CCAR RESPONSA
American Reform Responsa
165. Rabbinical Fees and Salaries
(Vol. LXXVI, 1966, pp. 76-79)
QUESTION: A congregation had decided that whatever fees a rabbi receives from weddings and funerals should be turned over to the congregation. It was assumed that the salary would be raised to make up for the loss of fees, and that it is more dignified for the rabbi to receive only a salary and no fees from individual members. The question is asked by a colleague as to whether this deprecation of fees is in accordance with the ethics of the Jewish legal tradition, and whether it would be wrong on his part to ask to have the decision reconsidered.
ANSWER: The question of fees and salaries and the relation between them has been an ongoing discussion in Jewish law, almost from the beginning. The question grew complex and needed constant reanalysis and redefinition. To give a general picture of how widespread the discussion was, we need only mention a number of references in the law in which a detailed analysis of the question was deemed necessary.
There are full discussions of this question, for example, in the following: a series of responsa by Simon ben Zemach Duran, from 142-148, and his long commentary to the Ethics of the Fathers, IV.5; Joseph Caro in his Kesef Mishneh to the Yad (Hil. Talmud Torah, ch. III); Moses Isserles in the Shulchan Aruch, Yoreh De-a 246.21, also, to Even Ha-ezer 154.21; also, Tosafot Yom Tov (Yom Tov Lipmann Heller) to Mishna, Bechorot IV.6. Then there are the responsa by Joel Sirkes (Bach, #52); Meir Eisenstadt (Panim Me-irot, I.79); Moses Sofer in his responsa (Choshen Mishpat, 164).
Such a continued and elaborate discussion reveals the fact that the question of fees and salaries is one which has undergone considerable evolution as the rabbinate gradually evolved, becoming first a special skill and then a full-time profession.
Originally no fees and no salary were deemed to be justified or permissive for any of the functions which we now look upon as the essential part of the rabbinate, namely, for teaching the Torah, for making decisions on the basis of Jewish law, for officiating at weddings or at divorces, etc. There was, first of all, the general ethical objection to getting any material benefit from the study of the Torah, as is stated in the Ethics of the Fathers: “Not to make worldly use of the Crown of the Torah” (I.13), or, “Not to make it a spade to dig with” (IV.5). The study of the Torah was a religious duty incumbent upon every Jew (see Maimonides in Hilchot Talmud Torah); therefore, how could a person take pay for pursuing that divine mandate? Besides the duty to study, there was also a duty to teach the Torah. It was especially incumbent upon a father to teach his own child the Torah. In general, teaching of the Torah to anybody was a religious duty for which no pay should be accepted. The Talmud, in Nedarim 37a (basing its comment upon the verse in Deut. 4:14, where Moses says: “And God commanded me to teach you”), elaborates on Moses’ statement as follows: “God said to me, ‘Just as I, the Lord, taught thee without pay (bechinam) so thou teach without pay.”‘
As for the making of legal decisions, that too was deemed to be a religious duty (“And they shall judge the people,” Deut. 16:18). Therefore, the Mishna in Bechorot IV.6 says: “If a man takes pay for making a legal decision, all his legal decisions thereby become void.” On the basis of these various opinions for complete “amateur standing,” one can understand the stern statement of Obadiah Bartenura in his commentary to this Mishna, in which he says that he was shocked at the rabbis in Germany who took fees for officiating at a divorce proceeding and also at the witnesses who took fees for signing the divorce document (the Mishna also prohibits witnesses from taking fees).
Nevertheless, even in the Talmud, as the need for special training grew, this general prohibition was mitigated step by step. A teacher could be engaged for pay to teach children. Yet could he be permitted to receive pay when the duty of teaching was religiously incumbent upon him? The Talmud says that teachers of children were paid not actually for the teaching of the Torah (which was their religious duty), but for teaching the Pisuk Hate-amim, the punctuation and accents, etc., which they were not required to teach (Nedarim 37a). Rav says that the teacher is paid for taking care of the children, i.e., not directly for teaching the Torah (cf. Rashi, ad loc.). The Tosafot to Bechorot 29a say that as for our present-day custom of receiving pay for the teaching of the Torah, it applies only to one who has no other means of support; or even if he does have other means of support, he is paid for the time that he is taking away from his other business. The comment of the Tosafot has in mind the fact that so many of the rabbis in Talmudic times were working men and made their living from their labor and not from teaching the Torah (and in the time of the Tosafot, they were business men).
