exhibit several characteristics that distinguish it from much of contemporary Western thought. One relates to the role of obligation in both personal relationships and public policy. American legal and political theory typically place heavy emphasis upon individual rights, both enumerated and reserved. By contrast, classic Jewish thought posits a complex of detailed and interlocking obligations, broadly dichotomized between the ritual i.e. those that define relationships with the Deity, and the social, i.e. those that define individual and communal responsibilities toward one’s fellow.
This generates an organic, even corporate, social framework that establishes differentials of power and status as standards for custodial responsibility, more than privilege. It venerates neither a struggle for freedom from executive and administrative power, nor a “sovereign people,” from whom political or administrative elites derive the right to govern — both of which contribute an adversarial flavor to much of American legal culture. Instead, at least in the ideal, executive authority and the rights of the governed each derive from and are limited by the “word of the Lord” and those who interpret it.
The least familiarity with Jewish history will confirm, however, that for tens of centuries, conditions were far less than ideal. Juridical development and public practice both were pressed to accommodate capricious overlords, without undermining the essential integrity of the tradition. This followed at least three related paths, rooted in early sources but carefully elaborated over time.
The first was a substantial allowance for local custom to fill the breach when tradition was silent, and to assume precedence when strict adherence to tradition would cause undue hardship and make daily life untenable. This was applied mainly in secular arenae, e.g. civil, financial and social relations, but more than occasionally within ritual and ecclesiastical concerns as well. Tolerance for local diversity allowed flexibility in confronting the unstable and insecure nature of medieval and modern Jewish history.
Second, and related to the first, though attempts at regional hierarchy met with occasional success, the locuof power was municipal or local, especially in Europe, lending an early “federalism” to Jewish communal administration. This fit neatly with the feudal societies within which Jewish communities found themselves and was, in part, shaped by that reality. Therefore, it is appropriate to speak of a tolerance for diversity between Jewish communities in Poland, Germany or Morocco. Within communities, however, adherence to local custom was enforced. Those who would reside or do business there, were generally expected to conform to local usage, absent stipulation or exemption, even in the face of Scriptural or Talmudic precedent to the contrary.
Finally, Jewish legal and political culture is characterized by a well-developed sense of dialectic. For each position, there is an opposition, for each proof-text, a counter-text — grounded in deductive argumentation, homily and precedent. Dissenting and minority opinions are preserved for their intrinsic worth and for their use as future precedent, should circumstances require normative re-examination. In this sense, classic Jewish study tends toward scholastic ahistoricity, favoring the argument upon its merits and almost, though not quite, regardless of its context. The result provides a framework for change while promoting fluency with the past, a formula that has stood well in hostile and hospitable environs alike.(3)
Among the concerns that drive much of Jewish labor legislation is the fear that the employment relationship devolve into something akin to indenture. The classical rabbis acted to instill justice and compassion in the workplace, lest the employer, individual or corporate, become a master with the worker virtually enslaved to his job. To this end, they invoked a Scriptural reference wrested from the context of indenture and servitude itself (Leviticus 25:55). As a reminder to both master and employer, the Bible declares that the Children of Israel are servants of the Lord who rescued them from their bondage in Egypt. The Talmud expands the reference by adding that they are servants only to Him and to no others (Bava Metziah 10a).
To be sure, Scripture provides indenture as an option for those to whom abject poverty leaves no other choice, or as a means of compensation for crimes against property (Leviticus 39-43; Deuteronomy 12-15). Still, medieval authorities reasoned that freedom was the natural state for a People who were servants only to the Lord. No matter how dire his circumstances or how pure his motivation an indentured Hebrew transgressed this most fundamental principle.
Commentaries even entertained the thought that this mandate to freedom might prohibit any form of labor subordinate to another. If one is to serve only God, they reasoned, if indenture whether from poverty or criminal prosecution transgresses His will, then perhaps one may never be beholden to another, even if he pays a wage in return. Along with freedom, therefore, self-employment also is the natural human state. While an intriguing proposition, the consensus appears to be that proscriptions against indenture which threaten the very integrity of the person, cannot be extended to employment in which one remains inherently independent.(4)
However, given their concerns about his person, the rabbis strained to assure that the worker retain his liberty in both fact and appearance by granting him important benefits and prerogatives. For example, symbolic of his freedom of action and movement he was free to rescind the terms of his employment, “even in midday.” This was later curbed and bounded if there was clear loss or damage to his erstwhile employer who was obligated by their agreement. Of course, a worker was expected to refund any payment he had received for work left unfinished. However, if his funds were insufficient, he could carry the debt over time with no prejudice against his option to leave (Bava Kamma 116b,Bava Metziah 10a).(5)
Similarly Scripture refers to the efforts of the Hebrew servant as “double the hire” of a worker (Deuteronomy 15:18). Since, the normal term for such a service is six years, the life of an employment contract was often limited to three. Anything beyond that was looked upon as dangerously close to indenture, and might “enslave” the employee by its conditions. Consider this, from Rabbi Mordecai ben Hillel:
More than three years removes one from the category of a worker. Though he is not a servant in all its laws, since he has removed himself from the category of a worker he has transgressed “for the Children of Israel are servants to Me.”(6)
The image of indenture and the legal mandates that governed its status influenced the protection of employees in other important ways. There arose, for example, a predisposition to assure them any benefits or prerogatives due to a Hebrew servant. One who violates a fundamental religious principle by bartering away his freedom is still entitled to various personal and material considerations. Therefore, the rabbis reasoned, these also should accrue to those who find a more legitimate route to earn their livelihood.
