INTRODUCTORY ESSAY
by
THE EDITOR

Social Legislation in the Talmud

[page i] This essay, which appeared originally as a Torah Va’Avodah publication, first in 1946 and then in a revised and enlarged form in 1947, has now been again revised and enlarged and, by reason of the relevance of much of its subject matter to the tractate Baba Mezia, has been included in this volume. The Publishers wish to record their appreciation to the Bachad Fellowship for their kind co-operation.

[NB: This essay is contained in the prefatory pages of the 1962 printing of the Soncino Hebrew-English Edition of the Tractate Baba Mezi’a]

THE RELIGION OF ISRAEL

In the earliest accounts of Israel and Judah, when yet the twelve tribes were warring with each other, we find leaders who proclaimed that God is and must remain the sole ruler of the tribes and that through the government of the Lord, Who is One and Everlasting. the unity of the individual and the nation must be found.

This only God and Supreme King had spoken to them at Sinai through the Law and continued to speak to them through priest and prophet. What He said and commanded was gathered up in books, which became the Book—the Bible—by which their individual and corporate life was to be guided. Thus arose and developed the religion of Israel. Grounded on the Book and centred in God, it was not like the Roman religion, the creature of the State, nor was it ever to derive its inspiration from political feeling. For the Jews, religion itself was to be an independent and positive source of inspiration and its acceptance the chief foundation upon which the Jewish state was to rear itself.¹

THE WRITTEN AND UNWRITTEN LAW

But surrounding nations surged against them. Conquering Empires rose and fell. Israel was taken captive and disappeared from history as a separate whole. Judah too fell a prey to Babylonia, but was restored after Babylon fell to the Medes and Persians. Thus began within Judah a centuries long struggle for the inviolability of the Book. Its laws, precepts and ordinances had to be interpreted both literally and spiritually. The change in their environment could not be neglected. Beside the Written Law, there had been from the first, from the divine commandments to Moses onward, an unwritten Law which law-giver and prophet sought to engrave on the hearts of the people. The Written and Unwritten both must co-operate in the guidance of Jewish people struggling against the inrolling civilisations of Greece and Rome, the unwritten being the dynamic factor of change, the written the abiding fundamental factor.

THE TALMUD

Thus began the Talmud, mainly oral at first. Teacher succeeded teacher in synagogue and school. Their sayings and rulings based on the Book were treasured. The Sadducees, representing the extreme latitudinarians in life, opposed the continuous interpretation and reinterpretation of the Law to meet changing circumstances. They failed and disappeared. The Pharisees who provided the chief teachers of the Law succeeded and remained, and the Talmud is not the least of their achievements.

Then came to the Jewish people with the year 70 the most severe blow of all. Jerusalem was captured by the Romans, the Temple razed to the ground, and the Jews were dispersed throughout the world. Their surroundings had indeed changed—fundamentally changed—but their conception of God as sole ruler had not changed; and although the state had been annihilated and the people had often to flee from one place to another, they continued to cherish with increasing tenacity the Book and the traditions which past centuries had shaped, and which had as goal the realization of the divine will through the singleness and unity of all powers of the common life.

With the transformations in their surroundings and conditions, they were confronted with new dangers, new problems and new difficulties. Re-adaptation and re-interpretation of the Book to meet the kaleidoscopic changes in their situation, became more necessary than ever, and leaders arose to continue the work of past generations. Thus the Talmud, the written story of interpretation; of making of by-laws, and of adding to the store of Jewish legislation, grew rapidly during the early centuries of the Christian era. Babylonia was playing its part during this growth as well as Palestine where Jewish teachers were yet able to find temporary shelter. Thus arose the two versions of the Talmud—the Babylonian and the Jerusalem—in which are chronicled the national experiences of the Jewish people extending over a period of several centuries; and the presentation of some aspects of the social legislation enacted during that period is the attempt made within the restricted limit of these pages.

SOCIAL RIGHTEOUSNESS AS AIM OF COMMUNAL ORGANIZATION

As preliminary to the main subject, it is necessary to sketch briefly the constitution and organization of the Jewish communities in respect of whose needs the talmudic social legislation was enacted. With the Torah as supreme guide in communal life, the primary end and aim of communal organization had moral and religious purposes. This does not mean that the economic and social functions of organized society were ignored. But it does mean that all was looked upon as subordinate to the moral functions. In other words, morality was made the dominating factor of communal life, and the underlying principle of all legislation regulating social and economic relations. This will be particularly seen in the personal responsibility which the community enforced on each of its members in matters of social righteousness. With the result that the Jewish communities were able to exhibit, even under the most untoward circumstances and environments, a moral enthusiasm and passion for social justice to which communities of enlightened European states but rarely testify.

THE COMMUNITY

A community has been defined as a collection of institutions rather than a collection of people occupying a more or less defined area. It is that which is final and decisive in distinguishing the community from other social constellations.

The same can be said to have been the distinctive feature of the [page ii] Jewish town. Before a locality could enjoy the status of a town, it had to possess at least ten institutions of social, cultural and occupational character. A Court of Justice, a Charity Organization, a Synagogue, a Public Bath, a sanitary convenience, a physician, a surgeon, a notary, a ritual slaughterer, and a school teacher.² Round the town were grouped the various suburbs and villages which were in all matters dependent on the town.

Residing in the town were its own citizens, people domiciled or possessed of land within its boundaries, and strangers who took up temporary residence and possessed no property. The qualification for citizenship was 12 months’ residence. This was an easy qualification considering the importance of the rights and privileges of citizenship.

COMMUNAL ADMINISTRATION

The administration of the Community was generally in the hands of a Council, consisting of a minimum of seven officers (shibe’ah tube ha-’Ir) duly elected by the citizens (‘aneshe ha-’Ir). Where non-Jews formed part of the community, they were called upon to administer the affairs together with the Jewish representatives.³ This Council constituted the Executive, who had charge of all the affairs of the Community, and without whose direction nothing could be done. They had also in a sense legislative power, with the right to enact, regulate and fix local customs, which in turn became part of the life and being of the Community. Their powers, though considerable, were circumscribed by the Torah. No law, regulation, or enactment of theirs had any authority save as being in accordance with the law of the Torah, and had no validity except in so far as it bore this character. This was guaranteed by the presence of the Rabbi appointed in Palestine by the Nasi, and by the Resh Galutha, the Exilarch, in Babylonia, who stood at the head of the Community and in whom was vested the power to veto any measure which he considered contrary to the law. This essential prerequisite authorization and sanction by the representative of the Torah impressed on all communal legislation a divine stamp, and all enactments passed by the Jewish Communities were no longer regarded as man-made, but became identified with the law of God—and thus secured the voluntary allegiance of all God-fearing men and women.

Although the constitution of the Community was, as will have been seen, essentially democratic, the minority could in certain matters, by appealing to a higher authority, secular or spiritual, force the majority to yield to their demands. Thus we read that the minority could compel the rest of the Community to share in the building of a wall for the town, in the erection of a synagogue, and in the purchase of scrolls of the Law and the Prophets.⁴

FUNCTIONS OF THE EXECUTIVE AND COUNCIL

The real Executive power, however, was vested in the hands generally of a triumvirate called ‘parnasim’, appointed for their learning and distinctive merits, rather than for their wealth. In order to avoid corruption, two brothers were not allowed to have seats on the Executive.⁵  If by any chance, however, two brothers were elected they were allowed only one vote.⁶

Much honour and dignity was attached to the office of Parnas, and the Parnas was to avoid anything which might tend to lower his respect and prestige in the eyes of the members. Thus, no Parnas in office was permitted to do manual labour in public,⁷  and in Palestine the Rabbi inducted the Parnasim into office by presenting them with a Sefer Torah, as a token of the Divine ideal that was to inspire and govern them in all their activities.⁸

The Council had multifarious duties, ranging over all kinds of communal service and endeavour. They administered the funds, apportioned taxation, supervised trade and commerce, disposed of communal property, fixed and controlled prices and weights and regulated wages of workers. They further enacted police regulations, provided for the administration of justice, enforced fines, applied the sanctions of the ban of excommunication, organised forces for the protection of the town, and attended to the spiritual needs of the people by arranging the statutory and special divine services and supervising the teaching of adults as well as children.

