A person should always associate himself with the community.
BERAKHOT 30a
Personal liberty and the rights of the individual are strongly rooted as cardinal values of Western philosophy. Systems of thought which view the rights of individuals as paramount and inalienable find it difficult to accommodate the concept of a state which requires its citizens to surrender basic freedoms and to sublimate individual self-interest for the sake of the welfare of society. Much of Western social and political philosophy is devoted to the formulation of an intellectual matrix designed to justify the extension of the powers of the body politic to spheres beyond the simple protection of its members against evildoers. Thus, eighteenth- and nineteenth-century European thought gave rise to various forms of a social-contract theory. Inherent in many such theories is the concept that, at least ideally, the state should maintain a laissez-faire attitude toward its citizens insofar as possible.
Jewish thought—and law—is based upon an entirely different set of premises. Man is bound by divinely imposed imperatives which oblige him to be concerned with the needs of his fellow. Some of these obligations are entirely personal. Others either could not possibly be discharged by any person acting independently or, if directed to individuals, would constitute an inordinate burden. Hence such obligations become the responsibility of society at large. According to Nachmanides,1Commentary on the Bible, Gen. 34:13. the very first divinely commanded system of law, the Noachide Code, contains a single positive commandment, dinim, which translates into a general obligation to promulgate laws and to establish standards regulating the manifold areas of interpersonal intercourse. Jewish law recognizes not only the reciprocal dependency of members of the human race, but also that the human condition requires that the governing authority, acting as the representative of society as a whole, be endowed with the broad powers necessary for the promotion of social welfare.
Judaism views every man as his brother's keeper. Since furtherance of the common good is not simply an ideal but is, in many instances, a positive obligation, government need not necessarily derive its authority from the consent of the governed. In fact, Judaism does not view the social order as being predicated upon consent at all. "Inhabitants of a city may coerce one another" is the phrase commonly employed in rabbinic writings in introducing a description of the services or amenities which society must provide for its citizens. From the moral right of one citizen to force another to discharge obligations vis-à-vis his fellow citizen arises the positive coercive power of the state designed to achieve the same end. The state in such instances simply acts as the agent of its individual citizens in assuring that all the citizens contribute to the promotion of social welfare and well-being. Indeed, the power of coercion is vested not only in governmental entities but in more limited social units as well. Thus, artisans may organize themselves into guilds and are empowered to impose binding regulations upon all practitioners of their craft. The individual may not refuse to accept restrictions designed to enhance the common welfare.
In any system of law conflicts are bound to arise between personal liberty and social needs. The respective rights of society and of the individual require careful elucidation in order that conflicts between the two be resolved. While the general principles of Jewish law in this area are incorporated in the various codes, subsequent responsa literature is replete with examples of how Jewish law strives to strike an equilibrium between the rights and prerogatives of society and those of the individual.
War and Peace
There are few social issues on which more popular attention has been lavished than the moral problems surrounding the Vietnam conflict. As the moratorium movement swept the United States during the late 1960s, problems of conscience previously buried deep within the recesses of heart and mind were subjected to probing analysis in the harsh spotlight of public controversy. There was a general heightening of moral consciousness which aroused feelings of abhorrence to all forms of warfare. It was an unfortunate accident of history that at precisely such a juncture uncontrollable circumstances conspired to project a warlike image of the Israeli. Harsh and tragic facts of life caused an unprecedented degree of attention, pride and even adulation to be focused upon the Israeli soldier. This phenomenon was, of course, understandable and indeed well founded. Yet it is imperative that at no time do we allow ourselves to lose sight of the striving for peace which lies at the very core of Judaism.
It was, no doubt, sentiments such as these which prompted the editors of the engaging Israeli army magazine, Maḥanayim, to devote an entire edition to the theme of peace in Jewish sources. The issue of Adar 5729 contains a wide range of articles dealing with halakhic, historical, literary and liturgical aspects of this topic. Although primarily in the nature of a general précis, of special interest are Rabbi Shlomoh Goren's discussion of "Army and Warfare in the Light of the Halakhah" and Rabbi Mordechai ha-Kohen's "Peace in the Wars of Israel in the Light of the Halakhah."
Rabbi Goren presents a general discussion of the classical distinction between obligatory wars, permissible wars and wars of defense. More noteworthy is his presentation of sources pertaining to the establishment of minimum and maximum ages with regard to the conscription of soldiers. The chief difficulty in establishing a minimum age is that although Rashi, in his commentary on the Pentateuch (Exod. 30:14 and Num. 1:3), states that warriors must be "twenty years old and upward," Rambam, in his Mishneh Torah, is silent with regard to any such provision. The question of a maximum age limit centers upon the proper textual reading of the Sifre, Numbers 197, which establishes an upper limit of either forty or sixty years of age, depending upon which of the variant readings is accepted as accurate. Another problem to be resolved is whether these limits pertain only to permissible wars (milḥemet reshut) or are applicable to obligatory wars (milḥemet ḥovah) as well.
