The Birth of the Rabbinic City
of Social Welfare
Noam Zion
Hartman Institute, Jerusalem
excerpted from:
Jewish Giving in Comparative Perspectives: History and Story, Law and
Theology, Anthropology and Psychology
Book One: From Each According to One’s Ability: Duties to Poor People
from the Bible to the Welfare State and Tikkun Olam
Previous Books:
A DIFFERENT NIGHT: The Family Participation Haggadah By Noam Zion and
David Dishon
LEADER'S GUIDE to "A DIFFERENT NIGHT" By Noam Zion and David
Dishon
A DIFFERENT LIGHT: Hanukkah Seder and Anthology
including Profiles in Contemporary Jewish Courage By Noam Zion
A Day Apart: Shabbat at Home By Noam Zion and Shawn Fields-Meyer
A Night to Remember: Haggadah of Contemporary Voices Mishael and Noam Zion
[email protected] – www.haggadahsrus.com
The Birth of the Rabbinic City of Social Welfare
The Invention of the Tzedakah Fund
The Synagogue as the Home of Social Welfare
The Rabbinic Gabbai compared with the British Overseer of the Poor
(17th C. English Poor Laws)
From Tithes to Tzedakah, From Individual to Community,
From Agriculture to an Urban Money Economy
Tzedakah: A Free Gift of Charity, a Property Right,
a Moral Duty, or a Tax?
Conditional and Unconditional Property Rights:
A Biblical and Continental Ethos versus a British Narrative
In Summary: Justice in the City
Appendices:
The Ancient Jewish Socialist Welfare State
Tzedakah’s Vocation: Justice or Life?
1
Introduction
“Every ‘renaissance,’ every ‘reformation,’ reaches back into an often distant past
to recover forgotten or neglected elements with which there is a sudden
sympathetic vibration, a sense of empathy, of recognition.”
- Yosef Yerushalmi (Zakhor, 113)
"Budgets are moral documents. They reveal the priorities, the values of a family,
a church, a synagogue, a city, a state, or a nation. What is important? What is
not? Who is important? Who is not? This is a moral conversation, also a very
practical one." - Jim Wallis, Brookings Institution Paneli
The birth place of the welfare state is to be found in the literary record of the
Mishna and Tosefta Peah.ii It appears there not only as an idea or a legal utopia, but as
a functioning institution in the 2nd - 3rd C. The rabbinic welfare “state” offers many
more services to the needy citizen and noncitizen than in most European welfare
societies before World War II. However the concept of the welfare state has grown
and been transformed in the 20th C. to provide, in principle, a “social citizenship” for
all citizens designed to provide many new services not imagined by the Rabbis.
The modern French philosopher Montesquieu advocated for state welfarism involving
a notion of basic rights:
“The early eighteenth-century philosophe Montesquieu declared that "the state owes
all citizens an assured subsistence." ... To be secure from want was a basic
human right, "where there exists a class of men without subsistence, there exists
a violation of the rights of humanity."1
1
"Armand de la Meuse, speaking before the French National Convention on April 17, 1793, declared
that there cannot be ... a more dangerous, absurd, and immoral contradiction than political equality
without social and economic equality. To enjoy equality in law but to be deprived of it in life is an
odious injustice.... There is no need to raise the question here as to whether ... under [natural law] all
men possess an equal right to the fruits of the earth. This is a truth about which we can entertain no
doubts at all. The real issue is this: granted that in society the public convenience admits of a right to
private property, is there not also an obligation to limit those rights and not to abandon their use to the
caprice of the property owner?" (Defense of Babeuf, 83)
“Gracchus Babeuf, the leader of an abortive coup attempt in the French Revolution in 1796, is the first
explicitly to proclaim that justice requires the state to redistribute goods to the poor. He attributed to
everyone a full-fledged right - a perfect, strict, enforceable right - to an equal share in all wealth.
Written during his trial... Babeuf draws a direct line from the natural right of equal wealth to the
demand that society equalize wealth. That nature gives everyone "an equal right to the enjoyment of all
wealth" was the first principle in his twelve-point summary, and the second was that "[t]he aim of
society is to defend this equality, often attacked by the strong and the wicked in the state of nature, and
to increase, by the co-operation of all, this enjoyment."... So Locke's basic argument for the purpose of
all states - that the state can enhance and better preserve the rights we have in the state of nature is here
applied to one right that Locke himself never considered as such: the right to equal economic status.
Given the Lockean view of legitimate government, it would follow that only communist states can be
legitimate. One cannot find an argument like this anywhere in the earlier writings of the Western
political tradition.” (Samuel Fleischacker, A Short History of Distributive Justice, 77- 78)
2
The notion of human economic rights now promulgated in the UN Declaration of
Human Rights (1948) follows Montesquieu’s language of universal human rights
applied to economic destitution. Although these rights are not universally enforceable,
the social welfare state offers a solution which allows each state to provide economic
rights to its own citizens. Francois Rochefoulcauld Liancourt, a leading member of the
French Revolutionary Assembly, went beyond Montesquieu’s conception of the social
welfare state in several ways. First, economic rights are not just the right to receive
support but also the right and the duty to work towards one’s own support.
Second, economic policy must go beyond subsistence to prevention. Society seeks to
protect the citizens not only from poverty but from all misfortune. He declared in
1790:
"Every man has a right to subsistence. The duty of society therefore is to seek to
prevent misfortune, to relieve it, to offer work to those who need it in order to live, to
force them if they refuse to work, and finally to assist without work those whose age
or infirmity deprive them of the ability to work."iii
Now the Mishna does not propound a theory of universal human rights nor does its
municipal government include a full-service department of health, education and
welfare with social security pension funds and Medicare or Medicaid nor does it
stimulate the economy in time of recession to raise employment levels. For the Rabbis
most human needs are to be handled by the family, however for the Jewish poor –
local resident or not – every fellow Jew has an obligation to take care of all their
needs, as we will see in book two of this trilogy, The Dignity of the Needy: From
Talmudic Tzedakah to Human Rights: “To Each according to their Social Needs.”
The moral obligation incumbent on the individual is institutionalized collectively in
the tzedakah system of every Jewish municipality, at least for subsistence support of
basic needs. In theory Jewish tzedakah organizations also cared for non-Jews.
However, up until the modern era there were no Jewish cities without something akin
to a guild in which Jews cared for their own, as did other social and religious
associations.2 What is important to note regarding the Jewish municipal kuppah is that
it is granted legal power by the Jewish community3 to tax and distribute aid to the
2
The Jewish communities in Ottoman Empire (16th-18th C.) aided the poor in three main ways:
a) Allowing for exemptions from taxes of the Jewish community and pay off the Muslim head tax,
the jizye, for the poor. “Had the community not paid the head tax on behalf of its poor, the latter would
have been imprisoned.”
b) Providing food and money to the needy poor such as the soleth contribution, (literally, "flour meal")
apparently distributed according to a list of names that was updated from time to time by the charitable
fund collectors (gabbaim).
c) Setting up institutions and services for the benefit of the Jewish masses (Talmud Torah), providing
elementary Jewish education, aid to the sick and the needy, aid in marrying off poor orphan girls,
burying the dead paupers, and more. The hospitals apparently served as lodging places for poor
travelers, as was the custom in Europe. Most of the services were provided through societies founded
for a specific purpose, such as biqqur holim - society for visiting the sick.
d) During the 18th century, an additional method of aid developed - the overall leadership (koleluth) of
each community became sorts of banks, and provided yearly interest on deposits that poor people,
widows, and orphans, and scholars deposited with them. Often, this legalized interest (hekhsher) was
the only means of livelihood for those who were unable to work to support themselves (Constantinople,
1774).” (Yaron Ben Naeh, “Poverty,” 186)
3
The community was governed by majority rule of an elected body but often “a few wealthy people
found themselves pitted against numerically greater opponents.” Voters only constitute those who can
3
poor. Often this coercive authority was confirmed by the non-Jewish monarch in a
charter. After the Emancipation, when Jews won citizenship in the 19th, their
communities lost their judicial, legislative and civil-economic governmental functions,
and therefore the tzedakah traditions to be studied in this book lost their legal force
after almost 1800 years and maintain only their rhetorical moral power.
The basic form of Rabbinic tzedakah, however, is an obligatory contribution to the
poor whether in in food or funds. The contribution to the soup kitchen plate or pot or
tray (tamkhui), or weekly or monthly allowances from the tzedakah box (kuppat
tzedakah) involve amounts fixed by the tzedakah tax collectors in a quasi-judicial
procedure requiring three lay judges and distributed to the poor in a quasi-legal
procedure of distribution. Every “citizen” is obligated to contribute to the appropriate
levels of poverty relief depending on the length of time the resident has lived in the
cityiv:
"If one resided in the city 30 days then one is regarded as a citizen of the city [for
assessments] to support the fund making weekly food allotments to the poor
(tamkhui). For the clothing fund, the residence is six months. For municipal taxes for
services, twelve months residence." (Tosefta Peah 4:9)
Special funds (pesika) were raised by levy for emergencies like ransoming captives
(pidyon shvuyim)v or for public works to benefit all city dwellers, like building walls
before an attack or digging water works or distributing food during a famine.vi
Mishna and Tosefta Peah provide the legal ground rules for a welfare system at the
municipal level, not the state level. It involves taxation as well as distribution,vii where
giver and receiver act according to law that is enforced by a central bureaucracy,viii
guided by official regulations defining eligibility,ix and circulates different kinds of
aid.x The kuppah4 poverty fund is collected by at least two5 representatives of the city
afford to pay taxes at any rate. The question debated in the pre-modern community was whether the
“majority” (rov) among the taxpayers was per capita or per contribution (rov binyan, the majority of
substance or “one man, one vote” majority). In the Ottoman Empire of the 16th -17th C. there were
several concurrent rabbinic opinions:
a) “All are equal in all matters regarding public decision-making” and we must continue to “follow the
majority of the public's opinions" even if the minority are "wiser and wealthier."
b) In all monetary matters, it is specifically the opinion of those with money that must be followed
(Rabbeinu Asher, Spain, d. 1327; Shmuel de Medina, Salonica, d. 1589/90).
c) Rabbi Yosef Mitrani (Istanbul, d. 1639) said: "Every leadership dealing with monetary affairs shall
not behave any way except according to the majority of those paying the tax. Whoever pays any
amount of tax whatsoever should be among those counted, since for him the tax he pays, as meager as
it is, constitutes a considerable sum.” The historian Yaron Ben Naeh comments on trends in Jewish
communal taxation in the early modern era: “Over time, we can see a clear strengthening of the
‘democratic’ trend taking the part of equal votes for each taxpayer.” (Yaron Ben Naeh, “Poverty,” 168)
4
By contrast, the kuppah in the Mishnah is a term originally used for a container to store larger
quantities of dry provisions (m. Shabbat 10:2; m. Makhshirin 4:6; m. Ohalot 6:2; m. Kelim 17:1). It
functions on behalf of the community as a whole (m. Kelim 17:1, m. Menahot 10:1, 10:3), to deliver
entitlements (m. Teharot 9:4), and is associated with the Sabbath (m. Shabbat 4:2). These functions and
attributes are all associated with a basket.” It can be used to collect and to distribute bread for the
community on a weekly basis (m. Peah 8:7) and it may serve as a treasury, a closed box or basket, for
funds to support the poor. (See Gardiner, Giving, 49, 52)
4
fund (Mishna 8:7) and distributed by three as in a court,xi xii while the daily kuppah of
foodstuffs, rather than coins, is collected and distributed by three officials under the
name tamkhui. 6
Yisrael Al-Nakawa (14th C. Toledo) stipulates a clear distinction between the two
funds in terms of their frequency of collection, their administrative supervision and
their recipients' eligibility:
"Tzedakah is divided into two parts: The first part is the giving of bread and cooked
dishes, so that food will be available immediately for the hungry and that is called
tamhui.xiii
The second part is to give gold or silver coins or lower denominations (peshutim) to
buy clothing or provide support for the poor, and that is called the kuppah.
“The kuppah is collected by two gabbaim (collectors) and distributed by three. Every
day, the tamkhui is collected and distributed immediately by three. The kuppah is
collected from one Friday to the next. The tamkhui is given to anyone who asks
[without a means test] and to the guests [nonresidents]. But the kuppah is not given to
anyone but a poor resident of that same city alone – unless the residents of that city
decide otherwise."(Menorat HaMaor, Tzedakah Gate #4)xiv
In Aphrodisias in Asia Minor (4th-6th C.) a Greek inscription lists the donors to a
Jewish “patella” which appears to derive etymologically from the word for “plate”
and to refer here to a tamkhui soup kitchen.xv The inscription reads:
"God help the givers to the soup kitchen. Below are listed the members of the
municipality of the students of the law, those who fervently praise God, who erected
at their personal expense, for the relief of those suffering in the community, this
memorial.” xvixvii
Let us review the Rabbinic protocol for institutionalized tzedakah, with its formal
bureaucratic framework and its eligibility criteria, as regulated by the Mishna and
Tosefta Peah society:
“Tamhui - every day. Kuppah - from Shabbat eve to Shabbat eve.
Tamhui - for everyone. Kuppah - for the poor people of the same city.
5
“Rabbi Huna says: Tamkhui (soup kitchen) collection also requires three [gabbaim], for it is on the
spot.” Rashi holds that two are sufficient to collect the daily food contributions, but three are necessary
for distribution which is a quasi-judicial decision about how much to give. However Huna holds that
since the collection and distribution are done almost simultaneously on the same day and the
distribution requires three, then better to avoid delays to have three for the whole process. But Rabbi
Alfasi explains that Huna insists that three are necessary for the collection as well for that too requires
judicial discretion since the amounts collected are not standardized. (Rav Steinsaltz on TJ Peah 8:7,
197).
6
Deriving from the Hebrew root for giving life (hayim), a tamkhui/was originally a utensil not for
cooking but for serving, especially for the provision of food including liquids (m. Kelim 16:1, 30:2).
“Within the Mishnah, the tamkhui is a vessel [like an open bowl or plate] that provides immediate
sustenance (m. Shabbat 3:5; m. Kelim 16:1, 17:2, 30:2). It is a large container (m. Kelim 16:1) that is
accessible to multiple people (m. Nedarim 4:4), and can be utilized to fulfill communal services such as
bringing entitlements to certain beneficiaries [such as sacrifices for priests] (m. Keritot 3:9),but also
including the poor (m. Pesahim 10:1).These functions can also be performed by a soup kitchen (m.
Peah 8:7).
5
“If one stays for thirty days - one is like a resident of the city with regards to the
kuppah.
And for clothing - six months. For city taxesxviii - twelve months.” (Tosefta Peah 4:9)
“THEY DO NOT GIVE LESS TO A POOR PERSON, WHO TRAVELS FROM
PLACE TO PLACE, THAN A LOAF OF BREAD WORTH A PONDION
(ROMAN COIN) - ONE SELA (ROMAN COIN) FOR FOUR SEAHS (DRY BULK
MEASURE OF WHEAT).” (Mishna Peah 8:7)xix
“[If] one lodges - they give him provisions for lodging [bedding and mattress
according to Maimonides] [with oil and beans]. (Tosefta Peah 4:8)
[If one lodges] over the Sabbath they give him food for three meals [with oil and
beans, fish and vegetable.” (Tosefta Peah 4:8)
“In what circumstances does this apply?
To the instances in which they do not recognize him [an unknown itinerant poor]. But
in instances in which they do recognize him - they also clothe him.
[If] the poor is used to go around from door to door [i.e. begging] - they [the tzedakah
officials or the householders?] are not obligated [to give] him anything.” (Tosefta
Peah 4:8)
“One who has food for two meals may not take from the Tamkhui [the daily
communal food plate].
One who has food for fourteen meals may not take from the Kuppah [the weekly
communal basket or tzedakah chest].
The Kuppah is collected by two persons but distributed by three.” (Mishna Peah 8:7)
“Two persons are necessary for an office supervising public funds such as the
Temple.” (Mishna Shekalim 5:2)
“Three is necessary for judging court cases for monetary issues.” (Mishna Sanhedrin
1:1). xx xxi
The bureaucratic language of this legislation teaches us much about the formal
structure of the community.7 No other “governmental” function is so detailed, thus
reinforcing the notion that Rabbinic municipal self-government was founded around
its obligation to centralize social services for the needy, the most marginal citizens.
Measured by references in rabbinic literature, the communal authority was only
secondarily designed to serve taxpayers, to provide general education or defense or
7
The community leaders who take care of the poor (16th-18th C. Ottoman Empire):
a) “The collector (gabbai) and the treasurer (gizbar). Both dealt with the collection of the pledges
from the individuals, administering the funds, caring for the assets of the bequests, and the distribution
of money and food to the needed whether on a one-time basis, or whether weekly according to lists
(lista) they held.
b) The rabbi of the congregation (hakham, marbitz Torah), and the chief rabbis (rabbanim kolelim) of
each town fulfilled an important role in the welfare system. We encounter them as the ones who write
recommendation letters, and as those urging and arousing the congregation in their Sabbath sermons
to donate for one cause or another, and also as dealing with collecting and disbursing charity to local
and foreign poor and other needy.
c) With the intensification of centralization process and the formation of the joint leaderships known
as koleluyoth during the second half of the 17th [to oversee] the yearly budget.
d) Confraternal societies.”(Yaron Ben Naeh, “Poverty,” 189)
6
economic regulation. Several revealing details stand out. First, the non-resident poor
are included in the tzedakah distribution and, if they are “recognized” as having
legitimate status as poor, then their benefits are equalized with those of the resident
poor. Second, the poverty line or criteria for eligibility are stipulated based on the
potential recipient’s food reserves. Nutritional security is acknowledged. Third,
recipients of tzedakah from the kuppah need not beg door to door among private
donors. This controversial issue will be explored in depth below.
A. The Invention of the Tzedakah Fund
The Synagogue as the Home of Social Welfare
For the Greco-Roman Jews, the synagogue, called the Beit Knesset, literally, a house
of gathering, served many public functions, not only communal prayer. It was also the
primary venue for collection, storage and distribution of tzedakah since the early
Rabbinic period. "Both Jewish and non-Jewish sources attest to the fact that the
Jewish communities of late antiquity had provided a rather highly developed social
welfare system.”xxii The emperor Julian took note of the Jewish community's care for
its own. In complaining about pagan society's lack of attention to its needy, he stated:
"For it is disgraceful that, when no Jew ever has to beg, and the impious Galileans
[i.e., Christians] support not only their own poor but ours as well, all men see that our
people lack aid from us." (Epistle, 22, 430)
Lee Levine, a historian of the synagogue, summarizes the close interconnection
between the synagogue and the kuppah of tzedakah:
"Tzedakah was pledged and then given within the synagogue setting and the former
was often (if not regularly) carried out on the Sabbath. The primary donation was aid
for the poor (food and clothing), although there was also a matter of community dues,
such as teachers' salaries. It appears that these communal funds were, in many kept on
synagogue premises. In a number of excavations, large caches of coins were
recovered, which were probably designated, at least in part, for such purposes." xxiii
Synagogue Hospitality
Donations for the poor are a standard Jewish practice integrated with its liturgical
centers beginning at the end of the era of the Second Temple and continuing thereafter
in the synagogue. The Second Temple model of voluntary donations was described in
the New Testament and later adopted as a Christian practice inspired by the exemplary
generosity of a widow who gave all she had – her two “mites” (the smallest coin in the
era of the King James translation) to alms or sacrifices in the Temple:
“Jesus sat down opposite the place where the offerings were put and watched the
crowd putting their money into the temple treasury. Many rich people threw in large
amounts. But a poor widow came and put in two very small copper coins, worth only
a few cents. Calling his disciples to him, Jesus said, ‘Truly I tell you, this poor widow
has put more into the treasury than all the others. They all gave out of their wealth;
7
but she, out of her poverty, put in everything—all she had to live on.’” (Mark 12:4144)
The NT mentions that this collection box was also called korban, which in Hebrew
means sacrifice. The term had been used to describe the Temple treasury (Matthew
27:6, Mark 7:11). In Matthew the priests are described as refusing to accept into the
treasury a contribution of the blood money Judas received for betraying Jesus.
In conscious imitation of this Temple practice, the early Christians used a treasure box
for collecting alms, usually weekly or monthly at the Eucharist meal, though they had
no taxation system for support of the poor. The alms were used both to support the
clergy and the poor. The Apostolic Constitution stipulates: “share one, two or five
coins with strangers by throwing them into the korban.”xxiv John Chrysostrum urged
congregants to “make your house - a church, the box - a treasury. Become a keeper of
sacred funds, a self-appointed administrator of the poor.”xxv Distributions were made
weekly on Saturday or Sunday. They included clothing as well as food or coins. In
addition the weekly Church meal, called agape, was shared with the clergy and the
poor (Luke 14:13).xxvi In the early Church which had no legal standing and at times
was persecuted under Roman law, a compulsory system of formalized alms collection
would not have been a viable option.
A Greek inscription from one of the earliest synagogues (first century B.C.E.)
suggests that from its inception a central function of the synagogue was provision of
care for the traveler:
“Theodotos . . . built this synagogue for the reading of the Law and for the teaching of
the commandments, and also this hostel with its chambers and with fittings for the
needs of those who, coming from the outside, have lodged there.”xxvii
In a flowery and fantastic description of the most capacious and magnificent
synagogue in Alexandria the problematic placing of the poor is also mentioned for
they lack a natural location in the seating arrangements of the society. In this
enormous colonnaded synagogue which could hold 600,000 congregants and some say
double, the seating was designated hierarchically and separated by professions,
reflecting the status of the guild of craftsmen:
"The goldsmiths, sat by themselves, the silversmiths by themselves, the glass-blowers
[or perhaps, blacksmiths] by themselves, and the coppersmiths by themselves, and the
weavers by themselves." (TB Sukkah 51b; Tosefta Sukkah 4:4).
Rather than competition between individual craftsmen in the same field, there was
guild solidarity, although between professions there was distance. So where do
paupers fit into the community organized by economic skills and guild monopolies,
especially in synagogue exhibiting conspicuously its wealth and standing? Would
there be any place for such economically and socially marginal people? Would secure
craftsmen relate to the poor as parasites on their labor? The text solves this issue
turning the economic division of space into a natural boon to the unemployed.
"When the poor would enter there, they would recognize the various professional
craftsmen and head there from which they derive their economic support and that of
8
their households form them [perhaps through job training or employment as
assistants].” (TB Sukkah 51b; Tosefta Sukkah 4:4)
Since synagogues were also hostels, Friday services end with the recitation of kiddush
[over the wine], when kiddush is usually recited only in a place where people are
sitting down to eat their Shabbat dinner.