As for taking pay for making legal decisions, the law as such is embodied in the Shulchan Aruch (Choshen Mishpat 9.5), namely, that if one takes pay for judging, all his decisions are void; but Caro himself adds that the judge may take pay for the time that he has taken away from his other business. This brief statement of his is more elaborately dealt with in his Kesef Mishneh to the Yad (Hil. Talmud Torah, III.ll), in which he says that a man may take support from the community for all these functions (teaching, judging, etc.), if he has no other means of support; and then he adds that since the time of the Rambam the custom is for rabbis to take salaries, and he justifies this situation by the statement of the Tosafot mentioned above.
Caro’s statement as to the changes which have occurred since the time of the Rambam are to be understood in the light of the series of responsa 142-148 of Simon ben Zemach Duran and his commentary to Ethics of the Fathers, IV.5. Duran, who formerly made his living as a physician, had to flee from the Balearic Islands, which were part of Spain, during the persecutions of 1396. He could no longer practice his profession in Algiers, where he was a refugee, and was forced to take a salary from the congregation. He reviews all the relevant literature to justify his taking the salary.
As for those who took pay for deciding legal questions, a distinction was made between those who were occasional judges and those who were appointed to devote all their time to judging, i.e., professionals (Tosafot Yom Tov to Bechorot IV.6). With regard to divorces, Isserles says (Even Ha-ezer 154.2) that the arrangements of divorces are not to be classified as legal decisions and therefore no fees are justified.
The fact of the matter is that it simply became necessary to professionalize the rabbinate, and so Isserles (with reference to the responsa of Simon ben Zemach Duran) simply says: “Therefore it has become the custom in all places that the rabbi of the city has income and support from the community in order that he need not engage in other work.”
However, the memory of the older tenor of the law (before the rabbinate became a profession) still remained, and the statement is often made by the scholars, that if a person could afford to serve as a rabbi without pay, that would be the ideal situation. It is rather touching to read the responsum of Moses Sofer (Choshen Mishpat 160). A pupil of his had asked whether to
accept a rabbinical position with salary, and his teacher answers: “Alas, I am suspect in this matter” (i.e., I take a salary). And then he refers to all the above opinions now permitting it.
As to the difference between fees or salary, there is really no choice as to which would be deemed worthier or more ethical. The older law objected to both. Yet, as can be seen from the arguments of Duran, the paying of a regular salary developed later than the receiving of separate fees for specific services. He bases his justification for accepting a salary (hitherto unprecedented) upon the fact that rabbis have “always” received “fees.” But this was to be expected as a natural evolution: first, separate fees were justified, and then the custom of a salary was established. So there is really no historical preference for one form of income over the other. In fact, in later centuries, the rabbinical fees are considered to be the legal prerogative of the rabbi. Moses Sofer in his responsa to Yoreh De-a 230) refers to a responsum by Isserlein (three centuries earlier) in which Isserlein deprecates the acceptance of wedding fees. Moses Sofer says that since the days of Isserlein the situation of the rabbinate has changed; he is now engaged by the community (professionally) and the fees are an integral part of his income (cf. fuller discussion in the CCAR Yearbook, vol. LXV, pp. 86-87).
Of course, a congregation and a rabbi have the right to agree as to the sort of emolument the rabbi should receive. There can be no legal objection to a contract confining the rabbi to one class of income or the other. If the congregation and the rabbi have agreed at the beginning of the rabbi’s term that he should not keep the fees, they have the right to make such an agreement. But if the rabbi would like to have the matter reopened and the agreement changed so that he be permitted to accept fees, there can be no objection in Jewish law to such efforts. Both salaries and fees have equal standing in the law, except perhaps that fees arose earlier than regular salary. Both were equally frowned upon at the beginning, and both became acceptable as rabbinical duties became specialized and professional.
Solomon B. Freehof
See also:
“Resolution,” CCAR Yearbook, vol. 44, 1934, p. 98; vol. 50, 1940, p. 98; vol. 51, 1941, p. 142; vol. 56, 1946, p. 103; vol. 76, 1966, pp. 100ff.
If needed, please consult Abbreviations used in CCAR Responsa.