“One Law You Shall Have for the Foreigner and the Native Alike:” Social Justice in the Teachings of the Tannaim

The Sages of the 2nd century in the Land of Israel

The challenge placed before the Jew who truthfully and wholeheartedly believes in the possibility of having a Jewish State that belongs to all its citizens, is to honestly confront the sources that form the Jewish view of the status of the non-Jew in the Jewish State. At the core of the research presented here lies a dispute between two main schools of thought: of Rabbi Ishmael and of Rabbi Akiva, and extending to the generations of their students, during the compilation of the Mishna.

Almost everything we know about these sages derives from the Talmud, and one must exercise caution in drawing historical conclusions about Jewish society in the Land of Israel in the 2nd century based on a text that does not presume to be historiographical. Nonetheless, the Tannaitic literature does attempt to formulate a Halakhic model for life, for Jews and gentiles living in the Jewish homeland. Therefore, the Mishna, codified by Rabbi Yehuda Hanasi (Rabi), became the accepted sacred canon upon which both Talmuds and all Halakhic literature rest, even until today.

A systematic study of the development of Halakha over the course of three generations, from Rabbis Ishmael and Akiva through to Rabi, before and after the Bar Kochba rebellion, may reveal different attitudes towards the non-Jews among whom they lived. We shall examine a mishna that deals with the rights of the resident alien.

[The term ‘resident alien’ appears in 4 mishnayot: Tractate Baba Metzia 5:6, 9:12, Tractate Makot 2:3, and Tractate Negaim 3:1. The Tannaitic literature does not offer a definition of the resident alien, but makes clear that the resident alien is neither an idol worshipper nor a regular Israelite.  The Talmudic discourse following this literature is unclear, but the Halakha establishes that the resident alien is one who has accepted, in a court of three judges, the yoke of the seven Noachide Laws.].

The Mishna in Baba Metzia 9:12 teaches:

It is all one, the hire of a man, the hire of an animal, the hire of implements – “In the same day you shall give him his hire” applies to it, and “the wages of a hired worker shall not abide with you all night until the morning” applies… A resident alien – “In the same day you shall give him his hire” applies to him, but “the wages of a hired worker shall not abide with you all night until the morning” does not apply to him.

Thus, an employer who withholds wages from a worker or a supplier violates two commandments: 1) the positive commandment to recompense a worker on a daily basis, and 2) the negative commandment to refrain from withholding wages till the morning. However, the second and more severe prohibition (incurring physical punishment) does not apply in the case of a worker who is a resident alien. The Mishna specifies the relevant prohibitions as stated in two instances in the Torah: the commandment to pay daily wages, found in Deuteronomy 24:14,15 –

“Do not oppress a hired worker who is poor and needy, whether that worker is your brother, or your stranger (gercha) within your city gates of your land. You shall give him his wages on the same day, before the sun sets, for he is poor and counts on it, lest he cry against you to the Lord, and you will incur guilt;”

and the prohibition on withholding wages till the morning, from Leviticus 19:13  –

“Do not oppress your fellow, nor rob him; the wages of a laborer shall not remain with you until the morning.”

Clearly this Mishna is based on the customary Tannaitic method of exegesis. Indeed, the Tosefta (a collection of Tannaitic laws most closely resembling the Mishna in form and in substance) reinforces this impression, and allows a peek at a pre-mishnaic formulation of the law. Here is the parallel text (Baba Metzia 10:3-4, Lieberman ed., pp. 117-118):

Halakha 3:  One who withholds wages of a hired laborer transgresses on account of five (In addition to the four negative commandments is the positive commandment, to pay on time.). negative commandments: not to oppress, not to rob, not to withhold wages till morning, letting the sun set.