Rabbi Mordechai ha-Kohen demonstrates that it is mandatory that peace terms be set forth before engaging in hostilities. In this article the author endeavors to prove that normative Halakhah requires the initial proffering of peace terms even in the case of obligatory wars in accordance with the ruling of Rambam, Hilkhot Melakhim 6:1, and concurring authorities in contradiction to the ruling of the Sifre, Deuteronomy 199, and Rashi in his commentary on Deuteronomy 20:10. The latter sources regard this provision as being operative only in the case of permissible wars to the exclusion of obligatory wars.
While we cannot but regret that cogent questions such as these must yet be classified as contemporary halakhic problems, we should perhaps recall that "All that is recorded in the Torah is written for the sake of peace; and although warfare is recorded in the Torah, even warfare is recorded for the sake of peace" (Tanḥuma, Ẓav 3).
Changing Neighborhoods
The observation that conditions of life on the American continent are markedly different from those encountered in European countries in days gone by is a commonplace truism. One aspect of the American scene which is of the utmost significance in terms of Jewish communal life is the phenomenon of changing neighborhoods. In previous habitations Jews tended, whether by necessity or by choice, to form their own ethnic enclaves and to establish themselves in residential areas which retained their Jewish identity over a period of centuries. The permanence and stability of these Jewish sectors permitted the erection of synagogues, the development of networks of schools and the founding of communal institutions with the surety that population shifts would not render them obsolete. Jews residing in such areas could not but acquire a strong sense of belonging which, in turn, naturally fostered a strong sense of communal responsibility. Life in such surroundings had a distinctive Jewish flavor; the very air became permeated with Yiddishkeit. All of this was of inestimable value in terms of fostering a feeling of Jewish identity and solidarity and in transmitting these emotions to subsequent generations.
At least a portion of the responsibility for the malaise of American Jewish life may be attributed to the uniquely American phenomenon of population shifts and changing neighborhoods. Synagogues, schools and communal institutions must be relocated or rebuilt—at phenomenal cost in terms of both finances and human energy. Feelings of transience and anonymity born of this unprecedented degree of domiciliary mobility contribute to a general shirking of communal responsibility. The lack of Jewish atmosphere causes feelings of Jewish identification to become dull and commitment to pall.
For decades, rabbinic authorities, in company with lay leaders of the Jewish community, simply wrung their hands in grief and bemoaned what appeared to be an irreversible sociological trend. However, several years ago a significant attempt was made to halt migration from Jewish neighborhoods by showing that such action is not contraindicated solely by social desiderata but frequently entails violation of halakhic precepts as well. In a noteworthy article on this topic appearing in the Iyar 5728 issue of Ha-Pardes, Rabbi Menachem Mendel Schneerson, the Lubavitcher Rebbe, points out that the sale of a dwelling within a Jewish neighborhood is subject to rigid halakhic limitations.
Hoshen Mishpat 156:1 stipulates that if an objection is entered by any one of the residents, householders sharing a common courtyard may not rent a dwelling to a physician, blood-letter, weaver, notary or teacher of secular subjects. Since the practice of these professions would increase traffic in the courtyard, objections to such rental are legitimate. Rema adds that sale of a dwelling—in contradistinction to rental—to Jewish members of these professions is permitted. As explained by Sema, a standard commentary on Hoshen Mishpat, rental is presumed to be for personal domicile and therefore is forbidden to members of the aforementioned professions; purchase, however, may be motivated by other purposes, such as subsequent lease to a tenant not practicing these professions or personal use at a later date following retirement from these offending pursuits. In any event, activity counter to the interests of other residents can be curtailed by the Bet Din if the purchaser is a Jew subject to halakhic jurisdiction. A non-Jew engaged in one of these professions is not similarly bound. Hence, sale of such property to members of these professions who are not subject to Jewish law can be prevented by neighborhood residents since it is possible that their interests will be jeopardized. Citing these sources, Rabbi Schneerson reasons that property owners may, in accordance with Halakhah, prevent the sale of property if such sale would depress property values or would result in the lowering of existing housing standards.
