Mishnah

Views on various occupations

COVID-19 changed a lot of people’s perceptions as to what types of jobs are essential. Not only doctors, nurses and other healthcare workers are on the front lines, but so are retail clerks, maintenance workers, truck drivers and many others. In this context, it is interesting to think about what occupations, if any, have been promoted or praised in Judaism.

As it turns out, Jewish scholars gave work considerable attention. Talmudic sages advocated for working rather than living off charity. Indeed, this principle provides some food for thought for modern-day Israel, where many ultra-Orthodox do live off charity. According to a January 2020 report by Dr. Lee Cahaner and Dr. Gilad Malach for the Israel Democratic Institute, between the years 2003 and 2018, about 50% of ultra-Orthodox men aged 25-64 and 76% of women in the same age bracket worked.

Scholars had a great deal of respect for labour. The Talmud abhorred idleness and argues that it leads to mental illness and sexual immorality. (See Babylonian Talmud, Tractate Ketubot 59b, at jlaw.com/articles/idealoccupa.html.)

“Rabban Gamliel the son of Rabbi Judah HaNasi would say: Beautiful is the study of Torah with the way of the world, for the toil of them both causes sin to be forgotten. Ultimately, all Torah study that is not accompanied with work is destined to cease and to cause sin.” (Pirkei Avot, Ethics of the Fathers, 2:2). Midrash Rabbah Bereshit (Vayetze chapter) goes even further, saying that practising a craft saved lives.

Yet, the sages believed that being absorbed with making money is not the ideal for an individual. Again referring to the Pirkei Avot (4:10), Rabbi Meir asserted: “Rather limit your business activities and occupy yourself with the Torah instead.”

Historically, teachers were valued – but only to a point. The high priest Joshua ben Gamla (circa the first century CE) issued an opinion that “teachers had to be appointed in each district and every city and that boys of the age of six or seven should be sent.” Where the boy had a father, it was the father’s responsibility to make sure his son had a basic education. Significantly, between the third and the fifth century CE, providing the salary of the Torah and Mishnah teacher became a communal task. Even those without children contributed to the teacher’s wages.

But teachers were not fully trusted. The Mishnah of Tractate Kiddushin 82a teaches that a single man or single woman should not become a teacher. The Gemara explains that the rabbis worried that such a teacher might have an affair with a parent of one of the students.

On torahinmotion.org, Rabbi Jay Kelman contends that the Gemara initially suggests that the Mishnah is afraid that an unmarried teacher might molest his students, but then rejects this explanation, noting that molestation is not something we need to suspect happening. Kelman, however, says, “this is something which no longer can be said with any degree of certainty. What we can say with certainty is such a fear is warranted even with those who are married and that, while rare, when it occurs, the results are devastating and tragic.”

While on the subject of sexual misconduct in certain occupations, here is an idea that might resonate with the #MeToo movement: the Talmud lists certain precarious trades that require men to often be alone with women. For example, a male goldsmith who makes jewelry for women. Talmud scholars were uneasy that such a businessman would be tempted to sin.

Curiously, harsh words were said about doctors. Tractate Kiddushin 82a ends with this statement by Rabbi Yehudah: “The best of physicians deserves Gehenna.” Why do they deserve a damned place? An article on talmudology.com contends that the opinion was based either on the belief that doctors were haughty before G-d or the fact that their treatment sometimes killed the patient.

Even though Israeli citizens highly value their army, Shalom Sabar points out in a Forward video that, in Medieval Haggadot, the “bad son” was portrayed as a soldier. This was because, at the time, non-Jewish soldiers would come to kill Jews.

Sailors, on the other hand, “are mostly pious … with many a ship sinking, sailors were in constant fear causing most to be super honest in the hope that G-d would protect them.” As Kelman summarizes, there really are no atheists in the foxhole.

On myjewishlearning.com, Rabbi Jill Jacobs states that, since Mishnah Zeraim (Seeds) deals solely with agricultural issues, we have proof that Judaism emerged from an agriculturally based community. Yet, in the Torah, farmers get off to a really bad start. Early in Genesis, we learn that Cain was the first farmer. Notwithstanding, G-d refused to accept his offering, accepting only his brother Abel’s. Cain couldn’t accept this rejection. In a jealous rage, Cain killed his brother and hid what he had done. G-d, consequently, reduced Cain to a life of wandering.