The reasoning is succinctly stated in rulings issued by the medieval sage Rabbi Meir ben-Boruch of Routtenberg. In his words:
all that is lenient for a Hebrew servant is extended to the laborer, a foriori. For the Hebrew servant has transgressed and nevertheless the Merciful One has been lenient. Therefore certainly a laborer who has not so transgressed has the same benefit..(7)
This thinking found ample expression in at least two areas of worker benefit: severance pay and sick leave. In the first instance, Scripture mandates that when the term of indenture expires, the master of a Hebrew servant must deal kindly and compassionately with his outgoing charge (Deuteronomy 15:12-15). He must share the best that his fields and his flocks produced during the years of his tenure. Whether this was integral to his remuneration, or grounded in a philanthropic impulse, the master is adjured not to “let him go empty.”
Though the practice of indenture per se was discontinued with the destruction of the Temple, here was a model for severance benefits to all types of employees. As such, he was entitled to similar treatment, even if his tenure was substantially less than then the typical six-year term.(8) Regarding sick leave, the Talmud tells us that a Hebrew servant may miss as many as half the days of his indenture, i.e. three years, due to sickness or injury, without being liable for the time lost. At the expiration of his term he is free to leave, and he need not compensate his master for time lost (Kiddushin 17a). In a series of cases involving tutors hired privately by a local family, medieval thinkers invoked the indentured servant as their model once more, arguing that the employee should be extended similar liberty, for “all that is lenient for a Hebrew servant is extended to the laborer.”(9)
However, the Tosafists, a West European school of medieval Talmudic scholars, took exception, true to their emphasis on the contrasts between the employee and the indentured servant. Aside from arguments based largely on Talmudic precedent, they reasoned that one controlling a servant has title to all his efforts, rather than to any specific task or service, and is subject to his limitations. Should he suffer illness or injury, the master has no claim against him nor can he defer the term of his indenture. With a yeoman employee, such as a tutor, however, it is his skill and competence that has been transacted in an agreed period of service. If he fails to complete his commitment, the employee can have no claim but to be compensated for work actually performed.(10)
Apart from his freedom from indenture, it is appropriate to invoke yet another Talmudic source that provides an analogous claim to the inherent dignity of the worker. It emerges from a workplace anecdote involving a Talmudic sage who was also an employer, Rabbi Yochanan ben Massiya. He told his son:
Go and hire for us workers. He went and arranged to provide for them meals. When he returned, his father said to him “my son, even if you provide a meal fit for King Solomon himself, you will nohave fulfilled your obligation, for they are the children of Abraham, Isaac and Jacob. Before the work has commenced, go and specify that we will provide only bread and beans” (Bava Meziah 83a).
Beyond the extent of his responsibility to provide food on the job, a question that was later mooted by the Talmud itself, Rabbi Yochanan furnishes for us yet another principle basic to the Jewish image of workplace relations. Despite differences in their status, workers can point to at least one important bond in common with their employers, their distinguished lineage. Reinforcing their claim to serve the Lord alone, they also stem from the Biblical Patriarchs. They command respect and dignity from their employer on this basis, their lesser station notwithstanding. The point has its analogy in public leadership as well. Communal administrators and trustees are warned never to exhibit willful arrogance, nor to take their constituents lightly. If nothing else, they must be treated with reverence and respect as the worthy scions of illustrious ancestry.(11)
It should be noted that the tale of Rabbi Yochanan ben Massiya and his employees is applied elsewhere, regarding a complex discussion of the efficacy of verbal contracts (Bava Meziah 49a). There the Talmud takes exception to what appears to be a unilateral renege on an unqualified agreement to provide food for his workers. They deflect the objection by explaining that the otherwise binding nature of this verbal contract was linked to his employees and their understanding of his terms.
If work had not yet commenced, it is likely that they were not satisfied with his son’s authority to execute such a commitment and therefore awaited approval from Rabbi Yochanan himself. No contract had yet been consummated and the terms could still be revised. However, if work had begun, this was a clear indication that they had accepted his son’s authority as proxy for their employer and Rabbi Yochanan would be bound by the terms transacted in his name. For our purposes, however, the dignity of his employees based on their venerable pedigree was never impugned.