THE COMMUNAL OFFICERS

The council operated through a body of officers. There were the officers of weights and measures (‘agardemim⁹, ba’al ha-shuk¹⁰), whose function it was to test and seal weights when found accurate. They also supervised and controlled the price of commodities as fixed by the Council. For this office only men of the highest probity and strictest integrity were appointed. Cases of attempts at bribery by unscrupulous and wealthy merchants were not unknown, and only men whose character was proof against all taint of corruption and graft were entrusted with this task.¹¹  These inspectors also examined the quality of the food for sale. In case of wine they would taste the liquor through a straw or tube, or from a cup.¹²

There were also field surveyors who supervised transactions in landed property. They had to see that the measuring rod was according to standard, and also that the boundary lines between neighbouring fields were kept intact.¹³

The Community also had house surveyors who were to advise householders to attend to repairs whenever considerations of public safety made this necessary,¹⁴  as well as road surveyors who were required to attend to the roads and see whether they were in a fit condition, and to issue orders accordingly.¹⁵

For the protection of the town against assault there were provided special guards who had to keep vigilant watch and warn the residents against any impending dangers. Guards on horseback were continuously riding round the city to see that all was in order.’¹⁶

There was also a general police force which exercised rigid control over the moral, social and religious life of the people and maintained strict discipline within the community, and special elders were appointed to check frivolous behaviour at banqueting places.¹⁷ [page iii]

COMMON PROPERTY AND UNDERTAKINGS

The sense of solidarity in the life of the townsmen was expressed and strengthened by a number of common undertakings, including undertakings of a commercial character carried out on a co-operative basis with a pooling of resources and profit;¹⁸ and by the possession of no little town property from which the great body of citizens derived considerable benefit. There were public fruit trees from which all citizens were allowed to pluck. They could even take them home and eat them, provided there was no hoarding nor conserving.¹⁹ There were also common pasture grounds and woods on which citizens could send their cattle to graze.²⁰

The common property was equally at the disposal of all citizens. There was no claim to priority, nor discrimination. The right to the use of the common well was likewise shared by all townsmen. It was, however, restricted to drinking purposes, but did not extend to the requirements of industry, such as washing and scouring wool. As to the needs of washing clothes and personal washing, these were provided for in special containers.²¹

The larger sense of humanity transcended the confines of the town and even strangers shared the use of the common property. This was particularly the case with the pastural grounds on which also outsiders were allowed to feed their cattle. All likewise were permitted to gather shrubs and grass in all places, by force of an ancient enactment ascribed to Joshua.²²

All roads were, of course, included among the common property and open to the free common use of all; but the public had in addition the right to use paths leading through private fields before the seeds began to sprout;²³ and a private path in public use for some time could not be obstructed .²⁴

The common property was the inalienable possession of the townsmen. To illustrate this principle, the Talmud relates the following incident. A certain Hasid²⁵observed a man clearing stones from his own field and depositing them in the public road. ‘Wherefore dost thou remove stones from a domain which is not thine to a domain which is thine,’ the Rabbi asked. These words of reproof were greeted with scorn by the man, who failed to grasp their significance. After some time, this man, finding himself in financial difficulties, was obliged to sell his field, and, in search of a buyer, he happened to pass that same street and stumbled painfully over the very stones he had deposited. Then there dawned on him the meaning of the Rabbi’s words with their full force and he exclaimed, ‘How truthfully did the Hasid speak, when he said to me, “Wherefore dost thou remove stones from a domain that is not thine, to a domain that is thine.”²⁶

As inalienable public possession, the common property could be used by every individual, provided this did not involve any appropriation of, or interference with, public access. No one was therefore permitted to place or cause an obstruction in the street or act in a way that would cause inconvenience to those who use it. If anyone happened to place an object in the street and failed to remove at after due warning was given, he forfeited all claims to it.²⁷ If one had a tree on his private ground overhanging the street, he was required to cut the branches off at a height that would enable a camel and its rider to pass under it unmolested.²⁸ Threshing floors had likewise to be set up at a distance from the city so that the wind might not carry the stubble into the city to the annoyance of the residents.²⁹ Nor was any digging allowed even on private ground, where it extended under a public domain, without special permission from the authorities, who would, on granting, enforce the necessary regulations that would ensure the safety of the road to heavy traffic no less than to pedestrians.³⁰

PRIVATE PROPERTY RIGHTS

Though the rabbis recognised private property rights, these were governed essentially by social considerations, and only in so far as it provided a basis for social peace and welfare, and for a better ordering of human affairs, was the claim of the possession of property justified; and when it was to serve the public interest this claim might, by the properly constituted authority, be modified or suspended altogether.³¹For a man to refuse to others the use of what he possessed, simply on the ground that what he held was his own, was a conduct for which the Rabbis of the Talmud could find no sanction. They considered that provided there was no loss, nor damage involved to the proprietor, others too were entitled to avail themselves of the advantages and benefits which private property could offer. ‘Behold,’ said they, ‘if, at the end of the harvest season, when the field is cleared of all crops, the owner does not permit the public to enter his field, what do people say of him? “Look at the man, what benefit does he derive?”³⁰ Such a dog-in-the-manger attitude was regarded by the Rabbis as indefensible. They declared it typical of the people of Sodom who stood strictly by the principle of each for himself, and whose motto was ‘What is mine is mine and what is thine is thine’. Against such an attitude. the court would not hesitate to resort to coercion;³¹ and as is evidenced by the number of measures affecting the whole sphere of social and economic life, recorded in the Talmud, the Rabbis endeavoured to ensure not only the rights of the public in regard to private possessions, but also the social duties attached thereto.

THE BIBLICAL CONCEPTION OF PRIVATE PROPERTY

This rabbinic attitude to private property is based on the [page iv] fundamental biblical principle that whatever man has, he holds from God: ‘For all things come of Thee, and of thine own have we given Thee’ (I Chron. XXIX, 14). Such property is conceived in terms of a Divine trust, in which no man can claim exclusive rights. While those appointed by God as trustees have their own specific rights of use and enjoyment, there still remain common rights to be shared by others in virtue of the Divine ownership.

It was this principle of Divine ownership on which rested the biblical laws designed to ensure the common rights of the poor to the land. In ancient Israel, those who could not earn enough were provided for by the precepts of the Torah regarding the reaping of the harvest. The landowner, while enjoying the reward of his diligence, had to recognise that others too had a right to live and that he had duties towards them to enable them to live.

The ethical principle underlying these precepts is quite clear. Its meaning is that the earth created by God as well as all the gifts of nature can never become altogether private property. It is handed out in trust to man, who by the sweat of his brow, brings out its produce. The right and the duty to apply his diligence to the land is the only relationship permitted him by the spirit of the Torah. Beyond this relationship stands the eternal truth that ‘the earth is the Lord’s and the fulness thereof’ (Psalm XXIV, 1). It is from Him that man has received the land, and it is from Him that mankind derives common rights in the land; and in the olden days, the common property in the gathering of the harvest was an example of these common rights.

In the same spirit were the laws of the Sabbatical Year (Shemittah) ordained. Designed to confirm the landless poor in their right to live, ‘the Sabbath for the land unto the Lord’ (see Lev. XXV. 2) served to teach that the produce of the land must not be regarded as absolute private property of a select class, but was at least part of a common divine heritage in which the poor, the alien and the slave and even the criminal have a share.

This principle of the Divine ownership of the land was further enforced by the biblical law of the Jubilee. If a Jewish landowner sold his land, it came back to him or his heirs with the advent of the Jubilee Year. The object of this law was to prevent land from becoming concentrated in the hands of a few, to the impoverishment of the masses. But the underlying principle was that of the Divine ownership of the land. As the land did not actually belong to its human owner, it was not in his competence to sell it. This so-called owner of the land was given only the opportunity of putting it to good use. Having failed in his charge, he was obliged to surrender his function to another person, the original reservation ever remaining in force; and after the lapse of a certain number of years, with the advent of the Jubilee, his rights as first owner were automatically restored to him, and he was given a chance of cultivating his trust.