“Why should kiddush be said in the synagogue? In order to give strangers who ate
and drank and slept in the synagogue an opportunity to discharge their religious
duty.” (TB Pesachim 101a)
That tradition continues today on a voluntary basis, as I have seen it function to my
benefit in the Jewish community of Gibraltar in 2009. However, in pre-modern
Poland, for example, it had a compulsory aspect: hospitality was an official form of
communal tzedakah.8 In Poznan in 1664 the council's minutes complain of
noncompliance with synagogue hospitality.9
"When they come to our community they have no place to rest, only for one day with
one householder except on festivals and Sabbaths. Even if he is of good family (mibenei tovim), he must then go to another householder who sends him away with the
excuse "go and come back tomorrow" or makes him leave his house at the crack of
dawn. The poor man cries out until his throat is dry and although his words are
worthy and correct, no one listens to him and brings him into his house. This can no
longer be continued here. When a guest comes to our community and receives the
piece of paper (pitka or pletten or kwitlekh) with the name of a householder on it, that
8
“There was no limit to gemilut hasadim (acts of lovingkindness) in Poland. First of all, in Hakhnasat
Orchim (hospitality). When a scholar or magid (itinerant preacher) would visit a community, where it
was a custom for itinerant Jews to receive kwitlekh (a note assigning them to a home for hospitality),
the scholar was not requested to demean himself by doing so, but would go to the home of whichever
member of the community he chose. Then the sexton of the community would show the gabbai or
parnas-of-the month what he had collected and they would send a suitable gift to the visitor to express
their respect. And he could stay as long as he had wished.
“And thus it was also for other itinerant Jews who would require kwitlekh. The guest would be given a
kwitl authorizing him to stay at the home of the person whose name he had drawn, as many days as he
wished. Such a kwitl was valid for at least three days. He would be given food and drink three times a
day, and when he was ready to leave, he would receive provisions for the journey and transportation to
the next Jewish community.
“And when young people, male or female, would come from a distant land or from other cities, they
would immediately be given fresh clothing. And if he wished to learn a trade, they would find him a
place where he could do so, or if someone wished to go to work in a household, they would find him or
her a place. And whoever wished to study, they would find him a teacher and pay the tuition.” (Nathan
of Hanover, Yeven HaMetzulah, circa 1648-9). (Cited in D. Nussbaum, Social Justice, 50)
9
Poznan's communal authorities established two institutions to provide for travellers and transients.
Students and others affiliated with the yeshivah or itinerant sages were provided with food and
hospitality on the Sabbath by Poznan's householders. This was referred to as "mahazik shabbatot"
(literally, "support Sabbaths" to provide Sabbath hospitality).
In a related institution, the parnasim distributed pletten (literally, "tickets") to transients with the name
of the householder who was responsible for providing food and shelter; this most approximates the
traditional institution of hospitality. (Daniel Nussbaum, Social Justice, 221).
.
9
householder must provide for him at his table for two consecutive days, and if it is
xxviii
Sabbath or holiday, for three days.”
Note that while this chapter focuses on centralized tzedakah distribution, not voluntary
gifts to the needy, one must not forget the many other forms of giving that functioned
simultaneously. Rabbinic notions of donating money and food are varied and include
reciprocal gift-giving (gemulim - Tosefta Peah 4:16). For example, when a group of
friends establish a eating club, then one person invites another over for dinner and
expects to be invited in returnxxix or where the bridegroom’s friends (shushbinim) help
pay for his wedding and expect him to do the same when it is their turn to wed.
Similarly, on Purim the mitzvah of exchanging giving gifts of food among friends
(mishloakh manot) reinforce the mutuality within society. However we will limit
ourselves to an in-depth analysis of monetary tzedakah for the poor, including interestfree loans.
The Rabbinic Gabbai Compared
with the British Overseer of the Poor (17th C.)
The Rabbinic centralized welfare state might be compared and contrasted to the
English Poor Laws bureaucracy (1601-1948), which also levied a tax for the poor that
was distributed in the parishes. The Poor Laws guaranteed public subsistence to the
needy after bureaucrats examined their overall needs.
“The English poor laws rested on the assumption that elected overseers and guardians
were the most effective judges of destitution and the needs of local people. Their standards for redress were by definition adequate; the fact that paupers might have
disagreed was not considered relevant. ... Parishes throughout the kingdom slowly
accepted the state-mandated duty to relieve the "impotent poor" and to offer limited
amounts of work to the jobless who had a legal settlement. When families and
markets failed to provide support, the parish would step in, but only for those with
clearly established local claims.”xxx
American support of the poor was based on the British model and in practice it viewed
the poor as budgetary burden to be relieved in one way or another.10
10
“[In Pre Civil War America] it was the constant effort of each locality to fulfill the minimum
requirements of its obligation at the lowest cost. Children were often bid off at auction for the labor
they might perform, and the town paid the amount of the lowest bid for the support of the child ‘sold.’
Very illuminating in this connection is an excerpt from the town records of Fitchburg, Massachusetts,
an item of 1813 inquiring "what method the town will take to get rid of the support of Ephraim
Farnsworth's family." In the selectmen's report of 1820 appears a summary of the conditions on which
the poor of the town were farmed out for the year:
‘The undertaker to Board, Clothe and Comfortably provide for, in sickness and health the persons
hereafter named.... and if any of the above named persons should decease within the course of the year,
the town to be at the expense of burying, and the doctor's bill if any of them are sick... The undertaker
to have the benefit of the labor of said Paupers, and receive his pay quarterly.’
“Whenever possible the town endeavored to escape the burden of caring for those from whom no
labor could be expected, and wily selectmen often tried to dump undesirables upon neighboring authorities. One especially unpleasant story tells of the midnight trip of such a ‘guardian of the poor’
who bundled up two imbeciles, so they would be unable to name their point of departure - and transported them to a district miles away from the one he served. Since all towns refused responsibility for
vagrants, it became customary for the state to pay for the support of persons without legal residence.”
(Alice Tyler, Freedom’s Ferment, 293)
11
The Rabbinic terminology of gabbai – collector of tax – or parnas – supporter of the
material needs of the poor – has a very different flavor from the English "overseer,"
who was also called the "guardian" of the poor. As an officer of the municipality, the
overseer sought to reduce expenditures for the city, especially by excluding
nonresident vagrant poor and by applying strict criteria for eligibility. The gabbai may
have been less torn by his two hats – representative of the community and guardian of
the poor.
Let us note four major differences in emphasis between the Rabbinic and the British
system, though they also have much in common as proto-welfare states: (1) the client
of the overseer, (2) the residency of the recipient, (3) the coercive authority of the
bureaucrat, and (4) the kind of support provided.
First, the major client of the overseer was the state and the local tax payers who were
afraid of the inundation of their community by vagabonds, political unrest, and the
financial burden on the taxpayers. The major client of the tzedakah system is the poor
who are legally entitled to financial support.
Second, Rabbinic tzedakah explicitly includes traveler and wandering Jews, while the
Poor Laws have very strict residency requirements. The Rabbinic residency
requirement applies to the obligation to pay various poor taxes, not to the eligibility to
receive basic provisions.
“The English poor laws created the effective boundaries of their communities.
Those who did not ‘belong’ could be literally excluded through vagrancy laws and
settlement laws, or they could be marginalized more subtly through denial of relief or
implied threats of removal.
“In the public eye, migrating from place to place and refusing to take a settled job
signaled danger and disreputability. In Tudor times vagrancy was a social crime; the
state marked out people for punishment and confinement or removal. ... Wandering
women who bore children outside their home parish could be whipped and jailed for
up to six months, and beggars' children could be bound as servants or apprentices up
to age twenty one.”
The Durham parish of Pittington (1622) went further in restricting access to
nonresident poor. Its vestry decreed that:
"No inhabitant ... shall receive, harbour and entertain any stranger to be his tenant or
tenants into his house or houses before he acquaint the Twelve with his intent, and
shall himself and two sufficient men with him, enter into bond ... to the Overseers that
neither his tenant, wife or children shall be chargeable to the parish for five years next
following, upon pain and penalty to forfeit ten shillings for every month.”xxxi
Third, the early rabbinic tzedakah system commends those who give loans or help
with jobs on a private basis, but does not publicly provide jobs or job training. The
English Poor Laws did provide labor and training schools, but usually in forced labor
and education. Unlike officials of the rabbinic tzedakah kuppah, the English Poor
11
Laws sought to separate out the ‘deserving’ and ‘undeserving’ poor, those willing to
work from those unwilling:
"One major fault line marking off insider from outsider derived from occupation and
presumed attitudes toward employment. Elizabethan law drew strong moral
distinctions between those who could not work or who could not find work and
those whom local authorities judged would not work. Those belonging to this latter
category - labeled rogues, vagabonds, and sturdy beggars - were to receive not
alms but the full weight of public punishment. The law branded a broad category of
people who moved around the country - particularly wandering scholars, jugglers,
tinkers, peddlers, shipwrecked seamen, gypsies, minstrels, players, discharged
prisoners, fortunetellers, and people who refused to take a job at current wage rates as vagrants. Those judged guilty of this crime could be ‘stripped naked from the
middle upwards and openly whipped until his or her body be bloody and then passed
to his or her birthplace or last residence and in case they know neither they are to be
sent to the House of Correction for a year.’" xxxii
Fourth, both the gabbai and the overseer have judicial authority which gives them the
power of coercion to decide what one receives and at least in the case of the gabbai
from whom and how much is paid. The gabbai exercises the coercion exclusively to
extract taxes from the residents of the community, while the overseer uses his
authority to punish or expel the unworthy poor as well as to reorganize the lives of all
beneficiaries in the most efficient manner for the parish's control and its budget.
Surprisingly it is the champion of citizen's rights to life, liberty and estate, John
Locke, who in his research for the British Board of Trade, proposed coercive ways of
controlling the poor in order to make the Poor Laws function more efficiently:
“The taxpayers would choose the poor guardian for their parish. Once elected, he
would have authority over the employment and relief of the poor... The poor guardian,
along with a parish committee, would have to approve all poor relief prior to any
distribution. These same guardians may also act as Justices of the Peace with power to
issue passes to vagabonds and beggars. Additionally, they have the authority to send
them to seaport towns or to correction houses. Locke urged the Board to require
badges for all those who received poor relief.... . Poor guardians, who would also be
responsible for the punishment of vagrants and establishing "working schools... Local
people should be forbidden by law to provide relief to individuals not wearing a
poor badge or not officially registered in the parish's poor book. ‘That whoever shall
counterfeit a pass shall lose his ears for that forgery the first time he is found guilty
thereof, and the second time, that he shall be transported to the plantations, as in the
case of felony.’” (Proposed Poor Law Reform, 1697)xxxiii
“The new laws are necessary because some who receive aid pretend that they are
unable to work and live only by begging or worse. These ‘begging drones’ must be
forced to work. Healthy males at least fourteen years of age but younger than fifty
who are caught begging in maritime counties out of their own parish without a pass,
should be seized and brought before a Justice of the Peace or a poor guardian. These
men should then be sent to the next seaport town and kept at hard labor until a
government ship comes close enough to pick them up. They should serve three years
under strict discipline at soldier's pay and be punished as deserters if they go ashore
without leave or if they violate their leave policy. ... If an individual has served his
time, but the Justice or poor guardian judges him not reformed, then he should not be
released until there is proof that he has changed for the better.” xxxiv
12
This arbitrary power of the “guardians” of the poor is proposed by John Locke even
though:
“In his Second Treatise of Government, Locke argues passionately and convincingly
that arbitrary and discretionary government power is dangerous and leads to not only
a loss of freedom but also injustice. It is clear in the Report, however, that he does not
fear those abuses. Centralized administration was necessary to curb the problem of
xxxv
poverty.”
For John Locke, public assistance for the deserving poor needed to be reorganized for
efficiency without regard to the dignity, freedom, familial structure or emotional needs
of the poor.
“Those who are unable to work at all should be housed four or more in a room and
many more in one house. One fire should be sufficient to keep them warm, and one
attendant may care for all of them. These group homes will save money.” xxxvi
From Tithes to Tzedakah, From Individual to Community,
From Agriculture to an Urban Money Economy
While we have too little historical evidence to reconstruct the actual development of
the tzedakah system in the Greco-Roman or Babylonian period, we can see how the
Rabbis conceptualized its origins. The Rabbinic legislation of municipal tzedakah was
attached by the editor of the Mishna to the tractate on peah, the portion of the field
set-aside for the poor. Peah is amply warranted by the Biblical laws for agriculture in
Eretz Yisrael. In the peah and tithing system, a percentage or portion of the field
produce in kind is available to the poor as their right. Entitlement11 embedded in law
is the first analogy of the tzedakah system to the modern social welfare state. But in
the Torah there is no mechanism of enforcement nor an egalitarian distribution
system. The corner of the field, peah,12 is not well-defined as a designated area easily
11
Samson Raphael Hirsch, founder of modern Orthodoxy objects to the entitlement theory of tzedakah,
even though he too identifies tzedakah with justice: “Why should God give you more than you need
unless He intended to make you the administrator of this blessing for the benefit of others, the
treasurer of His treasures? Every penny you can spare is not yours, but should become a tool for
bringing blessings to others - and would you close your hand on something that is not yours? That is
why our Sages prefer to give the beautiful name of tzedakah to this act of charity by means of material
goods. For tzedakah is the justice which gives to every creature that which God allots to it; and if
tzedakah, as practised by God, means His tender justice which metes out to each human being not what
he deserves but what he is capable of bearing, then for the human being it is that tender justice, God's
love, and not another man's right against you, which entitles him to his claim on you.” (Horeb,
#570)
12
Peah: “The following things have no [fixed] measure: peah [edges], first-fruits, appearing [at the
temple], tzedakah, and Torah study. The fruits of the following things one enjoys in this world, while
the capital [reward] remains intact for him in the world to come: Honoring father and mother, [deeds
of] lovingkindness, and producing peace between a person and his fellow; and Torah study is equal
to them all. The peah [left unharvested] should be no less than a sixtieth--even though it has been
taught that peah has no [fixed] measure. It all depends on the size of the field, on the number of the
poor, and on the extent of piety." (Mishnah Peah 1:1-2)
13
claimed by the gleaners, and the farmers can give their tithes to any poor person as
they see fit without considering relative need among the needy.
By contrast, the kuppah system of Mishna Peah establishes a bureaucracy for
collecting funds as well as foods and establishing criteria for eligibility (Tur Yoreh
Deah 253). The second analogy is the distribution priorities. While the Torah
establishes the principle of the "nearest brother" who is first to deliver support to the
needy (Leviticus 25), the Rabbis developed the mirror principle that the "nearest poor"
take precedence in allocations (“The poor of your own city takes precedence” – TB
Baba Metzia 71a).xxxvii Some communities split their donations for the poor – 1/3 for
relatives, 1/3 for the local poor, and 1/3 for distant poor.xxxviii The third analogy is a
monetary system of collection and distribution that is not tied to the agricultural
seasons or produce in kind or harvest and gleaning on the land. It is more akin to the
tithing of the produce after being collected and counted.
Appropriately the name for tzedakah is not tied in any way to the agricultural gifts to
the poor and the notion of tithe is not used in rabbinic descriptions of tzedakah at all,
though 10% to 20% is the recommended gift to the poor in medieval codes. Only in
the late Middle Ages in the Ashkenazi community is the monetary tithe invented as a
form of pious, voluntary giving, although not in any way associated with the
communal tzedakah kuppah. Later halakhic authorities debated whether the Torah’s
law of the agricultural tithe (maaser) applies directly to monetary assets or income. A
few scholars held that the monetary tithe is a mitzvah with Torah authority, a few
more view the monetary tithe as Rabbinic legislation imitating the Biblical law, but
most view it as merely a pious custom, a worthy but not fully binding one.xxxix No
municipality ever enforced tithing or used it for the community, but simply assessed
the citizens for a tax serving their needs. After the emancipation of the Jews in the 19th
C., there was a radical transformation of the municipal Jewish government which lost
their authority to legally coerce its “members” to do anything including contribute to
the tzedakah funds. Thus all religiously obligatory tzedakah is thereafter consigned, in
effect, to the status of pious behavior, voluntary taking of responsibility for one’s
brother.
As a pious act in the ultra-Orthodox communities, tithing of money occurs
haphazardly, for example:
“Harry Fischel made his fortune in Manhattan real estate and he distributed vast sums
to tzedakah. Whenever anyone asked him for the secret of his success, Mr. Fischel
was only too eager to share his `secret' formula. He would say, "I left Eastern Europe
as a penniless young man. But before I embarked upon my long journey to America, I
went to Radin to receive the blessing of the Haftez Haim. The holy man said to me,
`If you want to succeed in business, you must take God Himself as your partner in
every endeavor. Before you enter into any investment or project, try to make an
accurate estimate of how much profit you stand to make in the undertaking. Then
calculate how much the tithe of your projected profit will be and write a check for that
amount to be eventually deposited in your tzedakah account. Turn to Hashem in
fervent prayer and say: "Ribbono Shel Olam, Master of the Universe, it is my
privilege to invite You to be my partner in this endeavor. If, heaven forbid, I fail to
realize a profit, I will have nothing to share with You, my partner. However, if I
successfully realize my anticipated profit, then the ten percent I have set aside for
14
tzedakah is Yours." When one takes God as his partner from the outset, he is
guaranteed success!'”xl
Note that the innovative rabbinic municipal tzedakah system in the Mishna does not
displace the biblical agricultural tithes that are reformulated and enforced in the Eretz
Yisrael in the Greco-Roman era. As long as Jews remained farmers in Eretz Yisrael,
there was a direct continuation of biblical agricultural welfarexli systems: peah, the
tithe for priests, Levites and the poor, once every seventh year the cancellation of
debts, and the sacred land's sabbatical, shmitah. The Rabbis reinterpreted these ancient
Biblical institutions in various creative and often radically innovative ways.xlii xliii
Today a few farms have been established in Israel to revive agriculture-based welfare
in kind, but as a wholly voluntary project. Volunteers harvest the land and then the
produce is given en masse to soup kitchens.13 Other efforts include collecting surplus
farm products or slightly damaged ones that farmers cannot sell and would not harvest
unless they receive help and then that produce is delivered to the needy.
Also note that the kuppah-based municipal tzedakah does not collectivize and
regularize all the Biblical provisions for the poor. Rather many remain, in effect,
recommended moral duties without enforcement. Individuals and later private
associations volunteered to visit the sick, bury the destitute and pay for the poor
children’s education. Rabbinic tzedakah did not institutionalize the collection and
distribution of interest free loans. This kind of loan as "startup capital" remains a
“voluntary”xliv act of individuals. Consider the peculiarity of Rabbinic tzedakah that
regards all the provisioning of the poor as religious obligations, as mitzvot that are
Divine commandments spelled out in great legal detail, however only giving to the
municipal tzedakah fund is compelled by legal action, if necessary, by the community.
The idea of a municipal bureaucracy is probably borrowed from the Hellenistic cities
flourishing throughout Eretz Yisrael. That is obvious from the Greek and Aramaic
loan words used to designate the bureaucrats assigned to do tzedakah – parnas,xlv just
as the city council is called boule or the provincial legislative political body is called
the sanhedrin.xlvi Some Rabbis served as parnasimxlvii and some appointed others to be
parnasim. It was a thankless job as is often the case in all ages:
“They wanted to appoint Rabbi Akiba as a parnas. He replied: Let me consult my
wife. They followed him and heard his voice [saying to his wife, perhaps in response
13
Project Leket: Gleaning the Land (founded, 2005) was inspired by the Bible, which states: When you reap
your harvest in your field and forget a sheaf in the field, you shall not go back to get it; it shall be left for the alien,
the orphan, and the widow, so that the Lord your God may bless you in all your undertakings (Deuteronomy
24:19). Leket is an initiative that sends thousands of volunteers and dozens of paid pickers into fields and orchards
to gather produce donated or left to rot by farmers (75 tons/week). In 2010, the project rescued 9 million pounds
of fruits and vegetables from over 300 farms throughout Israel. All produce is delivered free of charge to over 290
nonprofit organizations serving Israel's needy.
Nighttime Meal Rescue involves nearly 800 registered volunteers collected 350,000 excess meal in the late
evening hours from over 200 banquet halls, caterers, restaurants, and food malls throughout Israel. Rescued food
is immediately transported to local nonprofit organizations or placed in refrigeration for distribution to soup
kitchens, shelters and other nonprofits the following morning.
The Daytime Food Rescue program works to collect food from corporate cafeterias, packing houses, and food
producers throughout Israel. In 2010, Leket Israel's logistics staff and volunteers rescued 400,000 meals and over
300 tons of perishable manufactured products. Leket Israel's food cargo drivers redistributed the collected excess
to over 290 nonprofits throughout Israel. www.leket.org.il
15
to her warning to him: ‘I will accept] even though I will be cursed and shamed.’”
(Jerusalem Talmud Peah 8:6/7)
So what is new in the tzedakah system, if the terminology is borrowed from the Greek
polis or the Aramaic legal apparatus of the Hellenist empire in the East? What is
completely unprecedented is not the role of officials in taxing and collecting, but its
destination and its legal obligation. The distribution of support to the poor, even the
non-resident poor is, as we said above, a communal function conducted by a
gabbaixlviii tzedakahxlix who collected and distributed the food and money determining
in the process how much to take and to give as a quasi-court. Thus they enabled
individual donors to perform the mitzvah of tzedakah and recipients to receive help.
Greco-Roman cities seldom considered even the resident poor as citizens and never
saw them as recipients of philanthropy and certainly not as people with an entitlement
to ongoing support from public funds. The Hellenist cities, as opposed to the Roman
Empire whose infamous tax collectors are mentioned often in NT and Rabbinic
literature, seldom collected “municipal taxes” from its citizens for public purposes.
Instead they solicited philanthropic contributions and welcomed voluntary unpaid
public service from the nobility. Social esteem and social pressure generated both
funds and a free public service sector. In the Rabbinic era the gabbai is a debtcollector who might work for a storekeeper who has given products on credit or a
money lender who has made a loan come due or a royal tax collector. "The gabbaim
make their rounds often to exact from a person what is due whether voluntarily or
involuntarily" (Avot 3:20). While debt-collectors are not generally honored in society,
tzedakah gabbaim were honored, trusted and their daughters sought after by
matchmakers.l
Aryeh Cohen in his book, Justice in the City, suggest the innovation in legislating
tzedakah is simply a detail in new imaginative order – the city as a community of
obligation with responsibility for all even the marginal members who seem to be
invisible in most societies, such the Greek polis for example.
