One of the most important Hebrew manuscripts at the Bodleian Library is a manuscript belonging to Maimonides (1130-1204) in his own handwriting of a section of his Jewish legal code Mishneh Torah (repetition of the law). The manuscript is an early draft of the work of the Mishneh Torah containing the Book of Mishpatim (laws), covering Jewish civil law. It was discovered in the Cairo Genizah in the old Ben Ezra synagogue and brought to Oxford at the end of the 19th century by Rev. G. J. Chester.
In the ‘Marks of Genius’ exhibition at the Bodleian library’s new Weston building, a folio of the Cairo Genizah manuscript of Maimonides’ Mishneh Torah went on display with the page open to the end of Laws of Hiring (Sechirut) and the beginning of the Laws of Borrowing and Deposits (She’elah U’fikadon). On the side of the page containing the end of the Laws of Hiring one can see multiple marginal additions and on the section containing the Laws of Borrowing and Deposits one can see omissions, erasures and corrections in the text. These edits clearly reflect that the manuscript was in its draft stage before the final text that we are familiar with today was completed. This manuscript, therefore, provides a rare glimpse into Maimonides’ thinking process while drafting this all-important Jewish legal work.
Introduction
In this essay we will look at the part of the folio from the end of the Laws of Hiring that relate to the ethics of employment of a hired worker. We will aim to decipher what the edits reflect while the manuscript was in the process of its formulation. There are two aspects to this study: a. the meaning and significance of the marginal notes that were added, eventually becoming part of the main text itself, and b. the significance of the structure of the law compared to the structure we are accustomed to today.
The laws we will be looking at in this essay relate to an aspect of the laws of hiring which are the halakhic version of ‘The Working Time Regulations’, an area of employment law which refer to the rights of an employee to rest during work. We will be looking, however, not at the rights of the employee in this regard but rather, from the perspective of the responsibilities of the employee toward the employer. In Jewish law, both of these rights can be found: the rights of a worker are enshrined in Jewish law, whereby for example, an employer must provide for the welfare of the worker by allowing him to eat from the produce he is working with during work hours (Laws of Hiring 12:1). In addition, an employer is prohibited from forcing a worker to perform unsuitable or purposeless work (Laws of Servants 1:6-9). Similarly, Jewish law defines the responsibilities of a labourer stating that a hired worker must ensure he is fit for a day’s work and can work robustly.
The latter subject, responsibilities of a hired worker towards an employer, is the part of the manuscript we will be focusing on in this essay. We will first present the historical development of this law including a difference between the Babylonian Talmud and the Jerusalemite Talmud regarding how diligently a worker must work for the employer. We will then proceed to demonstrate how, though Maimonides initially seemed to have chosen the more limited Jerusalemite Talmudic model over the more extensive Babylonian model, the marginal additions in the manuscript clearly show that he changed his mind in this regard to also include the Babylonian Talmudic model, which in turn is rooted in the Biblical story of Jacob’s employment by his father-in-law, Laban. We will then conclude by demonstrating that based on the construction of this law in the writings of Jewish legalist Rabbi Schneur Zalman of Liadi, known as the Alter Rebbe, which differ from the published version of Maimonides, one may identify a unique approach to the construction of the law in the manuscript reflecting a particular understanding of the relationship between employer and employee.
Ethics of work
The subject of the ethics of a worker towards an employer is mentioned in Jewish law in the Jerusalemite Talmud and the Mishnaic work of the Tosefta. The Jerusalemite Talmud states that a worker or an animal that is being hired out to work must be fit for a day’s work (Demai 67b-68a):
One may not plough with his cow by night and rent it out by day. One may not do work within his own property by night and then hire himself out by day. Similarly, one may not starve or afflict himself because thereby he diminishes his work for the employer.
Similarly, the Tosefta (Bava Metzia 8:2) writes:
A worker may not perform work at night and then hire himself out during the day, or work with his ox in the evening and then rent it out in the morning. Similarly, he should not starve and aggrieve himself and give his food to his sons, because this leads to stealing from the work due his employer.