Halakha 4: It is all one, the hire of a man, the hire of an animal, the hire of implements – one transgresses on these (five) counts. Rabbi Jose son of Rabbi Judah said: if one has held back the wage of a worker, he transgresses on these counts. But if he has held back the fee to be paid for an animal or an implement, he transgresses [solely on the count of] not oppressing. He who holds back the wages due to a resident alien transgresses on the count of not oppressing and on the count of ‘In his day you shall give him his fee.’

Here then is the source for the terms mentioned in the mishna, identifiable from the two source verses in the Torah. In the earlier version, though, the Tannaim set a more severe penalty for withholding wages, citing five violations (four negative and 1 positive).  However, the specific case of the resident alien is brought by a single opinion, that of one of Rabi’s contemporaries. The majority opinion does not mention it. The decision of the Mishna to not cite ‘oppression’ in the list of prohibitions applies generally to the laws regarding withholding wages, and not specifically to the case of the resident alien; yet the Mishna adopts the minority opinion brought in the Tosefta and places the resident alien in the category of people who must be paid their wages on time. This signifies a positive development as compared with the prevalent opinion in the generation preceding Rabi. That generation puzzles us, for they interpreted the Torah verse, which specifically says “Do not oppress a hired worker who is poor and needy, whether that worker is a fellow Israelite or a foreigner residing in one of your towns.” Is this due to their exegetical method, or does it reflect an antagonistic trend towards foreigners?

It seems that we must seek the answer in the exegetical and ideological leanings of the batei midrash. Let us first turn to a midrash of the school of Rabbi Akiva, in Sifre Devarim (Finkelstein, ed.) 278:

“You shall not oppress a hired laborer who is poor and needy” (Deut. 24:14): Does not Scripture say elsewhere, “Nor rob him” (Lev. 19:13)? Why then does it say here, “You shall not oppress?” Because you learn therefrom that if one withholds the wages of a hired laborer, he transgresses five negative commandments: “You shall not oppress” (Lev. 19:13), “Nor rob” (Lev. 19:13), “The wages …shall not remain with you all night” (Lev. 19:13), “In the same day you shall pay him”, and “the sun shall not set upon it” (Deut. 24:15). … Why does Scripture say “poor and needy?” ‘Because I requite the cause of a poor and needy laborer more quickly than that of any other person.’ “Of your brother” – but not of others; “or your stranger (gercha)” (Deut. 24:14): This refers to the convert, showing that in his case one transgresses two negative commandments. R. Jose ben R. Judah says: He transgresses also on account of “not to oppress”. “Within your city gates” (Deut. 24:14): to exclude Jerusalem. How do we know to include animals and utensils? “In your land” – includes everything.

I bring this section to show the interpretation upon which the halakha of thetosefta rests. It is also now clear where the five prohibitions come from (including the positive commandment to pay on the same day). Although the midrash is on Deuteronomy, the authors include the prohibition from Leviticus 19 (withholding) in order to complete the five. This is characteristic of the Akiva school, who went to great lengths to have a count of five items, for mnemonic reasons. The Mishna omits the oppression, robbing, and sunset, and establishes the halakha in this matter not in accordance with the Sifre or the Tosefta.

The absence in the Sifre of any mention of the resident alien is blatant, taking Rabbi Jose ben Rabbi Judah’s reference to mean “the convert.” The words “within your gates” are not used to identify the Ger (which would imply that it is a resident alien), but are rather used to exclude Jerusalem. To fully understand the impact of this Halakha we must examine the teaching of the other school, that of Rabbi Yishmael, in this matter. Unfortunately, we do not have one complete compilation of that school to the book of Deuteronomy, but we can still point out two texts which were presumably authored by the school of Rabbi Yishmael. Midrash Tannaim to Deuteronomy 24:14 (Hoffman, ed. P. 159) teaches:

“From your brother, or your stranger in your city gates” – this refers to the resident alien, to whom the positive commandment (to pay wages the same day) applies, but not the negative commandment (of withholding wages).

