Benjamin Brown on Halakhic Labor Law: Statist or Democratic?

One of my favorite articles by Prof. Benjamin Brown of Hebrew University has recently been translated and revised. It was first given in 2006 and here it is online a decade later with more documentation.  “Trade Unions, Strikes, and the Renewal of Halakhic Labor Law: Ideologies in the Rulings of Rabbis Kook, Uziel, and Feinstein”

In the article, Brown asks how the three ideologies in the early 20th century: Socialism, Statism and Democracy played themselves out in halakhic labor law. He specifically focuses on how Rabbis Kook and Uziel in Israel followed the statist-fascist direction of the Revisionists and Italian nationalism, while Rabbi Moshe Feinstein in the United States followed democratic thinking.

Brown asks: Why the difference and concludes that it was cultural-historical differences between the United States and Israel.

Brown focuses on his binary ideological categories but what if he started with cultural-historical categories and gave an historical development? His footnotes give ample material for such an approach. For example, we can show that American Orthodoxy in the 1930’s and 40’s was concerned with labor and labor rights, Orthodoxy in the 1960’s was concerned with democracy and the individual, and Orthodoxy  in the 1990’s was interested with supply side and conservative economics.

The question is where does that leave us in our age- where right and left- seem to be writing for top 6% of wealth and for the upper middle class? Who will be the halakhic leaders for the middle and lower middle class, and even for Orthodox workers?

Finally, if we say that religious views mold us, then how do these different economic positions mold different communities socially and politically?

To contextualize the article itself, Brown’s starting approach is based on Karl Mannheim’s (1923)view of ideology  as a worldview that determines the way we read a text or define a situation.  In contrast, in the US, we are more likely to start with Clifford Geertz (1973) who took issue with considering ideology as determining a situation. Rather, all ideology is embedded in a cultural construction that bears the meaning, symbolism, and moral order of the society.  Brown concluded the article by turning to the cultural rather than starting there.

For ease of reading, the paragraphs below are cut from Brown’s essay. Only the quotes from the repsonsa literature are blocked off as quotes.  At the end of the piece, I have a little ending section on Rabbi S. Z. Shragai.

worktorah_pppa1946

Precursors in Europe: Rabbis Against Labor

In the 1870s, the authorities demanded that rabbis preach against workers’ movements and denounce their subversive elements; the rabbis, usually adopting a submissive approach towards the “Kingdom,” complied.  It appears, however, that even when the state was not directly involved in the employee-employer relations, the rabbis took the side of the employers… when a worker’s strike broke out in the Edelstein cigarette factory in Vilna, the local preacher (maggid) came out in a sermon against the strikers—and this was not an isolated incident. Similarly… halakhic rulings issued by the rabbis often tended to minimize the legal liability of the employer towards the employee.

[I]n the entire literature of the Jewish workers’ movement all these religious types were presented as haters of the worker and the revolution; but in general the rabbis indeed subscribed to the rule “a rabbi respects the wealthy” [a pun based on B. Eruvin 86a].

A similar line was also followed by Gershon Bacon concerning Agudat Yisrael’s lack of interest in social questions. In his opinion, one of the reasons for this was that “the leadership cadre of Aguda consisted mostly of wealthy communal notables and venerable rabbis, both of a decidedly conservative bent.”

Torah veAvodah

During the 1930s, we witness the initial awakening of rabbinic writing in the field of labor law. Articles and books, both halakhic and quasi-halakhic, began to appear. Some of them dealt with, among other things, the right to unionize and the right to strike. In 1933, Rabbi Kook issued an oral responsum on this matter that was published in the journal Netivah of Hapoel HaMizrachi and subsequently referenced repeatedly.

