Notes of The Jewish Commons

Recently I have had the pleasure of reading Elijah del Medigo’s latest piece in ATHWART, titled: “NOTES ON JUDAIC POLITICAL ECONOMY”. While Del Medigo displays great erudition and understanding I ‘m afraid the essay would have been better titled: “JUDAIC CONCEPTS OF POVERTY”.

While the problem of poverty (care for the poor through charity and defense of their rights in court against richer citizens) occupy Jewish thought extensively, they cannot be construed as the sum-total of Jewish political thought. For the community to care for its poor there must be first a viable community, which require a certain infrastructure, namely provisions for common defense and other public goods determined by the aim for which the community had been formed. I truly expected to find a discussion of this aspect of Jewish Law in Del Medigo’s essay. Sadly, I was disappointed.

The Separation of Powers in Jewish Law

Del-Medigo lays out the foundation to his argument by explaining that:

“The Halakhah, during times of relative national sovereignty, was administered by local courts known as Batei Dinim (Beis Din in the singular). The executive branch, to the extent that it existed, was directly subservient to the courts. Jewish political theory provides for no legislative branch, for the simple reason that Judaism considers the Law of the Torah to be the first and final word in Jewish constitutionalism; the role of the courts was entirely interpretative. The only time when the courts were granted the capacity to legislate was in situations where it became necessary to establish additional strictures to protect the observance of Jewish law; such cases are rare.”

Royal Insubordination and Centralism

My apologies, but this is not true, especially regarding political-economic questions.

When was the “Executive branch” (by which I assume Del-Medigo means the King or his successor institutions, such as the Nasi [“Prince”] or the Raish-Gallutha [“Head of the Diaspora"]) “subservient to the courts"? Especially to local courts? If anything, the Davidic King’s main function was that of a superior and even supreme source of justice. The Nasi was the President of the Court outright. The Sanhedrin refused to sit in Judgment with, or over, kings of other lineages (such as the kings of the Northern Kingdom of Israel and later the Hashmoneans and Herodians) but this was in sad acknowledgment of royal disregard of the Law and its courts[1], the Heads of the Diaspora were a source of judicial legitimacy outside of the Land of Israel[2]. The only form of PRACTICAL royal subservience to the Court is that a legal monarch must be appointed by the consent of the Great Sanhedrin[3]. At any rate, there is not a hint of a Jewish monarch, Davidic or otherwise, being subject to the judgment of any lower court.

Del-Medigo makes much of the localism of the Jewish court system. As a matter of fact, while a singular “system” was still in place the Great Sanhedrin (and successor institutions) had a role, if not the outright initiative, in selecting local judges, in expectation that they would eventually graduate to the high court[4]. Considering the High-Court’s position in Jerusalem, the quintessential ROYAL (and therefore centralized) capital, this, and the requirement of their consent to the King’s appointment, might be their heritage as a ROYAL institution, which survived only as a memory as the Davidic monarchy faded and with it the royal interest and participation in the judiciary.

Jewish Legislatures and Legislation

The second argument I would like to refute is that “Jewish Law does not provide for a legislature”. While the first claim had at least something to stand on, this one is completely unmerited, jewish assemblies and officials legislated from Sinai to the present moment without hold or fail. I am surprised that a scholar like Elijah would overlook such a basic concept as Mitzvoth DeRabanan (“commandment from our teachers”), Gezeiroth (“edicts”) Taqanoth (“amendments”) and more. The earliest legislature is related to Moses himself[5]. Some of those may appear extremely trivial and relate to “additional strictures to protect the observance of Jewish law” only remotely, if at all. A good example would be the edict related traditionally to Joshua[6] and to Ezra the Scribe[7]. Only three out of ten of Ezra’s (and none of Joshua’s) edicts are related directly to any religious observance.