“A just city should be a community of obligation. That is, in a community thus
conceived, the privilege of citizenship is the assumption of the obligations of the city
toward others who are not always in view. These ‘others’ include workers, the poor,
and the homeless. 14 They form a constitutive part of the city. ... This [fleshes out], to
some extent, Emmanuel Levinas's notion of a "humane urbanism."' I read this
generally to mean a practice of living such that I am attentive to the consequences immediate and ultimate - of my actions upon those whom I do not know but who
share this city with me.”li
In other words the Rabbis are confronting the move from farming communities where
everyone is known face-to-face to the city where there is anonymity often for
neighbors, for the poorer residents of the wrong side of town and especially for the
passing beggar. Therefore one must be able to hear and see poor people, hence the
14
"Weary of shelters, the couple pitched a pup tent in Roger WilIiams Park, close to a plaque bearing
words WilIiams [the founder of Rhode Island] had used to describe this place he founded: ‘A Shelter
for Persons in Distress.’ But someone complained, so [couple] set off again in search of shelter. The
March winds blew." ("Living in Tents, and by the Rules, Under a Bridge," Dan Barry, New York
Ttmes (July 31, 2009) cited in A. Cohen, Justice in the City, 92)
16
displeasure with gated communities (see below), and one have a legal as well as moral
responsibility to care for them.
In the early medieval period in France and Germany (11th- 15th C.) the local Jewish
communities, led by an innovative, socially-conscious rabbinate, developed a body of
institutions and law that placed tzedakah in particular, and collective responsibility in
general, at the heart of Jewish self-government. The legislation (takkanot) they created
reflected these values. Rabbenu Gershom of Mainz conducted a synod that ruled:
“Bring the tithe to the treasury after residing a month in the city.”lii The phrase about
the tithe is taken from Ezra which modeled the authority to enforce tax collection for
communal purposes, though in fact tithe probably meant 1/40th of one’s wealth.liii
Those taxes could forcefully be collected, if necessary, by threat of quarantine from
the community. Their authority was derived from the community according to
majority rule. Those payments included a central ordinance called Takkanat Annim =
the Ordinance for the Poor that allocated payments from the community members to
support the poor:
“If the Kahal has established a takkana for the poor or for any other purpose with the
agreement of the majority, then the minority may not refuse to obey it saying, ‘Let us
go to the court to discuss the matter,’ for everything depends on the views of the
Elders of the city, according to the ancient custom or the needs of the hour.” liv
What underlies the authority of tzedakah collections is then not only the enforcement
of the mitzvah of the Torah to aid one’s brother in distress, but the collective identity
of this political body politic. The ordinance on maintaining a ritual minyan (quorum of
ten) for services manifest this collective life to which the individual must subordinate
his will: “If there is in the synagogue a minimal minyan no one is permitted to leave
once the prayer leader has begun the tefillah [amidah] until he finished his prayer.” lv
In addition for the first time Rabbenu Gershom legislated that a person had a right to a
venue for protest about social injustice – namely, to stop the services until his case is
addressed.15
In short, the Rabbinic social welfare city has a public responsibilitylvi to support the
poor independent of the responsibility for their family members laid upon his nearest
of kin.lvii While many rabbis such as Rabbi Eliezer of Metz, rule that one should go to
one’s own relatives first to request support, if they can afford it, the community steps
in. However Rabbenu Yitzhak son of Avraham seeks to replace family tzedakah with
centralized community tzedakah. He writes: “It appears to me that if someone has a
[poor] relative in the city, he may not give his tzedakah to his relative by himself, but
he gives it to the gabbaim of the city who will give it and who will divide it up
appropriately.”lviii
Part of the public's responsibility for the poor is the obligation to create a kuppah and
to appoint both tzedakah distributors and tzedakah tax collectors – a thankless job
open to debate and public criticism. Usually strong and diplomatic leaders in business,
or those with rabbinic knowledge were needed to volunteer for these onerous tasks.
But if they did not volunteer then they could be drafted by force because the collective
takes priority over the individuals. Ariel Picart, an expert in halakhic policy studies,
15
See a fuller discussion in Book I Chapter 13 below/
17
argues that the following responsum of the medieval Spanish jurist RaSHBA shows
that maintaining a tzedakah bureaucracy is obligatory on members of the community:
"Question: The community agreed to select persons and to appoint them as trustees of
the tax. Ten wealthy people were selected, their names written [on slips of paper] and
five were chosen by lot. All had sworn an oath (herem) [to enforce the selection
process]. [But one of them who was chosen refuses to serve just as he had announced
even before the lottery].
Responsum: No one has permission to exempt themselves from the legislation of the
community and their agreements because individuals are subordinate to the public,
just as all the communities are subject to the Great Court or the nasi [prince,
president]." (Responsa of RaSHBA, Shlomo ben Abraham Aderet #417)
Failure to pay taxes collected for the poor was regarded as theft of the poorlix because
it was their entitlementlx and the taxpayer’s obligation. By the same token, welfare
fraud by those feigning poverty is regarded as theft not from the community, but from
the poor for whom less resources will be available.lxi The right to coerce tax evaderslxii
physically or to take their property is the expression of this legal claim by the poor:16
“Every man is obligated to give tzedakah, even the poorlxiii who themselves are
recipients thereof. One who gives less than his due the bet din (court) forces him
and applies corporal punishment until one pays what he has been assessed. They
have the right to seize assets for the amount of the debt to the tzedakah fund.”
(Shulkhan Arukh Yoreh Deah 248: 1)lxiv 17 lxv
Even though all are obligated to contribute to tzedakah, in practice the poor were not
assessed by the community. That raised a delicate issue: may a poor person who does
not contribute to the kuppah serve as gabbai who exacts the poor tax?
"It is found in records of municipal legislation that one who does not carry their share in
the yoke of the community, such as the poor who have nothing, ought not to serve as
gabbaiim in order to remove themselves from the suspicion that they are collecting
money because they are poor. Nevertheless [the law is that] one can coerce those
capable of paying tax or tzedakah even though one does not give to the fund because
God exempted him by making him poor." (Arukh HaShulkhan H.M. Laws of Partners
in Property #163:17)
The Rabbis considered the concern for public and private welfare so important that
they allowed the raising of funds and emergency meetings on Shabbat.
“Rabbi Elazar says: We levy tzedakah for the poor on Shabbat.
Rav Hisda and Rav Hamnuna both say: To calculate the expenses of mitzvah
[sometimes a euphemism for tzedakah] on Shabbat is permitted.
16
Yisrael Al-Nakawa (14th C. Toledo) in his Menorat HaMaor, Tzedakah (Gate #5): "Do not rob the
poor" (Proverbs 22:23-24). But do the poor have money?! What could be robbed from them?!
Rather it teaches you that anyone who does not give tzedakah is regarded as if having robbing
them. For Israel are all partners and guarantors of one another. If the rich do not give to the poor,
it is like a partner stealing from his fellow."
17
The Maharsha, one of the classical commentators to the Shulkhan Arukh, says that it is doubtful that
one may take something away from a poor man who has seized it by force from a person who has
refused to pay his assessment to the communal funds.
18
Rabbi Yochanan says: We go to synagogues and to study houses to take care of public
welfare (iskei rabbim) on Shabbat.” (Rav Alfasi on TB Shabbat 64a)18
In the 20th C. Rav Abraham Kook developed a national concept of Judaism that
affected his understanding of tzedakah as a collective endeavor equivalent to the
practice of the Temple. The altar of the public Temple is the primary paradigm of
atonement and the private table that provides hospitality to the poor is a subordinate
replacement of the Temple. By comparison, collective tzedakah is preferable to
private tzedakah. Centralized collection and distribution a more efficient way to
provide aid to the needy, but it also represents a national ideal of institutional unity
characteristic of a redeemed era.
Rav Kook comments:
“Certainly kindness and generosity are foundations of the world any way they are
performed. However, we are also commanded to be wise in dealing with the needs of
the poor. It is best to handle matters of tzedakah in a manner that will protect society
from poverty. The preferred manner is for the community to take responsibility for
the needs of the poor in an organized, efficient, and complete manner. However,
when the circumstances do not allow this to happen, individuals have to take
responsibility for the giving of tzedakah and see to the realization of the needs to the
best of their abilities and resources. When one is forced to act as an individual, he is
still able to collaborate in spirit with the group of other people who do acts of
kindness that cumulatively save many from hunger, disease, and pain.
The altar is a symbol of national unity, for it is forbidden for there to be more than
one altar in the "place that Adonai will choose." In fact, when members of the tribes
of Gad and Reuven built an altar and the rest of the nation thought they were planning
to sacrifice on it, people of the nation were very upset, because they saw it as
weakening the power of national unity. The Talmud19 talks about a time when the
Beit Hamikdash stood, which refers to the period when the nation was strong, from
both a physical and a spiritual perspective. At that time it was possible to utilize
national institutions, which reflected the vibrancy of the nation, to meet the needs of
people who needed various types of help. The idea of the altar atoning for Israel
reflected the improvement in matters of ethics, whether in the realm of relations
between man and his Maker or man and his fellow man. The national structure
facilitated effective achievement in these areas.
18
While the school of Shammai sought to restrict the concern for the social welfare and acts of
lovingkindness on Shabbat, the dominant ruling follows Hillel in permitting these mitzvot even on
Shabbat:
“Beit Shammai says: On Shabbat we do not arrange marriages for our children or employ
teachers for our children to learn to read [Torah] and to learn a craft; nor do we comfort
mourners nor visit the ill on Shabbat. Beit Hillel allows all of the above and the halakha
follows Beit Hillel.” (Sheiltot Rav Aha, Acharei Mot 93)
19
“One who spends a long time at his table [merits long life], for maybe a poor person will come along
and he will provide him with something, as it says, The altar of wood was three cubits high (Ezekiel
41:22), and [Ezekiel] continues, He said to me: 'This is the table that is before God.’ The verse opens
with the ‘altar’ and finishes with the ‘table.’
Rabbi Yochanan and Rabbi Elazar both say: When the Beit Hamikdash (Temple) existed, the altar
would atone for Israel, and now a person's table atones for Israel.” (TB Berakhot 55a)
(In recognition of the analogy of the table to the altar it is customary to place salt on the table for salt
accompanied the sacrifices – Moshe Isserles, O.H. 167:5).
19
Now that there is no Beit Hamikdash, the individual needs to 'pick up the slack'
through his personal table, when he simply and literally gives bread to the poor. This
table is an unfortunately necessary replacement when there is no altar and that
which it represents. This stresses that whenever there is an opportunity to be
generous in a communal setting, all the more so on a national level, we should seize
that opportunity. It is wonderful to donate to a general fund for relief of those in
suffering. In that way, we get closer to the ideal of the altar.”lxvi
Rav Kook looked forward to a Zionist society in which the state would renew the
Temple’s function as a national institution of tzedakah.
In sum, the tzedakah system is not a form of organized private charity but a
public welfare state. Tzedakah is also a personal religious duty, a mitzvah, a religious
practice. Aaron Levine,lxvii an expert on Jewish economic law, offers policy
considerations to explain why governmental coercion is to be preferred over a
voluntary tzedakah system of ad hoc acts of piety and brotherly love.
First, tzedakah is a communal responsibility that defines the moral and social
solidarity of the society. Thus even the most poor are legal members sharing economic
property with the average and wealthiest, which subverts class distinctions. A broad
base of citizenship is reinforced, despite the economic gaps.
Second, society can engage in preventative measures to stabilize the economy and
prop up falling members before collapse. Voluntary giving usually reacts to the failure
of the poor and treats their individualized needs when compassion is aroused. By this
point, however, the suffering of the poor reaches the public eye once shame and
humiliation have already set in. The level of shame draws in a correspondingly high
collection of private alms. By contrast, well-run communal tzedakah systems can
minimize the amount of public shame and preempt extremes of poverty and
unemployment with the help of municipal expertise and initiatives.
Third, the universal compulsory collection of tzedakah may eliminate the free rider
phenomenon where some rely on others to take care of public problems for them
without paying their fair share. Those free riders count on the good will of others to
help the weak, and expect that others will help them in desperate times.
Fourth, taxation when assessed on a basis proportional to individual wealth
generates greater resources to be allocated more equitably.
Fifth, distribution in voluntary fashion tends to be dispersed unevenly, leaving pockets
of neglected or underserved poor, while centralized coercive tzedakah distribution
tends to give help more equitably and often more effectively.
Sixth, giving out welfare entitlements by means of public officials mediates and
mitigates the embarrassing interaction of the well-off “benefactors” and the needy,
thus preserving the privacy and dignity of the recipients. Of course all these
supposed benefits of a welfare state presuppose an honest and efficient public service
sector. The Rabbis often filled these tzedakah roles and they were expected to be
neutral in their supervision of tzedakah monies and in keeping them separate from
their private funds.
21
“Rabbi Eliezer ben Yaacov said: A person should not give his coins into the
communal tzedakah purse unless it is under the supervision of a scholar like Rabbi
Hananiah ben Teradyon.
He was very trustworthy.” (TB Baba Batra 10b and TB Avodah Zarah 17b)
For example, Hananiah took responsibility for his errors with public funds. Once he
mixed up his own coins for his Purim feast and thinking they were coins of the
tzedakah fund, he gave them to tzedakah. When he discovered his error, he did not
reclaim his money from the tzedakah fund (TB Avodah Zarah 17b).
Therefore donors were warned not to give to any tzedakah collector not known for
such high standards.lxviii The standard codes of Jewish law therefore rule that "a person
should only give to a tzedakah fund if one knows that the supervisor is trustworthy
and wise and knows how to manage it properly." However the rabbis disagreed about
whether to rely solely on the personal integrity of the gabbai or to require
accountability though auditing. On one hand, the Talmud ruled:
“One does not check the records of tzedakah collectors... as it is written [regarding the
treasurers of the Temple]: Do not check the calculations of the people who are given
the money to distribute to the craftsmen [for the Temple, for they do their work in
good faith] (II Kings 12:16).” (TB Baba Batra 9a)
The gabbai is urged to be transparent in his behavior with tzedakah funds:
“Gabbaei tzedakah must be careful not to fulfill their obligations to Heaven but also
to human beings as it says: be clean before Adonai and before Israel (Numbers 32:22)
(TB Baba Batra 9a)... Therefore gabbaim must be two, even though by law they are
above suspicion, people will talk and they must distance themselves from anything
ugly. However just as the gabbaim must be careful so that they not arouse suspicion,
so the people must honor them and not suspect them.” (Arukh HaShulkhan YD 257:9)
Nevertheless right after the Talmud rules that one ought not to check up on the
tzedakah collector, Rabbi Elazar notes that: “Even if one has a trustworthy treasurer in
his home, still one should bind up his coins and count them,” as they did in the case of
the Temple construction (II Kings 12:1-12) (TB Baba Batra 9a). lxix Implied in this
comment is that if one is strict in checking one’s personal accounts even with a
trustworthy treasurer, shouldn’t the same apply for public funds?
David Golinkinlxx notes that that the Sephardi tradition of Maimonides (Laws of Gifts
to the Poor 9:11) and Rabbi Joseph Karo (YD 257:2) quotes the first Talmudic ruling
and simply relies on the personal honesty of the scholar, while the authorities of
Ashkenazi-origin insist on written financial records subject to transparency. Rabbi
Jacob ben Asher and Rabbi Moshe Isserles take the latter approach:
“One does not need to investigate honest tzedakah collectors. But in order that they be
"clean before Adonai and before Israel" (Numbers 32:22), it is good for them to give
an accounting.” (Tur and Shulhan Arukh YD 257:2)
Rabbi Moshe Isserles adds:
21
“When the gabbaei tzedakah are not kosher [in integrity] or they are appointed by
violence and powerful interests, they must render an accounting and so too for all the
public officials.” (Arukh HaShulkhan YD 257:13)
In his responsum David Golinkin explains the latter view: “They knew what many
tzedakah experts stress: Accountability leads to honesty and efficiency. It is hard to
cheat when everyone has access to the facts and figures. It is hard to waste money on
overhead when potential donors know exactly how much is being spent on furniture,
staff, and brochures. Therefore, if you do not know the gabbai or cannot find out
enough about him, you should request a copy of the budget in order to check the
group's honesty and wastefulness.” He concludes his responsum by citing Danny
Siegel, the poet and tzedakah “entrepreneur,” about “giving wisely”:
“You are not doing this [checking into the financial practices of the tzedakah
organization] out of a sense of cynicism. You are protecting your tzedakah dollars,
making them stretch as far as they can go to worthy causes... On the one hand, you do
not want to give to wasteful organizations... On the other hand, you would not want to
withhold useful, perhaps critical, tzedakah money from people who are laboring with
love and care to make good things happen in this world.”lxxi
22
Tzedakah:
A Free Gift of Charity, a Property Right, a Moral Duty, or a Tax?
Arguing, as we do, that the system of rabbinic tzedakah system is a prototype of a
modern social welfare system with a comparable ethos of social justice raises many
historical, legal, and philosophical issues. One of the thorniest issues, much debated, is
the "right" of the poor to welfare benefits. In social democratic ideologies it is often
argued that the poor have a right to equality of benefits, not only of opportunities. At
least they ought to have equal access to basic services prerequisite for a dignified
human life in that society. That purported economic right belongs to each citizen,
whatever one's political membership.20
Here we will address a more specialized question – does Rabbinic law treat the
tzedakah claims of the poor as a property right owed them by society or, more
directly, by wealthy members of society? Rabbinic society does coerce payment of
tzedakah and does distribute aid in quasi-judicial fashion. It is controversial whether
these duties that are incumbent on the donor entail the legal rights of the needy to the
redistribution of wealth. Is tzedakah a matter of social justice, of moral duty or
perhaps merely of compassion like Christian charity?
To begin, we must reject the radical view that the Rabbinic system of tzedakah is
about “redistribution of the wealth” to achieve general economic equality as a matter
of justice. Unlike the Biblical Jubilee, the Rabbis had no program for the periodic
egalitarian redistribution of all the wealth, or even the re-division of land as the capital
of an agrarian society. The Rabbis did pursue liberation from debt and hence saved
many from debt-slavery. The Rabbis also collected tzedakah, if necessary, by legal
coercion to guarantee the basic needs for all the poor, but they never envisioned
condemning or confiscating the surpluses of the wealthy for the sake of establishing
an equality of ownership of property among all citizens as a goal in itself.
What narrative, then, justifies that forced collection of tzedakah and its redistribution
at the expense of individual freedom, especially the free control of one's private
property? Yosef Yitzhak Lifschitz in his article, "Welfare in Talmudic Law,"lxxii lays
out a three-way philosophical-legal disagreement on this question which he
discovers in the Rabbinic and medieval development of the laws of tzedakah based on
the interpretation of disparate Talmudic tales:
(1) The first school holds that the property rights of the rich are limited by the rights of
the poor to receive sufficient resources to support themselves in honorable fashion.
The rich who do not let the poor take their portion are robbing the poor and violating
their legal rights. This is the social justice school which has roots in the Talmud. The
first school of social justice does not necessarily require economic equality, but it
does require a basic common lowest denominator resources provided to maintain
human dignity.
20
Tzedakah’s relationship to Biblical and rabbinic notions of rights will be discussed in book two of
this trilogy in chapter #18 - Human Dignity: Rights, Duties or Opportunities?
23
(2) The second school holds that tzedakah is not a matter of the poor's property rights but
a moral duty of all human beings to help others on religious grounds, just as they are
obligated to pursue a higher religious observance in many areas. Yet it is not a legal
duty.
(3) The third view of tzedakah is not about the rights of the poor or the duties of rich but
about the power of a municipal community to tax its citizens and to use the revenues
for social welfare for that is their mandate as a sacred community of covenantal
brothers.
(1) The Legal Rights of the Poor to their Portion of Tzedakah
The first school believes that tzedakah is a property right of the poor as implicit in
such Talmudic language as gezel aniim, "robbery of the poor" and kofim al
hatzedakah, by which the gabbaim can legally confiscate property in lieu of unpaid
tzedakah assessments. It is true, legally-speaking, that no poor person can come into
my house to take a tithe or sue me in court for the produce which is his portion of my
field. Nevertheless, there is a strong rabbinic tradition that the poor have rights to
tzedakah in a real sense, even though they cannot sue the potential donor for their
portion as can one who is owed money.
The Mishna regards peah (the corners of the field left to the poor to harvest) and leket
(dropping from the harvest gleaned thereafter) as the property of the poor, even
without the land owner explicitly giving away the produce of the corners of the land.
If the owner takes the produce of the corners or collects the droppings of the harvest,
then that is called gezel aniim, "robbery of the poor." It is analogized to the Biblical
crime of surreptitiously moving one’s neighbor’s “landmarks” (a pile of stones) that
mark off the borders of his agricultural plot from one’s own in order to incorporate
portions of one’s neighbor's field. Regarding peah, it is unlawful for a farmer to
designate the peah for a specific poor person as it does not rightly belong to the
landowner. In the case of peah the prerogative is to give something away to the needy
that does not belong to him (Mishna Peah 5:7; 7:3). Moreover, the owner cannot
create other obstacles to discourage the poor from harvesting what is rightfully theirs,
such as "leaving a lion in the field and such stratagems, so that the poor will see it and
flee." Maimonides rules that the owner has no say at all as to who gets the gleaning
and the corners. “The poor come and take the gifts of poor against the will of the
owners, even the poorest in Israel” (Maimonides, Gifts of the Poor 1:8).
Further, "the owner who sees those who are not eligible to glean, should if possible
rebuke them; but if that is not possible, then let them alone for the sake of peace"
(Maimonides, Gifts to the Poor 4:12-13). Rabbinic sources treat those ineligible for
tzedakah who seek to collect tzedakah funds as "robbers of the poor." Someone with
more than 200 zuz may not harvest peah, for that makes them robbers of the poor
(Mishna 8:8 with Rashi). Similarly, they are considered “robbers of the poor” because
the donor will then say he has given tzedakah already and will turn away the truly
needy (Or Zarua, Part One, Tzedakah 14).
However since the designation of produce from one's own field for the needy is so
difficult to regulate and it is easy for the owner not to manipulate his power over
access to the field, the Rabbis called for greater transparency in the setting aside of
peah.
24
"Rabbi Shimon said: For four reasons the Torah requires that the peah should be
located at the edge of the field: to avoid robbery of the poor; to avoid wasting the
poor's time; to avoid suspicion and to avoid violating the law about ‘not finishing off
the harvest of the corners’ (Lev. 19:9).
To avoid robbery of the poor – so that the owner will not wait for a free moment and
call over his poor relative to harvest what he now designates: Here is the peah! [and
thus rob the other poor of their opportunity.] (TB Shabbat 23a)
To avoid wasting the poor's time – So that the poor do not have to sit around and
watch all day thinking: Now the owner will give the peah, or now he will give the
peah, but rather they can go glean in another field and return at the hour of the
completion [of the harvest of the rest of the field].
To counteract cheats – How so? So the owner cannot say: I already gave the peah,
and then he can extract the good produce from the bad.
To avoid suspicion – How so? So that the passersby will not say: Look how he
harvested his field completely [without leaving corners for the poor]." (TJ Peah 4,
folio 18, column 2)
Clearly the owner has no rights over the peah – not even the prerogative to designate
which poor person benefits – and the poor can claim their portion with relative ease.