In 1934, Rabbi Yekutiel Aryeh Kamelhar published a short article on the topic in the one-time bulletin Torah vaAvodah (Torah and Labor).3 Books on the subject were soon published: in 1935, Rabbi Chaim Zev Reines of the United States published his book of rabbinic scholarship The Worker in Scripture and Talmud.  In 1935, Rabbi Moshe Findling of the Land of Israel published his pioneering halakhic work Tehukat haAvodah (The Constitution of Labor) contained a concise and clear summary of the halakhic laws of labor. Rabbi Baruch Schlichter (Yashar) published in 1947 a digest of useful halakhah, in which he had already included two chapters on labor law. In 1947, Rabbi Avraham Yehoshua Bick published his short book Mishnat HaPoalim (The Doctrine of Workers), which was written while he was in the Land of Israel but only published years after he immigrated to the United States; this work had five responsa concerning labor laws.

Rabbis Findling and Bick did not adhere to the traditional halakhic line, which outlawed strikes in a more or less categorical manner. Rather, they recognized the halakhic legitimacy of the workers’ struggles. Rabbi Findling’s formulation in this matter is instructive and beneficial in reflecting the change that has gradually broken through in the rabbinic world since the time of the responsum by Rabbi Aryeh Leibush Lifshitz banning strikes. At the outset, Rabbi Findling presents the traditional halakhic line, accompanied by critiques of the Marxist position that was opposed to it:

To cease working without the consent of the employer, we find no permission in Jewish law, . . . and even less to prevent other workers, whose work conditions were agreed upon in a contract, from doing their job. The concept of “strike” was established in the terminology of Marxism, rooted in the unilateral dictatorship of the proletariat. No objective law in the world can accept it, and certainly not the Torah, which is the true law

On the other hand, we must not close our eyes to the reality that forced the workers to use the means of striking to protect their vital interests. Therefore our duty—not because of any defense for either side, but to find the truth of our Holy Torah—is to seek legal ways to have the workers reach the desired benefit, without discarding the path of law and morality. Therefore . . . we would like to mention two legal ways to permit halting the work in necessary circumstances.

Rabbi Findling unhesitatingly refers to the right to strike as a legitimate and lawful measure. In this spirit, he writes that one of the objectives of the trade union, which is recognized as legitimate according to halakhah, is to

force workers into a general strike, if the employers do not agree even to their minimum demands.” And this is so in order “not to leave the worker isolated and unaided and to protect himself and his vital interests . . . and attain respect and fair wages for his work even if employers might thereby incur losses.

It is interesting to note that at least three of the responsa on this topic came as replies to the query of one person, Akiva Egozi…

The responsa regarding the right to strike as a whole were also almost all issued in reply to the query of one person—Rabbi Shlomo Zalman Shragai. Three of the responsa concerning the right to strike and the right of unionization owe their existence to a member of Hapoel HaMizrachi movement, Shlomo Zalman Shragai. Shragai, public activist and author, addressed these questions to Rabbi Kook, who was then serving as the Chief Rabbi for Eretz Israel, and he published both of his oral responsa in the journal Netivah in 1933.About five years later, in 1938, he again took up this issue with Rabbi Uziel on behalf of the Hapoel HaMizrachi organization… In 1945, we also find a further query by Shragai concerning the same question, this time to Rabbi Eliezer Y. Waldenberg, author of Tzitz Eliezer.

Mizrachi Truck

The Corporatist Model

The corporatist model was accepted by the Revisionist movement. Ze’ev Jabotinsky studied in Rome under one of the fathers of the fascist corporatist theory, Arturo Labriola, and was influenced by him. He believed in the importance of private capital for the construction of the land while negating the principle of class struggle. He held the conviction that national aspirations were supposed to unite all classes (“monism”). Settling labor disputes, he held, must be done through boards of “national arbitration”—the revisionist model that corresponded to the corporations.

Shragai asked Rabbi Kook: “What is the halakhic law regarding strikes aimed at preserving existing labor conditions and strikes aimed to improve them?” According to the text in Netivah, the Chief Rabbi replied:

A strike is permitted for the objective of forcing the employer to appear in a rabbinic court (beit din) or to enforce a court decision in connection with a contentious dispute, be it to preserve the workers’ conditions or to better them. As a result of this it is clear that in all disputes of this type the workers must summon the employer to a rabbinic court with a claim, [and] if the employer refuses, it is the right of the workers to call a strike, even without any special consent from the court to such a call, which accords with the legal reasoning of the later poskim.  Of course, it is permitted to require that such conflict will not be adjudicated in an ordinary rabbinic court but in a court of broad panel, consisting of rabbis noted for their Torah prowess and proficiency, and well versed in issues of life and labor.