CONTROL OF PRICE

The Rabbis, actuated by the same ethical and religious motives governing private property rights, applied them to the whole range of social relations. This is particularly noticeable in the rigid control exercised over the price-fixing of commodities and the penalties attached in cases of contraventions. In Roman Law, price was entirely a matter to be determined by free contract. It was left to the two contracting parties, the buyer and the seller, to agree upon the price at their own risk, subject only to the limitation that the seller was bound to reveal faults and defects, interfering with the proper enjoyment of the things sold. Paulus, a legist of the third century, stated that, in buying and selling, a man has really a natural right to purchase for a small price that which is really valuable and to sell at a higher price that which is less valuable, and each may seek to over-reach the other.³⁴ What appeared to Roman Law natural and right was in the eyes of the Talmudic Law unethical and wrong. Basing themselves on the biblical law in Leviticus, ‘If thou sellest aught to thine neighbour, or buy of thy neighbour’s hand, ye shall not wrong one another’ (Lev. XXV, 14). Jewish magistrates regulated the relationship of buyer and seller on quite a different basis than that of contract. For them it was determined by social considerations and based on ethical principles; and thus they developed and enacted a number of legal provisions that safeguarded the interests of both parties. They not only limited all profits, but fixed the amount which constituted in each case, according to the nature and circumstances of the transaction, a charge of fraud and the penalties attached to it. In general cases the overcharge of more than one-sixth above the market price was considered sufficient to cancel the sale; where it was exactly one-sixth, the buyer could recover the excess; though an overcharge of less than a sixth was not actionable.³⁵ And not only was the buyer protected against fraud, the seller too could find a remedy where he had been through one cause or another cheated out of his wares at a lower price.³⁶It becomes clear that in a system where such laws and regulations were in force, the ideas about rights, of property were quite different from those that predominate today.

SALE OF FOOD

In many communities, the prices were fixed not at individual discretion, but were corporately determined with a view to safeguarding the standards of life of the consumers; and while in some cases the profit of more than one-sixth of the cost price was permissible, in the case of eatables it could not exceed one-sixth.³⁷ For the same reason provision was made cutting out the middleman’s profit in the case of eggs which constituted one of the most important articles of food in Palestine.³⁸ The export trade was likewise regulated on the same principles, and no food on which the general livelihood of the community depended, such as wine, oil and fine flour, could be exported from Palestine; although it might be mentioned that one authority. Rabbi Jehudah ben Bathyra, would make an exception in favour of wine, because its export, he claimed, would diminish the resultant evils of intoxication.³⁹

MEASURES AGAINST FORESTALLING

Rules of the most far-reaching consequences were likewise enacted to prohibit forestalling or any action which prevented goods from being brought by the producer to the open market. The forestaller, buying them wholesale outside the town or in the market itself, would by creating a corner, secure a monopoly and command a higher price than would otherwise have been paid. Such practices, though forbidden by means of an enactment, were not easily [page v] enforced. The Talmud mentioned with execration a certain Shabbatai who practised forestalling.⁴⁰Such abuses must have been quite common; and public-spirited individuals would step in where the hand of the law could not reach. The father of Samuel, for instance, we are told, in order to defeat the scheme of forestallers, used to buy grain at the harvest time, thus preventing anyone else from securing a monopoly, and then resell the grain at the same price. Samuel, the son, on the other hand, used to store up the grain he bought at harvest time and keep it until the price became higher, when he would release the grain at the price of the harvest time and thus force prices down. And from Palestine a message was sent: ‘The action of the father is more meritorious than that of the son’. Whereas the action of the father prevented a rise in the prices altogether, those of the son did not have the same effect, as his act was not likely to bring the prices down after they had already attained their level in the market.⁴¹

CONTROL OF WEIGHTS AND MEASURES

In addition to controlling prices, the authorities controlled also the measures and weights. Numberless regulations were laid down to ensure that the buyer was not defrauded by any inaccurate measure or weight. All measures had to be cleaned periodically according to the purpose for which they were intended. Wholesalers had to clean their weights and measures once a month, shopkeepers twice a week. Provision was likewise made for the height at which the scales were to be suspended from the ground, as well as for the length of the cross-bit. The nature of the weights was similarly provided for. Weights were not to be made from metal, because they wore out easily, only from granite, stone and glass.⁴² These measures, it might be mentioned, were made in the interests of justice, rather than for the sole interest of the citizens. This is clearly illustrated by the regulation that no weight could be enlarged by more than a sixth; and the reason suggested for this enactment was to protect merchants, coming from outside to dispose of their goods, against any loss. If, for instance, an outside seller, unaware of the increase in the capacity of the weights and measures, sold his wares at the fixed profit of one-sixth, he would still suffer no loss on the cost price, provided the change did not exceed one-sixth.⁴³

QUALITY OF WARES

The authorities were not content with having to provide society with mere fitting instruments of trade. They felt bound to regulate every sort of economic transaction in which individual self-interest might lead to injustice, and they determined to see that only such articles were sold as were of good quality as well as of good measure. Store-keepers were not allowed to give their wares a delusive appearance by displaying the best quality on top and placing the inferior below. Nor was it permitted to renovate old furniture and sell it as new. Animals for sale were not to have their appearance improved by being brushed up or drugged so that they might appear young. ⁴⁴ An in this connection an interesting story is told of a slave who dyed his hair and beard and offered himself to Raba for sale. Raba turned down his offer with the saying, ‘Let the poor be the members of thy household’, meaning I would rather have a poor person perform my household service. When he came to Raba Papa b. Samuel, he bought him. One day when ordered by his master to bring him a drink of water, the slave went and washed away all the dye of his hair and appearing before his master exclaimed: ‘See I am older than your father.’ Thereupon R. Papa applied to himself the verse in Proverbs (Xl, 8) ‘The righteous (meaning Raba) is delivered out of distress and another (namely, himself) cometh in his stead.”

A strong administrative system was created to assist the authorities in enforcing their regulations. There were special agents, agoranomos, market-commissioners, who supervised and tested the quality of the food, liquors and other articles offered for sale, and who controlled the measures and weights. As to prices, custom varied. Whilst in Babylonia they were fixed and controlled by the community,⁴⁶ in Palestine they were under no such control.⁴⁷. They were rather allowed to find their own level, stimulating thereby—thus maintained these early economists—healthy competition. Rab on his arrival in the year 219 C.E. in Babylonia from Palestine was appointed by the Exilarch as market commissioner.⁴⁸ Clinging, however, to the practice in vogue in his homeland, he refused to supervise the prices and rather preferred to serve a sentence in prison, than to depart from his cherished economic principle. Samuel, his contemporary, on the other hand, fought against high prices; and on one occasion when dealers in earthenware took advantage of the adopted law disallowing the use of all hametz earthenware vessels that remained over the Passover, and charged exorbitant prices for their goods, Samuel threatened them that unless they reduced their prices, he would modify the law in favour of the opinion that declared the use of such utensils permissible after Passover.⁴⁹ He dealt in a like manner with dealers in myrtle for the lulab,⁵⁰ and cautioned them to make their charges reasonable, failing which, he would declare himself in favour of Rabbi Tarfon’s view that permitted, for the purpose of the ritual, myrtles which had their tips broken off, instead of the adopted practice that demanded the tips of the myrtles to be whole and unbroken.⁵¹

RESPECT FOR PRIVATE PROPERTY RIGHTS

But apart from the social considerations which, in Talmudic legislation, govern the property rights of individuals, man’s lawful possessions were safeguarded by a number of strict laws and regulations. This is particularly seen in the law which considers the unauthorised use of any property belonging to another to be the equivalent of robbery, rendering the offender liable as such for any loss or deterioration suffered by the property even through an unavoidable accident (force majeure).⁵² Even more stringent is the law in the case of a bailee, in that he becomes liable for any loss or deterioration or destruction of the subject-matter of the bailment from the [page vi] moment he lifts it up with the intention of using it, even if he does not actually make use of it, because having undertaken a duty towards the owner of the property, he is guilty of a breach of trust which makes him more easily an offender than a non-bailee.⁵³ And not only is the bailee responsible for such an act, but even if he merely told another person to use it, he becomes responsible for any loss suffered by the bailment, notwithstanding the rule that no man can be made liable for an offence conamitted by another.⁵⁴

Related to these regulations is the prohibition to deprive a man directly of a customer, or to buy what someone else is negotiating for. ‘If a poor man (for example) is examining a cake (to buy it) and another man comes and buys it, he is called a wicked man.⁵⁵ Included in this prohibition is to interfere with another person’s livelihood or encroach upon his trade;⁵⁶ and early Talmudic legislation forbade one who was not a resident of a street or alley to open up there a trade which was already exercised by a resident. Similar protection against competition was extended even to fishermen. Although they plied their trade in rivers, in which, as common property, all men had equal fishing rights, they were protected against the interference of each other with their respective catches. Fishermen were thus ordered to remove their nets for a certain distance from the spot where another fisherman had already spread his net, with a good chance of catching a fish which had been attracted by his bait. The only profession which was not thus protected was that of schoolmasters, competition in their case being considered very healthy because ‘the rivalry of scholars incrcaseth wisdom.⁵⁷