However the money which a donor is obligated to give the poor cannot be claimed so
easily. While it is owed to the poor, no one individual can personally claim it.lxxiii As
Rav Madi says: "It is money that has no particular person to claim it" (TB Baba
Kamma 39a). Nevertheless, as the Spanish judge, the RaSHBa, ruled: "Even though
tzedakah is money that has no particular person to claim it and the owner of the
money can always reject any poor person who makes a claim [to the tzedakah money
he owes], still if there is a municipal gabbai tzedakah they can coerce the owner to
give it to him."lxxiv
In fact, even if there is no gabbai available, the court can represent the poor to claim
their share. As Rav Joseph said: "We are the hand of the poor" just as the court is
their legal custodian or patron (avihem shel yatomim) of the property of the orphans
(TB BK 36b-37a). Thus the gabbai who collects tzedakah for the poor cannot redirect
its use for other communal needs, for that would constitute robbing the poor.lxxv While
the poor's rights are collective and hence no particular person can make a claim on
another particular person, the court may, must and does enforce payment and
distribute to all the needy their rightful portion.
The coercive power of the tzedakah collectors, constituted as a civil court of three, is
to extract tzedakah from anyone without regard to their consent to "donate" tzedakah.
That is the typical view in medieval Spain,lxxvi as Maimonides says:
"The kuppah [the tzedakah fund] is collected [using a term, from the same root as
gabbai which also means collecting debts and taxes] by no less than two
representatives, for one cannot exercise authority over the community's finances with
less than two…And it cannot be distributed by less than three because it is a matter of
the laws of monetary transactions [which requires a court of three when rendering a
25
judgment] about what is given to each one according to their need for a week."
(Maimonides, Gifts to the Poor 9:5)
"One who does not want to give tzedakah or who gives less than he is due to give,
then the court coerces him and flogs him for rebellion until one gives what he was
accessed. In his presence one can take from his property what he owes."
(Maimonides, Gifts to the Poor 7:10)
Maimonides' view relies on such sources in the Talmud as Rava bar Avuah who said
the authority of the gabbaim functions coercively, so they may "may confiscate an
object as collateral against the assessment on a donor of unpaid tzedakah [owed] even in the afternoon just before Shabbat."lxxvii Such coercion is legitimate only
against those with the means to pay and it was executed, for example, by "Rabbi
Natan son of Ami who extracted 400 zuz of tzedakah by coercion" (TB Baba Batra
8b). It is then no surprise that gabbaim of tzedakah were involved in contention.
“Tzedakah gabbaiim are always involved in disputes with people because they
enforce the giving of tzedakah based on the principle that one can confiscate collateral
[against the unpaid obligation to tzedakah] even just before Shabbat.” (Maimonides,
Commentary on the Mishna Kiddushin 4:5)
For example, tzedakah for the indigent in Amsterdam’s Spanish Portuguese Kahal
(17th – 18th C.) was collected by taxation that was mandatory. Its revenue sources
included: a progressive tax per family, import and export taxes, charges for sales of
stocks and bonds, luxury tax on all meat purchases, as well as the management of
bequests of property from deceased members. But it was supplemented by “voluntary”
donations when receiving honors in the synagogue that were often enforced by
extreme social pressure. However the continued influx of refugees – for religious
(from Spanish Inquisition), political (massacres in 1665-66 in Ukraine during which
97% of the communal budget was spent on tzedakah) and economic reasons –
constantly caused an absolute rise in expenditures. In 1675 Isaac Penemacor led a tax
revolt by over 100 members of the community of 450 member families. The
Parnassim (elders of the community) threatened to excommunicate the rebels and all
reneged except for Isaac Penemacor who got into a fist fight with the elders after
which he was excommunicated from the community (herem). When he was
reconciled, he had to request forgiveness publicly in front of the Ark of the
Torahs.lxxviii
The Ritzba, Rabbi Yitzhak ben Avraham of Dampier (France, d. 1210), also holds that
courts may coerce tzedakah collection: “If a person does not want to donate tzedakah
to the kuppah then the members of the community may coerce him” (Or Zarua,
Tzedakah #4). More radically the Ritzba rules that the gabbaim hold all the power to
decide how the funds collected will be used showing that tzedakah is not treated as a
discretionary donation by the donor, but rather a communal responsibility. In fact, one
may not make one’s tzedakah contribution directly to one's own poor relatives but
rather one’s tzedakah must be funneled through the gabbaim:
"It seems to me that if someone has a poor relative in the town, he is not permitted to
give his [allotment of] tzedakah to his poor relative exclusively but he must give it to
the municipal gabbai and they will divide it up as necessary to each and every
one…In any case it is certainly not permitted to give his tzedakah [allotment] to his
poor relatives if they live outside the municipal jurisdiction. …However one who
26
voluntarily gives tzedakah has the authority to give it to [the needy] to whomever he
wishes."lxxix
The distributor, or gabbai, of tzedakah must beware not to give more to his relatives
than to the rest of the people, since he would then have robbed the remainder of the
poor and the donors already intended that the tzedakah would be given out equally to
all or to each according to their honor (Levush Y.D. 257 #10).
Tzedakah is not a matter of the moral intention of the giver but of the rights of the
recipient.lxxx Most emphatically the Ketzot Hahoshen, Rabbi Arye Leib Heller (17451812, Poland) concludes that:
"The money of the poor is almost like a regular monetary debt, hence the coercion of
reluctant wealthy to return to the poor of the world what they owe them." (Ketzot
HaHoshen, Hoshen Mishpat #290:3).lxxxi
The Hakham Tzvi Ashkenazi makes a further distinction between the moral duty of
the donors which is set by the Rabbis as 10-20% and the obligation of the community
to provide whatever the needy need (dei mahsoro) as set by the Torah.
“Tzedakah according to the Torah is not dependent on the will of the donor but on
the need of the recipient and the lack of the poor... So of course the community may
coerce the citizens to support the poor according to whatever they need – without
regard to whether the individuals have already given his 10% or 20%.
“Even the restriction that one may give no more than 20% is inapplicable for
the extremely rich, for whom it is both a mitzvah and a pious practice to spend
a great deal on tzedakah, as long as enough is left over to support the donor for
the rest of his life.” (Tzvi Ashkenazi, Responsum 112)
(2) The Moral Duty of the Donors
The second school holds that tzedakah is not a legal duty but a moral matter
concerning all human beings to help others. To that end, the act of giving is a donation
determined by the will of the giver, not the tzedakah collector.
Rabbi Yitzhak of Vienna, who wrote the Or Zarua,lxxxii opposes the centralizing view
of the Ritzbah, and insists that tzedakah is first and foremost a voluntary gift
motivated by moral and religious thinking, not by municipal policy:
“Rabbenu Yosef Tov-Elem [mid- 11th C.] argued that one may never coerce tzedakah
even though it is a mitzvah ... it is a matter dependent only on the generosity of the
heart.’" (Mordecai on Baba Batra #490)lxxxiii
Rabbenu Jacob Tam (12th C. Germany) also represents the minority viewlxxxiv that
denies that gabbaiim have the authority to invoke legal or physical coercion as an
option for an obstinate citizen refusing to contribute to the tzedakah fund.lxxxv Only
verbal coercion is permitted. If the gabbai collects tzedakah by force it can only be
justified if the one being coerced has already agreed to be coerced.lxxxvi lxxxvii
Apparently it is Rabbenu Tam’s view that taxation is a matter of consensual
community social contracts and that is why tzedakah is considered in the Talmud in
27
Baba Batra together with communal and guild taxes and regulations. Only if all
members of the community were to bind themselves could their private property be
collected.lxxxviii
Rabbenu Tam does recognize a limited right of coercion even without assent of the
donor if one refuses to observe a moral mitzvah for all have presumably committed
themselves to the mitzvot at Sinai. If the one refuses to give tzedakah even after one
has been rebuked, then the court may compel obedience to the mitzvah. In that case
coercion is for the donor's own good, not because the poor have a right to tzedakah.
Yosef Yitzhak Lifschitzlxxxix argues that this moral, rather than legal approach to
tzedakah, is the essence of Judaism which lends strong support to the absolute right of
private property. Therefore all gifts of tzedakah are voluntary gifts reflecting one’s
moral traits, not legally enforceable obligations to the poor. For that reason the laws of
tzedakah are categorized by Yosef Karo in Yoeh Deah among the laws between God
and man (isura) and not with the civil laws between man and man (mamona).
(3) The Communal Mandate and
The Rights of the Community to Collect Tzedakah
The third view of tzedakah is not about the rights of the poor or the duties of rich but
about the power of a municipal authority to tax its citizens and to use the revenues for
social welfare. The principled question is whether tzedakah may be collected with
legal coercion. As we saw the customs varied in medieval communities. The Rashba,
a student of Nachmanides and leader of his community in Spain (13th C.) responds to
that question:
"May the court obligate the community to do tzedakah as a tax or [only] as a
voluntary gift (nedava) as it says [regarding the donations to the building of the
Mishkan (Tabernacle)]: as one's heart volunteers (Exodus 25:2)."
He answers:
"Not all communities are alike on this question. Some collect voluntary gifts and
some exact a tax …It is still an [unsettled] halakhic debate and may those who give
according to the way they have been blessed are more worthy of being blessed... But
the law is to my mind that each and everyone must give according to their ability, for
all are obligated to support the poor and that obligation is in accordance with one's
wealth from which we support the poor." (Responsa of RaSHBa VIII #126; cited in
Beit Yosef on Tur YD #250)
In treating tzedakah as an enforceable obligation RaSHBa follows Maimonidesxc and
concurs with Rabbenu Yitzhak of the German–French Baalei HaTosfot.xci
The conceptualization of tzedakah as a tax is consistent with the placement of the
discussion of tzedakah in the Talmudic tractate on city taxes. Thus tzedakah has been
categorized as a tax that is levied on citizens only. As we saw above, the length of
one’s residency in a local community determines one’s obligation to pay into various
funds for public benefits and poor relief as well as one’s eligibility for more extensive
forms of welfare subsidies.xcii Thus tzedakah levies and security levies are mixed
28
together even though security expenses give the citizens direct benefit and tzedakah
helps others. Similarly, the Maharam, Rabbi Meir of Rotenberg (Germany, 1215-1293)
lists tzedakah taxes with other municipal levies:
"Reuven has seceded or abandoned from the community by refusing to make his
contribution to the tzedakah fund and does not pay tax to the municipality. … But one
may not drop out of the partnership unilaterally… So following the custom of the
community, he can be forced to pay taxes with everyone else for when there is
partnership [such as a town community] then the city members can compel one
another to build a synagogue, to buy a Sefer Torah, Prophets and Writings, as well as
to host guests and to distribute tzedakah." (Tosefta Baba Metzia Chapter 11;
Responsa of Maharam, #918)
Tzedakah is then a municipal tax like any other. Therefore the authority to collect
tzedakah as a tax is only valid as long as the authority of the city council is valid.
After the European Emancipation when the nation states removed the authority of the
Jewish communities to govern themselves, "there is no power to compel" tzedakah
collection.xciii
The placement of the laws of tzedakah within the great legal compendia reflect their
conceptualization as laws of social ethics, sacred agriculture or communal
administration. Maimonides collects all the laws of gifts to the poor from all over the
rabbinic corpus under into his Book of Agriculture (Zeraim) just as he found much of
the practice of the tzedakah fund described in the Mishna and Tosefat on Peah, the
corners of the field set aside for the poor gleaners. By contrast in later compendia that
encompass not agricultural laws, both in Yosef Karo’s Shulkhan Arukh and in the
masterful summary of all Jewish law in Yehiel Michel Epstein ‘s Arukh HaShulkhan
(late 19th C.) the laws of tzedakah appear twice: more extensively in the subsection,
Yoreh Deah with its miscellany of laws (menstruation, Torah study, mixed kinds,
circumcision, etc.) and once again very briefly but more logically in Hoshen Mishpat
that treats business matters and relationships with neighbors and partners. What does
that later cataloguing imply regarding tzedakah? The category of laws of business
partners and shared ownership of property becomes the model for understanding
public law regarding both municipal taxation and professional guilds as explicated in
the Babylonian Talmud in Baba Batra where tzedakah collection is also analyzed. The
Jewish community is then being conceived not on the model of a medieval corporation
or a royal charter but as a partnership of economically-independent individuals who
have entered a compact to serve mutual communal interests. That partnership is based
on the formal equality of all citizens as the consent of the governed in a way
reminiscent of a democracy, though as always in effect the wealthy have more of a
say on certain financial matters.xciv
Rabbi Yehiel Michel Epstein folds tzedakah taxation into municipal taxes seamlessly.
Provisions for the needy are an obligation:
(1) Residents of the city compel each other to take in guests, to distribute tzedakah, to
make donations to the kuppah of tzedakah;
(2) To hire teachers to teach Torah to the children of the poor;
(3) To build a hospital for the sick who are destitute.”
But so are public benefits for stakeholders:
29
“Residents of the city force each other, and even the minority compel the majority,
(4) to build [and finance] a wall, gates and locks for the city [and hire guards, and fix the
roads]
(5) to build a synagogue;
(6) to purchase Torah scrolls as well as scrolls of the Prophets and Ketuvim (Tanakh) in
order that anyone of the public can read in them. ...
(7) One compels the purchase of a Torah scroll on parchment in order read in it in
public....
(8) One compels the purchase of the necessary printed books, such as a Tanakh with
Rashi commentary, Mishna, Talmud, Tur, Maimonides, Shulkhan Arukh, so that
anyone who wishes to learn has access to what is needed;
(9) One compels the provision of all the communal needs like a bathhouse, mikveh
immersion pool, and the appointment and remuneration of a rabbi, cantor. (Arukh
HaShulkhan Hoshen Mishpat 163:1)
Thus support for the poor – including health, education and welfare – is assimilated to
the obligation to provide the needs of every citizen to study (the synagogue functions
as a public library), to bathe and to perform ritual immersion and the community’s
public religious functions (a synagogue and rabbi). These are normative demands for
any community so even the minority can force the majority to make these public
allocations. Other optional needs and improvements – besides security – are to be met
and to be financed depending on majority rule and the minority must acquiesce.xcv
Thus tzedakah is just part of a community’s self-government through taxation, though
it is not subject to be suspended by majority rule. This is also the position of the ,
leading authority of the Ashkenazi Ultra-Orthodox community in the 20th C. , Rav
Moshe Feinstein (USA, 1895-1986). The duty to pay tzedakah derives from the
authority of the community to exact taxes for any municipal function and that is why
the rules on coercing tzedakah appear in the Talmudic tractate about municipal, guild
and neighborhood partnerships (TB Baba Batra). "The mitzvah [of tzedakah] is also
considered a municipal need."xcvi
In sum, this approach views tzedakah not as the absolute right of the poor, nor merely
as the moral duty of the rich to achieve religious perfection by following God's
mitzvot. Tzedakah is a communal need for a well-ordered society, so the community
taxes itself to achieve its goals which include caring for the poor. Tzedakah is also a
sacred mandate that defines the community as holy. In Lev. 19:2 the sacred
community is addressed as a collection of individuals with an obligation to be holy for
their community membership including as a community sacred agricultural allocations
to the poor like gleaning and peah (Lev. 19: 9-10).
Tzedakah as Tax: “From each according to their financial ability.”
The welfare state may be characterized by its embodiment of the two-sided principle:
“to each according to their needs, and from each according to their capability.” As we
mentioned in the introduction to our book, this formulation appears first in the New
Testament description of the communal life of the early Jewish Christians and
afterwards in French socialist thought. The Rabbinic tzedakah system institutionalizes
both sides of this formula. We have explored at length the characterization of tzedakah
as a form of welfare rights and the detailed bureaucratic criteria for distributing
31
material resources to the needy with a quasi-court of three. We will revisit this theme
in our next book, and which follows the Talmudic discussion of the Biblical phrase:
“To each according to what they lack” (Deut. 15:8).
Now, more briefly, let us examine the distribution of the taxation for public benefits
and for the poor. The basic rabbinic view of society is that it is a partnership or guild
writ large in which the collective can set rules and assess levies for the good of the
community. Thus the laws of tzedakah and the right of the community to assess its
members for tzedakah, even by coercion, are discussed in the Talmudic tractate on
partnerships – Baba Batra. In the medieval codes there is much discussion about
equity in the distribution of tax burdens. The key principle is that no one may shirk
communal responsibilities. "One who does not help carry the yoke of the community
may be forced to do so" (Shulkhan Arukh, H.M. Laws of Partners #163).xcvii In
dividing responsibilities, beneficiaries are primarily accountable, such as neighbors
sharing the costs of a guardhouse or residents of a city building an aqueduct.
However, in cases of tzedakah the whole community bears the burden.
The Talmudic debate about the allocation of payment for public benefits asked: should
it be apportioned “per capita” (per person) or “per capital” (according to one’s wealth)
or per benefit (by the degree of one’s direct benefit for a particular levy. When a
caravan is attacked and its people and its merchandise must be ransomed from
enslavement or death or confiscation, then each pays “per capita” when life is in
danger and “per merchandise” when property will be lost. This is not a matter of
social justice but a fee proportional to the individual benefit derived for one’s
resources.xcviii A communal benefit for all is, for example, bribes or protection money
given to the rulers for the right of domicile or in lieu of serving in the army of the
ruler.
In this debate on per capita/per capital taxation the overwhelming evidence collected
on Sephardi rabbis who were judges of their communities shows that taxes are to be
paid according to one’s financial means, not by the degree of benefit. The arguments
rested on the claims of “prohibiting robbing the poor,”xcix and of justice according to
the Torah. Most illuminating are four medieval and early modern responsa that show
that the tzedakah system exacted taxes for use of the poor according to the progressive
principle of “from each according to their financial ability.” The first legal responsum
is produced by the RaSHBa, Rabbi Solomon Aderet (1235-1310), a great Spanish
judge and political leader, and a student of Nachmanides, who was the authority in
Spain in the city of Barcelona. The second case is from Rabbi Moshe Benvenisti
(1606-1671) in Istanbul and the third takes us to Damascus in the Ottoman Empire in
1650 to encounter Rabbi Shmuel ben Hayim Vital. The fourth case is a full-scale tax
revolt against tyrannical oligarchs that led to a partial secession from the community
in Izmir in the 19th century with the rabbinic approval of Rav Refael Yosef Hazan.
RaSHBa confronts a typical economic political struggle over how the burden of
supporting the poor should be shared between the rich and the middle class in terms of
the poor begging from door to door. Later in this chapter we will explore at some
depth this debate about public begging when there is a tzedakah kuppah system in
place. Here the issue is whether to meet the needs of the poor through such a
communal collection process or by ad hoc begging door to door. Here is the question
that came before the RaSHBa:
31
“Question:
The poor are many and the kingdom's demands costly; therefore, a dispute arose
among the wealthy.
The very rich said: Let the poor beg from door to door and we will all provide
them with their daily bread, since the householders should give as we do.
The householders said: The poor should stay home and not beg, since they are
our brothers; rather, let them be on the public kuppah and we will each pay
according to our means, according to the rates decided by the court in line with
Raba’s precedent. Tell us on whose side is justice.”
The wealthy speak cunningly of equality between themselves and the householders,
the middle class, so that each will feed the poor at their doorstep equally. However the
householders now insist that the collection be by compulsory taxation as determined
by the court for they know the court will assess progressive poor taxes “according to
our means.” RaSHBa sees that the issue of justice requires not equal tzedakah
payments per capita but graduated contributions according to the ability to pay.
“Answer:
“Justice is with the householders, since tzedakah and the upkeep of the poor are
funded according to means, as in Raba’s case when he forced Rabbi Nathan ben Ami
to contribute four hundred zuz to tzedakah based on the Talmudic principle, “in
accordance with the camel is the burden” and the salt of wealth is benevolence. In
the case of Nakdimon Ben-Gurion, although he gave much to tzedakah, he did not act
as he should have [according to his means] and so he lost his wealth.
“In this generation there is a dearth of riches and wisdom. In all places, the poor are
provided by the public kuppah according to the people's means and if they then
choose to beg from door to door, each one may give according to their understanding
and desire.”21
The RaSHBa is concerned not only with a policy of fair share for the givers but also
with protecting the poor from the humiliation of begging – whether through collective
tzedakah distribution or individual largesse.
“Each one should be provided according to his honor; if he is from a good family, we
add in order to provide him according to his honor ... He most certainly should not
be expected to beg from door to door and his needs should be met either by the
tzedakah collector (as in the case of the people of a small village in the Upper
Galilee, who bought a pound of meat every day for a poor member of a good family)
or by an individual (as in Ravah's case, who provided fat chicken and old wine). It is
written "sufficient for his need" and it is written "You give their food in due season."
This teaches us that the Holy One provides for each one. (TB Ketubot 67b).”
(Responsum of the RaSHBa, Spain, 1235-1310)
A major issue for the judges was whether to demand a just distribution of the burden
of taxation even if that required overthrowing a long-term community customc to base
21
That is how Rabbi Moshe Isserles decided the law (Shulkhan Arukh H.M. 163c): “Whatever we
exact in taxes ought to be reckoned according to the amount of money, so the rich may be less in
number but are more accountable in this matter.” Thus when collecting for the expense of purchasing a
communal etrog for Sukkot, “exact more coins for the etrog according to financial capability, since the
payment for extra beauty of the etrog rests more on the rich than on the poor” (ReMa Isserles O.H.
658:9).
32
taxes on per capita or overriding a community vote where the majority imposed a per
capita tax22 instead of progressive tax23 according to the capacity to pay.ci
Consider another illuminating example. Rabbi Moshe Benvenisti (1606-1671) in
Istanbul quashed a tax on slaughtering chickens promulgated by a wealthy city council
and supported by a majority vote because all those voting were individuals of means,
while the tax on slaughtering will also be paid by those who have too little property to
be taxed such as orphans and widows.cii In a similar case of taxes on meat,24 when he
22
Even when the tax rate is progressive, often the rich would demand that even the poor pay their fair
share even though the poor have nothing to give. Yehuda HeHasid considered it unfair that, “the poor
would give for the poor when sometimes the the poor person making a contribution is poorer than the
one receiving it.” “However it is necessary for the herem of excommunication apply to all obligating
all to give tzedakah because of the wicked ones who will not participate in the poor taxes unless
everyone also pays. Then many poor will lose benefits and the community structure will collapse.
Hence it is better that even the poor give tzedakah under the rule of this herem.” “Yet if the wicked
ones were to listen to the righteous ones, then they would not pressure the poor ones to pay. Or the
righteous who are rich can secretly refund to the poor what they paid in tzedakah-tax without the
knowledge of the wicked.” (Sefer Hasidim #1046)
23
In his commentary on the Biblical taxes instigated by Joseph in Egypt, Rabbi Yehuda HeHasid (13th
C. Germany) attributes to Joseph a utopian radical egalitarianism by using several mechanisms of
progressive taxation. First he suggests that Joseph will only sell grain according to need not according
to wealth. Therefore Joseph interrogates not just his brothers about their family situation before selling
them grain (Gen. 43:7) but all would-be purchasers. “He did not sell grain to the people of Egypt of
Canaan except by written documents and witnesses verifying how many dependents each one has, how
much wealth, how many servants male and female, and how many poor who eat at his table.