Indeed, Halakhah imposes restrictions upon the sale or lease of property to non-Jews. Fearful that persons not bound by the dictates of Jewish law will use the property for purposes not sanctioned by such law, Halakhah demands that the original owners assume liability for any resultant damages. Hoshen Mishpat 175:40 states, on the basis of Baba Kamma 114a, that the original owner is subject to excommunication unless he assumes responsibility for any loss incurred or unless the gentile purchaser or tenant agrees that all disputes arising from use of such property be adjudicated in accordance with Jewish law. Although Shulḥan Arukh cites an opinion of Rosh to the effect that these restrictions are relaxed in instances where no Jewish purchaser or tenant is willing to offer an equivalent sum, real estate owners are nevertheless forbidden to engage in profiteering. The property owner is expressly enjoined from accepting a sum significantly higher than the fair market value of the property when such an offer is malevolently tendered for the specific purpose of destroying the Jewish character of the neighborhood.
Taking into consideration the fact that the lives and safety of the remaining Jewish residents are often endangered as a result of neighborhood deterioration, Rabbi Schneerson even goes so far as to argue that there may be grounds for demanding that neighborhood emigres return to their previous homes. Jewish law requires an individual to do everything in his power to prevent or remove any source of potential communal harm. Rema, Hoshen Mishpat 155:22, cites an intriguing ruling of Hagahot Mordekhai regarding the case of a certain feudal lord who desired to move Jews living in scattered villages throughout the countryside to an area within his suzerainty. In order to secure compliance with his wishes, he sought to enlist the judicial aid of the large Jewish community already within his jurisdiction and threatened that kehillah with expulsion from his domain were they not to cooperate. The ruling issued in this particular case was that, in light of the grave communal threat, Jews residing in farflung settlements were indeed obligated to alleviate the danger to their coreligionists by changing their places of residence. In some circumstances, the people compelled to relocate would be entitled to claim financial compensation. Following this line of reasoning, Rabbi Schneerson argues that nowadays Jews may perhaps be obliged to return to their former abodes in order to prevent deterioration of a neighborhood if continued deterioration would effectively result in the expulsion of remaining residents. Regardless of the applicability of this particular parallel, the considerations advanced by Rabbi Schneerson underscore the gravity of the problem.
Rabbi Moses Feinstein, in a letter published in the Sivan 5728 issue of the same journal, indicates general agreement with Rabbi Schneerson's views and adds that had the latter's article not appeared he would himself have authored a similar responsum.
Without doubt the Jewish community has a vested interest in areas where it has built religious centers and educational institutions at a high expenditure of communal funds and a priceless investment of human effort. These halakhic opinions serve to reemphasize the importance of neighborhood preservation. Of course when actual physical danger to residents is involved the situation is totally different and other considerations become paramount. Therefore, pragmatically speaking, it may not be feasible to legislate with regard to moribund neighborhoods. However, before the fabric of existing Jewish neighborhoods becomes hopelessly unraveled, we would be wise to take the proverbial stitch in time and exercise imagination and foresight in communal planning.
Mendicants
The 5730 issue of Shanah be-Shanah contains a short item from the pen of the octogenarian scholar, Rabbi Shlomoh Yosef Zevin, who in addition to his many and varied scholarly pursuits serves as general editor of the Encyclopedia Talmudit. An official of the Israeli Ministry of the Interior referred a proposal of the Tel Aviv municipal government to Rabbi Zevin, in the latter's capacity as a member of the Chief Rabbinate Council, for his evaluation of the request from the point of view of Halakhah.
As every tourist is painfully aware, Israel has an inordinate number of paupers who openly solicit alms not only in synagogues but on the public streets as well. There is no gainsaying that such practices are socially undesirable and do not reflect creditably upon a country in which they are so widespread. The municipality of Tel Aviv therefore requested the Minister of the Interior to initiate legislation which would effectively ban such mendicants from the streets. The official soliciting Rabbi Zevin's views emphasized that no one had suggested restraining the poor from requesting charity from worshippers in synagogues; the proposed ban was to be limited to solicitation in public thoroughfares.
Rabbi Zevin quotes chapter 17 of the Chafetz Chaim's Ahavat Hesed, a work devoted to the mizvah of charity, in which the author reports the innovative move of establishing "federations" for the purpose of conferring stipends upon itinerant beggars in order to preclude them from soliciting alms from individual householders. The Chafetz Chaim frowns on this practice and among his sources cites the negative view expressed in the Gemara, Baba Batra 7b, with regard to the building of a walled enclosure around one's courtyard because the wall prevents the cry of alms-seekers from being heard.
The well-known anecdote concerning the reaction of Rabbi Levi Yitzchak of Berditchev to a similar proposal is also noted by Rabbi Zevin in this context. The Berditchiver sarcastically remarked that the idea is not at all novel; such a communal edict was long ago promulgated by the Council of Four Lands: Sodom, Gomorrah, Admah and Zeboiim. Clearly, Berditchev—and hopefully Tel Aviv also—would not want to be included in such an infamous grouping.