RIGHTS OF WORKERS

How little Jewish ethics were influenced from the earliest days by the idea of absolute property is already reflected in the position of the non-Jewish slave in ancient Israel. Even a slave was not recognised as an absolute possession. He was never to become a thing. The smallest injury to his body gave him his freedom. If he ran away, nobody was entitled to deliver him back. In Job the full right of the slave to the support of the law is upheld, and the moral basis of his liberation is laid: ‘If I did despise the cause of my manservant (slave) or maidservant, when they contended with me: what then shall I do when God riseth up? and when He visiteth me, what shall I answer Him? Did not He that made me in the womb make him? And did not one fashion us in the womb?’ (Job XXXI, 13-15). In an epoch when social conscience was yet unknown, even in those restricted parts of the world which represented a certain degree of civilisation, Jewish ethics proclaimed in no uncertain accents full equality of social standards even of slaves, embodying this principle in the various rules and regulations governing slaves and master. It was forbidden to let slaves perform any degrading work, or work which was not absolutely necessary.⁵⁸ How far ahead is such an attitude in comparison with that of employers of not long ago who opposed twelve- and ten-hour working days on the ground that less than fourteen or sixteen hours’ work per day would mean too much liberty and unhealthy leisure. Social equality of the slave demanded that he should rest on the Sabbath day even as his master rests, and that if made captive he should be ransomed even as a freeman is.⁵⁹ And Jewish ethics as far back as eighteen centuries ago formulated a programme of social security which cared for the disabled slave.⁶⁰

The same social conception of property governed the relations between employers and employees. Property did not give owners the right to hire workers on their own terms. The wages were fixed with a view to safeguarding the workers’ standard of life by the authorities, who drew up regulations as to the wages and hours of labour and other rights of the workers. In some communities, all this was regulated by guilds of artisans; and workers were permitted to call a strike (Regi’a) in defence of their rights.⁶¹ In many Palestinian communities, the working hours were fixed from sunrise to sunset; that is, a maximum of twelve hours. But in any case it was a fixed regulation that the time taken up by the workman in going to the place of labour was included in the working hours belonging to the employer, whereas the time needed for the labourer to go back home from his work was part of his own time and could not be deducted from his working hours.⁶² The employer had no right to make the employee work longer hours than was customary in that locality, unless specially agreed upon, even if he paid him more than the usual rate of wages, it being implied that he gave him such an increase for his skill in performing better work and not for the purpose of longer hours.⁶³

In their solicitude for the welfare of the workman, the Jewish communities while protecting him against exploitation, sought at the same time to safeguard his dignity and honour. They held with the poet Schiller that ‘Man is created free; and is free even though born in chains’. For freedom was a divine gift which no Jew was entitled to barter away. “For unto me the children of Israel are servants (Leviticus XXV, ₅₅)—and not servants to servants” is an illuminating rabbinic comment reflecting its attitude to the question of human freedom;⁶⁴ and this attitude lies behind many of the regulations governing the relationship between employer and employee. Thus, the workman by hiring himself out for the day could retract before the work was completed, provided he could be replaced, and his retraction would not involve the master in a financial loss.⁶⁵ In some places the employer had to furnish the workman with meals, the menu of which was regulated and which included in many cases dainty dishes.⁶⁶ This was apart from the biblical law which entitles the labourer, to eat ad lib. of the produce on which he happens to be engaged, even to an amount exceeding his wages; though the Rabbis advised the workman not to be greedy and thus find the door of employers closed against him.⁶⁷ The employer, however, could not discharge his liability to the worker by making him accept, in lieu of his wages in money, a payment of equal value in kind.⁶⁸ The wages, being his living, the workman was permitted in case of the employer’s default, to enter his house and seize an article as a pledge for his wages—something which, as will be seen anon, a creditor was not allowed to do.⁶⁹

PAYMENT OF WAGES

The wages of the workmen had to be paid according to biblical law within a fixed time. ‘There shall not abide with thee the wages of him that was hired, through the night until the morning.’ thus runs the biblical command (Lev. XIX, 13). The purpose of this law, which is repeated with different wording in Deuteronomy XXIV, 14-15, is evidently to spare the workman, who waits for his earnings to buy food, the distress caused by any delay in the payment of his wages. This fact is recognised in modern business in which it has become the practice to pay employees every week, whilst casual [page vii] labour is paid by the day; and the Talmud contains detailed provision as to what are the limits of time, according to circumstances and the nature of the work, at the end of which the owner, having failed to pay his workman, is guilty of violation of the command. If, for example, he is a day labourer, he must be paid during the night following the day of his employment; if he is a night worker, he must have his wages paid within the day following the night of his employment.⁷⁰ Within these limits of time, the labourer, in case of a dispute as to whether he has been paid, was entitled to collect his wages merely on oath, and had no need to produce any other evidence. But after the expiry of the time limit, he would have to bring definite evidence to prove his claim, because the presumption is raised that every employer is honest and would not defraud his workman, nor violate the command that enjoins payment within a fixed time.⁷¹

RIGHTS OF EMPLOYERS

The Talmud knows of no class legislation favouring one section at the expense of the other: all are alike in the eyes of the law, master as servant, employer or employee; and the interests of the masters receive as much consideration at the hands of the Talmudic legislators as those of the labourers. Though, as has been seen, there was no law compelling a worker to remain on his job, the interests of the employer were safeguarded by the provision that the workman had to find a substitute before he could leave his master’s employment, or that the employer suffered no loss through the workman’s retraction. Furthermore, even were the workman to have engaged himself to work for the employer by mere parole, if he retracts the employer may engage other workmen even at a higher wage than the one agreed upon, and charge the difference to the employee.⁷² They further sought to impress on the worker the duty of serving his master with fidelity and honesty and of cherishing, on the principle ‘time is money’, every moment of his employment, which to waste would amount to robbery. Workers were thus declared exempt from the punctilious performance of certain religious exercises where this might tend to interfere with their work. They were for instance to curtail the Grace after meals,⁷³ and were not required on reciting the morning Shema to get down from a tree or scaffolding on which they happened to be working at the time, but could say it where they stood.⁷⁴ Stringent and minute regulations were likewise laid down as to the remnants of material the worker might retain for himself. Whilst he was allowed the shavings taken off with the plane, the appropriation of chips taken off with the hatchet was forbidden to him. Nor was the tailor permitted to retain a thread longer than the size of a needle’s square, or a piece of cloth that exceeded the size of three handbreadths.⁷⁵

DEBTORS AND CREDITORS

The conception of inviolability of personal rights which, as we have seen, governed the relations of the workers and employers, is further illustrated by the legislation designed to protect debtors against grasping and oppressive measures on the part of their creditors; and a mere comparison with the Roman system in this connection leaves no doubt as to the highly ethical principle which determined the treatment of the debtor in the Talmudic system. In Roman law the borrower was bound hand and foot to the lender, if he failed to repay him the money lent; and where the debtor could not repay his debts, the creditor could, by applying the praetor, obtain full powers over the person of the debtor by forcing him into slavery either for his own use, or for sale in the market; and despite some later laws that mitigated the plight of the debtor, his enslavement to the creditor was in practice right down to the age of Justinian.⁷⁶ Now, such rights over the person of the debtor were never recognised in Jewish law. Not only could the creditor not force his debtor into slavery but even his right of taking a pledge was restricted. He could not deprive the debtor of any implements which he required for earning a livelihood, or of any household utensils needed for the preparation of food or his bedding, and in no case would he take in pledge anything belonging to his wife or children. Nor was the creditor, out of consideration for the feelings and sense of self-respect of the debtor, ever allowed to go himself into the house of the debtor and take a pledge; and what is more, even the Court officer was not permitted to enter the debtor’s house to take a pledge, but had to wait for the debtor to bring out as pledge any article he chose.⁷⁷