At a time when, around the globe, people are learning more about the extreme misconduct of some police officers, it is worth looking further into the Torah to see what Deuteronomy 16:18 and later commentators wrote about the police. Deuteronomy points out that both judges and police should be appointed to govern the people with due justice. Drawing on various Jewish sources, Rabbi Jacobs divides the function of the Deuteronomy-based police into several specific, but integrated parts: the patroling police person who “reminds the public to obey the law”; the roving inspector who ensures fair pricing and compliance with local ordinances; the arresting police officer who, while assuming the person is innocent until judged guilty, nevertheless begins the judgment process by arresting the suspect; the bill collector police officer who extracts payment from the obligated party to give to the aggrieved party; and the police officer who is a leader in his/her community. From Jacob’s assessment on truah.org, it would appear that today’s police have what to improve, especially when it comes to trust-building measures.

Over the centuries, Jewish scholars have taken into account the fallibility of people engaged in certain occupations. With tremendous insight into human behaviour, our sages apparently realized progress is not always in a forward direction. We have a long way to go in (re)establishing the integrity that Jewish scholars outlined for certain professions.

Deborah Rubin Fields is an Israel-based features writer. She is also the author of Take a Peek Inside: A Child’s Guide to Radiology Exams, published in English, Hebrew and Arabic.

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The abstract of the article “Jewish Occupational Selection: Education, Restrictions or Minorities?” (The Journal of Economic History 65, no. 4 [2005]), Maristella Botticini and Zvi Eckstein reads: “Before the eighth-ninth centuries CE, most Jews, like the rest of the population, were farmers. With the establishment of the Muslim Empire, almost all Jews entered urban occupations

despite no restrictions prohibiting them from remaining in agriculture. This occupational selection remained their distinctive mark thereafter. Our thesis is that this transition away from agriculture into crafts and trade was the outcome of their widespread literacy, prompted by a religious and educational reform in Judaism in the first and second centuries CE, which gave them a comparative advantage in urban, skilled occupations.”

The full article is available at jstor.org.

– DRF

Do we care about being fair?

In its decision on Uber Technologies Inc. v. David Heller, the Supreme Court of Canada determined that the freedom of contract is not so absolute in its technical application as to undermine its purpose of allowing people to craft their own destinies. (photo from wikipedia)

Does fairness play a role in how we interpret and apply law? After all, doesn’t a person have the right to make bad decisions?

The Torah gives us the written law, similar to legislation, and the Talmud gives us the oral law and commentary, similar to the doctrines and jurisprudence of common law.

So, are we to interpret and apply law strictly, even if it seems unjust? Is there authority to temper the interpretation of law based on the circumstances? The Talmud tells us, yes. In June, the Supreme Court of Canada agreed.

Every businessperson knows that it’s a good idea to get an agreement in writing. We use written agreements to make a record of what the parties have agreed is their shared vision of their business relationship. Part of that shared vision might include agreeing that certain rights ordinarily afforded by the law of the land won’t apply to this relationship. The right to give up a right is central to the freedom of contract.

The freedom of contract is based on the idea that a person knows what’s best for them and wouldn’t agree to something if the bargain weren’t to their liking. The law doesn’t protect you from your own bad decisions, but it is supposed to protect you from bad decisions that you didn’t make freely.

In June of this year, the Supreme Court of Canada decided the case of Uber Technologies Inc. v. David Heller. Heller was an Uber food delivery driver. As such, he signed a standard agreement with Uber – the kind of agreement that is a “take it or leave it” proposition. Very few people read such contracts and, even if they do take the time to read and understand them, they don’t have the opportunity to create the “shared vision” that the freedom of contract is supposed to protect.

One of the terms of the Uber contract was that any dispute would be dealt with through a mediation and arbitration process in the Netherlands, rather than through the court system in Canada. Doing so would require up-front fees of $14,500 US, not including the cost of lawyers and travel. Heller’s annual earnings from Uber are between $20,000 and $30,000 Cdn. In other words, it would cost at least half of his annual earnings just to file his dispute, let alone pursue it.

The Supreme Court of Canada found in Heller’s favour.

If this had been a freely negotiated contract, Heller would have made a bad decision, but it would have been his decision to make and thus enforceable. However, it was clear to the court that Uber put this clause into the contract to make sure their drivers simply could not bring any dispute against them.

The court could have said that, according to the strict letter of the law, Heller agreed to the contract and is, therefore, bound by it. It doesn’t matter if you now find unfair a contract that you freely agreed to.