In conclusion Rabbi Zevin suggests that many such paupers would cheerfully desist from these activities if their needs would be provided for by an adequate social-welfare allotment. Nevertheless, he agrees that steps may be taken to prevent beggars from accosting people on public thoroughfares, but argues that they should not be restrained from adopting a mendicant posture at a fixed location. In the final analysis, while undignified forms of public solicitation are to be deplored, it is unthinkable that a Jewish community bar any individual from seeking charity. "If there be among you a needy man, one of your brothers, within any of your gates, in your land which the Lord your God gives you, you shall not harden your heart, nor shut your hand from your needy brother" (Deut. 15:7).
Organized Labor
Industrialization has given rise to many issues which are not directly discussed in earlier rabbinic literature. Not a few of these are in the area of labor relations. Writing in the 5732 edition of Shanah be-Shanah, Rabbi K. Tchursh reports that some forty years earlier Mr. S. Z. Shragai, acting on behalf of the executive of the Hapoel Hamizrachi, placed the following questions before the then Chief Rabbi of Israel, Rabbi Abraham I. Kook:
1. Are strikes permitted when an employer seeks to lower wages or to extend working hours? Are they also permitted in an attempt to improve working conditions, to obtain higher wages or to shorten working hours?
2. Assuming that strikes are sanctioned by Halakhah, at least under certain conditions, what is the status of the strikebreaker? Does Halakhah construe his activity as constituting illicit interference with the striking workers' attempts to earn a livelihood? May such individuals be restrained from strikebreaking activities?
3. Does a labor union have the halakhic right to force the employer to engage in collective bargaining with the union? Does a labor union have the right to force individual workers to become members of the union, thereby establishing a union shop, in order to prevent the employer from utilizing nonunion labor to the detriment of the union members?
The oral ruling issued by Rabbi Kook with regard to each of these questions was reported in the press at the time but was not subsequently recorded in the form of a formal responsum. According to Rabbi Tchursh, Rabbi Kook declared that basically Halakhah grants labor unions the prerogatives in question. Rabbi Kook expressed the opinion that unions are nevertheless halakhically obligated to submit all labor disputes to a Bet Din for adjudication before taking any direct action. He ruled, however, that workers are permitted to strike in the event that the employer refuses to accept the jurisdiction of the Bet Din or refuses to abide by its decision. When strikes are warranted, strikebreaking is forbidden. Demands that all workers be compelled to enroll in a union, Rabbi Kook maintained, may be enforced only following a decision of a Bet Din in each individual case.
Mr. Shragai evidently presented the same set of questions to Rabbi Waldenberg as well, for we find a responsum addressed to this official in Ẓiz Eli'ezer, II, no. 23. Rabbi Waldenberg answers in a similar vein but significantly limits the role of the Bet Din in matters involving malfeasance on the part of the employer. According to Rabbi Waldenberg, workers are under no obligation to seek intervention by a Bet Din and may go on strike without prior approval if their grievance results from the failure of the employer to fulfill his obligations toward his employees, provided, however, that the union is absolutely certain of the justice of its grievance. Otherwise the workers are not absolved from their obligation to bring the matter before a Bet Din.
The Gemara, Yoma 38a, in what may well be the first recorded instance of a "strike" in order to obtain higher wages, relates that at one point the bakers of the shewbread refused to perform their assigned duties. The shewbread were very thin and fragile and extraordinary skill was required to keep them fresh and well-tasting. The methods employed in the difficult task of baking the shewbread in accordance with their precise specifications and in removing them from the oven without breaking them were jealously guarded secrets of the House of Garmu. Indeed, the Mishnah decries the refusal of these individuals to divulge this information. In an attempt to destroy the monopoly of the House of Garmu other craftsmen were brought from Alexandria. Unfortunately, the latter were unable to perform this intricate task with competence. Ultimately, after their wages were doubled, the bakers of the House of Garmu were prevailed upon to return to their posts.
The right of workers to organize and to formulate binding regulations is codified by Rambam, Hilkhot Mekhirah 14:10. Rambam states that artisans may regulate the periods during which individual craftsmen may engage in gainful employment; they may also establish fines and similar sanctions for the punishment of violators. Such regulations, however, must, wherever possible, have the approval of competent rabbinic authorities. The prerogatives of organized labor are further discussed by Rabbi Tchursh in an earlier version of the same article, Shanah be-Shanah 5723, and in his Keter Efrayim, no. 19. This subject is also dealt with by R. Eliezer Waldenberg, Ẓiz Eli'ezer, II, no. 23; R. Ben Zion Uziel, Mishpetei Uziel, Hoshen Mishpat, III, no. 41; Rabbi M. Findling, Teḥukat ha-Avodah, pp. 61–64 and 119–126; and R. Moses Feinstein, Iggrot Mosheh, Hoshen, Mishpat, I, no. 58. Rabbi Feinstein opines that rabbinic approval is required only for the establishment of sanctions to punish violators but not for the promulgation of regulations which are to be binding upon the members of a labor union.