BUSINESS LOANS

On the other hand, in order not to discourage through these restrictions people from advancing loans to those in need of money, a number of adjustments in the then existing law were made in favour of creditors. Thus it was enacted that creditors in collecting their debts from landed property, could insist on being paid out of the medium quality, despite the implied Biblical law that entitled the debtor to discharge his liability by referring the creditor to the poorest quality.⁷⁸ Again, whereas witnesses in all other monetary cases were subjected by the court to a thorough cross-examination and investigation’ (derisha wa-hakirah), in cases-of indebtedness they were spared this ordeal.⁷⁹ It was, moreover, ordained that even laymen were competent to try cases of indebtedness, as against other monetary cases which required for their adjudication the presence of a qualified judge.⁸⁰ All these innovations and departures from the old law were prompted by the desire to facilitate creditors in the recovery of their debts so that, in the words of the Talmud, “prospective borrowers should not find the doors of the lenders locked before them.”⁸¹ Indeed, so much importance was attached to this consideration, that it was responsible for the institution of the Prozbul by Hillel which saved debts from the operation of the laws of the year of release, Shemittah.⁸²

These enactments, though they served to safeguard to a certain extent the interests of creditors, were felt not to go far enough. In the absence of any measures to overcome the Biblical prohibition of interest which made money lending a non-lucrative proposition, lenders were not likely to advance money with all the risks attached thereto. But that is not all. The law of interest had from the earliest days been extended and made to apply to ordinary trading transactions. Thus all payment of money in return for the giving of credit, all bargains in which goods were sold at a higher price, higher than the real value, in consideration for the seller having to [page viii] wait some time before he was paid, were considered usurious. For it was regarded the same as if the seller were to charge usury for lending the goods themselves, or the amount of money which was just the price of the goods, to the buyer for the period during which the seller waited for payment. This extension of the law tended to check trading enterprises and commercial operations, no less than money lending transactions. Alive to the commercial needs of the community, the Rabbis evolved an instrument designated Iska, in virtue of which, broadly speaking, every sum involved in a loan, particularly when advanced for trading purposes, was treated half as a loan and half as a trust, on which the lender was entitled to the larger share of the profits.⁸³

SOME LAWS OF ‘UPRIGHTNESS’

In case of a bankrupt whose property was sold by order of the court, the buyer of the property had to return the bankrupt his property whenever he was in a position to buy it back again. This enactment was based solely on the ethical principle, laid down in the Bible, in virtue of which the Jew is bid to do what is ‘upright and good in the eyes of the Lord’ (Deut. VI, 18).⁸⁴ Grounded on the same ethical principle of ‘uprightness’ is the rule which, in the case of the sale of landed property, gives the Bar Misra, the ‘abutting neighbour’ the option of the first refusal, as it is considered to the advantage of a person to have all his property adjacent to each other.⁸⁵ Akin to this and what is known as the rule of Bar Misra and determined by the same ethical principle is the rule of god ‘o agod (‘You cut or I cut’), which is applied to a partnership in a property, whether movable or immovable, which is too small to admit of partition. In such a case either partner can compel the other to sell his portion or to buy it from him, saying, ‘Either you buy from me my share, or I will buy from you your share,’ so that the whole will be in one ownership.⁸⁶ A number of regulations were also made to safeguard the interests of the trading community. Thus anyone who made purchase in the open market of an article which turned out to be stolen was entitled, on returning the property to its rightful owner, to recover from him the money he had paid for it, and the owner would then have to sue the thief for that amount. This might appear to have been hard on the aggrieved owner. Yet this ordinance, included among those known as Takkanath ha-Shuk, was most necessary, if the trading wheels were to run smoothly, as otherwise people would be loth to buy things for fear the objects offered for sale were stolen.⁸⁷

WAYS OF PEACE

There were also a number of rules laid down in the interests of peace. If several people had cisterns along a watercourse, the owner of the cistern nearest to the river which fed the watercourse had the right to dam the flow so that his cistern be filled first. The catch of beasts, birds and fish was to be treated as property held in the valid ownership of those who set the traps even before they had actually come into their possession, and for anyone else to take the catch is accounted as robbery; and to take away anything found by a deaf mute, imbecile, or a minor, although these cannot legally acquire things, is accounted as robbery. All these and other similar rules were enjoined for the maintenance and promotion of public peace, in keeping with the spirit of the Torah, of which it is written ‘Her ways are the ways of pleasantness and all her paths are peace.’⁸⁸

WITHIN THE LINE OF LEGAL JUSTICE

Akin to the ethical principle of ‘uprightness’ which, as we have seen, had in some respects the force of a written law, was the principle of lifenim mi-shurath ha-Din, which urged a man to act ‘within the line of justice’ and to forego his legal rights in favour of his fellow man on whom the application of legal justice would inflict undue hardship.

An early example of the operation of this ethical ideal is told in the Talmud: ‘Rabbah, the son of Hunah, engaged certain carriers to transport barrels of wine from one place to another. In handling the barrels, the carriers broke one barrel, spilling the wine. Their employer, Rabbah, seized their coats in order to secure for himself the payment of the damage. The carriers thereupon summoned him before Abba Arika who ordered him to return them their coats. “Is this the law?” asked Rabbah. “Yes”, answered Abba. “In order that you may walk in the ways of good men” (Proverbs II, 20). The carriers then said: “We are poor labourers, we have spent the whole day on this work and now we are hungry and have nothing to eat.” Abba Arika then ordered Rabbah to pay them their full wages. “Is this the law? asked Rabbah again. “Yes”, answered Abba, quoting the concluding part of the cited verse, “and keep the path of the righteous”⁸⁹ Thus, though the law gave the employer the right to make the labourers pay for the damage caused by their carelessness, Abba ordered Rabbah to follow the rule of acting ‘within the line of justice’, and thus forego his claim in favour of the poor workmen.

Another Talmudic example which shows us clearly the meaning of acting ‘within the line of justice’ concerns the rule of lost property. Where such property was not reclaimed for some time, it fell, according to the law, to the finder. We are told however of a righteous man who declined to take advantage of this rule, but, acting within the line of justice, returned the find to the person who claimed it;⁹⁰ for though it did not legally belong to him any longer, he was still obviously in need of it.

PROTECTION OF TENANTS

Talmudic legislation also provided for the protection of tenants against the hardship of eviction. It insisted that no landlord could dispossess a tenant who rented a house for an unspecified length of tenure unless he gave him thirty days’ notice in advance so as to enable him to find alternative accommodation. This applies only in the summer, but during the winter season—i.e., from the Feast of Tabernacles until the Feast of Passover—when it was extremely difficult to obtain vacant premises, the landlord could on no account dispossess the tenant, but had to allow him to continue to occupy the premises under the original terms of the tenancy. If, however, there had been an increase in house rents all over, the landlord might claim the higher rental; on the other hand, if there had been a decrease, the tenant could insist upon paying the lower rental. In large cities where it was difficult to obtain premises at all times, the minimum period of notice was twelve months. In the case of shops, whether in small towns or large cities, the period was likewise twelve months, in order to give ample time to the shop-keeper to collect his debts from his customers. For shops occupied by bakers or barbers, the period of notice was three years, since such tradesmen were accustomed to grant credit for long terms. At the same time, anxious to protect the landlord against an inconsiderate tenant, it was ruled that the tenant must give notice of his intention to terminate [page ix] the tenancy on the same terms as he himself would expect—thirty days in small towns and twelve months in the large cities—so as to enable the landlord to find another tenant, and that if he fails to give such notice he must pay the rent.⁹¹

DISTINCTIVE FEATURES OF JEWISH CHARITY

Among no people in ancient history was there applied to the problem of poor relief, principles at once so humanizing and judicious as those that obtained in the Jewish communities of old. In charity work it is well to remember there is always a danger that, instead of alleviating distress, it might destroy the character of the recipient, and thus increase the misery which it was intended to alleviate. In order that charity should prove useful and beneficial, it is essential that benefit to the sufferer should be the real object of the donor. It is for this reason that the poor, in accordance with the Biblical law, had themselves to come and gather from the corners of the field or that which had been dropped in the course of the harvesting, and did not have the food doled out to them. They had, in other words, to work for what had been assigned to them as their share, and thus maintain their sense of independence and self respect. But this was studied neither by Rome, nor by the early Christian Church. In Rome there was, it is true, a good deal of gratuitous distribution by the state of corn and other necessities of life among the poor. But this charity was dictated by policy, rather than by benevolence. It lacked accordingly the fine discriminating sense between the really deserving and the greedy beggar. With the result that it became a direct encouragement to idleness and finally, as has been recognised, one of the chief demoralizing influences that led to the decay and the fall of the Empire. Nor was the blind and promiscuous alms-giving encouraged by the early Catholic church calculated to mitigate the worst effects of pauperization. By extolling the mere giving of charity into a source whence there flowed gifts of heavenly grace to the donor, irrespective of the needs and character of the recipient, it made charity a selfish acquisition of merit, with a more than common indifference to its results, withdrew multitudes from productive labour to a life of beggary and mendicancy, and produced poverty exceeding in a great measure the poverty it relieved.⁹² Considering the system of poor relief that obtained in the Jewish communities, we find that in their administration and distribution of charity they sailed clear of the evils inherent in the Roman as well as in the early Catholic system. Though organised by the community, Jewish charity was inspired and dictated by humanitarian and social motives, regulated by the character of the recipient and determined by his needs. All relief was essentially looked upon as having for its object the alleviation of distress, without encouraging idleness and loafing. Applicants for relief, except in the case of food,⁹³ had their cases investigated, and due discrimination was exercised between the genuine poor and the professional beggar and impostor.⁹⁴ Judged by this aspect alone, the difference between Jewish poor relief and others is profound. But there is an additional aspect. The conception of charity as a contribution from every citizen towards the fulfilment of a common obligation, instead of a conception of alms given by one individual to another, is another distinguishing feature of the provision made by the Jewish community for the relief of the poor; and the compulsory assessment for their relief which was introduced in Europe as late as the sixteenth century⁹⁵ was already in force in the Jewish communities as far back as the early centuries of the Christian era, if not earlier.

