RABBINICAL TENURE

QUESTION:

Is it a fact that a cantor or a rabbi or other such person employed by a congregation for more than a certain number of years is entitled to be supported by that congregation for the rest of his life, albeit he need not be continued in that official capacity? (Asked by Rabbi Joseph Glaser, New York.)

ANSWER:

THE QUESTION really amounts to this: Is there such a thing as automatic rabbinical tenure, analogous to the situation which prevails in American universities, namely, that if a teacher is reappointed to the faculty for a number of years, he arrives at the stage that is described by saying “he now has tenure;” that is to say, he can no longer be discharged?

To which extent this is applicable to the rabbinate cannot be answered simply. The reason why the question is somewhat complicated is due to the fact that up to the end of the Middle Ages, the rabbinate was not a profession at all. It was a voluntary, unpaid public service. A learned man would serve the community as a judge, settling disputes, preparing divorce documents, and answering problems of kosher and trefe, etc. This was his occupation but not his livelihood. He was a businessman. If he was occasionally paid, this was in recompense for the time taken away from his business (s’char b’tayla). But even so, certain authorities were indignant at the fact that even in those pre-professional days, the Rabbi took payment for preparing divorce documents, etc. (cf. Current Reform Responsa, p. 199 ff.).

Even in those days (when the rabbinate was no more than a voluntary devotion on the part of a learned man) even then, the congregation had certain responsibilities as to this volunteer’s tenure. The general principle involved here is: We may raise the man in sanctity but not lower him (the phrase is used in Berachos 28 a) . This phrase was used to mean that once a man was given a position of dignity by a community, he could not be deposed from it unless, of course, for cause.

However, since being the rabbi was really not a profession, and although protected against being deposed from his sanctified status, nevertheless he had no monopoly; in those days, any other scholar could come into the community and serve it in a rabbinical manner. Most of the disputes on this question are cited by Moses Isserles in his note to Yore Deah 245:22, dealing with the rights of other scholars to come to the city and perform rabbinical functions. This statement of Isserles ends with the statement that if it is the custom in the community to supplant the rabbi with another, they may do so. At this stage, then, there was no such thing as tenure; cf. the classic case of this situation in A Treasury of Responsa, p. 61 ff.

But as the centuries passed, the rabbinate became a profession and a man was engaged with a fixed salary to serve the community as rabbi. The status therefore was new and the rights were different. Most of the rights of the rabbinate in the new professional situation are described by Moses Sofer, the great Hungarian authority, in a number of places, but most fully in his responsa, Orah Hayyim 205 and 206.

In these responsa he takes the trouble to explain away Isserles’ statement that where it is the custom for the congregation to supplant one rabbi with another, they may do so. Moses Sofer explains that this statement of Isserles is based on the Kol Bo, which describes the situation as it was in those days (before the rabbinate was a profession) when there were many men who could serve the community as cantor or rabbi. In those days it was the custom to alternate the cantoral and rabbinical honors from one man to another and, therefore, they could make a change whenever they wanted to do so. But now the situation is obviously different.

In his responsa, Orah Hayyim 205 and 206, Moses Sofer says in general that it is unheard of for a rabbi to be removed when the term (usually three years) specified in his contract is over. He discusses the term “three years” (sometimes five years) put into the usual rabbinical contract. The reason for it is not actually to limit the rabbinical term of service; really it is based upon the rule in Choshen Mishpot 333:3 in Isserles, namely, that since a Hebrew slave in ancient times was indentured for six years, no one should engage him self for a period equal to that, or he ceases to act like a free agent. In practice, the term limit means that the rabbi, if he wishes, may leave the community after three years are passed; but it does not mean that the community has the right to discharge him after that term, which is after all only a formalized limit. Even if there is presumptive ground of misbehavior on the rabbi’s part, even so it is doubtful whether he can be deposed. If there is a specific understanding written into the contract that both sides may terminate it after three years, then it is possible that he may be removed from office. But even that is debatable if anyone raised objection to it.

So strong is the concept of rabbinical (and cantoral) tenure in the law that there is considerable opinion that the rabbi’s son, if fit for the office, has the preeminent right over other candidates to succeed his father. See the responsa, Shem Aryeh, by Aryeh Balchover, Orah Hayyim # 7.

To sum up: The general principle that “we do not degrade in holiness” ( En Moriddin Bakodesh) stands against removal of any appointee of a congregation for sacred work. Such removal was possible, however, in the early days when the rabbinate was not a profession. After it became a profession it is unheard of that a rabbi be removed after the formal term of three or five years mentioned in the rabbinical contract has passed. As for the subsidiary question, whether he must still be supported, when he can no longer serve the community due to age or sickness, this is not discussed, as far as I know, in the literature. But the presumption is that if he is not to be deposed, he cannot be allowed to starve.

There is a full article on this subject in the latest volume of Encyclopedia Talmudis, Vol. 14, column 347 to 357. The article gives all the opinions from scholars of all periods. Many of those (not all of them) who date from the time preceding the professionalizing of the rabbinate, believed that the rabbinate had no tenure (no Chazakah). Those of the modern centuries, in which the rabbinate had become a profession, almost unanimously hold that the rabbinate has tenure (Chazakah) and even the right to bequeath the position to a son if the son is worthy.