Quite beyond the integrity of their person, workers are due special consideration because of presumptive need. Employers are expected to impart kindness and compassion above the prescriptions of the law’s strict letter. According to many authorities, this stands as corollary to a broader legal principle known as lifnim me-shurat ha-din, the moral and even legal injunction to extend oneself past the formal lines of the law. The application of this principle to workplace relationships is grounded in yet another Talmudic anecdote (Bava Metziah 83a) with a parallel text in the Jerusalem Talmud (Bava Metziah 6:6), though the former is typically invoked in normative discussion.
It tells us that Rabbah Bar Hannan (by some readings “Bar Hannah” or “Bar Rav Huna”) engaged porters to move barrels of wine. In the process the barrels broke and he confiscated their clothing against his loss, an action specifically proscribed in regard to a debtor but not clearly prohibited in cases of damage such as this. They petitioned Rav, presumably the presiding judicial authority. He ruled:
“return their cloaks.”
“Is this the law?” [asked the employer].
He answered, “Yes, ‘so that you walk the good road’ ” (Proverbs, 2:20).
They [the porters] then said to him, “we are poor, we have worked all day and we are hungry. Shall we get nothing?”
Said he [Rav] “go and pay them.”
“Is that the law?” [asked the employer].
“Yes,” he answered, ” ‘and the paths of the righteous shall you guard ” (Proverbs 2:20).
On its face, the incident stands as a powerful precedent, mandating extra measures of compassion from employer to worker. Whether by their negligence or purely by accident, the porters had clearly caused a loss. About this there was no dispute. Rabbah, their employer, may have been well within his rights to demand from them a surety against compensation, which given their impoverished conditions, would be long in coming. Yet it appears that he is forced by law to return their cloaks. Moreover, in consideration for their financial need, he is required to compensate them for their time. Again, as presented in the text when confronted directly, Rav, the presiding justice, confirms that his ruling is rooted in neither personal compassion nor charitable impulse. Rather, it is handed down as legal directive.
Talmudic commentaries and the authors of classic codes of Jewish Law were much exercised by both the style and the substance of this judgement. For some it was evident that action standing above the line of the law is purely that, and no more. It could not be imposed by the courts no matter how compelling the context, or how needy the beneficiary. Scriptural severely admonishes against showing any partiality in legal judgement. To be sure, its most likely intent was to prevent bias in favor of the wealthy, a common happenstance. Yet its language also warns against an assertive judiciary that overreaches even on behalf of the weak, no matter how laudable and well intentioned are its motives (Exodus 23:3; Leviticus 19:15; Deuteronomy 16:19 and Deuteronomy 24:17).
Interlocutors argued that when, in its estimation the claimant is financially able, the courts may set aside such a judgment and find on behalf of a needy petitioner, even if the former is disadvantaged as a result, indeed even if the inclination of the law appears to the contrary. This fulfills Scriptural demands (Exodus 18:20; Deuteronomy 6:18) to reach beyond the letter of the law, a practice to which even the Almighty is said to subscribe (Berachot 7a; Avodah Zarah 4b). Precedent exists in related cases dealing with assisting the wayfarer (Bava Metziah 30b), with cases of malpractice among expert consultants (Bava Kamma 99b-100a), and with the return of lost valuables (Bava Metziah 24b). It is reasonable that the principle also be applied to the interests of poor workers.
Aside from these doctrinal differences, commentaries debate crucial details of the case itself. For many, the outcome turns more on the question of negligence. Rabbah’s porters were liable based on the damage that was caused by their insufficient care in transporting his goods. Else they could have acquitted themselves by accepting the special oath that was instituted for precisely such events. Indeed this is the Talmudic context within which the case emerges.(12)
Others claim that the affair was nothing more than happenstance, a common accident quite typical in such enterprise. Yet the porters stand accountable for damages, nevertheless. By the strict letter of the law, a worker bears responsibility for his employer’s wares and equipment equal to a paid watchman (Bava Metziah 80b). Normally this would free him of liability in unforeseeable cases of accidents. What occurred here, however, was preventable. The porters therefore must make compensation for the damage.(13)
Authoritative opinion is found on all sides of the issue. Some record it as normative, without noting whether its source is legal or purely moral in nature.(14) For others, the demands of compassion are sufficiently powerful to contravene liability for damage. Consequently, the employer can be compelled by law to act in a kind and charitable fashion, even forgoing a judgement to which he is entitled. In the far term, such lenience works to the benefit of employers. Without protecting their workers and holding them blameless against damage, it would be most difficult to recruit porters, for example, to engage in high-risk occupations.(15)
By contrast, some readings of the text excise those words in the passage that suggest the intent to read compassion as a basic part of the legal structure. In these versions, when asked whether this is indeed the law, the judge quotes a verse from Proverbs, without noting his assent. By implication, the entire discussion operates on a moral plane only. Indeed, the medieval authors of the major Jewish codes, e.g. Rabbi Moshe Maimonides, Rabbi Yacov ben Asher and Rabbi Yosef Caro, ignore the case per se. Though they deal with the matter of lifnim meshurat as a general legal principle they do not include our text or its implications in their normative rulings.(16)
Following this theme, the troublesome anecdote has more recently been applied in a revised context, where the judicial decision was never intended to be binding.(17) This is precisely why more prominent Scriptural verses were ignored in favor of one from the Book of Proverbs, not generally employed as a sourcebook for legal opinion. The intent was merely to illustrate a moral and ethical model for a learned colleague. Equality before the law may be a basic legal standard for the bulk of society, but more is expected from one who styles himself a righteous scholar. An illustrious station may entitle one to benefits and exemptions, but it also imposes special responsibilities to act in an exemplary fashion, above and beyond the normative bar of justice.