Rabbi Tchursh points out that Halakhah embodies safeguards to protect the interests of the employer as well as those of the employee. Perhaps the clearest example is a limitation of what Halakhah deems to be the most fundamental privilege of the worker, viz., the right of a laborer to terminate his employment "even in the middle of the day." Halakhah forbids coercion of a laborer to work against his will. In so doing the Sages equated this situation with involuntary servitude and forbade such practices, declaring, " 'For they are My servants'—and not servants of servants." Yet even this basic prerogative is suspended if such action would result in financial loss to the employer. In explicating the term "financial loss," Rema, Hoshen Mishpat 333:5, extends this concept to encompass nonperformance of any task which could not be performed by the employer himself.
Rabbi Tchursh further contends that under certain conditions striking workers may legitimately demand compensation for the period during which they were on strike. Citing Rosh, Baba Kamma, chap. 6, no. 6, Rabbi Tchursh argues that, in the absence of a disclaimer on the part of the employer, rehiring of the workers signifies agreement to pay back-wages covering the period of work stoppage. Rabbi Tchursh agrees, however, that the strikers need not be paid full wages; the employer may deduct that amount which it may reasonably be assumed an employee would agree to forgo in return for not being required to report for work. A decision to this effect is contained in Tashbaz, I, no. 64. It may be argued that this conclusion is valid for countries such as Israel, which apparently has a tradition of compensating workers for periods of work stoppage, but not in countries where this practice is unknown. The presumption that an agreement of this nature has been accepted is valid only if such agreement is in accordance with local custom. Accordingly, if local labor-relations practices do not provide for payment of wages covering the strike period, rehiring of striking workers, in and of itself, should not be taken as constituting agreement to pay such wages.
The situation is somewhat clearer if the strike resulted from violation of a labor agreement on the part of the employer. In such cases Tashbaz rules that since the strike resulted from malfeasance on the part of the employer, he is obliged to compensate the workers for their loss. A similar conclusion is reached by Rabbi Moses Feinstein, Iggrot Mosheh, Hoshen Mishpat, I, no. 59.
Tenure
Traditionally, communal and synagogal functionaries enjoy tenure in their positions as long as they are not remiss in the performance of their duties. This arrangement serves to protect the livelihoods of persons whose talents and specialized skills have been devoted to public service. Thus it precludes the ignominious possibility that an individual who has sacrificially devoted years of service to the community may be discharged due to frivolous whim or personal animosity. But, most significantly, tenure serves to preserve the independence and integrity of religious leadership, much in the same manner that academic tenure serves as the single most potent safeguard of academic freedom.
Tenure in communal office is a well-established provision of Jewish law and references to this prerogative may be found in many diverse sources. As is the case with regard to any area governed by legal codes, questions have arisen through the ages with regard to fine points of application. Which officials are considered to be tenured? May the right to tenure be waived? Upon what grounds may a tenured official be removed? While references to these questions are to be found scattered throughout rabbinic and responsa literature, a systematic and comprehensive treatise dealing with these questions is lacking. Several years ago a dispute arose between the administration of a religious school in Israel and a number of the members of its faculty. The administration sought to discharge the teachers while the latter contended that, according to Jewish law, they were entitled to tenure in their positions. The case was heard by a rabbinic district court in Tel Aviv composed of Rabbis S. Tena, Y. Nesher, and A. Horowitz. The Bet Din's written decision, which runs to over thirty printed pages, is not limited solely to the resolution of the questions raised in the particular case before the court. Incorporated in the decision is a fairly comprehensive review of the entire matter of tenure in Jewish law. This decision was included in the current volume of the published decisions of the Israeli rabbinical courts, Piskei Din Rabbaniyim, VIII.
The underlying concept upon which the right to tenure is predicated is an intriguing one. Jewish law provides that succession to the monarchy be from father to son, provided that the son is qualified to discharge the duties of this high office. The right of inheritance is not limited to the royal throne but extends to all positions of serarah, or communal authority. (See Rambam, Hilkhot Melakhim 1:7.) Or Zaru'a, no. 65, remarks that since a son has precedence over all others aspiring to such office, "most certainly the person himself has precedence as long as he has not been remiss." The identical rationale is formulated by Mabit, no. 4, and Bet Yizḥak, Yoreh De'ah, no. 34. Rivash, no. 271, finds the halakhic concept of tenure to be based upon the statement of the Palestinian Talmud, Horiyot 3:5, to the effect that care was exercised in taking apart and reassembling the Tabernacle to assure that boards used for the different walls on the various sides of the courtyard not be interchanged. Even an inanimate piece of wood, once it has been accorded the "privilege" of occupying a position of honor, cannot be removed and assigned an inferior position. Other authorities cite the talmudic principle "In matters of sanctity one enhances but does not diminish" and interpret it as prohibiting the diminuation of "sacred" responsibility by removal from office.