Instead, the court said the law in its strictest form is not always applicable, and we must determine whether it is inhumane to apply it strictly or whether circumstances demand we temper it. The court found that, rather than providing an alternative means to justice (i.e. arbitration), Uber imposed an unreasonable barrier to justice; they found a way to make sure that their drivers could not access justice no matter the merit of their complaint.

Many of us are familiar with the first three verses of parshat Shoftim in Devarim (Deuteronomy 16:18-16:20). First, a system of judges is established. Second, the judges are commanded to judge fairly on the merits of the cases. The third verse contains one of the most well-known phrases in the Torah: “Justice, justice shall you pursue.”

Why is the third verse there, and why does it use the word “justice” twice? The second verse has commanded the judges to follow the law without prejudice. Why then tell us to pursue justice? Isn’t that implicit in the establishment of a rule-of-law justice system? And what is “justice, justice” as opposed to “justice”?

In Chapter 2 of tractate Avot in the Mishnah, we are told, “warm thyself by the fire of the sages, but beware of their glowing coals, lest thou be burnt, for their bite is the bite of a fox, and their sting is the sting of a scorpion, and their hiss is the hiss of a serpent, and all their utterances are like coals of fire.”

At the distance where coals keep you warm, you can learn. At this distance, you can also see the coals in the context of providing warmth. If you are close enough that they can bite, sting and hiss, you lose sight of their purpose (warmth) and will be burnt. This applies to law.

Chapter 1 of Avot provides three interpretations of law’s purpose in the olam, world – olam also means the universe and everything in it.

Verse 2 of Chapter 1 says that the world stands on Torah (law), work (the practice of law) and kindness.

Verse 12 directs us to love peace, to pursue peace and to love all creatures bringing them closer to the Torah (law).

Verse 18 tells us that the world stands on justice, truth and peace.

The inclusion of kindness and peace alongside law tells us not to get so close to the coals that we forget their purpose is warmth.

“Justice, justice” is not only law, but law with purpose. Law without purpose may wear a badge of justice, but it is not truly just. Law used for the purpose of subverting justice is not just.

The court determined, in the Uber decision, that the freedom of contract is not so absolute in its technical application as to undermine its purpose of allowing people to craft their own destinies. In this case, Uber’s contract precisely contradicted that purpose: Uber imposed a contract that expressly denied Heller the right to craft his own destiny without his freely given consent.

Jeremy Costin is a business and estates lawyer practising in Vancouver. He sits on the board of directors and the governance committee of the Vancouver Holocaust Education Centre, and is a frequent guest instructor at the Law Society of British Columbia.

Contending with contradictions

“The Four Sons,” Arthur Szyk, 1934. According to Wikimedia, Szyk “originally intended his Passover story of persecution and deliverance (told through the traditional text of the Haggadah) to be a strong statement against the Nazis, but no publisher in his native Poland dared take on a project with strong anti-Nazi iconography. He ultimately found a publisher in England. This image of the Four Sons … depicts the Wicked Son as an assimilated German complete with porkpie hat and Hitler mustache.” (image from From Arthur Szyk Society, Burlingame, Calif.)

The significance of the seder’s Four Questions should not be confined to being a concrete educational tool for the purpose of teaching historical information to children having a limited sense of abstraction and who bore easily. The questions are a characteristic of the adult intellectual culture during the time of the rabbis.

In the Mishnah, the child is the one who asks and the parent teaches, but, in the Talmud, another source is quoted that requires the adult to ask questions of him or herself: “Our rabbis taught: if his child is intelligent he asks him, while if he is not intelligent his wife asks him; but if not, he asks himself. And even two scholars who know the laws of Passover ask one another.” (Babylonian Talmud, Pesachim 116a)

Here the point is not to recount the story of the Exodus to children, but rather to create a dialogue of questions and answers among adults. The questions of the wise child may be thought-provoking to his or her parents; similarly, the questions of one colleague would be of interest to another. Someone who knows all the laws of Pesach is still required to ask questions, and scholars on their own at the seder are required to ask themselves questions. Why?

At a certain level, the questions serve as an external pretext to refresh the memory in order to raise the level of consciousness concerning the Exodus, even for those who have passive knowledge of the information. At another level, someone who asks himself or herself questions and then answers them, can delve deeper and discover new aspects of knowledge.