Finally, Rabbi Shlomoh Ideles provides an ingenious approach to the proceedings. He argues that indeed there was negligence here but not on the side of the porters. At least in part, responsibility for the damages must fall to their employer who demanded that they follow an unsafe route in transit. The verse chosen as legal citation: “so that you walk the good road and the paths of the righteous shall you guard,” was a metaphoric rebuke. For them to be held liable for damages, the judge was suggesting, porters must be permitted to travel the safest path, i.e. “…the good road…” Rabbah had not been fastidious in this regard. He had not “guarded the righteous pathway,” allowing them to transport his goods by the route that represented least risk. By consequence, the judgement was against him.(18)
These complexities and nuances aside, the case of Rabbah and his porters stands as a powerful precedent and model for employee relations in Jewish practice. Whether from legal reasoning or moral and ethical sensibility, employers are called upon to exhibit a charitable nature in their dealings with workers. The tradition demands that they be treated with lenience and understanding especially when they suffer want. They may be due compensation for their time though the employer has suffered loss and damage.
Even as the tradition exhibits a bias in favor of workers both because of their financial need and their disadvantage in workplace relations, Talmudic and rabbinic authorities were candid in their observations about shortcomings in workers themselves. They noted a distinct tendency toward sloth too frequently displaying less than an acceptable commitment to the job. For an example, the Talmudic sage Rabbi Yochanan warns that to squander a large inheritance one need only hire workers and permit them to do their jobs unsupervised. Rabbi Yehuda ben Simone expresses a related sentiment. Reflecting on the uncommon productivity of Father Jacob in the fields of Laban, Rabbi Yehuda tells us “it is the way of the world that laborers work faithfully for their employers for two or three hours, but then become lazy in their toil (Bereshit Rabbah 70:20).
Out of concern for the effective use of their time, the rabbis curtailed certain religious activities so as not to distract employees on the job. For example, they composed an abridged daily prayer and grace after meals to accommodate the demands of the workday. In addition, they limited the extent to which those on the job could participate in certain religious and communal functions (Talmud Bavli: Brachot 45b-46a, Kedushin 33a, Hullin 54b).(19)
Moreover, their concern was not merely for chronic cases of low productivity. Even occasional inefficiencies were treated sharply, assuming that they resulted from lapses in performance. Maimonides, for example, warned laborers that they be careful never to ” steal” from employers “by wasting a bit here and there and completing the day with trickery.”(20) Extending this concern, others ruled that those who take personal time without the prior consent of management, could be dismissed, penalized for their time off the job and then held liable for the cost of their replacement. The extent and nature of the penalty would depend upon the type of loss suffered by the employer, the point at which the work stoppage occurred and the availability of an alternative labor supply. Special exemptions were made for emergency circumstances, illness, death in the family, accident and the like. Here employers are generally required to pay for work done until such unforeseen occurrence, but they need not compensate workers for time off the job even in an emergency.(21)
Dissenting opinions soften these judgements, however, with the earliest being the most liberal. They suggest that employees, who must leave their posts without managerial consent for reasons of emergency, should suffer no penalty at all. Rather, they are entitled to compensation for the full term of his contract, even if they are never able to return to work. Similarly, if pre-payment was made before the emergency, employees need not refund their wages for time off due to an emergency. Others strike a middle ground. They claim that financial penalty should depend upon an employee’s own good faith. If he returns to his post of his own volition after the emergency is passed, and he completes the work or the hours for which he was engaged, then no penalty need be imposed. However, if the emergency occurs at the end of the contract period or if management suffered irretrievable loss for time off the job, it may not be possible to compensate for time lost and employees will be liable for damage caused by their absence.(22)
Contemporary authors have reasoned, therefore, that management can hold employees financially liable under instances of under-productivity.(23) Of course, a legitimate number of sick or personal days without penalty may be included as part of the initial work agreement. Additionally, local usage and custom regarding sick-days, personal days and vacation time can be invoked as the arbiter of practical judgment. Then management could not claim that time was being taken without its consent.
