Communal Obligation and the Right to Strike

[i]

Strikes, in the conception of many Jews today, have a clear association with Israeli society. They are what cause disruptions to travel plans, cancellations of soccer games, and the boredom of thousands of schoolchildren. Whereas the international trend over the past few decades has been a general decrease in the number of workdays lost to strikes, there has been an increase in Israel, making it the country with the highest number of workdays lost.[ii] From 2002-2008 alone, 408 strikes took place that resulted in the loss of 12.5 million days of work.[iii] Israel also has one of the most lenient policies in regard to who can strike, with the right being withheld only from security personnel. In contrast, most other states prevent from going on strike any worker whose services are deemed necessary for the survival of the state, such as airport personnel and social workers.ii Over the past decade, this blanket permission in Israel for almost all workers, including ones who provide social services, has been called into question. The recent threat of a physicians’ strike and the two-month long teachers’ strike in 2007 has brought this discussion to the forefront of both political and rabbinic discourse. Strikes of physicians and teachers specifically, both of whom have a religious component to their profession, are particularly contentious in halakhic literature.

The phenomenon of strikes is a relatively modern one, which explains the dearth of traditional halakhic discourse on the issue. One case, recounted in the Talmud, could be said to be one of the earliest Jewish strikes. In Yoma 38a, the Mishnah criticizes the House of Avtinas, the incense-makers, who refused both to work and to teach others the secrets of their art so that others could work in their stead. Other workers were brought in to break the strike, but they were not as competent. Ultimately, the Sages doubled the wages of the original workers with money from the Temple treasury so that they would return to work. This marks a precedent for the triumph of labor over management in Jewish history. Rambam seems to permit such guilds and the right of workers to organize and impose binding regulations, such as permissible hours of work and punishments for violators, but only under the guidance of rabbinic authority.[iv] As the medieval system of guilds morphed into the modern-day system of unions, rabbinic authorities applied virtually the same principle: Workers have a right to organize for their own advantage, but the rabbinate theoretically has the authority to nullify certain decisions that would harm communal interests.[v]

The right to strike is largely considered permissible in Jewish law due to our concern for protecting worker interests. In Bava Metsiah 10a, Rav allows an individual worker to quit even in the middle of the day if there will be no loss to his employer, because a laborer cannot be coerced into working for a particular wage.[vi] This is applied by later sources to mean that labor unions can decide that they are unwilling to work for a given salary. This principle, however, is subject to limitations, such as cases when the contract has already been agreed upon and in cases of essential services. Of the three services most commonly cited as essential—security, health, and education–only security work stoppages are prohibited in Israel.

While the health industry is legally permitted to go on strike in Israel, the obligation of a physician to treat patients is a halakhically mandated obligation.  According to R. Eliezer Waldenberg, there exists a communal obligation to provide for the sick.[vii] A physician is thus, in a sense, the operative, the messenger, for the entire community vis-à-vis the sick of the town because he is the one with the requisite skill set. The refusal of a physician to treat a patient constitutes a violation of the biblical prohibition, “You may not hide yourself,”[viii] from aiding a fellow human being.[ix] Even more so, “If the physician withholds his services, it is considered as if he shed blood,”[x] based on the verse, “Nor shall you stand idly by the blood of your fellow.”[xi] There are, in addition, positive commandments that obligate a physician to treat a patient. Rambam states that “it is obligatory from the Torah for the physician to heal the sick, and this is included in the explanation of the scriptural phrase, ‘and though shall restore it to him.’”[xii] Rambam applies the concept of returning a lost object, normally thought to be reserved for physical objects, to the amorphous definition of returning to a sick person his health. Ramban,[xiii] in his discussion of the obligation of physicians to treat, cites his source as the physician’s commandment to “love your neighbor like yourself.”[xiv] On the basis of these two negative and two positive commandments, R. Yehudah Leib Zirelson argues that a physician’s obligation applies not just in a case of pikuah nefesh (saving a life), but even in cases of preventing the loss or deterioration of health.xii

Modern-day physicians’ strikes in Israel are primarily caused by physicians’ displeasure with their wages and working conditions in the socialized state. Physicians, however, are only necessarily entitled to minimum payment in Jewish law. As physicians treat patients in accordance with divine command and ordinarily no compensation for the fulfillment of a mitsvah can be demanded, a physician is entitled to payment only for physical labor and time spent in which he could be employed elsewhere, and he may not then demand an exorbitant fee.xii Based on this, R. Moshe Halevi Steinberg resolves that since Jewish physicians are obligated to heal the sick, they should not be allowed to strike for financial reasons under any circumstances. They may certainly ask for appropriate wages, but these financial demands cannot ever sanction a strike that has the possibility of endangering lives.[xv] On the other hand, the former Chief Rabbis of Israel, R. Avraham Shapiro and R. Mordechai Eliyahu, permit doctors to withhold free treatment from non-critical patients as a means of bringing their employer to arbitration.[xvi]