An examination of this responsum teaches that Rabbi Kook did not allow strikes to enable free bargaining, by which the parties would determine their rights and duties through the accepted power games. The final authority was the court that Rabbi Kook now offered to set up. Striking was intended to enforce attendance at the beit din or to enforce compliance with its rulings but not to achieve economic goals per se. The language of the text emphasizes the dispensations—“a strike is permitted,” “it is permitted”—but, practically speaking, the requisite conditions made it fairly limited.

It is easy to see that the arrangement Rabbi Kook suggested here is the system of national arbitration of the type which Jabotinsky had supported, and also the General Zionists at the outset of their movement. The basic approach embodied in this model is, as already noted, the concept of the organic unity of the nation, which finds its expression in the state.

The Responsum of Rabbi Uziel

In my humble opinion it appears that in general striking is not allowed and not desirable, neither for the worker nor for the employer. [Not] for the worker— because each day of striking from productive work is a day lost of life, and the Torah commanded about obligations of working. . . . And not for the employer—because any construction or industrial labor, let alone planting, that would not be done and completed within the proper season falls into the category of permanent loss, not just because the time was lost but also because of the damage that results from it to the work-process material.

Make a deduction from the law governing a workman who withdraws from his work in the middle of his contractual employment time: although in principle the workman can retract even in the middle of the day, based on the biblical verse “For unto me the children of Israel are servants” [meaning] “they are My servants—but not servants to servants” (B. Baba Kamma 116 and B. Baba Metzia 77), the law is decided that, if loss would result, the worker could not withdraw ([Shulhan Arukh] Hoshen Mishpat section 333, paragraph 8).

According to prevailing labor conditions, at present it is clear to me that any delay in the work of agriculture or industrial production or construction causes enormous losses that cannot be later restored. . . . In view of all the above considerations it is obvious that strikes or work lockouts are not desirable in themselves and cause losses to the worker or to the owner on the grounds of the law absolving liability for indirect damages.

This source, which was cited by almost all the halakhists who discussed the issue of striking, is problematic largely because it deals with the right of the worker to cancel his labor contract totally, while a strike is not the breaking of a labor relationship but an attempt to achieve better conditions within the framework of this relationship. This crucial flaw, which Rabbi Waldenberg pointed out in his responsum of 1945.

Rabbi Uziel explains:

The rationale for this law is that no trade organization can be objective in its decisions but only subjective, and their own self-interest blinds them from seeing the employer’s point of view. Moreover, the existence of one organization leads to the establishment of another to counter it, and they [both] do not limit themselves to their [direct] interests; and so the constant clashing between the two sides—the workers and the employers—never stops, and is followed by blind resistance and constant mutual hostility.

In the spirit of this understanding he suggested, to establish a distinguished court (beit din), assembled of members fluent in Torah law and academics proficient in the field of economics and societal market conditions, so they jointly enact a detailed labor legislation, and afterwards appoint permanent judges to adjudicate on the basis of this legislation all the conflicts that occur between the workers concerning the proper division of fair labor among themselves, and settle disputes between the workers and employers concerning their mutual relationships.” Rabbi Uziel supported this idea with the Talmudic requirement of a “distinguished man’s” consent.

It is almost needless to add that the court suggested by Rabbi Uziel has never been established. Israeli workers today, even Orthodox, may strike without asking permission from any judiciary, and if the conflict is brought to court, it will be the Labor Court, established by the secular law in 1969, that will adjudicate the case according to secular law and without any rabbinic involvement. Workers and employers can bring their case to a rabbinical court only in the form of arbitration, based on mutual consent.