Short of dismissal for malfeasance, employees may be held liable for damage to materials or equipment under their care as well as for the poor quality of their product or service. Such damage may be actual loss due to employee negligence in executing responsibilities. Alternatively it may be the consequence of poor performance reflected in an inability to adhere to explicit managerial request or in a departure from generally accepted standards of quality. The negligent employee may also be liable for opportunity costs, including clear and measurable profit that would have accrued had there been no damage, or had delivery been made in a timely fashion at usual standards of quality.(24)
This liability inheres even in cases of accidental damage. For example, employees bear responsibility for theft, loss and most instances of breakage to product or equipment. The operative principle suggests that though damage was not a direct result of employee negligence, particular care for product and equipment is implicit in the employment contract. Damage implies that the employee did not exhibit sufficient concern. At least one recent authority advises lenience in cases of minor accidental damage, absent of gross negligence.(25)
As noted above, necessary concessions were made to the realities of the labor market. For example:
One engaged to move barrels from one place to another and they break, the law requires that he pay . . . but the rabbis ruled that he only be required an oath of non-negligence. For if you require that he pay, then no one will hire himself to move barrels.(26)
No matter how equitable, parameters for complex commercial relations that ignore the simple realities of the labor market render any ethical system irrelevant. Worse, they encourage constituents to take its prescriptions lightly. At best, adherents give little more than lip service to its obligations, fulfilling their demands formally and superficially, with little regard for the spirit and the sense that these norms imply.(27)
Given the balance they tried to strike between a natural bias in favor the worker and the legitimate productivity concerns of his employer, it is not surprising, that the rabbis placed string emphasis on minhag, long-standing general practice and social usage often rooted in religious literature. Such custom and tradition may be global, it may be defined by geographic locale, or its parameters may reflect the bounds of an industry or an economic sector. To be sure, the impact of minhag as a legal category is not peculiar to employment issues or commercial activity. Prevailing custom is understood as normative in religious ritual and in family law, as well as in social regulation.
However, there is reason to believe that much of the classic Jewish attitude toward the importance and vitality of minhag was shaped by its commercial application. Unlike differences in prayer, dress or diet, which were frequently intended to create insulation between the Jewish community and its neighbors, to ignore prevailing commercial usage would make it impossible for them to survive under already difficult circumstances. Consequently, the rabbis more often stood firm in their ecclesiastical and ritual determinations while making special efforts to accommodate tradition to the commercial and economic circumstances that surrounded their communities. This, in turn, was grounded in precedent immediately relevant to our discussion.
Consider the following, from the earlier portion of the text regarding Rabbi Yochanan and his hungry workers:
One who hires laborers and demands that they rise early and work late, in a place where it is not the minhag, he may not force them. Where it is the minhag to provide food, he must provide food, to offer fruit refreshments, he must offer fruit refreshments. Everything [is measured] by the custom of the locality (Bava Metzia 83a).
Indeed the Talmud goes on to explain that Rabbi Yochanan need not have fretted about their culinary demands. As with any other unstated details of their contract, lunchtime cuisine need conform to local custom and no more.
In a following discussion, the Talmud (Bava Metzia 83a) presents specific Scriptural guidelines that define the workday, local practice notwithstanding. Citing from Biblical Writ (Psalms 104:22-23) they demonstrate that the typical hours of employment should properly commence with the first rays of sun and continue until nightfall, allowing special considerations for Sabbath preparations on Friday afternoon. Nevertheless, local custom supersedes such regulation. Unless stated otherwise, employees may presume that the terms of their hire will conform to local minhag rather than those of the Psalmist.
In their account of the text, the authors of the Jerusalem Talmud extend the import of minhag from a narrow question of the working day, to the vast scope of Jewish tradition and practice. In a broad and sweeping opinion, they record that “this [ruling of the Mishna] informs us thatminhag nullifies the law” (Bava Metzia 7:1, 11a). Though marked by specific bounds and limits, that which is designated as prevailing custom may take precedence over enacted legislation, or, as in our case, even Scriptural mandate. At face value, long-standing practice fully abrogates the law. It is minimally, a presumed but unstated clause to any agreement. Absent stipulation to the contrary, the parties are bound to its dictates.
Later authorities refined the concept, providing structure and scope to the definition of minhag, and detailing the process of its formulation and acceptance. For example, in some accounts, minhag was more than simply a matter of popular usage that became ingrained in the social or economic fabric over time. To become normative, a minhag had to be rooted in or claim support from the store of non-legal Jewish literature, usually poetic, mystical or interpretive, though not Talmudic.(28) Others demanded that it reflect a Scriptural reference, though without specific mandate. Still others saw the formation of minhag as a straightforward function of social history, a reasonable practice that has withstood the test of time and to which early local leadership concurred. Consequently, provisions were made for customs and practices that were considered unreasonable, grossly inequitable or unfair.(29)
Just as workers ought not to be enslaved or indentured by the conditions of their employment, however, neither should they be harshly limited and restricted by prevailing practice. Within broad limits the parties to a contract may voluntarily forgo or ignore local custom, opting instead for separate agreements that nullify or modify its impact. This must be elocuted before witnesses, or stipulated unambiguously in the contract, however. Absent such stipulation, an employer cannot claim, for example, that a higher wage is implicit evidence that personal expenses or compensation for a longer workday were understood and included, especially in the face of prevailing practice to the contrary.(30)
As we have noted elsewhere, minhag, understood as prevailing business practice or local regulation, is a powerful tool in the process of elaborating contemporary employee relations. This includes retirement and severance benefits, unionization and the right to organize, job security and occupational safety. As the circumstances of commerce and employment have changed over time, its flexibility has been employed by religious thinkers to extend the interests of workers in areas not expressly provided or anticipated in classic Jewish thought. This has contributed to its elasticity and helps it serve as a viable basis for contemporary ethical discourse.