Regarding political economy in particular, taxation and budgeting are legislative domain of the general assembly of the taxpayers[8]. The record of such assemblies and their decisions, as well as their deliberative processes are recorded throughout the Middle Ages and into the Modern era up to the Holocaust in Europe in what is known as Pinqesei HaQahal (“Notes of the Commons”). True, their power is subject to God’s Law and to existing, accepted legislation and costumes (they cannot, for example, deliberately destroy one man’s livelihood to benefit another)[9]. They also had the authority to pass general legislation within these limits and did so extensively.

The Laws of Charity and Hiring and the Question of Equality.

Del-Medigo makes an exceptionally good analysis of the laws of Charity and Hiring workers. Yet inasmuch as Maimonides is expressing a political-economic vision of his own in concern of the Common Good, he is not concerned with equality or equity (at least in the modern sense) in the least:

“Just as the employer is warned against robbing the wages of the poor man and that he may not delay it so is the poor (workman) warned against robbing his employer and idling a little here and a little there, thus spending the entire day fraudulently, but on the contrary, he must be scrupulous with his time. See, that (the sages) had even omitted the fourth part from the grace over a workman’s meal. Therefore, he must work diligently as Jacob the Righteous had said ‘with all my might I have served Laban your father’.” [10]

While Jewish Law as presented by Maimonides is indeed concerned with the rights of the worker, the rights of his employer are not neglected. When he comes to editorializing and preaching here, at the sealing of these laws, he stands to warn the worker against defrauding and robbing his employer. No author primarily concerned with “the inherent disparity of power between the worker and the employer” would have sealed his work on the subject this way.

Similarly, Maimonides seals his work on Charity by warning that a man must go to the utmost length before taking charity. He goes as far as cursing those who diminish public charity by taking from it unnecessarily:

“Anyone who does not need [tzedakah] but deceives people and takes will not reach death in old age without having come to depend upon others [in reality]. For such a one fits the type: ’Cursed is he who trusts in man [and does not heed divine providence]’ (Jeremiah 17:5). And anyone who needs to take [tzedakah] and cannot live without it unless he takes, such as an elderly person, a sick person, or one who has many afflictions, but whose mind is full of pride and will not take is like one who sheds blood, is guilty of his own death, and gets nothing for his hardship except sins and guilt. But anyone who needs to take and endures hardship, presses himself, and lives a life of hardship so as not to burden the community will not reach death in old age without being able to sustain others from his wealth. Of him and those like him it is written, ‘Blessed is he who trusts in the LORD, (Jeremiah 17:7)’. Thus ends, with the help of God, the laws on gifts for the poor[11].”

The charity Maimonides himself recommends is to hire servants from among the poor of One’s own community (“It is better to use their services [by employing them] and that the children of Abraham, Isaac, and Jacob benefit from one's property and not the descendants of Ham”)[12]. Equality and equity are clearly not his main concerned if at all.

Furthermore, as Del-Medigo notes, those of limited means are not the exclusive subjects of Tzedakah.

One can own rich plate of silver and gold and still be a legitimate recipient of the public purse without need to sell them, due to liquidity problems[13]. The Law might determine that One must be provided with a horse and even a servant, the rule being “to fulfill that which (the poor man) is lacking”, if the public can afford it[14].

Lastly, the commandment of Tzedakah is hardly unique in its enforcement. In a Jewish community, formed for the particular purpose of practicing God’s Law, other Commandments are enforceable by the same means. On the other hand, Tzedakah might not, according to some opinions, be an enforceable commandment[15] as it is “a positive commandment whose reward is (written) besides her” – therefore the loss of the promised reward is punishment enough.

Tithing, not Taxation.

Del-Medigo’s main contention is that “Property rights in the Jewish Law are contingent upon the ultimate ownership of God”, and as proof he brings fourth the tithe and the right of the courts to alienate property (which he sees as parallel to the Western idea of “Eminent Domain”). He feels the weakness of his argument – tithes of land-produce are “a condition for consumption” (as he so succinctly puts it) ONLY IN THE LAND OF ISRAEL, which indeed, was given to the Israelites CONTINGENTLY AND UNDER SPECIFIC CONDITIONS. In the rest of the world, the rule “The Heavens belong to the LORD, but the Earth he gave over to Man[16]”. This rule differentiates indeed between the Land of Israel – or at least its fertile surface – and all other lands[17].