The Jerusalemite Talmud and Tosefta however are only interested in the need for a worker to be fit for work and not be compromised by being overtired due to working at night. The Jerusalemite Talmud and Tosefta do not seem to be interested in the subject of the legal requirement of a worker to perform work robustly during the time of work itself. As long as the worker does not compromise his ability to work during the day we are not concerned about how the worker actually performs the work, whether robustly or lethargically.
To work with lethargy or robustness
The Babylonian Talmud however offers narrative indicating an ethical standard of work that goes beyond the need not merely to actively undermine one’s ability to work. It relates to a narrative reflecting an ethic that a person should work robustly and invest maximum energy when working for an employer, as part of his status as a hired worker.
This is also rooted in Genesis where it relates the dedication of Jacob while working for his father in law Laban. Jacob fled the house of his parents to escape from Esau to live in the house of his uncle Laban. He was offered to work for Laban who promised him that he would be paid for his work, thus Jacob effectively becoming a hired worker for Laban. He subsequently married Laban’s two daughters, Rachel and Leah, and became extremely wealthy from the success of his work, as it states: And the man increased exceedingly, and had large flocks, and maid-servants and men- servants, and camels and asses’. The Torah however explains that when Jacob justified the right to be paid honestly for his work, tells his wife Rachel that the manner of his work was ‘with all my power I have served your father. And in the day the drought consumed me, and the frost by night; and my sleep fled from mine eyes’, indicating that he did not just perform the work uncompromisingly but he invested all his power into his work.
The Biblical commentator, Rabbi Dovid Kimchi (1160-1235), known by his acronym Radak, explains the reason for Jacob’s extraordinary devotion to his work: ‘Seeing that I did not want to entrust the flock to another shepherd, I was forced to endure the sun’s heat by day and the extreme cold at night. I denied myself sleep at night for fear something could happen to any of the animals.’
The Babylonian Talmud expresses this work ethic further in the following law (Bava Metzia 93b):
To what extent is a paid bailee bound to guard? Even as far as, Thus I was; in the day the drought consumed me, and the frost by night (Genesis 31:40)? There too, he answered, the reference is to the city watchman. Was then our father Jacob a city watchman? he asked. No, he merely said to Laban, I guarded for you with super-vigilance, as though I were a city watchman.
The Babylonian Talmud further legislates this by the need for brevity in reciting the Grace After Meals while a worker takes a break during work. The Talmud states (Berachot 16a): ‘And so there is a teaching: Labourers who are working for an employer should read the Shema, say the Tefillah, then eat their meal, but should not say Grace before it, only two benedictions after it.’
The Talmud relates an even more extreme conduct of work ethics by the Babylonian Talmudic Sage Abba Hilkiah. The Talmud relates (Taanit 23b): ‘Scholars visited Abba Hilkiah, grandson of Honi the Circle Drawer, to ask him to pray for rain. They (later) asked him: Why did you not take notice of us when we greeted you? He answered: I was a labourer hired by the day and I said I must not relax from my work.’
First Draft of Maimonides
This elevated ethical practice of a hired labour, as observed by the patriarch Jacob and told in the Babylonian Talmud, is omitted in the Jerusalemite Talmud presenting a dilemma to Maimonides in his drafting of his legal code Mishneh Torah. The question appears to be: May one distinguish between law on the one hand and personal rigorous ethics on the other? Is it possible that the law of a hired worker includes the need to be fit for work but the degree of how much one invests one’s energy into one’s work and how robustly the work needs to be carried out is a grey area and perhaps should not be legislated by Jewish law?
This dilemma seems however to have been resolved in the published edition of Maimonides in his law of hiring (6:13), where he presents both ideals as law. Maimonides writes:
a. A worker may not perform work at night and then hire himself out during the day, or thresh with his ox in the evening and then rent it out in the morning. Similarly, he should not starve and aggrieve himself and give his food to his sons, because this leads to stealing from the work due his employer, for his energy will be sapped and his thinking unclear, and he will not be able to perform his work robustly.