In sum, classic attitudes toward the worker and the workplace flow from several disparate sources with roots not always peculiarly or uniformly Jewish. Those closest to the tradition emerge from Scripture itself, wherein for example, Talmudic rabbis postulated that freedom was natural to the human condition and servitude was reserved for the Lord alone. No matter how wealthy or how poor, no matter how distinguished or how demeaned, each member of the community shared that bond, borne of their common faith and ancestry.
Those who allowed their freedom to be curtailed, such as indentured servants, or, according to preliminary analysis even full-time employees, had sinned. Yet there was no long-term recrimination here. On the contrary, with the completion of their term of service, they were entitled to extra compassion and understanding, measured by the gifts due them as they attempted to right their lives. This became a model for the contemporary employee as well. Whether in the form of severance benefits, sick days or simple understanding, they are to be treated no less well than were their indentured counterparts.
This mix of legal formality and personal forbearance also emerges outside the model posed by Scripture, in the principle of lifnim meshirat ha-din, actions that are at once above and yet part of the law. By some estimates it is implicit in Biblical writ, though several steps removed from the core of the tradition. Others would write it into legal decision by sensitive and well-meaning jurists. Perhaps it is a mandated form of charity and perhaps it is reserved only for the pious elite. Still there is little question that the principle is an important corrective for social or commercial imbalance. At the least, it stands as a heuristic from which the values of justice tempered by mercy may be implanted into the workplace. By its rule, judgements of liability may be set aside and wages paid to those who have been party to damage through but little fault of their own.
Yet employees are warned not to abuse their protected status. They are expected to care for their health, reserve their strength and put their energies to the task. If they offer anything less, they are guilty of stealing from their employers. Save for emergencies, accidents or other unforeseen circumstances, they will be held accountable for theft, loss or damage to property and equipment. They also may be expected to compensate for any time lost. Their inherent freedom alongside their claim to compassion should not be understood as license for ind, trickery or sloth.
All this is reinforced by minhag, prevailing business practice, taking us far afield from what is peculiar or unique to Jewish tradition. Many of the advances that workers have experienced in the past century, in regard to occupational safety, educational benefits or job security were never anticipated in the available sources. Yet they have been incorporated into Jewish custom and practice, and enforced in binding arbitration or rabbinic ruling, as part of prevailing minhag, customary business practice.
While Jewish thought clearly demonstrates a bias in favor of the employee in the course of normal workplace relations, it should be noted that its thrust is far more limited than that of other recent ethical traditions, both religious and secular. Thus Catholic Social Tradition, as reflected in Papal pronouncements over the past century, has argued for an inherent right of workers to participate in managerial decision and claimed that management is obligated to empower them and to help them develop their human potential.(31)
To the contrary, despite a predisposition for equity in protecting the weak or vulnerable, Jewish tradition maintains its basic respect for private property and never suggesting that employees are due rights of ownership. Indeed, when considering the centrality of work in the scheme of human development, the classical rabbis issued stern warnings that one must never permit identity and personal worth to be identified with vocation or professional status. Righteousness and moral distinction were generally to be established in personal and communal relationships outside the workplace.
Nor are employees to be seen as “stakeholders,” as it is understood in contemporary academic business literature. Recent ethical theory has argued that the interests of workers are to be balanced against those of customers or of stockholders in the formation of corporate policy as well as in the moral consciousness of managers and owners. As noted within the broad bounds outlined above, the claim employees may have upon good will and special consideration is largely rooted in their vulnerability and dependence upon their wage for the immediate wellbeing of their families. It is difficult to argue that Jewish tradition posits a claim that allows employee interests to impugn the fiduciary responsibility of managers to stockholders or to the integrity of their service and product, as many stakeholder theorists do.(32)
The social goal pursued by the interpreters of Jewish tradition was not equality per se, but rather moral reciprocity and balance. They never questioned the legitimacy of private property nor were they indifferent to social disparities, whether ritual, political or economic. To mandate a crude and abusive uniformity which undermined choice was unnatural, and in any case naive and unenforceable. Instead, they sought to limit the discretion of ownership against countervailing claims of public interest and personal obligation, under the aegis of a moral code to which all parties must owe allegiance. Their point was to fashion a relationship based on equity and fairness with a vision rooted in the inherent dignity of each party to a transaction, bound to one another as servants of the Lord and as adherents to His creed.
Dr. David J. Schnall is Herbert Schiff Professor of Management and Administration at the Wurzweiler School of Social Work of Yeshiva University.
