CCAR RESPONSA
5763.1
Solicitation of Synagogue Members by Other Jewish Organizations
She’elah
In many communities, organizations such as Chabad, Aish HaTorah and others either directly or indirectly solicit members of existing congregations for programs, activities, worship and financial support. Are these practices ethical according to Jewish tradition? Does such solicitation or even ministering to members of existing congregations transgress the prohibition of hasagat gevul? (Rabbi Ned Soltz, Fullerton, CA)
Teshuvah
Our canons of professional practice, as embodied in the CCAR’s Code of Ethics for Rabbis, expressly forbid us from rendering “pastoral attentions to members of other congregations, havurot, and other religious institutions” if such attentions would harm collegial or institutional relationships. A rabbi, moreover, “should neither solicit nor sanction efforts to solicit members of another congregation.”[1] It is clear, therefore, that by our own takanah, or authoritative legislative enactment, it would be wrong for rabbis and synagogues to engage in the practices described in our she’elah. The problem, of course, is that the Code of Ethics is binding only upon members of the CCAR; it does not apply to other rabbis or to organizations such as Chabad and Aish HaTorah. Hence, our sho’el asks whether such solicitation is prohibited by traditional Jewish law and ethics, that is, by standards that are independent of our own rabbinical community and that other religious Jews would find persuasive and compelling.
In particular, our she’elah points to the principle of hasagat gevul, a term drawn from the Torah’s prohibition against removing the boundary markers that separate one’s property from that of one’s neighbor (Deuteronomy 19:14 and 27:17). Although the Biblical sources do not apply this concept to matters outside the realm of property law, it does receive such an interpretation in the classical Midrash and the Geonic literature.[2] By the late medieval period, halakhic authorities use the phrase hasagat gevul to describe unauthorized economic competition, that is, transgression against individual’s legally valid claim to the control of a particular office or market.[3] Might we utilize this principle in our case? When another Jewish organization asks our members for financial support or seeks their participation in its programs or activities, does it “violate the boundaries” that define and protect our synagogue community?
To answer this question requires that we make two judgments, one quantitative and one qualitative. On the quantitative side, we should keep in mind that the prohibition of hasagat gevul, when applied to issues like those raised in our she’elah, is an economic concept; its purpose is to protect the livelihood of individuals and businesses against ruinous competition. Under certain conditions, Jewish law allows an existing business to restrain the entry into its market of a potential competitor, on the grounds that the competitor would destroy the livelihood (mekape’ach et parnasato) of the existing business. If the level of competition is not “ruinous” – that is, if the entry of the competitor would not necessarily drive the existing merchant or artisan out of business – this restriction does not apply.[4] As a qualitative matter, restrictions against competition are generally not invoked against those, like melamdim (teachers of Torah to children) and communal rabbis, whose business involves mitzvot.[5]The Talmud justifies this free competition on the principle kin’at sofrim marbah chokhmah, literally, “jealousy among scribes increases wisdom,”[6] essentially, “free intellectual competition is good for Jewish life.” There are, of course, exceptions to this rule.[7] The rabbinate, for example, has become a salaried profession, and rabbis can qualify for the same protections accorded to other professionals.[8] Still, Jewish tradition in general frowns upon actions that artificially restrict competition and free market entry in matters related to Torah and mitzvot, particularly when this competition is not “ruinous.”
How do we apply these judgments to cases such as the one described in our she’elah? Are these other Jewish organizations, when they enter our “market,” guilty of hasagat gevul? True, they “compete” with us for funding from the community and for participation by our members in their programs and activities. In the vast majority of cases, however, this competition is far from “ruinous”; the financial stability of our synagogue is not called into question. Moreover, precisely because these organizations perform mitzvot, we want our members to be involved in their programming. The goal of our own activity, after all, is to help produce good and caring Jews, and such people should be involved with other Jewish organizations that fulfill needed and vital tasks. Obviously, we do not want their involvement to lessen the amount of support they give to our synagogue, but on this point, we think, we have little to fear. A Jew who becomes active to the fullest extent in the life of the community will likely be more rather than less conscientious in contributing to the life of our congregation. At any rate, we suffer when we assume a narrow perspective on Jewish community life. When we actively discourage the participation of our own members in the work of other Jewish organizations (and, indeed, in the work of agencies in the general community that feed the hungry and care for the needy), we declare that our congregation is somehow isolated from the concerns that those groups address. A good synagogue, one that is truly committed to the cause of Torah, mitzvot, gemilut chasadim, and tikun ha`olam would not send such a message to its own members and to the community at large.