This is the educational method practised in the Lithuanian yeshivot – two students on the same level study the text by asking each other questions, raising hypotheses and debating the issues, without hearing lectures from a teacher “who knows the answers.”

This is common practice in universities, where a researcher finding himself or herself at an impasse takes a walk alone while conducting an internal dialogue, which may culminate with new insights into a subject with which s/he is very familiar. The question is a powerful tool for the advancement of the thinking of both the one who asks and answers it.

The rabbis identified a particular type of question, known as a kushiya. A kushiya queries a practice that contains an internal contradiction or which runs contrary to other authorized sources. Unlike the kushiya, an ordinary question generally begins with the word “what,” for example, “What time is it?” It is as if the object of the question has something, information, that the one asking the question needs, and that the one asked “lends” out (literally, sh’ayla, in Hebrew).

The formulation of the kushiya is more sophisticated: “One would expect that such a thing would happen or be written, but why has something else, something unexpected happened or been written?” The poser of the kushiya comes equipped with information and expectations for a certain world order, and this makes him or her aware of deviations, contradictions and the disappointment of expectations. “How is this night different from all other nights – on all other nights we eat leavened bread and matzah, but on this night we eat only matzah?”

The one posing the kushiya sees the whole picture and has expectations of a rational world order. That is why any contradiction requires a rational explanation. We might expect that the more one learns, the fewer questions s/he might ask, after all, s/he already has so much information. But the true intellectual will pose ever more kushiyot, because s/he is all the more aware of the complexity of the world, which is arranged according to so many principles. Curiosity is increasingly aroused and that is why the wise child is the one who asks the kushiyot of his or her own volition, while the younger children need the help of the parent to ask even the simplest question.

Paradoxically, the search for rationality is sustained by the unusual and not by the regular orderly routine. People do not query that which can be taken for granted, even if the explanation is unknown. For example, based on the experience of many Pesachs and seder nights, to the adult Jew, the youngest child asking the Four Questions is taken as a matter of course. But as soon as s/he discovers a different version of the questions, such as the one we saw in the Mishnah, s/he asks “Why do we ask these questions and not others? What is the reason?” or “Why does the Mishnah say the parent says Ma Nishtanah rather than the child?”

The search for rationality in our familiar world is sustained by the ability to imagine alternatives to the existing order. There is a set introduction to the midrashei halakha, homiletic interpretations and inferences of the rabbis (in the Mekhilta). It involves the raising of a hypothetical question, as in this example from the Haggadah. The rabbis wondered:

“You shall tell your child on that day: ‘It is because of this, that the Lord did for me when I went free from Egypt.’” Could this verse mean that you should begin to tell the story at the beginning of the month (in which the Exodus occurred)? No, for the verse explicitly states “on that day” (of the Exodus). Could that mean that we start when it is still daytime? No, for the verse explicitly states: “because of this.” “This” refers to matzah and maror laid before you (only on seder night) (Mekhilta).

“This” implies that the parents must point at the matzah and maror, and use them as visual aids to tell the story (Rabbi Simcha of Vitri).

“Could this verse mean” introduces an imaginative, alternative hypothesis based on the biblical text. “No, for the verse explicitly states that” is a strict construction of the meaning of the existent version of the text that neutralizes the feasibility of an alternative suggestion.

Indeed, the midrashei halakha ask even when no additional version has been found, and only an imaginative person could envisage other reasonable possibilities. There is no attempt here to undermine the accepted text or religious practice, but rather to understand what lies behind it.

If so, then the study method of the rabbis is seemingly founded on a paradox. In order to understand the reasons for the existing order of the customs or the words of the biblical text, we must be able to conceive of another order based on alternative logic. Only that which is not self-explanatory and is not accepted blindly as tradition can lead to a process of thought and discovery of the rationality it contains. The ideal scholar in the culture of the rabbis is not an authoritative figure acting on the basis of a simplistic faith who accepts basic premises without question.

Noam Zion has been a senior research fellow at the Shalom Hartman Institute since 1978, and he teaches in Hartman Institute rabbinic programs. He also works with the Muslim Leadership Institute, the Hevruta gap-year program for Israeli and American Jews, and the Angelica Ecumenical Studies program in collaboration with the Vatican University Angelicum in Rome. He has developed study guides on Bible, holidays and rabbinic ethics, has numerous publications to his credit and lectures worldwide. Articles by Zion and other Hartman Institute scholars can be found at shalomhartman.org.