The Bet Din, noting that automatic tenure, according to Halakhah, is a prerogative only of those occupying positions of "authority," carefully draws a distinction between teachers engaged in the education of young children and roshei yeshivah to whom is entrusted the training of more mature students. Teachers are considered to be communal employees rather than communal officials. Roshei yeshivah, even though they exercise authority only within their individual classrooms and perform no formal administrative function, are "heads" of the yeshivah, as evidenced by their title and their relationship vis-à-vis their students. This distinction may be traced to Nidrei Zerizin as cited by Divrei Ge'onim, no. 94.
Interestingly, the rabbinic court found grounds to differentiate between institutions administered by the community at large and institutions sponsored by an individual or a small group of people, even though the latter may also be funded by philanthropic sources.2See also Teshuvot Maharam Schick, Ḥoshen Mishpat, nos. 18 and 19; and R. Ya‘akov Kanefsky, Kehillot Ya‘akov al Mesekhtot Baba Kamma u-Baba Batra (B’nei Brak, 5725), addenda, no. 11, sec. 6. In this decision religious and educational institutions sponsored by individuals are viewed as private institutions even though their services are freely available to the entire community and, accordingly, the usual employer-employee relationship exists between the administration and members of the staff.
Probably the most important issue with regard to tenure is the question of whether this prerogative may be surrendered by means of a contract specifically limiting the term of office. At least one authority, Ẓikrei Lev, Oraḥ Hayyim, no. 50, maintains that the right to tenure, where it exists, cannot be waived by prior stipulation. Yoma 12b discusses a contingency in which the High Priest becomes temporarily disqualified from performing the sacrificial ritual on Yom Kippur and a substitute must be appointed to perform the service on that day. What is the status of the newly appointed High Priest after the temporarily disqualified High Priest is again able to return to the performance of the duties of his office? There is a dispute between R. Meir and R. Yosi as to whether or not the temporarily appointed High Priest retains the status of a High Priest but both concur that one who has filled the office of High Priest, even temporarily, can no longer function as an ordinary priest. The rationale adduced by the Gemara is the principle that "in matters of sanctity one enhances but does not diminish." Now, reasons Hikrei Lev, it would be quite simple to stipulate in advance that the appointment as High Priest be only temporary in nature, and that the individual so designated revert to his prior status upon the lapse of his temporary appointment. Since this was obviously not viewed by the Gemara as a viable procedure it may be concluded, argues Hikrei Lev, that tenure is a divinely bestowed prerogative which cannot be waived. Any contractual agreement to this effect constitutes a stipulation contrary "to that which is written in the Torah" and hence is ipso facto null and void.
Other authorities disagree and point out that the High Priest did not simply discharge a religious function; rather, inauguration into this exalted office conferred a unique sanctity upon the occupant by virtue of the holy oil with which the High Priest was annointed. These authorities argue that appointment to other communal offices does not confer any specific sanctity upon the designee, and hence such appointment may be for a specific period of time. This is the view of Hemdat Shlomoh, Oraḥ Hayyim, no. 7, who has been understood as ruling that a cantor may be discharged upon the expiration of the term of his contract. Be'er Yizḥak, Yoreh De'ah, no. 3, following Hemdat Shlomoh, rules that the same is true with regard to the removal of a ritual slaughterer. With regard to the adjudication of the case at hand, the Israeli Bet Din followed the latter authorities in ruling that the contract of a teacher or rosh yeshivah engaged for a provisional period need not be renewed since the period of service has been stipulated in advance by means of a written contract. The acceptance of a stipulation with regard to a specific period of service is viewed as constituting a waiver of the right to tenure.