Does this approach change when our “competitors” are Chabad, Aish HaTorah, or other Orthodox groups?[9] Such organizations might be construed as “inimical to Reform Judaism,” thereby forfeiting any claim to our active support.[10] We need not, however, directly oppose their activity on grounds of hasagat gevul. First of all, Jewish tradition does not absolutely forbid a group of individuals within the community from leaving a congregation to form their own synagogue, especially when the new congregation follows a different liturgical ritual (nusach) from the old one, which would certainly be the case here.[11] Moreover, the competition these groups pose to us is hardly “ruinous”; it is highly doubtful that their activity will drive our congregations into insolvency. Nor do we fear exposing our members to their point of view. On the contrary: as liberal Jews, committed to the concept of Jewish religious pluralism, we welcome the vigorous discourse and debate that these groups might introduce into our community. If this should awaken the intellectual curiosity of our members and make them question long-held assumptions about their Judaism, then mah tov; so much the better. Our knowledge of and confidence in our own approach to Jewish belief and practice can only benefit and be strengthened by such encounters. As Reform Jews, open to the intellectual currents of modernity and ready to wrestle with the challenges they present to us, we therefore embrace that ancient dictum: kin’at sofrim marbah chokhmah. Good argument is good for the Jews.
Conclusion. Although we Reform rabbis have resolved not to solicit members from other congregations, the traditional principle of hasagat gevul would not prevent other Jewish organizations from soliciting our members to participate in their programs. We should meet these organizations, even if we consider them “competitors,” in a spirit of friendly discussion and argument, with confidence that our own position is right for us. On the other hand, we are under no obligation to provide any assistance to organizations we deem to be “inimical to Reform Judaism.”
NOTES
- Central Conference of American Rabbis, Code of Ethics for Rabbis, Adopted in convention assembled, June, 1991, and as amended in 1993, 1998, 2001, 2003 and 2004, sec. II. C. 3-4, available at
- In Sifrei Deuteronomy (to 19:14) the prohibition is applied to “one who exchanges the rulings of R. Eliezer with those of R. Yehoshua”; i.e., one who cites the ruling of one sage in the name of the other. Rav Sherira Gaon learns from the verse that “one should not transgress against accepted communal custom (minhag)”, the “boundaries” drawn up by “previous generations” (the responsum is collected in Resp. Sha`arei Tzedek, no. 20 and cited in Tur, Choshen Mishpat 368). The same interpretation is applied to the very similar verse in Proverbs 22:28; see Midrash Mishle, ed. Buber,22:28, and Rashi to the verse.
- For example, R. Shelomo Luria (16th-century Poland) rules that when an individual has contracted with the local ruler to collect taxes, one who supplants that individual (by offering a higher sum to the ruler) violates the rule of hasagat gevul. Luria concedes that the prohibition in Deut. 19:14 applies strictly to violations of real property rights; nonetheless, the repetition of the prohibition in Deut. 27:17 extends its terms to other aspects of commerce and economic life. See Resp. Maharshal, no. 89. Luria’s contemporary, R. Meir Katznelbogen, applies the rule to competition among merchants; Resp. Maharam Padua, no. 41.
- B. Bava Batra 21b-22a; Yad, Shekhenim 6:8ff.; Shulchan Arukh Choshen Mishpat 156:5ff. The rules concerning “ruinous competition” (hayored le’omanut chaveiro) are exceedingly complex, and this area of the law is filled with machloket, points of dispute. This is because the halakhah wishes to strike a careful if complicated balance between two important interests. It wishes to protect the livelihood of merchants and artisans; at the same time, it does not oppose free competition, and it recognizes the value of such competition to the economy and to consumers.
- B. Bava Batra 21b; Yad, Talmud Torah 2:7; Shulchan Arukh Yoreh De`ah 245:22.
- Rashi, Bava Batra 21b, s.v. umodeh rav huna, explains that as a result of this “jealous” competition the teachers “will be careful to do their work well, since they are wary of each other.” Rambam (Yad, Talmud Torah 2:7) does not mention this explanation, but substitutes it with Isaiah 42:21, that is, God wishes that “Torah be increased and glorified”; hence, competition in the field of mitzvot is a good thing.