Teachers, like doctors, have the status in Judaism of claiming a divine mandate to their profession. Rambam writes, “In a place where it is customary to receive a wage for teaching the written Torah, one is permitted to do so. However, it is forbidden to take a wage for teaching the Oral Law, as it states: ‘Behold, I have taught you laws and statutes, as God commanded me.’[xvii] [Our Sages teach that Moses was implying:] Just as I learned at no cost, so too, have you been taught from me at no cost. Teach the coming generations in a like manner. Teach them at no cost as you have learned from me.”[xviii] The teaching of Torah is not considered to be a profession, but an act of religious observance; thus, Rambam considers charging money for it inappropriate. While today teachers of Torah are paid, the notion of the holiness of their profession comes to the forefront when they wish to gain better wages through striking.

In addition, there is a discussion as to a teacher’s responsibility for their students’ bittul zeman (waste of time).  Siftei Cohen explains that when Rav in the Talmud refers to the ability of a worker to quit in the middle of the day if no loss will result, this “loss” extends also to teaching, because “every moment a child is not learning causes irreparable damage.”[xix] While originally conceived by most commentators to be talking just about Torah learning,[xx] later commentators have attempted to expand the “loss” to secular studies as well. R. Aharon Kotler writes that there should be no separation between the waste of time meant for secular studies and the time spent for Torah studies because the loss of both bring about a neglect of education and nurturing of students.[xxi]

Today, however, teachers work under a contract with their employer—one that agrees to their right to strike. It can thus be proposed that any strike that is subsequent to the warning time obligated by law should not be considered, as it says in the story regarding the artisans in Bava Metsiah, “quitting in the middle of the day,” because the employer agreed to this legal right and knew that this strike was possible. Thus, in R. Kotler’s view, which frames the issue in terms of “quitting in the middle of the day,” striking would not seem to be problematic because the concept of “loss” does not apply. It seems difficult, then, to hold that it is not permitted for secular studies teachers to strike when they do not have to contend with issues of bittul Torah. If, however, one subscribes to the idea presented by R. Eliezer Melamed that secular studies allow for a further understanding of God, then a hiatus from these studies would result in bittul Torah.[xxii]

Bittul Torah of students is the problem that is most often mentioned in regard to teachers striking. Judaic studies teachers, and perhaps secular studies teachers also, who wish to strike are dependent upon the resolution of a dispute between R. Moshe Feinstein and R. Yosef Shalom Elyashiv. The Talmud recounts the obligations of a father regarding his son and includes among them the obligation to teach him Torah.[xxiii] R. Yehoshua ben Gamla later extends this obligation of teaching Torah to children as one incumbent on an entire community.[xxiv] If a teacher is hired to fulfill this obligation, however, does this discharge the father and community completely of their responsibilities and subsequently lay the duty for hinukh solely on the teacher? If so, is a teacher then responsible for any bittul Torah the student incurs? R. Feinstein, in prohibiting the strikes of teachers of Torah, affirms that once a teacher takes upon himself the education of his students, he is liable for any bittul Torah that occurs during his strike.[xxv] In contrast, R. Elyashiv does not hold a teacher any more responsible for students’ lack of learning than any other member of the community who is bound by the obligation to teach children.  He holds that a teacher’s obligation to teach ends the minute he legally goes on strike, as his “messenger-status” for the fathers and the community becomes null and void.[xxvi]

This conception of both the physician and the teacher as messengers of the community can be the deciding factor in the mahaloket (argument) concerning the permissibility of their strike. Another look at the Talmud’s account of the House of Avtinas’ strike based on this idea of being messengers of the community could help us determine the correct ruling on the permissibility of strikes. The House of Avtinas can be said to have also served as messengers for the community. As incense-makers, the House of Avtinas acted as messengers for the community in its fulfillment of the obligation to offer incense. The incense was offered on behalf of the entire community as a means of attaining atonement, hence its prominence in the YomKippurTemple ritual.[xxvii]As long as the House of Avtinas was acting as the messengers of their community to fulfill the communal obligation, it was not their prerogative to cease working, as they were not working for themselves alone. In entering a profession in which one is involved in “God’s work” for the sake of others, there is an added layer of obligation in which one is in a sense beholden to the community that entrusted him or her with a duty. Immediately following that Talmudic story, R.Yishmael denounces the incense-makers for attempting to increase their own benefit at the expense of Heaven. R. Yishmael’s was displeased with the strike because it left the community without a means of fulfilling its obligation. In the same vein, physicians and teachers should not have the freedom to strike on their own behalf because they act not only on their own accord. The communal reliance on them does not rupture the moment they decide to strike, so their obligation to continue working and find some other means of remedying their situation does not either. Based on this logic, the stricter view in each mahaloket of R. Steinberg and R. Feinstein for physicians and teachers, respectively, seems to be more cogent. These two professions have the great distinction of being classified as having religious meaning, which, unfortunately for them, comes with the side effect of not halakhically possessing the full expanse of legal tactics by which to improve a non-ideal situation.