It should be pointed out that an apparently contradictory ruling was issued by Rabbi Moses Feinstein, Iggrot Mosheh, Hoshen Mishpat, I, no. 77. Rabbi Feinstein declares that a teacher engaged for a period of one year cannot be denied reappointment other than for justifiable cause. The Israeli court takes notice of Rabbi Feinstein's responsum and attempts to show that its decision does not contradict the position adopted by Iggrot Mosheh since the latter deals with the case of a teacher who had been dismissed by a board of directors, whereas in the case before the Israeli Bet Din the dismissal was initiated by the school's principal. However, a careful reading of Iggrot Mosheh shows that this analysis is erroneous. Rabbi Feinstein declares that despite an express stipulation to the effect that the individual may be dismissed upon expiration of the contract period, "it is greatly to be doubted" that employment may be denied other than for a halakhically acceptable cause. Iggrot Mosheh argues that since the directors and principals do not act in individual capacities, but are representatives of the community, it is self-understood that they are empowered to act only in accordance with the criteria of Jewish law and may not substitute their own subjective judgment for halakhically established criteria. It should be emphasized that, contrary to the assertion of the Israeli Bet Din, Rabbi Feinstein specifically refers to both "directors and principals." Moreover, Rabbi Feinstein declares that the argument need be invoked only if the contract expressly stipulates that continued employment may be denied even without just cause. In an earlier responsum, Hosen Mishpat, I, no. 76, Rabbi Feinstein rules that in the more usual event that the contractual agreement makes no reference to employment beyond the date of expiration, but simply specifies a period of employment, the contract is automatically renewable and may not be terminated other than for just cause. Iggrot Mosheh goes beyond other authorities in asserting that this principle applies not only to communal employees but to private employees as well. Rabbi Feinstein maintains that no employee may be dismissed without cause as long as there remains a need for the services he was engaged to perform. His argument is that since contracts are customarily renewed, provided there is no cause for dismissal, it must be assumed that renewal of the contract is an implied condition of employment. This would, of course, not be the case if this implied condition were to be nullified by inclusion of a clause specifically reserving to the employer the power of arbitrary dismissal upon termination of the contract period.
The situation with regard to dismissal of a rabbi upon the expiration of his contract is somewhat different. In this decision, the Bet Din, citing Hatam Sofer, Oraḥ, Hayyim, no. 206,3See also Ḥatam Sofer, Ḥoshen Mishpat, no. 22. affirms that, under existing practice, a rabbi cannot be dismissed through failure to renew his contract. More recently, in 1974, an attempt by officials of the Jewish community of Rotterdam to terminate the tenure of their rabbi by refusing to renew his contract elicited a number of statements regarding rabbinic tenure. In separate declarations, the Israeli Chief Rabbinate, the Union of Orthodox Rabbis of the United States and Canada and the Dutch Board of Chief Rabbis affirmed the principle of rabbinic tenure and indicated that any dispute between a community and its spiritual leader must be submitted to a qualified Bet Din since only a Bet Din is competent to render a decision with regard to grounds for termination of rabbinic tenure.4See also R. Shlomoh Kluger, Ha-Elef Lekha Shlomoh, Oraḥ Ḥayyim, no. 38, and Yoreh De‘ah, no. 253. The earlier mentioned considerations advanced by Iggrot Mosheh, Ḥoshen Mishpat, I, nos. 76 and 77, are, of course, fully applicable to rabbinic tenure as well.
The halakhic aspects of dismissal of a teacher within the contract period are also considered in the published decision of the Israeli rabbinic court. The Bet Din found no difficulty in permitting the removal of a teacher for malfeasance and ruled that in such cases the teacher need be compensated only for time actually served. At times, however, there is a desire to replace a teacher during the contract period, not because of the latter's negligence in performance of his duties, but simply because a more qualified person has been found. Under such conditions the employee's claim to full compensation for the term of employment specified in the contract is not questioned by the Bet Din. The Bet Din, however, cites conflicting opinions with regard to whether the teacher may lawfully be replaced during the term of the contract even if under such conditions the school is willing to compensate the dismissed teacher in full. No attempt was made by the Bet Din to issue a definitive judgment with regard to this point.
The final issue discussed in this decision is the question of the legitimacy of strike action on the part of teachers in religious schools as a means of forcing a resolution of disputes between faculty and administration. The Bet Din, citing Iggrot Mosheh, Hoshen Mishpat, I, no. 59, who rules that strikes against a yeshivah can be sanctioned only under extraordinary circumstances, emphatically declares that interruption of Torah study cannot be countenanced as a means of resolving issues which should properly be adjudicated by a Bet Din.
Cannibalism
There are few things more abhorrent to civilized man than partaking of the flesh of a fellow human being. Feelings of repugnance and revulsion were evoked in the course of widespread press coverage in recent years of two instances of cannibalism on the part of survivors of airplane crashes. The first case involved an accident in which a plane crashed in the Andes Mountains in Chile. For ten long weeks until their rescue, a number of the victims managed to survive by feeding upon the flesh of their dead fellow passengers. In a later incident the Canadian pilot of a small aircraft which met with an accident in the far reaches of the North kept himself alive by eating portions of the body of a dead passenger. Following these gruesome events theologians of diverse religious persuasions were queried with regard to the propriety of sustaining life by means of cannibalism in these and similar unfortunate circumstances. There are occasions when such bizarre questions become removed from the realm of abstract theory. Life at times presents us with tragic situations in which the most unpalatable and most unpleasant of eventualities must be faced forthrightly. What, indeed, is the attitude of Jewish law with regard to this agonizing question?