Despite Rabbi Uziel’s reliance on Jewish traditional sources, and possibly due to internal tensions that arise from this reliance, it is difficult not to notice that he practically adopts the corporative model, which we saw with the fascist thinkers and subsequently with the revisionist thinkers.Rabbi Uziel, who had a clear humanist bent, was disinclined to fascism. But he was a man open to the intellectual winds of the time, and it is reasonable to assume that he had absorbed corporatism through the agency of the revisionists.

He continues at length about the halakhah giving the worker “the legal right to organize and establish beneficial regulations for his society, which would anchor a fair and just division of labor among its members and achieve a respectable treatment and a fair wage for his work.”

He wanted to see the workers’ organization establish “cultural institutions to enrich the scientific and artistic education [of the worker] and his Torah knowledge, medical institutions and recreation places to renew his strength exploited by work and heal wounds caused by it.” He even saw the worker’s organization as the responsible body for the pension insurance of the worker—“to create a savings fund for old age and for disabilities”—a norm that would exempt the employer from that responsibility.

Thus, it is abundantly clear that Rabbi Uziel did not negate the right to strike because of a lack of solidarity with the workers or to protect the interests of the employers. The element that attracted him to the corporative model was most likely the element of harmonious concord, and the idea that it is possible to solve labor relations issues through brotherhood and national unity beyond any class interest. This way of thinking integrated into his broader Zionist viewpoints, which placed the unity of the nation as a supreme value,and his aspiration to see all segments of the public joining in the enterprise of the national revival.

Rabbi Uziel does not want to see workers on strike, since strikes are detrimental to the process of “nation-building.” But also he does not want to see workers fired, since this also causes similar harm. What he would like to see is an idyllic situation free of conflict. Indeed, Rabbi Uziel’s quasi-corporative model was nourished by exaggerated optimism, if not naiveté. At its base stands an organic approach to national unity, which seeks to keep aggressive measures distant from both sides.

strike

Rabbi Feinstein & Democracy

Rabbi Feinstein began his responsum of 1951 with decisive words, expressing unequivocal support for the freedom to unionize and the freedom to strike:

Concerning the associations of workers called “unions,” which make regulations, determine set wages, prevent employers from firing them, and help each other through strikes and similar means for their benefit, I do not see any shade of prohibition; on the contrary, we see moreover that they are allowed even to make terms contrary to the set halakhic law… they are allowed to impose sanctions for enforcing their terms and even cause damage [to a person who violates them]

but in matters which are not against the law, such as to determine wages and to help each other—there is no need at all for the consent of a sage, for the matter is like all business arrangements and ordinary partnerships.

Thus, in passing, Rabbi Feinstein ruled that striking is not against the halakhah—a problematic claim in traditional thinking about labor relations

In his responsum of 1954, Rabbi Feinstein deals with the question of the majority rule and the applicability of regulations on non-unionized workers. From a close reading of the language of the Shulhan Arukh he concludes that the resolutions of a trade union do not require the unanimous consent of its members, and hence “it is obvious that they require [only] a majority.” He stresses that a clear majority is needed, and the voice of one half is insufficient.

The possibility of requiring a full consensus, as in ordinary partnerships, was not raised even as a rejected supposition.

In the following text, Rabbi Feinstein seems to go even further, as he referred not only to the majority of union members, but to that of all the workers in the same trade, including those that are not unionized.

Rabbi Feinstein seems to have been forced to abandon the rules of the partnership model and to adopt those generally associated with the beit din model. In essence, he grabs the rope by both its ends: he is ready to take any “gains” from each model, but he not prepared to pay the “prices” enveloped in them. The author of Igrot Moshe did all this without giving thought to the theoretical problem of the model that substantiates the authority of the union. His explanation is a patchwork from the two approaches put together. In reference to the consent of the “distinguished man” and to joint unionization with non-Jews, he is content with the contractual approach, but in reference to the power to impose its orders he favors the authority approach.