CHARITY ORGANIZATION AND DISTRIBUTION

Every community had a well organized charity institution in charge of specially appointed officers, collecting, administering and dispensing relief of different kinds. There was (1) the Kuppah (basket), the communal money-box, the contents of which were distributed every Friday among the local poor; (2) the Tamhui,⁹⁶ containing victuals for general distribution daily among strangers no less than the local poor;⁹⁷ (3) the clothing fund; (4) the burial fund that furnished the burial expenses of the poor. The qualifying period for compulsory contribution varied in each case, apparently in accordance with the scope and extent of the calls made on each fund. With the general fund, the Kuppah, the period was three months, the soup kitchen fund, thirty days; the clothing fund six months; and the burial fund nine months.⁹⁸By these means the degrading system of house-to-house visitation was considerably obviated.

The administration of all the various funds was in the hands of charity overseers, three in number, two of whom acted as collectors and treasurers. The distribution, however, had to be supervised by all the three.⁹⁹ Detailed regulations were made for the distribution of the contents of the various funds. Only those who did not have sufficient means of subsistence for a week were entitled to receive support from the Kuppah; and from the Tamhui, only those who lacked food for the day. A poor stranger passing through the town would receive from the Tamhui food for at least two meals, with an extra meal for Sabbath. Where he happened to stay overnight, he would be provided with sleeping accommodation.¹⁰⁰ Monies from one fund could be transferred to another fund when necessity arose, subject to the approval of the general council.¹⁰¹

CHARITY OVERSEERS

A number of rules were laid down regulating the collection of monies for charitable purposes. The officers in charge of the collection were not to separate themselves from each other while engaged in the collection, to obviate suspicion. Where one of them happened to find money in the street whilst on his round, he was not allowed to place it in his private purse, so as not to arouse any doubt, but he had to deposit the money in the special charity box (arneke shel zedakah), which he carried about with him, and on getting home he would be allowed to take it out. For the same reason if a debtor of his happened to pay him in the street the money he owed him, he was not allowed to put it in his own purse; nor were the treasurers permitted to buy for themselves any surplus in the supply of victuals of the Tamhui that was for sale, in order to avoid any charge of unfair dealings against them. Nevertheless, they were much trusted, implicitly so, and they were not expected to furnish a detailed account of the funds they administered, for to them applied the words of the Biblical text, ‘they deal truthfully’ (II Kings XII, 16). ¹⁰²

REDEMPTION OF CAPTIVES

Closely related to the general charitable work of the community was its endeavours on behalf of captives. This was regarded as the [page x] greatest service a Jew could render to his fellow man and to God, as the agonies involved in captivity were, as the Talmud points out, the most distressing and protracted of all human sufferings.¹⁰³ And however impoverished a Jewish community might have been, it never shirked its duty towards captives, but always bestirred itself to secure their release and freedom. To meet such terrible exigencies, which were, alas! but too frequent, there was a special fund allocated, and, whenever a situation arose for which the available funds were not adequate, a levy would be imposed on the members.¹⁰⁴ But the readiness of the Jewish Communities to pay any price for the ransom of their brethren only served to encourage the men-stealers in their sinister activities, and to further extortions. The Rabbis in their desire to protect the communities ruled accordingly that no captive should be redeemed at a price that was too high;¹⁰⁵ and similarly from the same motives an enactment was passed forbidding the purchase, at an excessive price, of sacred scrolls and other religious appurtenances from non-Jews who found the theft of such sacred articles quite a profitable occupation.¹⁰⁶

LOST PROPERTY

Corresponding to the duty of redeeming captives is the duty of saving another’s property. If one comes across what seems to be lost property, Talmudic legislation insists that it is not enough for him simply to take it into custody in fulfilment of the letter of the Biblical law (Exodus XXIII, 4; Deuteronomy XXII, 1-4) but that he is bound to look after it during the period it is in his keeping until it is eventually restored to its owner. Detailed rules are given in the Talmud in this connection, rules varying with the nature of the found property. In general, he who finds lost property must attend to it whilst it is in his custody in the same way as if it were his own, but he must not make use of it, except in so far as it will help to preserve the property in good condition.¹⁰⁷

An extension of the obligation to restore lost property is the duty of saving another’s property from destruction. If, therefore, one sees water flooding and threatening destruction to another’s building or field, he must make every effort, such as erecting a barrier, to stop the flood. Similarly, if one sees an animal running among vineyards and damaging plants, he must take the animal out so as to prevent destruction of his fellow’s property.¹⁰⁸

PROTECTION OF THE WEAK AND HELPLESS

The protective hand of Jewish legislation extended to all the weak, the helpless, and the fallen in society. The interests of the fatherless were looked after by the court and special enactments were made in their favour. One of the laws in this connection is that of exempting loans advanced by orphans from cancellation in the Sabbatical year, even if no prozbul had been made out for them.¹⁰⁹ The Rabbinic law of interest was relaxed in favour of orphans, and if they had idle funds the court could hand these over for investment to a person of good substance and repute on the advantageous terms whereby the orphans were to share in the profits but not in the loss, although such arrangements were, as already previously mentioned, normally forbidden as coming under the Rabbinic prohibition of indirect interest.¹¹⁰

Another law is that no debt incurred by the father could be recovered from the children, whether minors or adults, except from the poorest quality of landed property.¹¹¹ Nor could the court distrain upon the estate of the debtor’s heirs who were minors, unless the debt had been contracted of a non-Jew on interest which, if allowed to run on, must by reason of its mounting nature consume in the end the estate.¹¹² It was, however, considered expedient in the interests of the orphans not to impose an oath on the trustee as to the administration of their property entrusted to him, lest such a course would prevent people from agreeing to undertake the responsibility of the trust.¹¹³

The minors and mentally defectives were, also protected. In order to enable them to eke out a living, it was ruled that any transaction in movable property made by minors or mentally defectives was valid.¹¹⁴ On them was also conferred the power of acquisition; and no one had the right to deprive them of anything which they had acquired.’¹¹⁵

Special enactments were also made to protect the ignorant against abasement. It was, for instance, ordained that the special prayers on offering the first fruit should be recited by the priest instead of, as originally prescribed, by the farmer, so as not to put the ignorant to shame.¹¹⁶

SYMPATHY FOR SINNERS

And even sinners were not excluded from the all-embracing sympathy and protective arm of the Jewish legislators. They sought to remove all obstacles from the penitent sinner and to make his path of reconciliation with his fellow-man and with God smooth and easy. It was enacted that thieves who converted timber into buildings were not required to pull down the buildings, as the Biblical law demanded, in order to restore the timber to the owner, but could make restitution in money, so as to assist them in their repentance.¹¹⁷ And this remarkable concern for the erring and fallen reaches its culminating point in the Talmudic statement, which expresses disapproval of any owner who accepts from a repentant sinner money which he had taken from him by violence. The mere quotation of the relevant passage is eloquent enough: “Monies restored by robbers and usurers should not be accepted by the owners, and the owner who does accept it incurs the disfavour of the sages.” This Mishnah, says Rabbi Johanan, originated in the days of Rabbi, as a result of the following incident. A robber once felt the urge to reform and make amends. Thereupon his wife said to him, “Raka (you fool)! if you will carry out your intention, then even your girdle will not remain yours.” This argument of the wife had its effect and restrained him from repenting. There and then it was declared that monies restored by robbers and usurers should not be accepted by the owners, and the owner who does accept them incurs the disfavour of the sages.¹¹⁸ [page xii]

TO SUM UP

To sum up this rapid sketch. What impresses most in this study is the governing force which the religion of Israel supplied, and the remarkable humanizing influence it exerted on the dispersed Jewish communities during the centuries when Roman civilization was being shattered. These communities were able to acquire in most countries a large measure of self-government and independent municipal rights. They were in fact little empires within an empire, theocratic empires, in which the One and Only ruled supreme. To interpret His will, there was the Torah—the Written Law, and the ever expanding and adapting oral tradition by which the Law was amplified and adjusted, so as to bring the details of social life into subjection to the Divine will and at the same time into harmony with the changing environment and conditions.