- For example, halakhic authorities have permitted the granting of copyright to the printers and publishers of sacred texts, even though such a monopoly is difficult to square with traditional Jewish legal doctrine, on the grounds that without the protection that copyright affords them, these individuals would never assume the financial risks involved in bringing editions of the Talmud and the Mishneh Torah, among other works, to market. Thus, copyright is a matter over which the community has no real choice. See R. Moshe Isserles, Resp. Rema, no. 10, and R. Moshe Sofer, Resp. Chatam Sofer, Choshen Mishpat, no. 41. On another matter, the Rambam rules that a mohel who interferes with another mohel’s expected income is guilty of hasagat gevul; Resp. Harambam (ed. Blau), no. 273. Note, however, the author’s language: the offending mohel “interferes with the set livelihood (parnasah kevu`ah) of a poor, God-fearing Jew (ani ben Torah). In other words, this is a case of “ruinous competition,” not competition pure and simple.
- This position, which applies the doctrines of hasagat gevul and “ruinous competition” to the rabbinate, is a departure from the more traditional position perhaps best expressed by the 15th-century German authority R. Yisrael Isserlein, in Resp. Terumat Hadeshen, 2:128: the fact that we rabbis receive an income for performing our communal function is an embarrassment to us, so much so that we cannot justify a claim of entitlement to that income and protection from competition. The economic situation of the rabbinate clearly has changed, as is noted in Resp. Chatam Sofer, Choshen Mishpat, no. 21: rabbis now accept the reality that they are salaried professionals and are not embarrassed to demand they be treated with the same respect as is accorded to other professionals. In the North American Reform rabbinate, issues of “ruinous competition” are regulated in the CCAR Code of Ethics for Rabbis, section II. C.
- We distinguish here between Jewish organizations, even though they disagree with our own approach to Judaism, and apostate groups such as Jews for Jesus or Messianic Jewish congregations. Our approach to apostates is one of “strict separation tempered with openness.” See our responsum 5761.2, “Donations to Synagogue By Messianic Jews,” , at notes 1-4. Unlike Orthodoxy, we do not regard apostasy as a legitimate Jewish religious choice, and we approach apostate groups accordingly. We take no position in this responsum on the question of the messianism present in the doctrine of Chabad Chasidism or on the question of whether, given the messianic claims raised by many members of Chabad for their late Rebbe, Chabad has “crossed the line” from legitimate Judaism to apostasy. A powerful argument that it has crossed that line is raised by Professor David Berger, an Orthodox Jewish scholar, in his The Rebbe, the Messiah, and the Scandal of Orthodox Indifference (London: Littman Library, 2001). The matter therefore deserves our attention, and any contacts between Reform rabbis and the Chabad movement should be maintained with the utmost caution.
- See Contemporary American Reform Responsa (CARR), no. 25, “Gifts to Organizations Inimical to Reform Judaism”( ), and Questions and Reform Jewish Answers (QRJA), no. 92, “Reform Support for Orthodox Institutions” ( ). We make no determination here that either Chabad or Aish HaTorah is “inimical” to our interests as a Reform movement; we note simply that the local rabbi must make that judgment and is entitled to act accordingly.
- The word “absolutely” indicates that this, too, is a complex question. On the one hand, Jewish tradition favors large congregations over small ones and would discourage individuals from leaving an established synagogue on that account; for sources, see TFN, no. 5752.12, pp. 3-6, at notes 2-5 ( ). On the other hand, if an individual finds that he cannot pray with kavanah (intention and concentration) in an existing synagogue because of discord between him and the other members should pray elsewhere; R. David ibn Zimra (16th-17th cent. Egypt), Resp. Radbaz 3:472, and R. Avraham Danzig (18th-19th cent. Germany/Lithuania), Chayei Adam 17:5. R. Yitzchak bar Sheshet (14th cent. Spain/North Africa) rules that individuals have the unfettered right to leave an existing synagogue to form their own congregation (Resp. Rivash, no. 331). Although some authorities limit this right in cases where the split would cause significant financial loss to the existing congregation, there is no opposition to the formation of a new synagogue that follows a different nusach from the old one. For discussion, see Zalman Druck, Mikdash Me`at (Jerusalem, 1973), 10-15.
If needed, please consult Abbreviations used in CCAR Responsa.