 

Dani Lent is a recent graduate of SCW. She is now a first year student at SUNYDownstateCollege of Medicine.

 

 


[i] The following is a short list of the many articles to which I am indebted for their help: Fred Rosner, “Physicians’ Strikes and Jewish Law,” Journal for Halakha and Contemporary Society, Fall 1993; Aaron L. Mackler, “Judaism, Justice and Access to Healthcare,” Kennedy Institute of Ethics Journal, 1:2 (June 1991); R. Elisha Aviner, “Shevitat Morim,” Yeshivat Maale Adumim, available at: http://www.ybm.org.il/hebrew/LessonArticle.aspx?item=2822; J. David Bleich, Contemporary Halakhic Problems (New York: Ktav, 1977), Vol 1: 186-189, Vol. 3: 18-25; Uri Desberg, “Shevitat Ovdim al pi ha-Halakha,” Tekhumin, (1985) 5: 295-300.

[ii] Asaf Shapiro,  “Shevitot Be-Mabat Ha-Shavati,” The Israel Democracy Institute (2011), available at: http://www.idi.org.il/Parliament/2011/Pages/2011_68/68_d/68_D.aspx.

[iii] “Strikes and Lock-Outs, Strikers and Persons Locked-Out,Work Days Lost and Slow-Downs,”Statistical Abstract of Israel, Table 12.45, Central Bureau of Statistics (2009), available at http://www.cbs.gov.il/reader/shnaton/shnatone_new.htm?CYear=2009&Vol=60.

[iv] Mishneh Torah, Hilkhot Mekhirah 14:10.

[v] Tsits Eliezer, II, no. 23; Iggerot Mosheh, Hoshen Mishpat, I, no. 58.

[vi] Bava Metsiah 10a.

[vii] Tsits Eliezer, Ramat Rahel, 5:24. Based on the ruling of the Shulhan Arukh, Yoreh De’ah 249:16 which entitles the sick poor people of a town a large claim on the community’s tsedakah resources.

[viii] Deuteronomy 22:3.

[ix] Teshuvot Arzei ha-Levanon, no. 61. In this responsum this dictum to prevent the monetary loss of others is extended to the prevention of another’s loss of health.

[x] Turei Zahav, Yoreh De’ah, 336:1.

[xi] Leviticus 19:16.

[xii] Commentary on the Mishnah, Nedarim 4:4. Based on Deuteronomy 22:2.

[xiii] Torat ha-Adam, s.v. “Ha-Sakanah.”

[xiv] Leviticus 19:18.

[xv] M. H. Steinberg, “Physicians’ Strikes in the Light of Halacha,” Assia, Vol. 3 (Jerusalem: Rubin Mass Ltd., 1983), pp. 341-342.

[xvi] A. Shapiro and M. Eliyahu. “Letter Regarding the Recent Strike.” Assia, Vol. 3 (Jerusalem: Rubin Mass Ltd., 1983),, pp. 47.

[xvii] Deuteronomy 4:5.

[xviii] Mishneh Torah, Hilkhot Talmud Torah, 1:9. Rambam, Commentary on the Mishnah, Avot 4:5.

[xix] Siftei Cohen, Hoshen Mishpat 333:5.

[xx] Maharam of Rothenberg, 4:387.

[xxi] Mishnat R. Aharon, Chapter 71.

[xxii] R. Eliezer Melamed, Hilkhot Shevitah, available at: http://www.yeshiva.org.il/midrash/shiur.asp?id=6396.

[xxiii] Kiddushin 29a.

[xxiv] Bava Batra 21a.

[xxv] Iggerot Mosheh, Hoshen Mishpat, 1:29. R. Feinstein does permit teachers to strike under the most dire of circumstances, such as when the teachers do not have enough to live off of and also on condition that it is clear that the employers will adjust their salaries.

[xxvi] R. Yosef Shalom Elyashiv, Kobets Teshuvot 2:50.

[xxvii] David Silverberg, “SALT: Parashat Tetsaveh-Purim,” Virtual Beit Midrash, available at: http://vbm-torah.org/archive/salt-vayikra/20-13tetzave-purim.htm.