b. Just as the employer is warned not to steal the wage of the poor person or to withhold it from him, the poor person is forewarned not to steal from the work due his employer and neglect his work slightly here and there, spending the entire day in deceit. Instead, he is obligated to be precise with regard to his time. The importance of such precision is indicated by our Sages' ruling that workers should not recite the fourth blessing of Grace, so as not to neglect their work. Similarly, a worker is obligated to work with all his strength, for Jacob the righteous man said (Genesis 31:7): "I served your father with all my strength." Therefore, he will be granted a reward even in this world, as indicated by the verse: "And the man became prodigiously wealthy." (ibid. 30:43)
Dilemma in the draft edition
In the draft edition of the Cairo Genizah manuscript it is evident that Maimonides was of two minds regarding the second category of this law. This can be seen by the fact that the main text refers only to the law as stated in the Jerusalemite Talmud and Tosefta and in the margin he adds the second clause relating to the need to work robustly, derived from the Biblical Jacob. Maimonides writes the following in the main text:
A worker may not perform work at night and then hire himself out during the day, or work with his ox in the evening and then rent it out in the morning. Similarly, he should not starve and aggrieve himself and give his food to his sons, because this leads to stealing from the work due his employer. The workers may dip their bread in brine so they will eat many grapes. An employer may provide his workers with wine so that they will not eat many grapes. The owner of an ox is permitted to make his animal hungry and aggrieve it so that it will eat a large quantity of the grain that it is threshing. Conversely, the renter of the ox may feed it hay so that it will not eat a large quantity of the grain that it is threshing.
In the margin Maimonides adds the following:
Because his energy will be weak and he will not be able to perform his work robustly. And just as the employer is warned not to steal from the poor person, the poor person is forewarned not to steal from the work due to his employer, for Jacob the righteous man said (Genesis 31:7): "I served your father with all my strength." Therefore, he will be repaid a reward even in this world, as it states (Genesis 30:43): "And the man became exceedingly wealthy."
It is clear from the marginal addition and the published version that Maimonides decided in favour of including the second clause about the requirement to work robustly as part of the law. This would also confirm the view that according to Maimonides, pre Sinaitic Biblical narrative relating to examples of ethical behaviour, as opposed to distinct law, may be seen as normative Jewish law (Likutei Sichot vol. 25 p. 142).
Difference between draft version and published version
Although the draft version of the Mishneh Torah once the additional margin notes were added appears to be similar to the published edition – they both include the need to work robustly - there is still a significant difference how the law is constructed between the two versions. This becomes evident in particular when comparing how this law is structured in a later work of Jewish law by 19th century legalist and founder of the Chabad movement Rabbi Schneur Zalman of Liadi, his code of Jewish law, known as Shulchan Aruch Harav. In the published edition of Mishneh Torah, Maimonides constructs the law in two separate clauses: a. to be fit to work and not work at night. b. to work with all one’s strength. In the Shulchan Aruch Harav, however, while the second clause is also added, following Maimonides, it is constructed not as two separate clauses but combined into one paragraph, as follows:
Just as the employer is warned not to steal the wage of the poor person or to withhold it from him, the poor person is forewarned not to steal from the work due his employer and neglect his work slightly here and there, spending the entire day in deceit. Instead, he is obligated to be precise with regard to his time. The importance of such preciseness is indicated by our Sages' ruling that workers should not recite the fourth blessing of Grace, so as not to neglect their work. Similarly, a worker is obligated to work with all his strength, for Jacob the righteous man said Genesis (31:7): "I served your father with all my strength." Therefore, he will be granted a reward even in this world, as indicated by ibid. 30:43: "And the man became prodigiously wealthy." Therefore: a worker may not perform work at night and then hire himself out during the day, or work with his ox in the night and then rent it out in the morning. Similarly, he should not starve and aggrieve himself, for his energy will be sapped and he will not be able to perform his work robustly.
Rabbi Menachem M. Schneersohn, known as the Rebbe (1902-1994), points out this difference in structure of the law between Maimonides and Rabbi Schneur Zalman and asks (Likutei Sichot Vol. 25 p. 139), why does Maimonides in the (published) Mishneh Torah place the clause of being fit to work and to work with all one's strength in two separate clauses, whereas Rabbi Shneur Zalman combines them? Furthermore, Rabbi Schneur Zalman omits the rationale of ‘stealing the work due to his employer’ as the reason why a person must be fit to work, whereas Maimonides includes it?