Accordingly he sells to each.”
Second, his control of scarce resource during the famine prevent the rich from getting richer by
scalping the poor. “Joseph accused the brothers of being spies [meaning profiteers]. ‘You are buying
grain to resell [at an exorbitant profit during the famine]. But I will not allow anyone to do that, but
only to receive the amount necessary for himself and his dependents. You are deceivers!’”
Third, Joseph absorbs all the wealth of the rich in order that by the end of the famine all will be
equal. “He charges a greater amount to the rich and a lesser amount to the poor [for the same amount of
grain].” Therefore all the money is absorbed by the state.
Therefore his brothers testify about this ethical czar of the grain that: “We have never seen anyone
as pious as he is. He himself even though he is a great official sells all the grain and supports all the
poor in Egypt and Canaan. He also forces all the wealthy to take an oath to tell the truth and to reveal
who in the city has the wealth”
While Joseph has concentrated all the wealth in the hands of the Pharaoh, he has also absorbed all
the money of the rich thus rendering all equal while feeding poor and rich alike according to their
dependents actual needs. Ben-Sasson sees Rabbi Yehuda Hehasid as promoting a utopian
egalitarianism as a critique of the social injustices in his own era especially the profiteering of the rich
on cyclic famines and their hiding of the true wealth from progressive taxation.
In his commentary on the Biblical tax of the half-shekel Rabbi Yehuda Hehasid meets the moral
criticism that such a tax is regressive because it obligates “rich and poor alike” to make the same
contribution to the Temple (Ex. 30:15). He suggests that each citizens gave whatever they wished (Ex.
25:2), then the officials prepared half-shekel coins of equal weight and passed them out one per person
no matter what the individual had contributed. Then the half-shekels were collected back according to
the law - one per person whether rich or poor. (Sefer Moshav Zekenim on the Torah edited by Solomon
Sasson cited by Haim Ben Sasson, Masot uMekhkarim Historiim, 177- 181).
24
In communal taxation the rabbis strongly preferred progressive taxes over excise taxes on luxury items,
like meat or wine that everyone consumes on Shabbat – rich and poor, even if the rich eat more meat. Rabbi
Yosef ben Eliyahu, author of the Ben-Ish Hai, in Baghdad (1835-1909) rules against a “charge on meat in
order to pay the tribute to the government” because “all the authorities have made great noise in the world
prohibiting such a tax.” Furthermore, in Izmir, Turkey, the council led by the wealthy wanted to finance the
community’s collective tribute to the Ottoman rulers with a meat and wine tax “in order to lighten their yoke
33
could not cancel the tax, Rabbi Haim Falagi (1788-1868 in Izmir) cried out: “God did
not choose such actions. This is tze’aka (injustice) instead of tzedakah. There is no
greater robbery and theft!” So too exorbitant rents and prices were condemned for
their burden on the poor. For instance, Rabbi Menahem Krochmal (Nicholsberg,
1648) declared a consumer boycott of fish whose price was too high and forbade the
wealthy to buy fish even for their Shabbat tables.
Our last example is from Rabbi Shmuel ben Hayim Vital who faces a similar question
posed was related. ciii The question was as follows: In the community of Spanish exiles
in Damascus it had been the custom to tax progressively the wealth of the residents
only up to the ceiling of 3000 Turkish gerush. However when times were more
difficult and the need for tzedakah was greater, the custom was changed and the
ceiling removed. The wealthy who had recently arrived challenged the new ordinance
claiming they had come to reside in Damascus on the condition that the old ordinance
would be in place and they had never agreed to the change.
Rabbi Shmuel Vital ruled in 1650 that the old custom would have been valid if it had
been just, but in fact it violated principles of equity so it had never been enacted
properly. He wrote:
“This custom causes the poor and unfortunate of Israel to lose their money. Could it
be good in God’s eyes that the middling householder who has only 100 gerush in his
principal from which to derive his income and that of his household, as well as his
clothing, his tzedakah and his taxes [to the Turkish authorities, presumably] should
have to pay on the basis of his whole 100 gerush, while the wealthy who have been
blessed by God with 10, 000 gerush, so they can eat and feast and add more and more
to their principal and yet only pay on the basis of 3000 gerush, while the rest is
exempt of taxation? ‘The rich get richer and the poor get poorer.’ This previous
custom is a measure of Sodom [where mine is mine and yours is yours, and
presumably, I have more but I will not share it with those who have less]. This is a
law that is no law!
“However if the whole community, every single taxpayer, agrees to this old custom so
that more and more rich people from other places will move to their city, so that the
yoke on the middling householders and on the poor will be eased, then I concur.
“But if even one taxpayer who protests, even if the majority accept the old custom
that the rich will only pay on their first 3,000 gerush, then the law goes back into
effect according to the Torah that everyone is to be taxed on the full amount of their
wealth.” (Rabbi Shmuel Vital, Beer Mayim Hayim, #12)civ
Shmuel Vital’s ruling is particularly powerful in identifying progressive taxation with
God’s view of the right thing to do and with the Torah’s law simply based on his sense
of equity. No law based on custom or democratic vote is exempt from judicial review
according to God’s law for just distribution of the burden of communal life and
support of the poor. Nevertheless, he is wise enough to allow the city to give
of taxes [which would otherwise be assessed with a progressive tax based on economic capability] and to
make the yoke on the poor, orphans, widows and Torah scholars [who eat meat and drink wine on holidays]
but are exempt from city taxes. The poor rose up and demanded justice and the communal rabbi and his court
issued a prohibition” vetoing the tax “because it constitutes robbery of the poor.”(Ben Ish hai, Responsa of
Rav Pe’alim Part 4, Y.D. #1).
34
preferential tax breaks to the wealthy as long as the long term economic effect will be
to lessen the burden on the poor and on the middle classes. In any case, the majority of
pre-modern Jewish communities assessed their taxes according to financial assets
evaluated by expert assessors.cv
In conclusion let us describe a daring tax revolt leading to the secession from the
traditional kehillah / community in the prosperous Ottoman city of Izmir by its
majority of tax-paying middle class citizens (baal halabatim) because the upper class
magnates refused to pay a fair share to support the poor and the communal
institutions. Around 1810 the oppressed middle class majority, raised a hewn cry
about the long-time abuse of the tax rates which were not levied progressively because
a few wealthy families dominated the city council. They turned to Rav Refael Yosef
Hazan to recognize their right to secede and form their own community in Izmir. Here
is their question phrased sympathetically and eloquently by the Rav himself:
"A question is posed about the controversy and secessions between individuals who
have refused to pay their tax and the clique of the wealthy and their appointees because
the former cannot continue to bear the heavy yoke of the officials who took the power
upon themselves. They rule – one clique member replacing another in succession
[according to the principle of nepotism] – with the golden scepter in their hands [like
King Ahashverosh] doing whatever they wish and no one can oppose them. … They do
not rule [by the accepted pattern] of majority rule in a quorum in which all are present,
but two or three of their toughest ones from the upper class make decisions as if the
others did not exist. Individuals who object are beaten and persecuted. If an individual
has a case against one of the wealthy then his case is delayed and there is no one upon
whom to rely or to come to the rescue. The clique of tycoons gather immediately with
all their strength to punish the middle class individual challenging them and to take
revenge until there is nothing left…
[While the tax is progressive in principle] the tax tradition [in Izmir] is that the rich
cannot be assessed from any wealth beyond 14,000 lions [a coin] even if they have
thousands of gold dinar. Therefore the debts [of the community] have ascended steeply
on the slope of scorpions.
Therefore the majority in number and in quality of the middle class individuals cannot
stand the pressure. So they have formed a forceful agreement to aggregate as a
community 'to stand up and fight for their lives' [as did the Jews against Haman] in
order to go out 'from slavery to freedom, from anguish to joy' [as did the Jews leaving
Pharaoh], hence they wish to separate from the partnership of the community … and
they have asked if that is a legitimate revolt under the Torah and under equity.
The answer appears that they as the majority of the city may divide themselves from the
community regarding the collection of taxes and tzedakah and create their own
community [even if they had made an oath under threat of excommunication herem not
to abandon the community] …. Especially with the majority's great loss and their
suffering ... from the municipal leadership of the rich… for there is no consent nor a
valid ruling at all.
Why should they be subordinated to the clique of the wealthy for it says You, children
of Israel, are my slaves (Lev. 25:55) – not slaves [subordinated] to [humans who are
My] slaves." (Rav Refael Yosef Hazan, Hikrei Lev Hoshen Mishpat #116)
35
Invoking the echoes of Egyptian slavery and the Exodus, Rav Hazan rules in favor of
the right to abandon a corrupt kehillah (community) in which a regressive tax scale is
enforced by a few tyrannical individuals who inflict terrible hardships on the
defenseless majority.
These debates over paying one’s fair share to communal expenses are concerned
with justice and they are often played out in political struggles between parties of
common interests as we have seen. But what is the moral quality of carrying one’s
fair share of the communal responsibilities? When one can get away without paying
one’s fair share of taxes because the system is not fair or because collection
procedures are not effective, what is the pious thing to do? In 19th C. Eastern
European Mussar literature exhorts each individual to seek spiritual perfection by
achieving the trait called noseh b’ol havero, “carrying the yoke of one’s fellow’s
burden” (Avot 6). For example, as Aryeh Cohen notes, Rav Simcha Zisselcvi sees this
trait as a challenging aspirational aim: “To reach the level of being one who bears
the burden of one’s fellow is impossible unless one has accustomed oneself to love
one’s neighbor in thought and deed.”cvii
Still in my judgment this trait is not only a matter of piety for elites but also a basic
ethical requirement of each citizen in a community. The Rabbinic term “carrying the
yoke of one’s fellow’s burden” takes on the halakhic significance in the sense of
“carrying the common yoke equally with one’s fellow.” So in sharing the costs of
supporting the community or paying communal bribes to the non-Jewish ruler, one
may not exempt oneself and let one’s fellow pick up the slack.
“The Maharam of Padua ruled that the halakha follows Rashi who says one must bear
the burden with one’s fellow. So too Rabbenu Yitzhak of Metz holds that our
ancestors put a herem (a ban) on those who would not share in communal
obligations.” (Responsum #67 of Rav Menahem Azaria of Piano in Italy, 1548 –
1620).
Conditional and Unconditional Property Rights:
A Biblical and Continental Ethos versus a British Narrative
“A man's home is his castle.” (traditionally attributed to Sir Edward Coke)
It should already be clear that the Biblical laws of tithing, peah and, certainly, Jubilee,
which were discussed above, stand in direct opposition to the absolutist notion of
property ownership in the liberal Anglo-Saxon tradition of Britain and afterwards
North America, and is closer to the Continental tradition nurtured by J.J. Rousseau. In
the Torah a portion of the produce of my land – at least in Eretz Yisrael – and, for the
Rabbis, a portion of my money, belong to the poor in some legal enforceable sense.
The poor have direct access to the peah, and indirectly, through the community
authorities, to the proceeds of tzedakah payments. These collections for poor relief are
not taxes in the Hobbesean or Lockean sense that the government is granted by the
landowning citizens the right to extract resources from one’s private property in order
to defend the common borders and police the society against robbers. Tzedakah is not
to be understood as an instrumental welfare system to preempt social unrest or to
develop the poor as a labor force to strengthen state power as the mercantilists argued.
36
Tzedakah is simply a moral and legal obligation of each individual and community to
meet the needs of the poor without regard to the utilities of the society or its givers.
How different is the Anglo-Saxon legal tradition of property ownership! The notion of
property rights affects one’s overall sense of responsibility to one's fellow citizens,
neighbors, and human beings. Thus Locke’s notion of a society composed of
economically self-sufficient individuals entering a social contract to protect their
inalienable rights may also explain the relative lack of English and American legal
responsibility for the poor or even for one’s fellow citizens' lives. Love your neighbor
as yourself is a charitable Christian sentiment but not a legal obligation or necessarily
a social norm rooted in British common law. Consider the British formulation of
Anglo-Saxon law, which incidentally was the most influential law book in colonial
America, when the Declaration of Independence was written:
“The third absolute right, [after life and liberty] inherent in every Englishman, is that
of property: which consists in the free use, enjoyment and disposal of all his
acquisitions, without any control or diminution, save only by the laws of the land. . . .
So great moreover is the regard of the law for private property that it will not
authorize the least violation of it; no, not even for the general good of the whole
community.
“There is nothing which so generally strikes the imagination and engages the
affections of mankind as the right of property; or that sole and despotic dominion
which one man claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe."
(William Blackstone, Commentaries on the Laws of England)
In this spirit of the primacy of private property America declared its right to
independence from British tyranny – taxation without representation and quartering
soldiers in private homes. These rights were protected in the Constitution but at the
same time they came to abridge basic human values of human dignity and solidarity.
Before the Civil War, when abolitionist Northern states passed fugitive slave laws
forbidding the return of escaped slaves to the South, they were struck down by the US
Supreme Court as unconstitutional because they infringed on the slave-owner's
property rights. In the late 19th and early 20h century until in the mid -1930s, the US
Supreme Court struck down many local labor laws protecting workers especially
children and women, from the deleterious effects of their employers’ factory
conditions on the grounds that no government founded on freedom may interfere with
the right to private property. Labor unions and collective bargaining were also
outlawed because they interfered with the factory owner’s freedom of commerce.cviii
John Locke as a Christian Bible scholar as well as an economic and political theorist
felt the tension between, on one hand, the Biblical notion of property which he
understood to be common ownership of the earth by the whole human race (Gen. 1:
28-31) and, on the other, the British common law notion of private property. His
thinking shows both Biblical and British motifs. On one hand, the Biblical Creation
story establishes economic equality as well as political equality among all human
beings. Political equality belongs to God's state of nature:
“To understand Political Power right, and derive it from its Original, we must
consider, what State all Men are naturally in, and that is, a State of perfect Freedom
37
... A State also of Equality, wherein all the Power and jurisdiction is reciprocal, no
one having more than another; there being nothing more evident, than that Creatures
of the same species and rank, promiscuously born to all the same advantages of
Nature, and the use of the same faculties, should also be equal one amongst another
without Subordination or Subjection, unless the Lord and Master of them all should,
by any manifest Declaration of his Will, set one above another, and confer on him, by
an evident and clear appointment an undoubted Right to Dominion and Sovereignty.”
(John Locke, Second Treatise, 4)
Economic equality derives from a communal notion of property ownership rooted in
Genesis:
“John Locke's premise is not just original equality, it is original communism. It is
‘very clear, that God, as King David says, Psalm 115, has given the Earth to the
Children of Men; given it to Mankind in common (Second Treatise, 25). By the law of
nature, says Locke, ‘Mankind are one Community ... one Society, distinct from all
other Creatures. And were it not for the corruption, and viciousness of degenerate
Men, there would be no need of any other; no necessity that Men should separate
from this, and by positive agreements combine into smaller and divided associations’
(Second Treatise 128). That ‘great and natural Community’ ... is a society dedicated
by natural law to mutual aid and preservation among equals."cix
However Locke noted that over time the God-given land was divided into tracts of
private property, though those divisions are conditional on leaving enough land
available to all others as well:
“This I dare boldly affirm, That the same Rule of Propriety, that every Man should
have as much as he could make use of, would hold still in the World, without
strait'ning any body, since there is Land enough in the World to suffice double the
Inhabitants had not the Invention of Money ... introduced (by Consent) larger
Possessions, and a Right to them.” (Second Treatise, 36)
Following medieval law, Locke insisted that in case of dire need the needy had a right
to all surpluses of goods as subsistence aid, even though they were generated by an
individual's labor:
“God. the Lord and Father of all, has given no one of his Children such a Property, in
his peculiar Portion of the things of this World, but that he has given his needy
Brother a Right to the Surplusage of his Goods; so that it cannot justly be deprived
him, when his pressing Wants call for it. As Justice gives everyman a Title to the
product of his honest Industry, and the fair Acquisitions of his Ancestors descended to
him; so Charity gives every Man a Title to so much out of another's Plenty, as
will keep him from extream want, where he has no means to subsist otherwise.”
(First Treatise, 42)
On the other hand, John Locke conceptualizes a principle of “unequal property rights”
that also emerges from the state of nature. In the "state of nature," no one originally
had dominion over the plants, animals, and land to the exclusion of others. Yet even
then, Locke asserted, there was property for "every Man has a Property in his own
Person," and in the "Labour of his Body, and the Work of his Hands." When a man
38
"mixed" his labor25 with something by removing it from its natural state, Locke
argued, he thereby made that his property - "at least where there is enough, and as
good left in common for others." The same was true, Locke said, for appropriation of
land by tilling, planting, and cultivating. Thus unequal economic rights earned by
differential productive labor are the starting point of private property even before
entering a social contract.
“After his 'demonstration' that individual property rights were anterior to
government, Locke went on to his next proposition, namely, that the essential reason
human beings submit to government is to safeguard their 'property.' He announced
that he would use the word ‘property’ to designate, collectively, ‘Lives ... Liberties,
and Estates.’ According to Locke, the preservation of property, in this capacious
sense, is "the great and chief end" for which men come together into commonwealths.
No political philosopher of the continental branch of the Enlightenment accorded such
a high place to property.’”cx
By contrast, the 18th C. Genevan philosopher, J.J. Rousseau, imagined human beings
in the “state of nature,” who had “neither houses, nor huts, nor any kind of property
whatever.” He argues:
“The first man who, having enclosed a piece of ground, bethought himself of saying
`This is mine,' and found people simple enough to believe him, was the real founder
of civil society. From how many crimes, wars, and murders, from how many horrors
and misfortunes might not any one have saved mankind, by pulling up the stakes, or
filling up the ditch, and crying to his fellows: `Beware of listening to this imposter;
you are undone if you once forget that the fruits of the earth belong to us all, and the
earth itself to nobody.” cxi
Mary Glendon in her book, Rights Talk, shows systematically how the Anglo-Saxon
view of private property (such as the one promoted by Locke which holds that one
take possession by mixing one's labor with the gift of nature) diverges from the
Continental European philosophy and, hence, legal tradition. In the spirit of the
Frenchman Rousseau, not the Englishman John Locke, many contemporary Western
European constitutions and high courts developed their narrative of property rights
and of human responsibilities to one another's lives and wealth. The modern German
constitution (1949) stipulates:
“Property imposes duties. Its use should also serve the public weal.” (Article 14: 2-3)
Mary Glendon explains:
“One factor that distinguishes the American welfare state from many others is the
absence of a constitutional commitment to affirmatively protect the well-being of
citizens. In most nations of Western Europe, programs such as old-age pensions,
national health insurance, and unemployment compensation enjoy constitutional
protection on a par with that accorded to such individual rights as property and free25
Rav Yair Sherlo argues that my wealth – even if produced by “my” own physical labor - is not fully
mine for God or society or nature gave us our physical strength as well as conditions of security,
education, infrastructure and so on that allowed me to earn my wealth. Thus society may demand its
portion back from their investment for redistribution. (Oral presentation at Magalei Tzedek conference,
17th Tamuz 2010).
39
speech. ... After World War II Western Europeans added Bills of Rights, to their
constitutions, but they also carried forward their own prior notions of the affirmative
responsibilities of the state. European constitutions expressly supplement ‘negative’
rights (protections against government) with affirmative constitutional
commitments to the protection of the health and welfare of citizens. These ‘positive
rights’ reflect the view that the state has a duty not only to refrain from violating the
rights of its citizens, but affirmatively to promote their welfare through intervention in
the economy and through insuring a minimum level of well-being to all. ... The West
German Constitutional Court's recent dictum that the state is obliged not only to
offer minimum subsistence to those citizens who need it, but to create social
conditions enabling or empowering individuals to pursue a dignified life.
“However ... proclamations of social and economic rights in the constitutions of other
nations do not give rise to directly enforceable rights of individuals. They are, rather,
what European lawyers call "programmatic rights," statements of public goals and
social aspirations whose implementation must await legislative or executive action,
and budgetary appropriations.”cxii
Parallel to the absoluteness of property rights of individuals is the English and
American law’s historic refusal to require that one rescue one’s neighbor from or even
warn a fellow human being of danger:
“The leading treatises on torts categorically declare that one has no legal duty to come
to the aid of another person in mortal danger. Unless we have entered into a
relationship like employment that gives rise to duties, the law treats us as
‘strangers’ to one another.
“A variant of this no-duty principle recently achieved constitutional status when the
Supreme Court announced that the Constitution imposes no obligation on government
or on government employees to assist distressed individuals –‘even where such aid
may be necessary to secure life, liberty or property interests of which the government
itself may not deprive the individual’ (DeShaney Case, 1989).”26
Consider the following passage in which one American judge stressed that, no matter
how strongly our moral sentiments might dictate a response, a person has no legal
duty to rescue a "stranger:"
"I see my neighbor's two-year-old babe in dangerous proximity to the machinery of
his windmill in his yard, and easily might, but do not, rescue him. I am not liable in
damages to the child for his injuries ... because the child and I are strangers, and I am
under no legal duty to protect him.” (Buch vs Amory, N.H. 1897)cxiii
Continental Western Europeans are closer to a conception of social self:
26
Good Samaritan statutes in the states of Minnesota, Rhode Island and Vermont do require a person at
the scene of an emergency to provide reasonable assistance to a person in need. This assistance may
simply involve the obligation to call 9-1-1. Violation of the duty to assist subdivision is a petty
misdemeanor in Minnesota and may warrant a fine of up to $100 in Vermont. The State of Rhode
Island statutes require that people must be Good Samaritans, under penalty of law:
‘Any person at the scene of an emergency who knows that another person is exposed to or has suffered
grave physical harm shall ... give reasonable assistance to the exposed person’ (see A. Brooks, Who
Really Cares, 166). Under the German law of ‘Unterlassene Hilfeleistung’ (neglect of duty to provide
assistance), a citizen is obliged to provide first aid when necessary and is immune from prosecution if
assistance given in good faith turns out to be harmful.
41
"For most European countries do impose a legal duty on individuals to come to the
aid of an imperiled person where that can be done without risk of harm to the rescuer.
And the constitutions of many other liberal democracies do obligate government to
protect the health and safety of citizens.... A person who fails to come to another’s aid
in Europe is answerable to the public [for a failure of civic duty] but not required to
compensate the victim [as a matter of private rights]." cxiv
In that same spirit of a social solidarity, Biblical and Rabbinic law obligates Jews to
intervene to save one's fellow human being from property damage or life-threatening
situations. The legal obligation to proactively care for our fellow is based on the
Biblical commandment, Do not stand idly by the blood of your fellow (Lev. 19:16)
which is located in the same chapter as love your neighbor as yourself (Lev. 19:18).