A cursory discussion of this subject by Rabbi Avraham Meir Israel appears in the Tevet–Kislev 5733 issue of Ha-Ma'or. The pertinent sources may be found in Darkei Teshuvah 79:15. Surprising as it may appear, there is no explicit biblical injunction against partaking of human flesh. Nevertheless Rambam's position, Ma'akhalot Assurot 2:3, is that a biblical prohibition may be inferred from Leviticus 11:2. The general statement "These are the living things which you may eat among all the beasts that are on the earth" is followed by an enumeration of specific categories of permitted animals. Since, of course, no mention is made of human flesh it may be inferred, declares Rambam, that cannibalism is forbidden. Ritva, in his commentary on Ketubot 60a, is also of the opinion that human flesh is biblically forbidden, but for an entirely different reason. According to Ritva, the flesh of a deceased individual is subsumed under the general prohibition against partaking of "unslaughtered" flesh, a prohibition which applies to the meat of any animal not slaughtered in the manner required by Jewish law.
Many authorities, including Rosh, Ketubot 5:19, Teshuvot ha-Rashba, I, no. 364, and Ramban, commentary on Leviticus 11:3, maintain that there is no specific biblical prohibition against eating human flesh. These authorities would nevertheless agree that partaking of the flesh of a dead person is forbidden on other, more general, grounds. Yoreh De'ah 349:1 records a general prohibition against deriving any benefit from a corpse; using the flesh of a corpse for food is, of course, a forbidden "benefit."5The prohibition with regard to deriving benefit from a Jewish corpse is biblical in nature. There is some disagreement as to whether the prohibition against deriving benefit from the corpse of a non-Jew is biblical or rabbinic in nature. See Pitḥei Teshuvah, Yoreh De‘ah 349:1; Mishneh, le-Melekh, Ma’akhalot Assurot 2:3 and Hilkhot Avel 14:21; and She’elat Ya’aveẓ, I, no. 41.
There is, however, nothing in any of these sources to suggest that the prohibition against eating human flesh is not suspended in cases of imminent danger to life, as is the rule with regard to all prohibitions with the exception of the three cardinal sins. There are two precedents in responsa literature which are applicable to the case at hand. Teshuvot Radbaz, no. 979 (III, no. 548), reports that in his day mummies were thought to possess medicinal properties. These properties were apparently believed to be derived from the drugs and spices used in the embalming process. Radbaz permits consumption of parts of the mummy, even when the life of the patient is not threatened, because the corpse is completely dried and "unfit for consumption [even] by a dog." It may be inferred that edible flesh would be permitted only if the patient's life were in danger.
Also germane, although dealing with flesh from a living person rather than a corpse, is Teshuvot ha-Rashbash, no. 518. As Rashbash indicates, the situation with regard to a living person is somewhat different from that of a corpse. As opposed to Rambam and Ritva, Rashba, in his previously cited responsum, declares that there is no specific biblical prohibition against eating flesh removed from a living person but asserts that the practice is forbidden by rabbinic edict. Rashba cites the decree forbidding an adult to suckle a nursing woman and argues that the prohibition includes an injunction against consuming any portion of the human body. Pri Hadash, Yoreh De'ah 79:6, specifically negates this point, contending that the prohibition is limited to nursing. Consequently, Pri Hadash maintains that there is not even a rabbinic prohibition against consuming flesh removed from a living human being. Rashbash was informed that some women believed that barrenness could be remedied by swallowing the foreskin removed from an infant in the course of circumcision. Rashbash dismisses the contention as an old wives' tale but adds, hypothetically, that he would have been willing to sanction the practice, not as a fertility measure, but as a cure for actual illnesses if there would indeed be demonstrative evidence that the procedure was of therapeutic value.
To return to the case at hand, it is apparent that, when confronted by actual danger to life, preservation of human life takes precedence over the prohibition against eating human flesh. Judaism manifests singular concern for the dignity of the dead body. The Torah requires that the dead body be accorded dignity and respect because human beings are created be-zelem Elokim—in the divine image. The numerous stipulations and restrictions incorporated in the laws of burial are designed to safeguard the honor and sanctity of the corpse. But, in the final analysis, the corpse itself remains bereft of life. Therefore, when confronted with questions involving the survival of living human beings questions of the honor due to dead bodies become secondary. Preservation of actual life quite obviously takes precedence over regard and concern for life that was.