To solve this problem, Elijah utilizes the common fiction that Jewish society, agrarian in nature, suffered a devastating blow of forced urbanization and mercantilization after the destruction of the Temple which forced it to convert its rural, agrarian institutions into urban and mercantile one. This, he believes, is the origin of Ma’aser Kessaphim- the Tithing of Monies.

As compelling as this argument might be, it is false.

The money tithe is perhaps the most ancient of all tithes – Jacob already practiced it while the house of Israel was merely a landless clan of herdsmen[18]. While strictly voluntary[19] it is a costume that have been always observed so devoutly that the sages had to warn people to not tithe their assets more than twice[20] as to not impoverish themselves.

While like all pre-modern societies, most Jews lived on subsistence-level farms, trade and urban craftsmanship were not such a rare sight in ancient Israel that no avenue to their desire to give unto God from what they have was to be left. We know in fact that the Diaspora, at least in the West, have been urban from the start – the great metropolitan communities of Alexandria and Rome come to mind. The Jews of these communities were craftsmen- in the double-colonnade of the great Alexandrian synagogue, the “Diapalaeston”, sitting was divided by craft[21] and the crafts listed are cash heavy ones- and traders. In fact, trade occupied the ancient Jews so much, that a great part of Jewish Law written down at the time had to deal with market regulations[22]. Imports and exports have been a Jewish occupation for an exceptionally long time[23]. There is no evidence for a great “shock’ conversion from agrarian to commercial economy. The shift was gradual and prolonged.

We said that the Money Tithe was voluntary, but as matter of fact, there was no mechanism to enforce the giving of even land-produce tithe until late into the Second Temple era. That mechanism dissolved with the Jewish state after the Great Revolt and the destruction of the Temple and even while it existed, was viewed as illegal and outrageous[24]. The reason is that the Law gives unto the owner the “Benefit of Enjoyment” (“Tovat-Hanaah” – טובת הנאה) - the right to decide which Priest, Levite or poor man he might give his tithes to[25]. This right is granted to him in the Torah, as it is written:

“And each shall retain his sacred donations: each priest shall keep what is given to him”[26].

[The enforcement of tithing was so lax to none existence, that certain devout Jews known as “Haverim” (“companions”-חברים) outright refused to eat at the houses of people they suspected to be neglectful in that duty, and went so far as to tithe again all produce they had bought or received from them[27]. It appears, however, that most Jews were considered reliable].

In conclusion, what are we left with is not a Temple State supported by a 10% tax on the produce of the contingently-owned land, but a community whose members voluntarily, lovingly, gave and still are giving away up to a full fifth of their income to the Priest, the Levite, the Proselyte, orphan and the widow, out of their goodness of heart and devotion to God. To dub such giving “a tax” is worse than an error- it is an insult to us and to our ancestors.

Conclusion

Del-Medigo, to whom I have the greatest respect and esteem, have labored much to produce a system of political-economy, ruled entirely by Law, administered for the Common Good, of a State that taxes and redistributes and enforces to produce an equal and equitable society. I am afraid I must deny him his wages.

Jewish society and all its virtues appear to be not the produce of the Good State but its progenitor and enabler. Even as the Jewish State was corrupted and conquered, that society survived solely on the grounds of voluntary membership. At any point, any Jew could have left the Jewish Commonwealth and joined gentile society by converting to its religion – be it ancient paganism, Islam or Christianity.

What held it together? Here I must credit Del-Medigo’s work on the Sabbath. As he points out, the Sabbath set aside a none-economic time, dedicated to the love of God and Family, a single day every week in which the Jew could live in his little world, and enjoy the most expansive of privacies and most intimate of public lives that any person ever enjoyed. No human being worthy of the name would have given up the Sabbath. There was never a better argument for belonging to any community, religious or otherwise, and none was ever needed.

Notes of The Jewish Commons

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