Two definitions of a worker
The Rebbe argues that from a legal theoretical perspective one can define a hired worker in two ways: a. the hiring of a worker to perform a particular job for an employer. b. the hiring of a worker in the service of an employer. The Rebbe suggests that by dividing the laws into two clauses Maimonides is indicating there are in fact two definitions involving the relationship between an employer and employee. In the former the work must be done robustly, for otherwise the worker is effectively stealing from the work due to the employer, whereas the concept of a worker in the service of the employer implies the need for one’s full undivided strength and devotion to be dedicated to the work, since his very status as a hired worked in the service of the employer requires him to work in this manner. If he does not work with all his capacity he is undermining not only the work but also his legal status as a hired worker.
Rabbi Schneur Zalman maintains however there is only one concept regarding the employer-employee relationship: the hiring of a worker in the service of the employer. For this purpose he must be fit to work and to work with all his power. The slacking in energy of a worker by working at night causes not merely theft of labour but his existential legal status as a hired worker in the service of an employer is being violated. For this very reason, Rabbi Schneur Zalman omits mentioning the rationale of ‘stealing the work due to the employer’, since the problem is more existential than merely theft of labour.
Cairo Genizah manuscript
Based on the above analyses, I would like to argue that from a structural point of view the draft Cairo Genizah manuscript of the Mishneh Torah appears to be closer to Rabbi Schneur Zalman’s structure of the law than Maimonides’ own published edition. This is evident by the fact that in the text of the draft version there is: a. only one paragraph, as emphasized also by the additional word 'and' that links the two clauses and that does not appear in the published version of the Mishneh Torah. b. there is no mention of an obligation to work with all one's strength at all in the draft version but just the mentioning of the case of Jacob as a proof for the first case that a person must be fit to work so one should not steal from the work that is due to the employer.
This would imply that the draft version of the manuscript, though similar to Rabbi Schneur Zalman in the way it is constructed – a single paragraph rather than two – is in fact neither the same as Rabbi Schneur Zalman who sees the relationship based on the subservience of the employee to the employer, nor similar to the published edition of the Mishneh Torah that sees two concepts in the relationship, duty to the labour and subservience to the employer. In the draft version it is neither of the above. Rather, in the draft version of the Cairo manuscript there is only one definition of the relationship between the employer and employee and that is: the duty of a worker to perform a particular work. Based on this legal definition alone a worker is required to work not just robustly but ‘with all one’s strength’, as we derive from the work ethic of the Biblical Jacob. This would indeed be a third and novel approach to the employer and employee relationship according to Jewish law.
Conclusion
This essay presents the background to the early development of the ethical responsibilities of a hired worker. I discuss the difference between the way the Jerusalemite Talmud and the Tosefta saw the obligation of the hired worker, as limited to merely being fit for work, to the way in which it was further developed in the Babylonian Talmud to include the need to work robustly, with undivided attention and all one’s strength. Maimonides appears to first draft the law following the text of the Tosefta and the Jerusalemite Talmud but then appears to have changed his mind (which we discover through the edits in the margin of the Bodleian manuscript) and followed the Babylonian Talmudic stipulation that one must work also robustly and with all one’s might. With this addition Maimonides establishes the high ethical responsibility of an employee as part of Jewish law to work robustly, a viewpoint also followed by later legalists.
I then point out the difference in the legal status of a hired worker as formulated in the draft edition of the Mishneh Torah, the published edition of the Mishneh Torah and the Code of Jewish Law of Rabbi Schneur Zalman. The argument put forward was that whereas the published edition of Maimonides and the Code of Jewish Law by Rabbi Schneur Zalman imply that the relationship between a hired worker and employer includes also the subservience of the hired worker, since he is in the service of the employer, according to the draft version of the Mishneh Torah this legal definition of a hired worker does not seem to be present nor does it necessarily serve as the basis for the ethical requirement for a worker to work robustly and with all one’s might. It is his employment to perform a particular task that is sufficient requirement for him to work with the all his physical energy.
This folio of edits and alterations in the final page of the Laws of Hiring by Maimonides thus provides a unique window into the mind of Maimonides while drafting his legal code of Jewish law, later on becoming one of the principle pillars upon which the codified text of normative Jewish law became established.