Living amidst a mixed and unfriendly population, subject to violent currents of hate and persecution, the Jewish communities had a severe struggle to maintain the ideals of justice and mercy, righteousness and equity, which they drew from the Bible. It was not always possible for them to regulate the social relations of rich and poor, employer and employed, debtor and creditor, rulers and ruled, buyer and seller, sinner and saint, on the lines they desired. But the Jewish leaders, undaunted by all obstacles and difficulties, struggled bravely on, and thus kept their people from being submerged; and in what they accomplished they not only anticipated much that is best in the social ethics of modern civilization, but what is more, have provided the Jewish state of the future with valuable material for setting up on earth a Kingdom of God.

ISIDORE EPSTEIN

FOOTNOTES

1. See Heinemann I., Die griekische Weltanschauungslehre bei Juden und Roemern pp. 14-15.
2. ‘A scholar may not reside in a city where the following ten things cannot be found: a court of justice that imposes penalties and fines; a charity fund that is collected by two and distributed by three; a Synagogue; a public bath; a convenience; a physician; a surgeon; a notary; a slaughterer (Shochet); and a schoolteacher.’ Sanhedrin 17b.
3. In a city wherein there are gentiles and Israelites, they appoint gentile treasurers and Israelite treasurers (Yerushalmi, Gittin 5, 9). The reference is to charity-treasurers, but there is no reason to assume that the appointment of non-Jews was limited to the field of charitable endeavour.
4. Baba Bathra 7b, and Tosefta Baba Mezi‘a XI, 23.
5. ‘R. Jose (said) in the name of Rabbi Johanan: Two brothers are not appointed as Parnasim. R. Jose removed (from the Parnas office) one of two brothers. He thereupon entered (the academy) and declared: Nothing blameworthy was found in that man; but two brothers may not be appointed as Parnasim’. Yerushalmi, Pe’ah VII, 8.
6. See Rashi, Baba Bathra 8b. ‘Two brothers in respect of reliability are both regarded as one.”
7. ‘Once a man is appointed as Parnas over the congregation, he is forbidden to perform work in the presence of three.’ Kiddushin 70a.
8. ‘R. Hagi when he appointed Parnasim would present them with a (Scroll of) the Law, as if to say that every office that is given, derives its authority from the Torah.’ Yerushalmi, Pe’ah VIII, 7.
9. Greek agoranomos, market commissioner. See Tosefta Kelim, Baba Kamma, VI, 19, and Baba Mezi‘a (Nezikin), VI, 14.
10. See next note.
11. See Midrash Bamidbar Rabbah XX, 15.
12. See Tosefta Kelim, Baba Kamma VI, 19 and Abodah Zarah VIII, 6.
13. See Baba Mezi‘a 107b-108a.
14. See Ta’anith 10b.
15. See Shekalim I, 1 and Mo’ed Katan 2a.
16. See Baba Bathra 8a.
17. Yerushalmi Kethuboth I, i.
18. Tosefta Baba Mezi‘a XI, 24: ‘Wool dressers and dyers may declare, “Any wares that are brought into the city shall be shared by all of us as partners.’’
19. See Tosefta Baba Mezi‘a XI. 28.
20. See Baba Kamma 81a.
21. See Tosefta Baba Mezi‘a XI, 30 ff.
22. See Baba Kamma 81a: Joshua (on his entry into Eretz Israel) laid down ten stipulations: That cattle be permitted to pasture in woods; that wood may be gathered (by all) in private fields; that herbs may similarly be gathered (by all) in all places, etc.
23. See Baba Kamma 81a: ‘It is permitted to use the paths in private fields until the season of the second rain’ (i.e., the seventeenth of Marcheshvan, when the seeds begin to sprout; see Rashi). This too is included among the ten stipulations made by Joshua.
24. Baba Bathra 12a.
25. The designation Hasid, unless defined, stands for either Rabbi Judah b. Baba or Rabbi Judah b. Ila’i. See Baba Kamma 103b.
26. See Baba Kamma 50b: ‘A story (is told) of a certain man who was removing stones from his ground on to the public ground when a pious man found him (doing so) and said to him “Raka (Fool)! Why do you remove stones from ground which is not yours to ground which is yours?” The man laughed at him. Some days (later) he had to sell his field and when he was walking on that public ground he stumbled over those stones. He then said: How well did that pious man say to me, ‘Why do you remove stones from ground which is not yours to ground which is yours?”’
27. See Tosefta Baba Kamma II, 4: ‘If one places stones or luggage on public ground, and they tell him “Remove them,” and he says. “I do not wish to,” then anyone who is first (to take possession of them) acquires them.’
28. See Baba Bathra 27b: ‘If a tree stretches into the public domain, the owner must cut away enough to allow a camel and its rider to pass by.’
29. See Baba Bathra 24b: ‘A permanent threshing floor must be kept fifty cubits distant from the town.’
30. See Baba Bathra 60a: ‘One may not make a cavity underneath a public domain (such as) cisterns, trenches and vaults. Rabbi Eliezer permits it if it is such that a waggon with stones can (safely) go over it.’ See also Maggid Mishneh on Maimonides, Yad, Nizke Mamon XIII, 23.
31. See Yebamoth 89b and Gittin 36b. See also Maimonides, Yad. Sanhedrin XXIV, 6.
32. ‘If a man’s produce has already been removed entirely from the field, and nevertheless he does not allow persons to enter his field, what do people say of him? What (real) benefit has the owner (from his field)? In what way would people do him harm? It is regarding such a person that the verse says: ‘While you can be good, do not call yourself bad’. (There is actually, such verse in Scripture, but as the Talmud points out, it is a paraphrase of Proverbs III, 27 — Baba Kamma 81b.
33. Baba Bathra 12b.
34. This view, which is based on the dictum of Pomponius, has been incorporated as authoritative in Justinian’s Digest XIX, ii.ii (j): ‘quaemadmodum in emendo et vendendo naturalitcr concessum eat quad pluris sit minoris emerc, quad minoris sit pluris vendere, et its invicem se circumscribere, it in locationibus quoque et conductionibus juris est.’
35. Baba Mezi‘a 50b.
36. Baba Mezi‘a 51a: ‘The buyer and seller alike are subject to the law of defrauding.’
37. Baba Bathra 90a: The reference is apparently to eatables, see Rashbam ad loc. and Rashi on parallel passage in Baba Mezi‘a 40b. and Maimonides, Yad, Mekirah XIV, 2 and Maggid Mishnah, ad loc.
38. ‘Our Rabbis taught: In Palestine, it is not permitted to make a profit on eggs twice … (twice meaning) a dealer (selling to a dealer.’ Baba Bathra 91a. The prohibition applies apparently to all foodstuffs as is evidenced from the following passage: ‘Our Rabbis taught: in Palestine, it is not permitted to make a profit in things which are life’s necessities, such as for instance, wines, oils and various kinds of flours.’ Baba Bathra 91a. The reference is to middleman’s profit, see Rashbam and Maimonides ad. Mekirah XIV,4, unless it implies a nationalisation by the State of all foodstuffs in times of scarcity.
39. See Baba Bathra 90b: ‘R. Judah ben Bathyra permits (the export of wine) because it diminishes levity.’
40. See Baba Bathra 90b and Yoma 83a.
41. See Baba Bathra 90b: ‘They sent from there (Palestine): (The action) of the father is better than that of the son. What is the reason? (Because) a price that has been eased (and brought down to a low level) is eased (and remains so).’
42. See Baba Bathra 89a-b.
43. See Baba Bathra 90a.
44. See Baba Mezi‘a 6oa: One must not bedizen either human beings, or cattle, or utensils (which are for sale).