The Rabbis expanded that obligation to include preemptive actions and saving
another’s property as well as their life
“How do we know that if someone is pursuing another to kill him/her, that you are
obligated to rescue his/her life? As it says, Do not stand idly by the blood of your
fellow (Lev. 19:16).
"How do we know that if one sees another drowning in the river27 or robbers28
approaching someone or a wild animal approaching someone, one is obligated to
rescue them? As it says, Do not stand idly by the blood of your fellow (Lev. 19:16).
“How do we know that if one knows [exculpatory] evidence [to save another’s
property from confiscation],29 one may not remain silent? As it says, Do not stand
idly by the blood of your fellow (Lev. 19:16).” (Sifra Leviticus, Kedoshim Chapter
4:8)
In this context of protecting a fellow citizen’s life and property, it is no surprise that
one is obligated to provide tzedakah. That obligation is mediated through the
community to centralize its performance through the coercive collection of tzedakah.
But even without a community each individual is obligated to each brother in society.
Thus distribution of basic commodities to the needy becomes their right derivatively,
because it is their brother’s duty. Rights flow from duties because the individual is by
definition part of a social self.
Let us conclude this discussion of the tension between private rights and social
responsibilities with the radical views of Judah HeHasid in Sefer Hasidim (13th
Germany). On one hand, he recognized that the legal system of the Torah protects
property rights even when there are needy people starving. Yet on the other hand, he
felt that was grossly unjust and that human equality in possessions of goods was the
proper order of society. He imagined Joseph in Egypt absorbing all the wealth of
27
"If we are good swimmers and can rescue them." (Maimonides, Book of Mitzvot, Negative Mitzvah
#297)
28
"If non-Jews want to kill someone and we can remove that desire from their hearts or postpone the
damage." (Maimonides, Book of Mitzvot, Negative Mitzvah #297) (See Maimonides, Mishne Torah,
Laws of Homicide and Preservation of Life 1:14)
29
"Since one can see a brother losing their money and can return it by telling the truth." (Maimonides,
Book of Mitzvot, Negative Mitzvah #297)
41
Egypt in order that poor and rich Egyptians would be equal.cxv He supported
progressive taxation. Therefore Judah HeHasid distinguished between a morally
inadequate civil law embodied in the earthly Torah and an ideal law of equity
enforced in the heavenly courts:
“The Torah speaks about punishments dependent on the lower [that is, earthly] courts,
but the books of the Prophets and the Writings speak of what is necessary now of
punishments that depend on the upper [that is, heavenly] courts. For how can it be
[morally-speaking] that a poor person who is starving and no one has compassion or
mercy on him and who while cast into starvation steals from a rich person with cattle
and sheep will be punished by paying four sheep for one stolen [and five cows for one
stolen] (Exodus 21: 37). Can that possibly be the law for a poor person who stole from
a rich one?! Moshe was not speaking of the heavenly court but of the earthly one.”cxvi
Justice and law are divergent. As a result, Judah HeHasid insists on spiritual, not legal,
criteria by which the soul is judged in the afterlife. “There are things that are permitted
by the Torah, yet one is still punished for doing them, for the Torah only permitted
them as a concession to people’s evil inclinations.” 30
It is from Judah HeHasid’s view of Divine providence functioning in the economic
relations of rich and poor that we see that many rich people are morally guilty of
robbing the poor whom they are supposed to be helping with tzedakah. In refusing to
transfer God’s blessing to the poor, such wealthy robbers arouse a civil revolt of all
the needy against God’s injustice in the distribution of wealth:
“When God supplies and gives to the rich wealth and they do not give to the poor,
then [God has in effect] given to one what could have supported 100. Then the poor
come and cry out against the injustice before the Holy One: ‘To that one you gave
what could support a 1,000 and did not do any good for me?!’ Then God punishes
the rich person as if they robbed many poor! They say to him: ‘I supplied you with
wealth so that you could give your wealth in accordance with your reach [income],
but you did not give! I will take from you as if you robbed them and as if you
denied [having received from Me] the pikadon, the trust.” (Sefer Hasidim #1345)
30
Thus the Torah allows divorce on the grounds of burnt stew but it is a sin punishable by God – not
by the human courts – to divorce one’s wife unless on grounds of sexual infidelity (Sefer Hasidim
#1110). If pious people come to a wise judge and agree then he may rule based on heavenly justice
even when opposed to earthly Torah (Sefer Hasidim #1381). “In the laws of the Holy One a person is
not seen or punished or rewarded except according to his heart’s inner inclinations” – not his culpable
actions and damages (as cited by Yitzhak Baer, “Hamegama HaHevratit shel Sefer Hasidim,” 93)
42
In Summary: Justice in the City
To understand the tzedakah system’s narrative it is not enough to view these
municipal bylaws in terms of their outcomes in providing support for needy fellow
citizens. The tzedakah system is also expressive of the Jewish identity, as we saw in
our opening chapter. For Maimonides giving tzedakah is a social marker for “the seed
of Abraham our Father,” the righteous one (tzadik) (Gifts of the Poor, 10:1-2). The
tzedakah fund is a symbol of a civilization. Every self-respecting Jewish municipality
must have one for it is central to public policy.cxvii
“No scholar may reside in any city without these ten things: a court that flogs and
punishes, a kuppah of tzedakah collected by two and distributed by three, a
synagogue, a bathhouse, a public latrine, a doctor, a blood-letter, a scribe, a butcher,
and a pedagogue for children.” (TB Sanhedrin 17b)
This standard of civilized Jewish life became nearly universal in the medieval era,
according to Maimonides who reports: “Never have we seen or heard of a Jewish
community without a kuppah of tzedakah” (Laws of Gifts to the Poor 9:3). The
kuppah had to replace completely the agricultural welfare system that had existed
previously side by side with it in Roman Eretz Yisrael. The Rabbinic welfare city
described in the Mishna and the Tosefta Peah envisions a revolution in the extent of
social solidarity as well as its method of distribution. Not only the resident poor, but
even itinerant poor31 are to be supported by the city as members of the Jewish national
brotherhood and of humanity. Maimonides shows how tzedakah may express human
solidarity in reiterating the Talmudic inclusiveness of tzedakah services even for idol
worshippers: “We feed and clothe the non-Jewish poor along with the Jewish poor for
the sake of peace” (Gifts to the Poor 7:7).
The narrative of an ideal social welfare city of solidarity is reinforced by the midrashic
imaginationcxviii of its opposite – the city of Sodom. Rather than support the poor,
Sodom exploited or expelled them. The moral disgust with the Sodomite social Hell is
the motivational force for the wealthy to maintain the poor through municipal services
and tzedakah as Abraham and Lot did and thus distance themselves from the prophetic
accusation that Israel has become like Sodom (Isaiah 1:9). In Ezekiel 16:49 Sodom is
condemned for having an abundance of bread yet not supporting the poor. The
imaginative expansion of this culture of stinginess is expounded in the midrash. cxix
The “cry of injustice” (zea’kah) that God hears rising from Sodom (Gen. 18: 20) is
explicated as the voice of a girl who is being executed for violating a characteristic
city ordinance prohibiting offering aid to strangers in need. Other municipal
ordinances in Sodom call for stripping naked any citizen who invites an outsider to a
wedding; and trees are to be pruned in public areas lest birds be find rest on their
branches. The Rabbis condemn as a “trait of Sodom” anyone who will not allow
others to benefit from their possessions even if it costs them nothing (“It is no skin off
31
"If a homeowner who was traveling from place to place were in need of taking gleanings, the
forgotten-sheaf, peah, or the poor's tithe, he may take them. But when he returns home, he should pay
[them] back. This is the view of Rabbi Eliezer; but the sages say, He was poor at that time." (Mishnah
Peah 5:4)
43
my nose” - zeh neheneh v’zeh lo haser). Sodom consists of people who insist “mine is
mine and yours is yours,”cxx so no mutual help is permitted.cxxi
By contrast, the Rabbis taught that the Jewish community has a profound religious
obligation to provide support even for vagrants and, thus, to preempt the need of
starving wanderers to commit crimes to feed themselves. The spilling of the blood of
the desperate poor would be on the communal conscience, thus tzedakah even for
nonresident poor was a high priority. A far-reaching sense of responsibility for
tzedakah is manifested in the rabbinic interpretation of the biblical ritual of breaking
the heifer’s neck (Deuteronomy 21: 1-9). Here a murder victim’s corpse is found
between two cities and the closest city must investigate its own direct and indirect
responsibility for the death, even though the victim may not be one of their residents.
For God will hold the whole people and in particular the nearest community liable for
the spilling of innocent blood, if they have any complicity. Therefore the city elders
and the priests proceed to a barren wadi for a report on their culpability and for an
atonement ritual. Then the city elders, after presumably investigating the murder and
failing to find the murderer, must both deny any further responsibility and yet
paradoxically atone for their residual culpability. They declare before the priest that
they were in no way complicit in this crime and there is no cover-up: “Our hands did
not spill this blood and our eyes did not see [it done].” Then they make a sacrifice and
plead for absolution: Atone for your people Israel whom You redeemed and do not let
guilt for blood of the innocent stay among your people Israel (Deut. 21: 7-8).
The Rabbis understood that the elders ought to feel guilty, not just if they killed the
victim and not just if they failed to bring the murderer to trial, but also if they failed to
provide protection for the victim. In fact they ought to ask themselves if they did not
provide the victim with food and thus drove him by necessity to leave the safety of the
city in search of aid elsewhere.
Rabbi Yehoshua ben Levi said: “The heifer whose neck has to be broken is only
brought on account of stinginess32 [literally, narrowness of eye] as it is said: Our
hands did not spill this blood [and our eyes did not see.] (Deut. 21.7).”
32
The U.S. Ninth Circuit Court ruled in favor of homeless persons in Los Angeles who had been
arrested and convicted for sleeping on public sidewalks which is a violation of the city ordinance
against loitering. They ruled that the city could not criminalize being homeless in Los Angeles unless
they provided homeless shelters so that the destitute would have an alternative to sleeping in public:
“All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than
the number of available beds, the city may not enforce Section 41.18(d) at all times and places
throughout the city against homeless individuals for involuntarily sitting, lying, and sleeping in public”
(Edward Jones et al vs City of Los Angeles 1138).
Aryeh Cohen cites this powerful American case in light of his analysis of the Rabbinic city’s
responsibility to provide the basic needs of wayfarers who are functionally identical with today’s
indigent homeless. He notes with chagrin that the city in which he resides – Los Angeles - fails to live
up to the minimum standards of a just city by Rabbinic or US Ninth Circuit Court standards. In fact, he
remarks: “In a July 2009 study released by the National Law Center on Homelessness and Poverty and
the National Coalition for the Homeless called ‘Homes Not Handcuffs: The Criminalization of
Homelessness in U.S. Cities’ Los Angeles ranked as number one in a list of ‘meanest cities.’ This
refers to cities that ‘do not provide enough affordable housing, shelter space, and food to meet the
need,’ yet they ‘use the criminal justice system to punish people living on the street for doing things
that they need to do to survive.’" (Aryeh Cohen, Justice in the City, 87 fn #48)
44
“Now could we imagine that the elders of a Court of Justice are actual shedders of
blood!
Rather [they might have been suspected of indirect responsibility for the death, so
they must say: the victim] did not come to us [literally, into “our hands” asking for
tzedakah] and we dismissed him/her [empty-handed]; we did not see him/her [with
our eyes] and abandon him/her.
That means [dismissing the victim] … without provisions ...and without an escort.”
(TB Sotah 38b, see Mishna Sotah 9:6)
Seforno (16th C. Italy on Deuteronomy 21:7) explains that the city has a responsibility
to eliminate known murderers and that is what they claim they did. Maimonides thinks
the extensive ritual of the heifer has a pragmatic effect so that the publicity may lead
to new evidence about the murderer who may be apprehended.cxxii That approach is
consistent with the concern for providing an escortcxxiii and the general obligation to
maintain safe roads between cities for poor wanderers. The point of the elders’
declaration is to account for their obligation to protect innocent indigent wayfarers
who without food and shelter will be forced to move on dangerous roads where they
subject to violence as well as their responsibility for any vulnerable traveler on the
roads of their jurisdiction. However an alternative view supported in the Jerusalem
Talmud holds that the declaration applies to the murderer, not the victim, the corpse.
By dismissing the desperate wanderer from our city without means for support we
contributed to his becoming a murderous desperado and in that sense we the court
spilled the victim’s blood and corrupted the murderer.33
Rashi (11th C. Germany-France) manages to find an interim position in which the
victim is actually an attempted murderer killed by the one he assaulted. He elaborates
a novel scenario where the city’s negligence in providing food could lead the poor to
become criminals out of desperation:
“Without provisions which the poor person needed, when he saw someone carrying
food, he was driven by his hunger to snatch it from him. Thereupon, the other stood
up to him and killed him.” (Rashi on TB Sotah 38b)
In other words, the victim of municipal negligence turned into a brigand who was
killed while stealing food that he could obtain in no legal way. So there is no
murderer to be executed because the death was an act of self-defense, yet in a larger
sense the city may have caused the death for its criminal negligence. According to the
Rabbis, the city magistrates are guilty if they have not done everything in their power
to prevent this crime.
The Bible speaks of moral and ritual guilt but not legal responsibility. But in the
Talmudic treatment of law of the corpse in the field, “Rabbi Meir says: We coerce
accompaniment, for the reward for accompaniment has no measure” (TB Sotah 46b).
33
TB Sotah 46b maintains that the horrendous killing of the children who mocked the prophet Elisha
for being bald could have been avoided if the city provided guards to accompany travelers. Alone and
under attack verbally Elisha cursed the children and that called forth a miraculous attack on the
children by wild bears that killed 42 of them (II Kings 2: 23 -24). “If the people of Jericho had
provided accompaniment for Elisha then he would not have ‘sicced’ the bears on the children” (TB
Sotah 46a). So the failure to prevent hate crimes that threaten the dignity of stigmatized persons may
incite violence and that blood would be on the head of the elders who could have prevented it.
45
There is a communal obligation entails not merely law enforcement, but the
maintenance of an adequate municipal social welfare system. Their citizens must
demonstrate generosity even for starving vagrants, because the failure to provide food
is tantamount to indirect responsibility for the beggar’s death.
Aryeh Cohen has developed this theme of the city’s responsibilities proposing that
Talmudic legal constructs the rabbinic city as a community of responsibility with very
broad borders of obligation to prevent economic harm. First the Rabbis stipulate: “the
responsibility is placed on the city as a community defined by obligation toward those
who reside in its boundaries.” cxxiv In Latin the word community actually derives from
“co- munis” where munis meaning obligation or service, while someone immune has
no obligation to serve. A com- muni- ty has a munic-ipality with legal responsibilities
to its citizens. But as we saw above no Hellenist or Roman city had responsibility to
the economic welfare of its citizens. In fact usually one who was destitute as well as
one who was of foreign origin even if born in the Hellenist city was not a citizen. Yet
the Rabbinic city takes responsibility for all its residents as citizens, though length of
residency – not a history of tax-paying – determined what needs were covered. It takes
responsibility for their clothing, food, and housing. It takes responsibility for
wandering wayfarer who enter its jurisdiction. What Aryeh Cohen adds is the insight
that the mishna about measuring from a corpse of someone killed in the field to the
nearest city is an extension of responsibility beyond the usual geographic boundaries
of municipal responsibility. “The boundaries of responsibility [are redrawn] and
exceed the boundaries of intimacy, community, and municipality.” cxxv The corpse
belongs to a vagrant “no one in the middle of nowhere,” cxxvi yet some government,
some court, some community must take responsibility to expiate the blood guilt. Some
political agency must examine its indirect responsibility for this violent victim – even
if the vagrant was guilty of robbing someone else and was killed by the right of selfdefense, as Rashi reconstructs this case.
In the Hellenist world the polis did often have jurisdiction over a penumbra of
surrounding villages in its area but responsibility for the wilderness (sadeh) where
there is no regulation, where there is literally no “civilization” – no civic agency – is
unheard of. Similarly in Deuteronomy 22: 23- 27 the difference between a rape inside
a city and one in the field (sadeh) is whether the woman could have cried out with an
expectation of someone intervening. A city is place where residents cannot by
definition be “innocent bystanders” for you may not stand idly by on the blood of their
neighbor I am Adonai (Lev. 19:16 which is a prologue to you shall love your neighbor
as yourself – Lev. 19:18). But the law of the corpse found in the “field” extends that
jurisdiction and dismisses the claim that is outside of civilization (Dt. 21:1). The
elders of the nearest city bear responsibility for all the surroundings unless they can
swear they took every precaution to prevent this violent death.
In fact in the Torah there is a countrywide notion of responsibility in the “adamah –
the land Adonai your God gave to you (Dt. 21:1) and the blood pollution of that holy
land makes all Israel accountable and for that they may be sent as a whole nation into
exile. That is why there are courts for trying murders and Levitical cities of refuge for
those who kill without premeditation, but not for intentional murderers. Lest you shall
pollute the land for blood pollutes the land and the land can have no expiation for
blood that is shed on it, except by the blood of the one who shed it. You shall not
defile the land in which you live, in which I myself abide, for I Adonai reside among
46
the children of Israel” (Numbers 35; 33-36). God is a resident in the land and God has
handed over governmental responsibility to the courts or the elders to maintain a safespace which is holy place where blood is not shed without human accountability. That
is because God has created the human beings in the image of God: Whoever sheds the
blood of man, By man shall his blood be shed; For in His Image (b’tzelem) did God
make man (Gen. 9:6). That is why the shedding of blood is a religious and judicial
responsibility that generates of necessity a political agency, since the blood redeemers
makes no distinction between intentional murder and accidents and so they multiply
the shedding of innocent blood.
What the Rabbis derive from the law concerning the corpse found in the field is that
the municipal failure to provide economic support for the needy, even the indigent
vagrant, as well as protection from those who prey on them leads to the shedding of
blood and therefore tzedakah in the broadest sense is a communal political obligation,
not merely a commendable and individual act of hesed. In light of the law of the
corpse in the field Maimonides performs a conceptual and moral tour de force by
synthesizing three separate realms of Jewish law: gemilut hasadim (acts of
lovingkindess) such as welcoming strangers as Abraham did which is not usually
regulated or enforced by any political or legal agency; tzedakah which in civil law
obligates the city residents to pay poor taxes on penalty of coercion and confiscation;
and the prohibitions of shedding blood which belong to criminal law:
“Gemilut hasadim (acts of lovingkindness) are ... classified under the category of the
commandment love your neighbor as yourself (Lev. 19:18) ...
The reward for accompaniment (levaya) is greater than all. This is the law which
Abraham our father legislated, and the path of hesed which he practiced. He would
feed the wayfarers, give them to drink and accompany them [on their way as they
departed].34 Taking in guests is greater than receiving the face of the Divine Presence
(Shekhina) 35...
But accompanying them on their way is greater than taking them in. The Rabbis say:
Anyone who does not accompany them is like a shedder of blood.
34
Aryeh Cohen points out that “the only other usage of the term levayah [as obligatory
accompaniment] is in the discussion of the obligation to accompany a dead person on the way to
burial.”
“Said Rabbah said Rav Yehudah: Anyone who sees a dead person and does not accompany it,
transgresses upon: One who mocks the poor, affronts one’s Maker (Prov. 17:5).
And if he does escort, what is his reward? Said Rabbi Asi: About him Scripture says: One who is
generous to the poor makes a loan to Adonai (Prov. 19:17). One who shows pity for the needy honors
God (Prov. 14:31).” (TB Berakhot 18a)
“The obligation to accompany another is an obligation to cross boundaries. In accompanying the dead,
the boundaries that are crossed are those between life and death. The gesture is not one that is
dependent on a sense of mutuality since there is no possibility that the dead will repay the kindness.
Accompaniment is a stretching across fixed boundaries, whether of a city or of life.” (Aryeh Cohen,
Justice in the City, 77)
35
For the Rabbis say that Abraham interrupted his visit with God who appeared to him to wish him a
speedy recovery after his circumcision in order to host the angels whom he thought to be simple human
travelers. At the end of the visit Abraham went with the angels to send them off on their way (Gen. 18:
1-2, 16). Thus the Rabbis take Abraham as the model host who planted not only a physical tree called
an Eshel (Gen. 21:33), but opened an inn for way farer who were supplied whatever was necessary for
E = eating (akhila), SH = drinking (shtiya) and L – accompaniment (levaya) (Shokeher Tov on Gen.
21:33)
47
We coerce accompaniment as we coerce tzedakah. The court would appoint agents
to accompany a person who was traveling from one place to another. But if they were
negligent (lazy) in this matter – they are regarded as if they are shed blood.”
(Maimonides, Laws of Mourning 14: 1-3)
From Maimonides Aryeh Cohen concludes that acts of lovingkindness as the illdefined and unenforceable practice of pious individuals like Abraham are inadequate
to provide the economic resources needed by the poor. Hence the Rabbinic city is
born to provide such communal responsibilities.
“It is the Abrahamic vision which is projected as the ideal of hospitality. The tent is open
to all four sides, and everyone who passes by stops in and is given sustenance. This is a
vision of deep care and altruism. Yet this is the law which Abraham carved in stone. In
the move from the individual actions of an iconically just patriarch to the multifaceted
tensions and contradictions of a city, the care for the Stranger could no longer rely on the
omniscience of individuals. There is too much risk of inaction, of indifference. The city
as a body needs to be able to delegate obligations to individuals in order to maintain the
justice of the whole.... The city as a community which is based on relations of justice has
an obligation to the Stranger. This obligation devolves upon any or every specific
cxxvii
individual as a limb of the communal body.”
The Rabbinic city is necessary to regulate relationships among anonymous residents
and wayfarers because that transcends the love of hesed which is shown in intimate
settings especially agricultural villages and which are typical among one’s concrete
neighbors with whom one shares values and life. That recalls for Aryeh Cohen the
moral project of Emmanuel Levinas to structure an obligation to the anonymous,
unknown Other who must be encountered face-to-face so that one cannot conceive of
shedding the Other’s blood. However Aryeh Cohen is correct, I believe, in preferring
over Levinas’ ethics of absolute personal responsibility, the creation of the Rabbinic
city bearing communal responsibility for the citizen and the anonymous other - a task
no individual or private charitable organization could ever execute justly and
effectively.
The City of Social Justice
“How could the faithful city once filled with justice become a harlot, where justice
once dwelt, now there are murderers!” (Isaiah 1:21)
The reason for my digression into the ritual of the heifer and the causes of crime is to
set the idea of communal responsibility for tzedakah within an overall policy of
maintaining social order and justice for all. While this book is narrowly focused on the
policies and rationales of tzedakah, the notion of social welfare involves a macroresponsibility for the economy’s effect on the needy beyond the centralized
distribution of tzedakah payments for the basic survival needs of the poor. These
communal activities involve legal protection for workers’ rights, consumer rights and
even health care. In addition to protecting private property and freedom of commerce,
the Rabbis developed an extensive legislative package for maintaining fair trade and
access to basic commodities within a fair and humane market. A few examples
summarized by Maimonides will suffice to make this point.cxxviii
48
“We have been warned lest some of us exploit some others of us in trade: buying and
selling, as it says: Do not defraud one another (Lev. 25:14).” (Book of Mitzvot,
Prohibition #250)
For Maimonides, a government, supervised by the judges who are Torah scholars, was
the key to realizing a regulated and just economy:
“The court must fix the prices and appoint police for that, so that each one will not be
able to profit at whatever rate they want, but only up to one-sixth profit margin.”
