I thank JZ for providing me the link to this essay by Rabbi Isidore Epstein. The essay on social legislation gives us a good glimpse into the world of the Soncino and the world of English Judaica before the 1980’s. Isidore Epstein was the head of Jew’s College for many decades and worked closely with Rabbi Hertz. His is one volume book on Judaism was an essential work for many Jews. This work on social Legislation first a separate pamphlet and then included into the Soncino Talmud.
The first thing to notice is that his approach is historical and speaks of the creation of the Oral law through human response.
The thrust of the essay portrays Jewish law as “a moral enthusiasm and passion for social justice” more than economics or legislation. The essay takes a dim view toward private property, except for the minimum needed for social stability.He favors common or communal held property. Epstein stresses the role of worker’s rights, tenant rights and renter’s rights. He admires rabbinic control of the market and relegates free market thinking to those immoral Romans. Rabbinic thought sought to create a kingdom of God.Finally, for a specific example of his approach he translates “lifnim mishurat hadin” as within the law and not as beyond the law or supererogation. The law itself mandates within the application of the law itself the demands of justice, the good and the right, and righteous.
Here are some selections from the essay. My question is what are the changes in method, canon, and style between this essay and the recent 30 years of free enterprise-supply side-trust the market legalism? Beyond the obvious, by what specific means do they come to opposite conclusions?
Social Legislation in the Talmud ISIDORE EPSTEIN
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.
THE RELIGION OF ISRAEL
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.
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 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… 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.
SOCIAL RIGHTEOUSNESS AS AIM OF COMMUNAL ORGANIZATION
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.
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; 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.
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.
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
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.
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.
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.
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.3 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.. It 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.
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).
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 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.
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” 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.
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.
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.