* This paper is abstracted from the author’s forthcoming book, By the Sweat of Your Brow: Aspects of Work and the Workplace in Classic Jewish Thought (New York: Yeshiva University Press). It was completed during his tenure as Fulbright Professor and Senior Scholar at the Hebrew University in Jerusalem, 1999-2000. He wishes to express his deepest gratitude to the Fulbright Foundation for its kind assistance and generous support.
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During the 1999-2000 academic year Dr. Schnall served as Fulbright Visiting Professor and Senior Scholar at the Hebrew University of Jerusalem. He is an ordained rabbi and author/editor of 8 books and over 100 articles, essays and reviews dealing with professional ethics, Jewish issues and public policy.
1. Stuart Cohen, The Three Crowns: Structures Of Communal Discourse In Early Rabbinic Society. Oxford: Cambridge University Press,1990; Daniel Elazar, Kinship And Consent: The Jewish Political Tradition And Its Contemporary Uses. Lanham: University Press of America, 1983; Daniel Elazar, The Jewish Polity: Jewish Political Organization From Biblical Times To The Present. Bloomington: Indiana University Press, 1985. 2. See Henry Feingold, Zion In America: The Jewish Experience From Colonial Times To The Present, New York, Hippocrene Books, 1974; Stanley Feldstein, The Land That I Show You: Three Centuries Of Jewish Life In America. New York, Doubleday 1978; Arthur Hertzberg, The Zionist Idea, New York: Atheneum Press, 1973; Howard Sachar, The Course Of Modern Jewish History. New York: Delta Books, 1958.
3. See e.g. Robert Cover (1987), “Obligation: A Jewish Jurisprudence of the Social Order” Journal Of Law And Religion 5:65-90; Steven Friedell,(1992) “The Different Voice in Jewish Law: Some Parallels to a Feminist Jurisprudence” Indiana Law Journal, 67:915-949; Aaron Schreiber, Jewish Law And Decision Making: A Study Through Time (Philadelphia: Temple University, 1979); Suzanne Stone, “In Pursuit of the Counter Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory” Harvard Law Review, 106:813-894 (Cover,1987; Schreiber,1979; Shilo,1978.
4. See, e.g. Tosafot Bava Metziah 10a s.v. Ki Li.
5. See Rabbi Moses Maimonides (RAMBAM) Yad: Hilchot Sechirut 9:7 and Rabbi Yosef Caro, Shulchan Aruch: Choshen Mishpat 333:3.
6. Rabbi Mordecai ben Hillel, Mordecai: Bava Metziah item 460.
7. Rabbi Meir Ben Borukh (MAHARAM) of Routtenberg, Shelot U-Teshuvot HaMaharam Me-Routtenberg, especially items 85 and 79; see also Rabbi Mordecai ben Hillel Mordecai: Bava Metziah item 347.
8. Rabbi Aharon Halevi (?) Sefer HaChinukh, item 483.
9. Rabbi Mordecai ben Hillel, Mordecai: Bava Metziah item 346; see also Rabbi Moses Maimonides (RAMBAM ) Yad:Hilchot Avadim, 2:5.
10. Tosafot Kiddushin 17a, sv Chalah Shalosh
11. See e.g. Rabbi Moses Maimonides (RAMBAM ) Yad:Hilchot Sanhedrin 25:1-3.
12. See e.g. Rashi Bava Metziah 83a s.v. shkule.
13. See, e.g. Rabbi Menachem Meiri, Beit HaBechira:Bava Metziah 83a; also Rabbi Yosef Caro, Shulchan Arukh:Choshen Mishpat, 304:1.
14. Rabbi Asher ben Yehiel (ROSH) Kitzur Piskei Ha-ROSH, 6:19.
15. Rabbi Mordechai Ben Hillel, Mordechai Bava Metziah item 257; also Rabbi Joel Sirkes, Bayit Chadash: Choshen Mishpat,12:4.
16. Rabbi Yosef ??? Nemukei Yosef:Bava Metzia, p102. Also, see Rabbi Yacov Ba’al haTurim, Tur Shulchan Arukh:Choshen Mishpat 12:4. Also notable is the attempt by Rabbi Yehoshua Falk-Katz to read our case into the decisions of the Shulchan Arukh. See his Sefer Meirat Eynayim: Choshen Mishpat, 304:1.
17. For a good review of this literature, see Shmuel Shilo (1978) “On one aspect of Law and Morals in Jewish Law: Lifnim Me-Shurat Ha-Din” Israel Law Review 13:359-390, Shillim Wahrhaftig, Dinei Avodah BeMishpat Haivri, 2:924-928, and Robert Eisen (1999) “Lifnim MiShurat Ha-Din in Maimonides Mishneh Torah” Jewish Quarterly Review 89(3-4): 291-317.
18. Rabbi Shlomoh Ideles (MA-HARSHA) Agadot Hamaharsha: Bava Metzia 83a.
19. Rabbi Yacov Ba’al haTurim, Tur Shulchan Arukh:Choshen Mishpat, 337: 20; Rabbi Yosef Caro, Shulchan Arukh:Choshen Mishpat, 337: 20.