(Laws of Selling 14:1)
“The members of the city may set their own prices... as long as there is no important
scholar to regulate (l’takein) state affairs and to help the success of its inhabitants.”
(Laws of Selling 14:11)
If there is a local judge, he must approve the municipal assignment of rates. One of the
purposes of these price controls is to make basic commodities affordable, as is now
practiced in some Western social welfare states, such as Israel, that fix price
maximums on staples such as bread and milk).cxxix Twenty percent was the maximum
profit allowed on life support commodities.cxxx In the medieval world communal
doctorscxxxi were sometimes hired to provide free medical service for the poor.cxxxii
This intervention in the market is not draconian and does not seek to control all market
transactions but only those concerned with basic commodities – hayei nefesh (vital
resources) – whose prices must be regulated to limit the profits and “to prevent
hoarding for the good of all the citizens in order to prevent pain to Israel” (tzaar
l’Yisrael) (Laws of Selling 14:5, 9, 11). Today the most massive social protests in the
history of the State of Israel bringing 10% of the electorate to the streets in simmer
2011 was triggered by the exorbitant prices on cottage cheese, an Israel staple, not
subject to government price control or competitive pricing by monopoly supermarket
chains. Beyond the letter of the law, the Rabbis praised those exceptional individuals
who provide service to the indigent without charging any fee. Already in Babylonia
we have an example of a bloodletter doing pro bono work who charged no fees for the
indigent (TB Taanit 21b, see below in the Appendices).
In conclusion, these constraints on the free market and on private property are part and
parcel of the vision of Israel as a community of justice, mishpat utzedakah, concerned
with preventing economic “exploitation” (ona’ah) as well as providing for basic
needs. The Torah prohibits defrauding or exploiting the weak in particular – the poor,
the stranger (Ex. 22:20), the slave (Dt. 23:17) and the widow and orphan (Ex. 22:21).
The Torah seeks to prevent emotional abuse to those on the margins who are often
“exploited” by insulting words (ona’at dvarim).cxxxiii These economic laws should be
seen as natural extension of the laws of tzedakah, not merely to protect property
owners or to guarantee a well-functioning market, but to care for the needs, the rights
and the dignity of the socially powerless.
Today a European social welfare state takes responsibility for all its citizens in many
additional areas of basic economic security and management of the total economy for
the good if its citizens. The conception of the Rabbinic welfare society, whose
governmental authority was quite limited and whose economic theories were
underdeveloped, is of course not as broad and deep in the fields of its coverage and
nor can it display the kind of complex mechanisms for management of the economy as
49
modern states do. But it does manifest the core moral idea of social justice that
requires a government to take economic responsibility for all members of society both
in ameliorating their poverty and in regulating economic activity that exploits its
citizens by price gouging, hoarding staples, and other market abuses. It further
recognizes the duty to provide access to its welfare program to economic refugees
from other locales. That rabbinic notion of social justice distinguishes rabbinic
society’s ideals from its Greco-Roman host culture as well as from Christianity. The
Rabbis have continued the tribal values embodied in agricultural benefits for the poor
as envisioned in the Bible, and adjusted them to a money-economy with significant
urban centers and central political leadership. However rabbinic the texts lack the
fervor of the prophetic criticscxxxiv and their strident demand for social justice. Its
extensive maintenance system is admirable, but little is said or done about economic
renewal and rehabilitation in a way that might update for an urban society the ideals
embodied in the Biblical Jubilee system of geulah (redemption).
51
Appendix: The Ancient Jewish Socialist Welfare State
Both the welfare state and private charity should be distinguished from the socialist or
communist state which has interesting Second Temple parallels in the life of the
communal sect of Essenes and the early Rabbinic management of the Sabbatical year
as a “communist” endeavor.
The Essenes’ Communist Solution: The First Kibbutzcxxxv in the Judean Desert
Between 100 BCE and 68 CE approximately, the Jewish society in Eretz Yisrael
spawned many small sectarian groups that envisioned an ideal community. One group,
the Essenes, described richly by Philo and Josephus, were devoted proto-communists.
"Fleeing from the cities because of the ungodliness customary among town dweller,
they live in villages…They do not hoard silver and gold… Almost alone among all
humankind, they live without goods and property and this by preference. They think
themselves very rich, rightly considering frugality and contentment to be real
superabundance…
“There are no slaves among them, not a single one, but being all free they help one
another. And they condemn slave-owners, not only as unjust in that they offend
against equality, but still more as ungodly, in that they transgress the law of nature
which, having given birth to all men equally and nourished them like a mother, makes
of them true brothers, not in name but in reality. But for its own greater enjoyment
crafty avarice has dealt mortal blows at this human kinship, putting hostility in the
place of affection, and hatred in the place of friendship….
“Their love of humans [is embodied in their] kindness, equality and a communal
life…No house belongs to any one man; indeed there is no house which does not
belong to all of them… There homes are open to members of the sect arriving from
elsewhere… There is but one purse for them all and a common expenditure. Their
clothes and food are all held in common, for they have adopted the practice of eating
together. In vain would one search elsewhere for a more effective sharing of the same
roof, the same way of life and the same table.
“This is the reason: whatever they receive as salary for their day's work is not kept to
themselves, but it is deposited before them all, in their midst, to be put to the common
employment of those who wish to make use of it. As for the sick, they are not
neglected on the pretext that they can produce nothing, for thanks to the common
purse, they have whatever is needed to treat them.” (Philo)cxxxvi
Philo's rendering of the Essenes’ ideal community sounds a universal message about
equality born in nature that prohibits slavery as anathema to nature. Brotherhood is
extended beyond ethnicity or family to all humankind. This goes back to the family of
Adam and Eve. It is broader than the brotherhood we saw espoused in Leviticus 25 for
Jews only. It differs sharply from Talmudic tzedakah that does not appeal to universal
brotherhood or natural equality, but to Jewish brotherhood. Talmudic tzedakah is not
egalitarian but rather supports the fallen status of the formerly wealthy when their
position within their social hierarchies is threatened by their failed economic fortunes.
Nor does the Talmudic ideal prefer agrarian simplicity and frugality as do Philo’s
51
Essenes. Slaves and horses for the formerly rich are mandated forms of financial
support exemplified by Hillel himself. The Rabbis do not seem to have considered the
Essenes’ ideal seriously, except to downgrade it as the idea of the lowest and least
educated class – the am haaretz: “The trait of one who says: mine is yours and yours
is mine is an ignoramus /country bumpkin” (Pirkei Avot 5:10).
Josephus, however, praised the Essenes:
"They despise the life of wealth and their shared common property is wonderful… All
who join their community hand over their property to the society as a whole. They
have no shameful poverty and no arrogant wealth for all their individual property has
been mixed together and it belongs to all of them. It is as if they were brothers from
the womb…
“The Essenes do nothing on their own without being commanded by their officials
except to offer help and Tzedakah. They have the permission to help anyone who
requests according to their need and to offer bread to the hungry, as much as they
desire. But they may not give grants to their relatives without asking those in charge
of them." (Josephus, The Jewish Wars, Book Two 8:3 – 5)36
In the caves near Qumran in the Judean Desert (a community destroyed in the Great
Revolt in 68 CE by the Romans), libraries of various sects were discovered that
overlap some of these ideals attributed to the Essenes by Philo and Josephus, even if
the term “Essenes” does not appear. In the Serakh Yahad, the scroll of rules of the
community called “Yahad” (Together or the United), the members are considered
36
The Essenes' Community in Josephus’ Wars of the Jews II: 120-9:
"They condemn riches, and all things with them are common, and no man among them is richer than
[another]. And they have a law among themselves, that whosoever will follow their sect, he must
make his goods common to them all: for so neither any among them shall seem abject for poverty,
nor any great for riches' sake, but they have as it were all equal patrimonies like brethren. They
account it a shame to use oil: and if any man against his will be anointed therewith, they use all
diligence to wipe it away: for they account homeliness best; and all their clothes are white. They have
among them procurators, to oversee the use of all things for their common benefit, and everyone
seeks the good of all, who are chosen from among them by a common consent.
"If any of their sect come unto them from another place, they give him anything they have, as if he
himself were owner thereof. And in brief, they go boldly into those, whom they never in their lives
did see before, as though they were very familiarly acquainted with them: and therefore when they
take a journey, they only arm themselves against thieves, and carry nothing else with them. In every
city there is one of them appointed, whose office is to have a care of the guests, and see that they
neither want clothes nor anything else necessary for them. All children under [their] government,
brought up by them, go appareled alike, and they never change their apparel, nor shoes, except they
have clean worn their first apparel, or that by reason of long wearing they will do no more service.
They among themselves neither buy nor sell: but every man that has anything that another wants,
gives him it, and takes that of him which [he] needs: yet every one of them may take anything he has
need of from whom he pleases, without any charge."
While Josephus praises the Essenes, the rabbinic compilation Avot seems to condemn them for their sharing
of all property:
“There are four kinds [midot] of people: “One who maintains, "Mine is mine, and yours is
yours"--that is an average kind. Some say: That kind is of Sodom.
[One who maintains,] "Mine is yours, and yours is mine"--is an am ha’aretz; (ignoramus, boor)
"Mine is yours, and yours is yours"- is pious; "Mine is mine, and yours is mine"- is wicked."
(Mishnah Avot 5:10).
52
"brothers in Torah and law" and they pool not only their property but they commit
all their "knowledge, strength, and wealth" to the stewardship of the community
council. Thus they seek to embody the values of the prophet Micah 6:8 to do justice,
and manifest lovingkindness and to walk with humility before God."cxxxvii
A parallel group who lived apparently in more urban areas wrote The Covenant of
Damascus. They are called the Rabim (the many) or Hever (the friends, those bound
together). But they have no communal property. Instead they have something
approximating the later rabbinic city-based welfare society:
"This is the Serakh HaRabim (the rule of the Many) to prepare for all their needs:
The wages of at least two days are to be given to the examiner and the judges. From it
they shall give for their sick and from it they shall support the poor and the destitute,
the old man who is bowed down, the man who is afflicted [perhaps crippled or with a
birth defect], the one who is held captive [for ransom] captured by a foreign people,
the virgin who has no redeemer (goel) and the youth who has no one to look after him
[probably orphans] …” (Covenant of Damascus 14:12-16)
The communist society of Essenes needs no special category of tzedakah since all are
supported out of a common pot. Literally, the ideal is "from each according to their
abilities and to each according to their needs." In the Covenant of Damascus society
has a form of tithing – two days of salary per month goes to the community chest –
not for communal functions, but for the needy.
The “Communist” Sabbatical
In Eretz Yisrael the tikkun olam tradition of shmitah (the Sabbatical year leaving
produce that grows naturally) continued to function broadly in the rabbinic era at least
until the destruction of the Second Temple in 70 CE. The most radical example being
the "communist" tendency of coerced egalitarian work and egalitarian distribution
under communal ownership and de facto expropriation of the means of production, the
capital, that is the land:
“Originally [on the Sabbatical year] the representatives of the court would station
themselves at the gates of the villages. Anyone bringing fruits in his hand they would
take it and return food for no more than three meals and store the rest in the city
storehouse.
“When fig season arrives, the representatives of the court would hire workers to rake
them up, bind them and make stacks, and then store them in the city storehouses. ...
When grape season arrives ... When olive season arrives ...
“When food is distributed on the eve of Shabbat, each receives according to the size
of the household......” (Tosefta Shviit 8:1)
However that tradition atrophied as the Jews of Judea were defeated again and again
by the Romans in war and coerced by the Romans in peacetime to carry an
increasingly harsh tax burden typical of the Empire in that era. Jewish farmers were
driven out of the land of Israel to cities or to agricultural sites beyond the ken of the
Torah’s built-in social welfare allowances. Now the city’s community chest must take
up the lion’s share of welfare work, but it is no longer concerned with a concept of
redistributive justice.
53
Thus we find two utopian ideals in these Second Temple sectarian Jewish
communities that in a general sense feed into the rabbinic laws of tzedakah. cxxxviii The
ideal of the Essenes regarding common labor and common property reappears in the
rabbinic notion of otzar beit din, the court’s management of agricultural production
and distribution practiced during the Sabbatical years in the days of Hillel, and some
of the features of the Covenant of Damascus, like tithing non-agricultural income,
shape the rabbinic discussions of tzedakah.
Appendix: Tzedakah’s Vocation: Justice or Life?
Daniel Nussbaum in his book Social Justice and Social Policy in the Jewish Tradition
offers an alternative view of the Rabbinic welfare system. Rather than seeing it as an
attempt to promote social justice, a form of tikkun olam, motivated by idealistic
notions of the entitlement of the poor, he suggests that it is chiefly concerned with the
inviolable value of life, of survival – pikuakh nefesh – not with quality of life or
equality:
“Social justice requires that distributive policies manifest equal concern for the needs
of all member of the community. It must translate life-sustaining human needs into
human rights by providing all members of society with life-sustaining resources
before providing any member with life-enhancing resources.”cxxxix
David Nussbaum's definition of social justice is very demanding because it insists on
social equality, and it is no surprise that the tzedakah system does not live up that
ideal. In his study of the practice of municipal tzedakah in Poznan in 17th-18th C.
Poland, he concluded:
“Tzedakah as implemented in Poznan did not achieve distributive equality because the
basic criterion which Poznan's Jewish communal authorities employed when
formulating and implementing the distributive policies generated by tzedakah was not
social justice. Rather the basic criterion which they employed in the implementation
of tzedakah was the traditional value pikuah nefesh, the duty to save an endangered
life. Pikuah nefesh was the major value operative in the Jewish communal mutual aid
system generated by the traditional Jewish concept of tzedakah.”cxl
Evidence can be marshaled for that perspective. In the Jerusalem Talmud Peah the
laws of tzedakah are referred to as laws of life and death.
“Rabbi Helbo said: It says: ‘Do not appoint less than three tzedakah officials
(parnasim).’ I see that ‘monetary cases require three judges,’ but [the distribution of
tzedakah to those who are starving] is a capital case (dinei nefashot)! So it ought to be
judged by a court of 23 [as in any capital case].
However by the time one gathered 23 [tzedakah officials to distribute the tzedakah
properly], the poor would be in [mortal] danger.” (TJ Peah 8:7)
Many Talmudic tales like that of Nahum Ish Gamzu (TB Tannait 21) describe the
death of the starving pauper whose request for aid is not met immediately. The top
candidate for tzedakah, as Maimonides concludes, is the captive who must be
redeemed because his life is endangered. With a strident moral rhetoric the Shulkhan
Arukh opens its treatment of tzedakah by warning that those who refrain from giving
54
adequate tzedakah may cause bloodshed (shifikhut damim) (Y.D. 247:1). In the
records of the Polish Jewish community, the councilors of Poznan refer to the
gabbaim of tzedakah as life savers. The purpose of a communal doctor is to "save
lives” and the food given to the needy is called mashiv nafesh, reviving life. cxli
Nevertheless, a less ambitious notion of social welfare, one stripped of the demand for
egalitarian redistribution of wealth, would apply to the rabbinic municipal tzedakah
system. It provides also for spiritual needs, such as four cups of wine on Pesach,
emotional ones, such as a dating and marriage service for orphans, and social or
psychological ones, such as the need of the formerly wealthy for a horse (TB Ketubot
67a). Much more than saving one’s biological life is entailed in this vision of a
tzedakah society.
55
i
Cited in "Restoring America's Promise of Opportunity, Prosperity and Growth" (2006), 20, in
Aryeh Cohen, Justice in the City, 91 fn #4
ii
The contemporary Israeli philosopher, Moshe Halbertal, argued this thesis at a seminar at Shalom
Hartman Institute, Jerusalem. March 6, 2008.
iii
William Cohen, “Epilogue: The European Comparison”, in Charity, 397-8
Shulkhan Arukh, Yoreh Deah 250:5: There are many poor people, and the rich say: let them go
door to door, and the average people say: they should not go door to door, but their support should be
cast upon the community, according to wealth, the law is with the average people.
Rema (Moshe Isserles): This is because the principle obligation for tzedakah is according to
wealth. But there are places who customarily give according to personal tzedakah, and there are those
who give according to a tax. One who gives according to the blessing which God has granted him/her,
deserves greater blessing. (Jeffrey Spitzer, translator)
v
Once Ambrose the Bishop of Milan sold golden eucharist vessels to redeem Christian prisoners (De
Officiis Ministrorum II 28, 136)
vi
Tosefta Peah 4:16; Mishna Baba Batra 1:4, Tosefta Peah 4:18
vii
"Distribution is by three" (Mishna Peah 8:7)
viii
TB Baba Batra 8b: Our rabbis taught: The [tzedakah] fund is collected by two [officers] and
dispensed by three. “Collected by two”--for authority over the public must not be wielded by less than
two; "and dispensed by three"--since it is like a civil procedure. The food-tray is collected by three
[officers] and dispensed by three --for its collection and dispensation run together. The food-tray [is
operated] every day; the [tzedakah] fund [is dispensed] every Friday. The food-tray [serves] the poor
at large; the [tzedakah] fund [only] the poor of that town. The townspeople are authorized to convert
[money from] the [tzedakah] fund to the food-tray, or [from] the food-tray to the [tzedakah] fund, and
to redirect them for any purpose they see fit....What "authority" is there [in tzedakah collection]?
[That reflected in] the statement of Rav Nahman,
citing Rabbah ben Avuha: "...for a pledge is seized to secure tzedakah [owed], even on Friday." ...
Rava coerced Rav Natan ben Ami and extracted from him four hundred zuz for tzedakah. "The case
involved a clear exercise of coercion.
Rabbenu Jacob Tam argued further that townspeople may certainly not coerce an individual [to
give] tzedakah, nor [may they resort to coercion] for any purpose other than [the enforcement of]
town ordinances [takkanah]. [So] the case of Ravah coercing Rav Natan ben Ami involved a prior
agreed-upon stipulation and fixed determination on which [Rav Natan] subsequently reneged.
Therefore, [Rava] coerced him.
At [other] times, Rabbenu Tam explained [instead] that Rav Natan's townspeople [originally] accepted
upon themselves the coercive authority of the officers [gabba'im], and for that reason Rava coerced
him.
Rabbi Yitzhak ben Avraham (Ritzva) has written a responsum as a "ruling for practice" viii that a
person refusing to contribute to the tzedakah fund may be coerced by the townspeople [to do so],
citing the case of Rava who coerced Rav Natan b. Ami, extracting from him four hundred zuz for
tzedakah." (Isaac of Vienna, Or Zaru'a, Part I, Laws of Tzedakah 4).
ix
This includes not only citizens or local poor but any wanderer when in the city (Tosefta Peah 4:8)
x
Kinds of welfare include food, money for food, clothing , sleeping arrangement, Shabbat food,
matchmaking services and a dowry grant (Tosefta Peah 4: 8-10; TB Ketubot 67a).
xi
Meiri on Baba Batra 8b: “And you must know this, that kuppah is collected in money, and that it is
a fixed amount on each person, and they collect it even if there is no current need. And when they
collect it, they put it into the kuppah (the community chest) until all or part of it is needed for
distribution. Tamkhui is a collection of cooked food and other food items and is not a fixed amount,
and it is collected according to the current need. It is collected according to what they (the poor) need,
and [the gabbaim] must assess each person according to what their eyes see.”
Jeff Spitzer explains: The difference in collection of kuppah and tamkhui is significant. With
tamkhui, three gabbaim were sent out to collect because they had to assess how much to collect from
any individual, but also because three were considered more reliable than two. Since the amount that
was collected for tamkhui was not predictable, the possibility of "embezzling" someone's left over
roast was apparent.
With kuppah, however, only two gabbaim were needed because the amount to be collected was
fixed, and the gabbaim had nothing to do with how much was collected from any individual.
Apparently, one would make a self-assessment of what one's expected income would be and
determine one's obligation to the kuppah from that amount. If the sources are to be believed, one
56
chose one's own rate (between 10-20%), and the gabbaim would collect that expected (Translated and
collected by Jeffrey Spitzer, Gann Academy, Boston, MA)
xii
“The fund is collected by two [officers] and dispensed by three.” (Mishna Peah 8:6)
xiii
Initially the Christian agape meal of eucharist was an opportunity for the community to brings gifts
of food to share with all including the needy. Later after the 3 rd CE, the eucharist was reversed to
become the symbolic feeding of the initiates with God's body. (H. Mayer, Charity, 180-183)
xiv
Judah Gallinsky reports: “Recent scholarship on the subject suggests as well that other major medieval Jewish communities, such as those in Christian Spain, France, and Germany, did not have any
sort of public charity until the fourteenth century” (“Public Charity in Medieval Germany” in Y.