[AB- below is a famous paragraph from Rav Moshe Feinstein]

This clearly shows the great advantage of the United States: And so the government of the United States—that already 150 years ago established in its constitution not to promote any faith or ideology but let each person do as he wills while the government only watches that no one swallow up his fellow—does God’s will. It is by that right that the United States has prospered and become great during this time period. And we are obligated to pray for them [for the United States and its government], that God send them success in all that they undertake. In light of these words, it is no wonder that Rabbi Feinstein saw the United States as the “Kingdom of Grace.”

 

abolish slavery

Brown’s Conclusions

[T]he poskim developed the halakhic models which in their eyes were best suited to regulate labor relations, and thus absorbed the right of unionization and the right of modern strikes into Jewish law. The modern world posed three main models for such regulation: the communist model, the liberal-democratic model, and the corporative model.

However, Rabbis Kook and Uziel remained still closer to the conceptions of the traditional, pre-modern labor laws, and adhered (with certain internal contradiction) to the model that saw labor relations in terms of rental relationships. Consequently, they saw the striking worker as one who breaches the work contract and damages the employer. Rabbi Feinstein, in contrast, was clearly closest to the concept of modern labor laws

In terms of the ideological context, Rabbis Kook and Uziel adopted a corporative model quite close to the one that was advocated by the Revisionists in the Land of Israel (and the fascist theorists in Italy), while Rabbi Feinstein adopted a distinctly liberal model, which corresponds to the arrangement that was established in most Western democratic countries

What is the root of the differences between the authorities under discussion? Two possible explanations are available. The first explanation, historical-cultural, is that the differences in the opinions of the halakhic authorities stem from differences in personal and social background among the three personalities: Rabbis Kook and Uziel acted in the emerging Zionist yishuv in the Land of Israel, with ideological commitment to the values of building the land through labor and with a strong aspiration to unite the various camps into a nation. Rabbi Moshe Feinstein acted in a capitalist country in which labor was perceived primarily as a means for the welfare of the individual and less as a national value, and labor relations crossed the boundaries between Jews and non-Jews.

My Excursus on Rabbi S. Z. Shragai

Rabbi S.Z. Shragai, a rabbinic scholar, first mayor of Jerusalem, and head of religious Workers Party  was one of the major ideologues of Torah ve Avodah. He was the one who asked the questions about to Rabbi Kook, Uziel and Walenberg. He is also responsible in general for many of the questions about the government and Knesset to Rabbis Uziel and Waldenberg. His approach highlights the difference in genealogy between Religious Zionism and Modern Orthodoxy

For Shragai, Torah ve Avodah as Religious Zionism meant a literal and orienting return to labor and manual productivity against the imperfect bourgeois life. Unlike other socialisms, it is a spiritual revival, a new moral vision, and mutual aid and concern for one another.We wont need police for maintaining property because our connection to personal property will wither. Labor has to organize so that the conditions of labor allow one to live properly, as the Torah says: “you shall live by them.”

Our main relationship  to the political parties is economic in order to provide freedom and equality. By bettering the individual we lead to a national restoration. Torah ve Avodah means a restoration of a Torah state that has application to the modern life of the worker building for the freedom of self-determination. We need Torah “of religiosity not of religion.” We don’t ask about the role of religion in modern life because all of life, especially the worker’s life, needs to be infused with religiosity. We need Rabbis who know about barns and stables and we need to study the agricultural sciences to figure out how to live as a Torah observant laborer.

Unlike the communists for whom the problem of society is a structural problem of state economic inequality, for Torah ve Avodah the solution is for an individual to directly realize justice in society by returning directly to a life of labor. Judaism does not need organized labor rather, labor is a form of musar and an ethical path.

Shragai was from a Radzhin family, and based on Polish Hasidism envisioned an individualistic Kotzker Rebbe approach to Torah in which  physical labor was a mystical unity of the Holy One Blessed Be He and the Shekhinah, which would revive Judaism as a living Biblical relationship with God. Shragai followed the Izbitzer Rebbe in which the  inner point of every Jew shows that their flaws and sins are only external but the inward nature remain ever pure; even the heretic is doing God’s will. (More on Shragai for the Hebrew reader).

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