45. See Baba Mezi‘a 6ob: ‘As was the case of a certain slave who went and had his head and beard dyed, and came before Raba saying to him: “Buy me.” He replied: “Let the poor be the children of thy house.” So he went to Rab Papa ben Samuel who bought him. One day, he said to him, “Give me some water to drink.” Thereupon he went and washed his head and beard white again, and said to him, “See I am older than your father”. At that he applied to himself to the verse, “The righteous is delivered out of trouble, and another cometh in his stead.” (The actual verse reads, ‘and the wicked etc.’ but Rab Papa probably substituted ‘another’, intentionally, as he did not wish to have himself described as ‘wicked’.
46. See Baba Bathra 89a.
47. Tosefta Baba Mezi‘a VI, 14. There were market-commissioners in Jerusalem, but they were not appointed over the prices, but only over the (weights and) measures. See S. Klein, Ma’amarim Shinim la-Hakirath Eretz Yisrael.
48. Yerushalmi Baba Bathra V, 11.
49. See Pesahim 30a. ‘Samuel said to those who sell (hardware) pots: Charge an equitable price for your pots, if not I will publicly lecture (that the law is) in accordance with Rabbi Simeon (that leaven pots kept over Passover are not forbidden).’
50. The Palm branches used on the Festival of Tabernacles in accordance with Leviticus XXIII, 40.
51. See Sukkah 34b: ‘Samuel said to those that sold myrtles: “Charge an equitable price, else I would publicly lecture (that the law is) in accordance with Rabbi Tarfon.” ’
52. Baba Mezi‘a 41a.
53. Baba Mezi‘a 44a.
54. Baba Mezi‘a 44a.
55. Kiddushin 59a.
56. Sanhedrin 81a.
57. Baba Bathra 21b-22a.
58. See Niddah 47a: ‘Scripture has only designed the (Canaanite slave) for work, but not for indignity.’ See Maimonides, Yad, Abadim IX, 8.
59. See Gittin 37b: ‘As it is a religious duty to redeem freemen, so it is a religious duty to redeem slaves.’
60. See Yerushalmi Baba Kamma VIII, 4: ‘Israelites are commanded to maintain incapacitated (maimed) slaves more than able (sound) ones.’
61. See Tosefta Baba Mezi‘a Xl, 25: ‘Bakers are permitted to arrange among themselves for a (period of) rest (from work).’ See also Babe Mezi‘a 77a.
62. See Baba Mezi‘a 83b: ‘A labourer’s entry (to town) is in his own time, but his going forth (to the field) is in his employer’s.’ See, however, Tosafoth in the name of Rabbenu Hananeel who reverses the explanation.
63. See Baba Mezi‘a 83a.
64. Baba Mezi‘a 10a.
65. See Boba Mei’a 77a-b.
66. See Baba Mezi‘a 83a-b.
67. See Baba Mezi‘a 92a: ‘Yet a man should be taught not to be gluttonous and so close the door against himself.’
68. See Baba Mezi‘a 118a.
69. See Baba Mezi‘a 115a.
70. See Baba Mezi‘a 110b.
71. See Baba Mezi‘a 112a.
72. See Baba Mezi‘a 75b.
73. See Berakoth 46a.
74. See Berakoth 16a.
75. Baba Kamma 119a-b.
76. See M. Neumann, Geschichte des Wuchers, pp. 132 ff.
77. See Baba Mezi‘a 113a ff.
78. See Gittin 49b.
79. Sanhedrin 3a.
80. Sanhedrin 2b-3a.
81. See notes 74-76.
82. See Gittin 36a and Kesef Mishneh on Maimonides, Yod, Hilchoth, Mamerim II, 2. The principle underlying the Prozbul is founded on the passage ‘that which is thine with thy brother, thine hand shall release.’ (Deut. XV, 2). From this has been derived the law that the operation of the year of release does not affect debts of which the bonds had been delivered to the Court before the intervention of the year of release (See Sifre ad loc.), such debts being regarded as virtually ‘exacted’, and hence not coming under the prohibition ‘he shall not exact.’ By a slight extension of this precedent, Hillel instituted the Prozbul, which in effect amounted to entrusting the Court with the collection of the debt. Without actually handing over the bond to the Court, as required by the existing law, the creditor could secure his debt against forfeiture by appearing in person before the Beth Din and making the prescribed declaration, viz: ‘I hand over to you so-and-so, the judges in such a place (my bonds), so that I may be able to recover any money owing to me from so and so at any time I shall desire.’ The meaning of the term Prozbul is a matter of dispute. It is generally explained from the Greek [Greek text] (declaration) before the Council.
83. See Baba Mezi‘a 104b. The Iska (lit. ‘occupation’; ‘business’) was a business arrangement whereby one invests a sum of money with a trader, half of which is advanced to him as a pure loan, for which the trader bears full responsibility, and the other half deposited with him as a surety with all the risks of depreciation falling on the investor. To avoid the prohibition of usury, the investor takes a greater share of the risk than of the profit: he receives, for example, either half of the profit but bears two-thirds of the loss, or a third of the profit but bearing half the loss. This arrangement was designed by Rabbis to satisfy the needs both of the debtor and the creditor.
84. See Baba Mezi‘a 16b.
85. See Baba Mezi‘a 108b.
86. See Baba Bathra 13a. See Responsa Solomon Adreth I, 957.
87. See Baba Kamma 115a. A similar principle of market overt is recognised in English Law. See M. Jung, The Jewish Law of Theft, (Philadelphia, 1929), p. 94.
88. Gittin 59b.
89. See Baba Mezi‘a 83a.
90. See Baba Mezi‘a 24b.
91. See Baba Mezi‘a 101b.
92. See W. E. H. Lecky, History of European Morals, pp. 75 ff.
93. See Baba Bathra 9a (according to the view of Rab Judah which is accepted in the codes): ‘(Applicants) for clothes are examined, but not (applicants) for food; see Shulchan Aruch, Yoreh De’ah, 151, 10.
94. See Baba Bathra 9a.
95. See W. J. Ashley, English Economic History and Theory, II, p. 360.
96. A tray or shallow dish with compartments for different kinds of food.
97. The Tamhui was the forerunner of the soup-kitchen with which civilised Europe first became acquainted in the middle of the nineteenth century. See M. Lazarus, The Ethics of Judaism, I, p. 47.
98. See Baba Bathra 8a. For variants see parallel passage, Yerushalmi Pe’ah VIII, 16 and Tosefta Pe’ah IV, 9.
99. See Baba Bathra 8b.
100. See Mishnah Pe’ah VIII, 7.
101. See Baba Bathra 8b and Tosafoth ad loc.
102. See Baba Bathra 8a-9a.
103. See Baba Bathra 8b: ‘Captivity is harder than all, for all sufferings are included in it.’
104. See Baba Bathra 8a-b.
105. See Gittin 45a: ‘Captives should not be ransomed for more than their value as a precaution for the general good (literally “for the well ordering of the world”).’
106. ‘And none should buy scrolls (of the Law), Tefillin and Mezuzahs from gentiles for more than their value, as a precaution for the general good.’
107. See Baba Mezia 28b-31b.
108. See Baba Mezia 31a.
109. See Gittin 37a and Baba Kamma 37a: ‘Orphans do not require a prozbul.’ See note 82, p. 7.
110. See Gittin 52a; see above note 103, p.8.
111. See Gittin 48b.
112. See ‘Arakin 22a.
113. See Gittin 52b.
114. See Gittin 59a. ‘As to children (above six years of age), a purchase or sale affected by them in movable property is valid.’
115. See Gittin 59b.
116. Mishnah Bikkurim 111, 7.
117. Mishnah ‘Eduyyoth VII, 9 and Baba Kamma 66b: If a man built a stolen beam into a structure, he need only repay its value, for the benefit of the penitent. See also A. Büchler, Studies in Sin and Atonement, p. 387. M. Jung, op. cit., p. 78, points out that Roman law has the same provision, but gives another reason for it, namely, ‘in order that buildings should not be torn dawn, under the pretence of recovering the stolen timber, nor the culture of vineyards be destroyed, but against the one convicted of the “joining” the law grants an action for double the amount.’ The words here italicised show how far was the concern for penitents from the mind of the Roman legislators.
118. See Baba Kamma 94b, and Buechler, op. cit., p. 394.

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