Prager, Ethic, 80). For example, Rabbi Isaac of Corbeil, the late-thirteenth-century French author of the
Semak, who wrote in his treatment of tzedakah, Mitzvah 248:
“I have omitted the law of tamkhui and kuppa and the laws of the administrators (gabbai) and of the
distribution of the funds because they are not in practice in this kingdom; the law pertaining to one who
possesses 200 zuz is also not in practice amongst us.” However Jews did make voluntary contributions,
even if not in the form of compulsory levies, and they were distributed by a communal bureaucracy by
centralized allocations with accepted criteria.
xv
J. Reynolds, Greek Inscriptions
xvi
Reynolds, Greek Inscriptions.
xvii
“This inscription attests to a Jewish "food kitchen" erected to assist the poor in the community. This
large block of marble was found lying loose, nearly 9 feet long with each side approximately 18 inches
wide; it was inscribed on two adjacent sides with lists of donors' names. The names on face are stated
to be those who helped in the construction of a patella (Latin loan word into Greek for kitchen plate,
later used for offering plate).” (S. Holman, Hungry, 45)
xviii
Pasei HaIr (from MS Ehrfurt) means city taxes as opposed to Aniei HaIr which means the poor of
the city from MS Vienna. Thus the terms of residence refer to the tax paying citizens, rather than the
poor/s eligibility.
xix
Thus the amount of bread is defined by both the value of its raw materials and its finished product
market cost. Gildas Hamel estimated that at 500-600 gram which is the minimal caloric needs for daily
survival which fits the Torah’s command to give dei mahsoro, “enough for one’s need” (Deut. 15:8),
though the Mediterranean triad of foods also includes oil and wine. (G. Hamel, Poverty, 39-42, 247248)
xx
G. Gardner, Giving, 57
xxi
In the Eastern European shtetl similar institutions of social welfare were available either from the
town Jewish community or from voluntary organizations called hervre: synagogue stove to warm the
poor; hekdesh for the poor housing, nedoves for wandering beggars, linas tzedek for helping the sick
(which raised its money by putting on annual Purim play), torbe – a pail for collecting for the poor
called lekhem evyonim. (S. Kassow, “Shtetl” in Y. Gutman, Jews of Poland, 212)
xxii
See M Peah 8:7; T Peah 4:8-21; T Demai 3: 16-17; Y Peah 8, 7, 21a; Y Demai 3, 1, 23b; Y Bava
Batra 1, 6,12d; B Bava Batra 8a-11a. See also S.Baron, Jewish Community, I, 131-132; Lee Levine,
Rabbinic Class, 162- 167; Zeev Safrai, Jewish Community, 62 - 76.
xxiii
Lee Levine, The Ancient Synagogue, 372
xxiv
Tertullian in end of 2nd CE mentions arcae genus (a sort of chest). Others call it gazum.
xxv
John Chrysostrum, Homilies on I Corinthians 43, PG 61, 368).
xxvi
R. Finn, Almsgiving, 41- 47, 79, 103
xxvii
Daniel Nussbaum, Social Justice and Social Policy in the Jewish Tradition, . 210
xxviii
D. Nussbaum, Social Justice, 223-4
xxix
“It is prohibited to participate in a joyous feast (seudah shel simcha) during the 30 day mourning
period after the death of close relative. However Ravi Huna says one may join joyous feats of friends
(seudat mereiim) after the seven day shiva period. Under what conditions? When a group of friends
have consented to provide a round of meals in which each in turn hosts the others and the mourner has
already partaken of others’ meals and now it is his day to fulfill his promise and to provide the meal for
the others.” (Menorat HaMaor 6: The Mitzvot, 516)
xxx
L. Lees, Solidarities,.14-15
xxxi
Churchwarden's Accounts of Pittington, Surtees Society, vol. 84 (1888), 84; quoted in Webb and
Webb, Old Poor Law, 317.) L. Lees, Solidarities, 46-47
xxxii
Churchwarden's Accounts of Pittington, 46-47
xxxiii
John Locke, An Essay on the Poor Law (1697), 186
xxxiv
S. Vaughan, Poverty, 52-53
xxxv
Vaughan, 58
57
xxxvi
Vaughan, 55
based on Sifrei on Deuteronomy 15:7
xxxviii
J. Lifshitz, “Property” in Society, 44
xxxix
Some assign this tradition the status of an absolute Torah obligation, (Turei Zahau as
understood by Arukh Hashulkhan, Yoreh Deah 249:5; and Maharil as cited in Responsa
Hatam Sofer, Yoreh Deah 232). Other authorities consider this mitzvah to be a rabbinically
imposed obligation. Yet a third view, adopted by the majority of poskim (Bach, Yoreh Deah
331; Responsa Havot Yair 224; Responsa She'elat Yaavetz 1:3, 2:119; Hatam Sofer, Yoreh
Deah 331), is that maaser kesafim is neither a Torah nor a Rabbinic obligation at all; rather
it is a time-honored custom, a minhag, which should be adopted by Jews (see Pitkhei
Teshuvah to Yoreh Deah 331:12 and Iggrot Moshe, Even Haezer Vol. III, 43. (Rabbi
Avrohom Chaim Feuer, The Tzedakah Treasury, 126).
xl
Feuer, Tzedakah Treasury, 159
xli
I will not present the Rabbinic agricultural models in discussing Rabbinic urban "tzedakah."
Generally that term is not applied to agricultural gifts, though they definitely form an important part of
the Rabbinic welfare system in the Mishnaic era.
xlii
Mishna Gittin Chapter 4:3
xliii
For example, the amnesty of debts is uprooted with Hillel's pruzbul - lest the whole free loan system
collapse. People fearful of losing their principal due to this cancellation of debts refrain from making loans
at all to the poor. Shmitah is turned into a near-communist extension of the Sabbatical. By Biblical law, land
in Eretz Yisrael on the sabbatical is treated as ownerless in that anyone can enter one's property and take
one's produce equally with the owner and no one may plow, sow seed or harvest the land using tools.
However this is a very inefficient system and leads to general impoverishment since the uncultivated land
produces less and the uncontrolled access to agricultural land often damages its future productivity. One
Rabbinic response was to take over de facto control of the land by the community court and organize its
harvest and distribution in wholly egalitarian manner.
xliv
Giving loans is a mitzvah (Deut. 15:8) and in that sense it is not voluntary as is gift giving or
charity in the Christian sense, however it is not enforced by society. Society highly honors this
mitzvah behavior and social pressure contributes informally to such tzedakah, but there is no official
bureaucracy to exact this obligation. .
xlv
The term parnas is used by Bar Kochba as discovered in the Bar Kochba Letters from 132 – 135
CE
xlvi
Marc Hirschman explicated the term in a lecture at Hartman Institute (July, 2008). He notes that
the head of the synagogue was called archesyngogua. Some rabbis were parnasim and some
appointed others to be parnasim (Jerusalem Talmud Peah 8:7)
xlvii
Parnas which means to support is Syriac, lingua franca of the Aramaic world from the days of Assyria and
onwards until and during the Hellenist age. Parnas appears in a list of communal leaders (M. Sokoloff, Babylonian
Aramaic, 935)
xlviii
"Josephus in a discussion of the public administration of charitable relief during a period of
economic crisis during the first half of the first century C.E. mentions a famine in Judea. Queen Helena
of Adiabene, a convert to Judaism, sent a cargo of corn and dried figs from Alexandria and Cyprus to
Jerusalem for free distribution among the sufferers. The measures then adopted included, among other
things, the appointment of distinguished citizens of each town to supervise the work. Kaufman Kohler
considered this "the first historical evidence of the existence of a body of men at the head of the
community in charge of relief work," corresponding to the Gabbai Tzedakah." (David Dalin,
"Tzedakah with Dignity," Conservative Judaism, Fall 1999,. 8)
xlix
Mishna Demai 3:1,16-17; Mishna Kiddushin 4:5; Mishna BK 11:6; Mishna BM 3:9;
Tosefta Peah 4:15;
l
A. Shinan, Avot, 114
li
Aryeh Cohen, Justice in the City, 9, 13
lii
Louis Finkelstein, Jewish Self-Government in the Middle Ages, 177
liii
Responsum #40 of Moshe Mintz of Mainz cited in L. Finkelstein, Jewish Self-Government, 185 fn. 3
liv
L. Finkelstein, Jewish Self-Government, 132
lv
L. Finkelstein, Jewish Self-Governments, 124
lvi
Hayim Soloveitchik defines that public responsibility based on Lev. 25:35 (A. Levine,
“Aspects “in Shatz, Tikkun Olam, 297-298).
lvii
Rema in the Shulkhan Arukh, H.M. Deah 163 notes that the individual who cannot afford
to provide all a poor person’s needs is then obligated to call this person’s needs to the
xxxvii
58
attention of the community tzedakah officials (M. Tamari, “Social Responsibilities” in
Shatz, Tikkun Olam, 247).
lviii
Or Zarua, Laws of Tzedakah #9 and #23
lix
Maharshdam on Shulkhan Arukh Hoshen Mishpat 442; Responsa of Maharshdam 453
lx
Noam Zion disagrees with M. Tamari who holds that tzedakah is not the right of the poor
but merely an obligation of the rich. (M. Tamari, “Social Responsibilities” in Shatz, Tikkun
Olam, 250)
lxi
Mishne Torah, Laws of Gifts to the Poor 10:19
lxii
Since the collapse of Jewish corporate status with the 19 th C. emancipation of the Jews, all tzedakah
has become a result of individual decisions even if the residual sense of communal responsibility
underlies that individual decision and the language of membership in the community still suggests an
organic connection. However not always even in the Middle Ages did the community enforce tzedakah
collection by legal power. Professor Assis (“Spanish Jewish Communities” in Beinart, Moreshet
Sepharad, 318-345) suggests that communal collections were voluntary before Rabbenu Asher in the
13th C. migrated to Spain and instituted the Ashkenazi tradition of enforced taxation for the poor.
Yisrael Al-Nakawa (14th C. Toledo) in his Menorat HaMaor, Tzedakah Gate #6 ascribes the power
to collect tzedakah by force to the individual's own decision to give money: "The gabbaim collect
tzedakah from each person according to what they ruled - pasak - for themselves to give and those
who do not give what they committed for themselves may even be forced to give collateral until they
actually do pay." He also explains the amount to be given in voluntaristic terms is learned not from the
Biblical verse on tithes but from the Biblical verse on voluntary gifts to the temple on pilgrimage
holidays and the verse describing voluntary gifts for the building of the temple: "Each gives according
to the gift that God gave them as God's blessing (Deuteronomy 16:17), that is, each and everyone one
gives whatever their heart volunteers (Exodus 25:2). God commanded us not to harden our hearts or
tighten our hands when confronted with the needy (Deuteronomy 15: 7). One should not be stingy."
lxiii
The shame of having nothing to give is itself an injury to one's self respect. Ambrose is concerned
to dispel the shame of those without money who are ashamed to offer personal service to others as
destitute as they are (De officiis ministrorum II 15,43 cited in H.Mayer, Charity, 239)
lxiv
see Maimonides, Mishne Torah, Gifts to the Poor 9:12
lxv
Cited in M. Tamari, My Possessions, 257.
lxvi
Rav A. I. Kook’s Ein Ayah, TB Berakhot 9:24 is translated and condensed by Hemdat Yamim
Internet Parshat Hashavua, Vayikra,
www.eretzhemdah.org/newsletterArticle.asp?lang=en&pageid=null&cat=7&ne
lxvii
A. Levine, Economic,127-132
lxviii
Maimonides, Laws of Gifts to the Poor 10:8 and cf. 9:1; Tur YD 256; Shulhan Arukh YD 256:1;
lxix
The Meiri agrees with Rabbi Elazar that it is good advice for everyone even if they have a
trustworthy treasurer to check the accounts and to avoid becoming suspicious that the treasurer is
cheating.
lxx
Conservative Responsa in a Moment: “Investigating the Charities To Which We
Contribute” (see YD 251:10; 256:1; 257:2)
lxxi
David Golinkin cites: Daniel Siegel, "Which Tzedakah Should You Send Checks To? Ten Steps to
Making an Intelligent Decision," Baltimore Jewish Times, Feb. 8, 1991, 3, 10. For a similar approach,
see Dr. Eliezer Jaffe, Giving Wisely, Jerusalem, 1982, 27. For other discussions of this topic, see Barry
Holtz, Finding Our Way: Jewish Texts and the Lives We Live Today, New York, 1990, 170-176; David
Assaf in: Moshe Ishon, ed. Itturim... in Honor of Moshe Krone, Jerusalem, 5746, 248-262; R. Naftali
Zvi Yehudah Bar-Ilan, Sefer Nikdash Bitzdakah, Rehovot, 5751, 201-210; R. Yonah Metzger, Miyam
Hahalakhah, Vol. 4, Tel Aviv, 5753, No. 79.
lxxii
Y. Lifschitz, "Welfare” in Deutsch, "Through Justice,” 102-132
lxxiii
According to Rashi, when someone not eligible for peah nevertheless took produce that had been
set aside for the poor, then the court claims back the funds stolen “even though this is considered
money without claimants. Therefore it is reclaimed as a fine” (Rabbenu Asher on TB Ketubot 6 #1)
lxxiv
Responsum of RaSHBa cited in Laws of Tzedakah 2 of the Mahane Ephraim.
lxxv
Rabbenu Yitzchak of Migash on TB Baba Batra 8b
lxxvi
See also Rabbenu Nisim Gerondi (d. 1380) on RIF on TB Ketubot 18a)
lxxvii
Maimonides, Commentary on the Mishna Ketubot 4:6: “It is well-known that the judge can
enforce the giving of tzedakah according to the principle that for positive mitzvot that the court flogs
one until they agree to perform the mitzvah unto death.”
lxxviii
Tirtsah Levie Bernfeld, Financing poor relief in the Spanish-Portuguese Jewish community in
Amsterdam in the seventeenth and eighteenth centuries” in Dutch Jewry edited by J. Israel, 81
59
lxxix
Cited in Or Zarua, Part One, Tzedakah #23, as well as Beit Yosef YD #251
Thus the court may confiscate property of someone mentally deranged for their portion of tzedakah
(TB Ketubot 48a). However Rabbenu Ephraim (1677-1735) in Mahane Ephraim, Rabbi Yaacov
Lorberbaum, Rav Avraham Bornstein argue that the deranged person can only be obligated to give
tzedakah if they were once sane and at that time they indicated they wished to give tzedakah and now
the court is fulfilling that wish. (Y. Lifschitz, "Welfare” in Deutsch, "Through Justice,” 125- 126).
lxxxi
But the Israeli religious court that tries cases of family law once ruled that a delinquent father owes
support to his son as a form of tzedakah, then it is his duty, but the son has no right to sue the father to
pay the debt as if it were a personal debt (Israeli Religious Court, case #226, 5714,vol. one, 153-154)
lxxxii
Judah Galinsky,“Public Charity in Medieval Germany” in Yossi Prager, Toward a Renewed Ethic
of Jewish Philanthropy, 66ff) argues that in Ashkenaz and perhaps other communities before the 14 th
C. there was no regular, mandatory tzedakah tax collection except in emergencies when a herem would
be issued to enforce contribution. He is trying to show that Maimonides’s claim that there is no
community without a kuppah is a wishful prescription, not a realistic description. His argument is
based for the most on an argument from silence that there is a lack of sources showing explicit
mandatory tzedakah collection in this period. He cites the Or Zarua of Rhineland that does repeat
without reservation the Talmudic sources about mandatory tax collection, but does not mention
contemporary examples of such tax collection. In his judgment the gabbai fundraised and gathered
voluntary donations but did not exact tzedakah taxes. While this historian may well be correct that
certain regions in Germany and elsewhere in the early medieval era did not effectively follow the
Talmudic model, that does not undermine the thesis that this is central Rabbinic mitzvah to be honored
even its breach and that in a slightly later period we have many examples of mandatory tzedakah
collection.
lxxx
lxxxiii
"One who took a vow of tzedakah may spend half on his poor relatives [though some say
2/3rds]…The Torah says that one's poor relatives have priority in tzedakah and as a wealthy person, the
burden of supporting his poor relatives is on him, not on the municipal gabbaim." (Mordecai on Baba
Batra #659)
lxxxiv
Also Responsa of Maharsdam YD #166
lxxxv
Rabbenu Jacob Tam takes a minority position that: "certainly the citizens of the city cannot coerce
one to give tzedakah nor anything else that is not a city ordinance." (Or Zarua, Laws of Tzedakah #4)
lxxxvi
Tosafot on TB Ketubot 86b
lxxxvii
Rabbi Shlomo ben Avraham Aderet (RaSHBa) opposes seizure of property for tzedakah
delinquents (Responsa 4:56; 3:380). So too Rabbi Meir of Rotenberg says "if one does not wish to give
tzedakah, then no coercion should be used." (Tur Even HaEzer Ketubot #71). In fact, the historian
Haim Beinart thinks across Spain there were many communities without organized collections of
tzedakah as form of compulsory tax. Despite Maimonides' view that there is no Jewish community
without tzedakah fund.
lxxxviii
See Moshe Feinstein’s discussion in Igrot Moshe YD I #149 where maps the views on the legal
force of tzedakah collection under: (1) mitzvah of tzedakah that may be coerced (Maimonides, Tur,
Shulkhan Arukh); (2) universal acceptance of an obligation by all members of the society like a vow to
give tzedakah that included acceptance of coercion; (3) a city’s right to collect for its needs including
communal mitzvah needs such as building a synagogue.
lxxxix
Yosef Yitzhak Lifschitz, "Al Torat HaKalkala HaYehudit," Tekhelt 17 (2004)
xc
Maimonides, Mishne Torah Laws of Gifts to the Poor 7:10
xci
Rabbenu Tam and RI in TB BB 8b, Tosfot akhpei
xcii
“The Rabbis taught: 30 days – for tamkhui [plate of foods shared daily with the needy]; 3 months –
for kuppah [treasure chest of funds for needs distributed weekly to resident poor]; 6 months – for
clothing [for the poor]; 12 months xcii – for pasei ha-ir [municipal taxes for security]."(TB BB 8a)
xciii
Rav Yhiel Epstein, Arukh HaShulkhan YD 248:13
xciv
Arukh HaShulkhan, Hoshen Mishpat 163:7
xcv
Arukh HaShulkhan Hoshen Mishpat 163:2
xcvi
Igrot Moshe, YD Part One #149
xcvii
When someone hides their resources from the community to decrease their taxation, thus "to
decrease carrying their share of the yoke of the burden of the society, then they are considered to be
robbers of the public." (Pitkhei Teshuvah, on Shulkah Arukh H.M. 163).
xcviii
TB Baba Batra 7b; TB Baba Kamma 116b, Maimonides, Laws of Robbery 12:11
xcix
R. Yehoshua Benvensti, Istanbul, 1612- 1662 cited in Eliezer Bashan, “The Struggle of the Spanish
Rabbis for Social Justice” in Yehezkel Cohen, Hevra vHistoria
61
c
Rabbi Avraham Benvenisti of 19th C. Salonica rejected the equal benefits argument and insisted that
one pay based on capacity to pay. However if there is custom such as paying the cantor – half per
capita and half by wealth, then follow the local custom. (cited in Eliezer Bashan, “The Struggle”)
ci
Eliezer Bashan, “The Struggle of the Spanish Rabbis for Social Justice” in Yehezkel Cohen, Hevra
vHistoria, cites many halakhic authorities who rule that tzedakah is exacted “proportional to one’s
wealth.”
cii
Cited in Eliezer Bashan, “The Struggle of the Spanish Rabbis for Social Justice” in Yehezkel Cohen,
Hevra vHistoria. Similarly Rav Hayim Abulafia fought to eliminate taxes on wine and cheese because
this robs the poor.
ciii
http://www.mizrach.org.il/index.asp, Distributive Justice.
civ
Cited in Eliezer Bashan, “The Struggle of the Spanish Rabbis for Social Justice” in Yehezkel Cohen,
Hevra vHistoria
cv
Arukh HaShulkhan H.M. Laws of Partners in Property #163: 7;9
cvi
Rav Simcha Zissel Ziv Broida, the Alter of Kelm, 1824- 1898, Hocham uMussar I 2-5, cited in Z.
Fendel The Torah, 256
cvii
Simcha Zissel Ziv, Sefer Hochmah U-Mussar, 1, translated by Ira Stone in A Responsible Life: the
Spiritual Path of Mussar, 161, cited in Aryeh Cohen, Justice in the City, 158
cviii
M. Glendon, Rights Talk, 26
cix
J. Waldron, God, Locke and Equality, 154
cx
M. Glendon, Rights Talk, 21
cxi
Rousseau, Origins of Inequality, 1754
cxii
Mary Glendon, Rights Talk, 99
cxiii
M. Glendon, Rights Talk, 77, 79
cxiv
M. Glendon, Rights Talk, 77, 79
cxv
See footnote #20 above
cxvi
Sefer Hasidim #1289 as cited by Yitzhak Baer, “Hamegama HaHevratit shel Sefer Hasidim”
reprinted in anthology on Sefer Hasidim edited by Ivan Marcus, editor, 186
cxvii
Y. Lifshitz, “Tzedakah” in On Economy, 314
cxviii
A. Levine, Economic, 109 -111 and M.Tamari, My Possessions, 51-52
cxix
Tanhuma Va’era 19, TB Sanhedrin 109a, Pirkei d’Rabbi Eliezer 25
cxx
Avot 5:13; Sifra on Leviticus 19:16
cxxi
The Malbim comments that Sodom was fertile plain like the Garden of Egypt so they feared lest desert dwellers
or the poor invade their rich land
cxxii
Guide to the Perplexed cited in Ramban
cxxiii
Hizkuni sees this Biblical verse as the source for the Rabbinic notion that every host is obligated to
provide for a guest - food, drink, lodging, a small gift and an escort. But here escort means “an honor
guard” for the departure, not a real guard to get him to the next destination safely.
cxxiv
Aryeh Cohen, Justice in the City, 69
cxxv
Aryeh Cohen, Justice in the City, 69
cxxvi
Aryeh Cohen, Justice in the City, 71
cxxvii
Aryeh Cohen, Justice in the City, 76
cxxviii
Mishne Torah, Laws of Selling 14:1-2, 5,9-11
According to Rav cited in Mishne Torah, Laws of Selling 14:1-2, 5,9-11
cxxx
TB Baba Batra 90a and Shulkhan Arukh Hoshen Mishpat 231:20
cxxxi
B. Freundel, “Health Care” in Shatz, Tikkun Olam, 326.
cxxxii
Poznan, like other medieval Jewish communities, hired a communal doctor to care for the sick
who were unable to afford the physician's fee. The contracts preserved in the minute books reflect this
institution. The physician took an oath to be the communal doctor. During this time, he was not
permitted to leave Poznan unless a second physician, a member of his family, would visit the sick in
his place. He promised to visit the sick at home or in the communal center, providing them with
individual attention whenever they required it. In 1635, for example, Dr. Isaac Bachrach agreed to “be
a faithful doctor to the sick poor of our community; without fee he will visit them without any excuse,
both those sick who are lying at the communal center and the other sick poor here in Poznan. He must
give them individual attention, using all the knowledge of healing which the beneficient power of God
has bestowed upon him. Dr. Isaac is not permitted to leave Poznan unless his father-in-law, Dr. Judah
(deLima) will take his place and be prepared to visit the sick poor.” (S.Z. 147A) (D. Nussbaum, Social
Justice, 231)
cxxxiii
Book of Mitzvot Prohibitions #250-262; Maimonides, Laws of Selling 14:13-15
cxxix
61
cxxxiv
In a few places in TB Baba Batra verses from the prophet are cited but chiefly to explain the
concern for the needy, but not to register complaints against the system.
cxxxv
Thanks to Professor Aharon Shemesh who lectured on this topic for a seminar at Shalom
Hartman Institute.
cxxxvi
Philo (c. 20–54). Quod Omnis Probus Liber. XII.75ff. See also Philo. Hypothetica. 11.1. in
Eusebius. Praeparatio Evangelica. VIII
cxxxvii
Serakh Yahad 1:11-13; 5:4; 6:16- 23
The list of needy recipients is reminiscent of the later Rabbinic lists of beneficiaries. The use of
the term goel from Leviticus 25 recalls the role of the nearest kin blood redeemer as responsible for
support. Pidyon shvuim, ransoming captives, is a central function of the community's kuppah for
tzedakah. In TB Ketubot 67a orphans are provided with maintenance and help to marry.
cxxxix
D. Nussbaum, Social Justice,133
cxl
D. Nussbaum, Social Justice, 266
cxli
D. Nussbaum, Social Justice, 268
cxxxviii
62