20. Rabbi Moses Maimonides (RAMBAM ) Yad:Hilchot Sechirut, 13:7.
21. Rabbi Yacov Ba’al haTurim, Tur Shulchan Arukh:Choshen Mishpat, 333:3; Rabbi Yosef Caro, Shulchan Arukh:Choshen Mishpat, 333: 3.
22. Rabbi Mordechai Ben Hillel, Mordechai:Bava Metzia item 346. Rabbi Meir Ben-Boruch, Shelot U-Teshuvot HaMaharam Me-Routtenberg, item 85; Rabbi Yacov Ba’al HaTurim, Tur Shulchan Arukh:Choshen Mishpat, 333:3. Rabbi Moshe Isserlies REMA: Shulchan Arukh:Choshen Mishpat, 333:3.
23. Shillem Wahrhaftig, Dinei Avodah BeMishpat Ivri Tel Aviv: Moreshet, 1969 p.324.
24. Rabbi Moses Maimonides (RAMBAM ) Yad:Hilchot Sechirut, 10: 3-4; Rabbi Yacov Ba’al HaTurim, Tur Shulchan Arukh:Choshen Mishpat 306: 3; Shillem Wahrhaftig, Dinei Avodah BeMishpat Ivri Tel Aviv: Moreshet, 1969 p.814-6.
25. Rabbi Moses Maimonides (RAMBAM ) Yad:Hilchot Sechirut, 10:4; Rabbi Yosef Caro, Shulchan Arukh:Choshen Mishpat, 306:4; Rabbi Yehoshua Falk-Katz, Sefer Meirat Eynayim: Choshen Mishpat 306: 13; Rabbi Yechiel Michael Epstein, Oreych Hashulchan: Choshen Mishpat, 331: 7.
26. Rabbi Moses Maimonides (RAMBAM ) Yad:Hilchot Sechirut 3:2; See also Rabbi Yosef Caro, Shulchan Arukh:Choshen Mishpat, 304:1.
27. See David J. Schnall (1993). Exploratory Notes on Employee Productivity and Accountability in Classic Jewish Sources. Journal of Business Ethics, 12(6): 485-491.
28. See, e.g. Rabbi Avraham Gumbiner, Magen Avraham:Orach Chaim 890:22 and Rabbi Moshe Sofer, Shelot U-Teshuvot Chatam Sofer: Orach Chaim 1:36.
29. Rabbi Mordechai Ben Hillel, Mordechai:Bava Metzia item 366; Rabbi Moshe Isserlies Rema: Choshen Mishpat, 331:1. Tosafot: Bava Batra 2a sv Bagvil.
30. See e.g. Tosafot: Bava Metziah 83a sv HaSocher and Ketzot HaChoshen: Choshen Mishpat, 331:1.
31. See, for example, Michael Zigarelli (1993) “Catholic Social Teaching and the Employment Relationship” Journal of Business Ethics 12(1) 75-82 and Michael Naughton and Gene R. Laczniak, (1993) “A Theological Context of Work from the Catholic Social Encyclical Tradition” Journal of Business Ethics 12(12): 981-984. Michael Naughton (1995) “Participation in the Organization: An Ethical Analysis from the Papal Social Tradition” Journal of Business Ethics 14(11) 923-935; also Michael Naughton (1992). The Good Stewards. Lanham MD: University of American Press.
32. See, for example, David J. Schnall (1999), The Employee as Corporate Stakeholder: Exploring the Relationship between Jewish Tradition and contemporray Busienss Ethics” in Aaron Levine and Moses Pava Jewish Business Ethics: The Firm and Its Stakeholders. Northvale, NJ: Jason Aaronson. Also R. Edward Freeman (1984), Strategic Management: A Stakeholder Approach Boston: Pitman; R. Edward Freeman and D.L. Reed (1983), “Stockholders and Stakeholder: A New Perspective on Corporate Governance” California Management Review 25: (3)88-106; R. Edward Freeman and D.R. Gilbert, “Managing Stakeholder Relationships” in S.P. Sethi and C.M. Falbe (eds.) Business And Society (Lexington: Lexington Books, 1987); William Evan and R. Edward Freeman, “A Stakeholder Theory of the Modern Corporation: Kantian Economics” in Tom Beauchamp and Norman Bowie (eds.) Ethical Theory And Business (Englewood Cliffs: Prentice Hall, 1988); R. Edward Freeman and William Evan (1990), “Corporate Governance: A Stakeholder Interpretation” Journal Of Behavioral Economics 19(4):337-359; Kenneth Goodpaster (1991), “Business Ethics and Stakeholder Analysis” Business Ethics Quarterly, 1:61-70; R. Edward Freeman (1994), “The Politics of Stakeholder Theory: Some Future Directions” Business Ethics Quarterly 4(4):409-421. Bruce Langtry (1994) “Stakeholders and the Moral Responsibilities of Business” Business Ethics Quarterly, 4:431-443.