This text which was recovered from the Yemenite medieval book Midrash Hagadol is similar to the Mishna, and may have been influenced by it. The second source is more elaborate, it is from the Babylonian Talmud, Baba Metzia 111b, and is reported there to belong to the school of Rabbi Yishmael. (I prefer the variant of Vatican 115 manuscript):

“Your brother” – to exclude others; “your stranger” (gercha) – the convert; “in your city gates” – the foreigner who eats unslaughtered meat (a reference to the resident alien – M.A.). How do we know to include animals and utensils? “In your land” – includes everything; in all these the prohibitions apply. Hence the rabbis said: “It is all one, the hire of a man, the hire of an animal, the hire of implements and the resident alien, wages must be paid the same day, and withholding wages is prohibited.

This text resembles very much the structure of the midrash in the Sifre, but clearly opposes it by putting the resident alien on equal footing with all other categories, and limiting the commandments to the two mentioned in the Mishna.

This dispute between the Tannaim regarding withholding wages from the resident alien sheds new light on the development of the Halakha ending with the codified Mishna. The school of Rabbi Ishmael understood Deuteronomy 24:14 as placing the ‘brother’ and the ‘foreigner’ on equal footing on the matter of payment of wages, and concluded on this basis that the prohibition on withholding wages is also the same for both cases. The school of Rabbi Akiva, on the other hand, claimed that the foreigner noted in the Torah refers to the convert, not the resident alien, and thus the requirement of timely payment of wages applies only to the Israelite (including converts). The tosefta expresses the opinion of Rabbi Akiva couched in different language, while the mishna adopts a compromise position between the two schools; it limits itself to two prohibitions, and partially includes the resident alien in the requirement (removing the violation of withholding from an employer who fails to pay on the same day).

This difference in approach between the two schools appears in many places. The teaching of “brethren – to exclude others; fellow – to exclude the resident alien” is a familiar tag of the R. Akiva school.

The students of Rabbi Ishmael rested on the most straightforward interpretation of the term ‘foreigner’ (ger) in the Torah – a resident alien, not a convert. For example, in Exodus 23:9: “Do not oppress the stranger; you understand the heart of a stranger, since you were strangers in the land of Egypt.” Thus, except for special cases, the term ger means a resident alien, not a convert. In contrast, the school of Rabbi Akiva established that in all instances, the term means a convert, unless the word ‘resident’ is explicitly used, or obviously implied by repeated use of the word ‘foreigner’ to intend more than one meaning. The two positions represent different socio-religious outlooks, not only different methods of interpretation. The R. Akiva teaching raises hermeneutical problems as noted in the comment of Rabbi Yitzchak the Elder of Dampierre, the most famous of the Ba’alei Tosefoth: “Why would we need a separate rule for the case of the convert – is not the convert, regarding all mitzvoth, included in klal Yisrael?”

Nonetheless, both Talmuds adopt the interpretation and school of Rabbi Akiva, and thus Halakha rules that the withholding violation pertains only to an Israelite worker [Rambam Hilchot Schirut 11:1 follows the Mishna, but Shulchan Aruch Choshen Mishpat 339 omits the resident alien completely). This, as well as even more extreme rulings, confront us with no small challenge in creating a society in which Jews and non-Jews are equals.

We would do well to heed the tenet of Rabbi Ishmael (Sifre Bemidbar 39): “In speaking to Israel on matters that pertain to all people, this includes the resident aliens.” That is to say, in matters of social justice and welfare, “Speak unto the children of Israel” includes the resident alien as well. In the words of Abraham Joshua Heschel in Torah From Heaven, “the time has come to adopt the teaching of Rabbi Ishmael.”

Note: For further explanation of the sources used in compiling this article, please refer to the footnotes in the Hebrew version.

Dr. Moti Arad is a lecturer of Talmud, Jewish Law and Midrash at the Schechter Institute of Jewish Studies.

English translation by Penina Goldschmidt.

Image Credit: Perhelion