Employment Contracts versus the Covenant at Sinai

Here’s an excellent piece about how Amazon requires even its temporary employees to sign non-compete clauses that last a year and a half after their employment ends.

The piece got me thinking a bit about employment contracts versus the covenant at Sinai (it’s Passover time). There are a lot of problems with contracts with employers, which Chris Bertram, Alex Gourevitch, and I explored in our “Let It Bleed” post at Crooked Timber three years ago. Among them are the imbalance of power between the two contracting parties and the fact that no employment contract can spell out all the terms of employment; there are just too many unknowns, both known and unknown, at the workplace.

Interestingly, the covenant at Sinai, the moment when the Jewish people strike their bargain with God, offers a startling counterpoint to these two features of an employment contract.

On the one hand, there is a striking imbalance of power between the Israelites and God; these are by no means equal parties. On the other hand, Michael Walzer and other writers claim, the Jewish tradition is filled with parables and stories about how hard God has to work to win the consent of the Jews, to get them to sign on the dotted line. In other words, they’re not forced into the contract. God first tries unsuccessfully to get other peoples to accept his offer, and only comes to the Jews after he’s failed to win the consent of these others. That makes God more a supplicant. He offers the Jews incentives, giving them water in the desert in order to earn their gratitude. He doesn’t take advantage of his power or their powerlessness; their consent must be genuinely free. (Ezekiel seems to pull back a considerable distance from that freedom. There, God says, “And I will cause you to pass under the rod, and I will bring you into the bond of the covenant: And I will purge out from among you the rebels, and them that transgress against me…and ye shall know that I am the Lord.” In Ezekiel, God is the agent of the Israelites’ consent.)

But more interesting to me is how the terms of the covenant are described at various points in Exodus.

Moses came and summoned the elders of the people and put before them all that the Lord had commanded him. All the people answered as one, saying, “All that the Lord has spoken we will do!” (Exodus 19:7-8)

Moses went and repeated to the people all the commands of the Lord and all the rules; and all the people answered with one voice, saying, “All the things that the Lord has commanded we will do!” Moses then wrote down all the commands of the Lord. (Exodus 24:3-4)

Then he took the record of the covenant and read it aloud to the people. And they said, “All that the Lord has spoken we will faithfully do!” Moses took the blood and dashed it on the people and said, “This the blood of the covenant that the Lord now makes with you concerning all these commands.” (Exodus 24:7-8)

Notice how often the text insists on that “all.” While God’s power is sovereign, and while the Israelites surrender themselves completely to it, they know in advance all of terms of the power they are surrendering to (God may have considerable additional powers, having nothing to do with them, but that is not what they what they are surrendering to). They know all the laws and expectations that are being commanded of them, and it is all of those laws and expectations that they vow to fulfill. It’s unclear from the text why that’s the case, but one possible interpretation is that the covenant can’t truly be a covenant, a contract, if both parties don’t know completely and entirely what it is that they are agreeing to.

This is not a Hobbesian contract in which one party surrenders to another the entirety of his will in return for a protective power that can be exercised in almost completely unknown and unpredictable ways. And it’s not an employment contract in which a worker agrees to perform a job in return for a wage but necessarily has little sense of what the rules of the workplace are or what the daily ins and outs are of the job she is meant to perform.

Now we know that in real life no contract can spell out every single last detail of its performance and execution; contracts are indeterminate and incomplete. But it seems to be a critical part of the aspiration of the covenant at Sinai, the original contract, that its terms not be indeterminate or incomplete. One might think that a contract with God would be the opposite: that is, an absolute demand merely to submit to the indeterminate will of God. (That, in some ways, is how the covenant is described later, in Joshua 24.) But this one, at Sinai, claims for itself the intelligibility of the most plainspoken manifest of rules.

If God can sign such a contract, why not your boss?

Update (12:05 am)

It occurs to me that perhaps another reason why the Exodus story is so insistent that the covenant spell out all the terms of the Israelites’ obedience to God is precisely because the memory of slavery in Egypt was so fresh. That is, much in the same way that the labor contract was viewed by many as the answering blow to bondage in the American South (though that was always bitterly contested by workers and ex-slaves, as Alex Gourevitch shows), so perhaps was it understood that the covenant at Sinai, even if it entailed obedience to God rather than Pharaoh, had to spell out what the terms of that obedience was. Lest it be too reminiscent of the Jews’ time in Egypt.

Update (12:25 am)

On Facebook, Michael Pollak makes an excellent point:

I think you skip over the implications of the key point you mention first off, which is that no one else will take up God’s offer. That is extreme market power. And employees with that sort of power do routinely sign very favorable and detailed employment contracts.

As I said, that’s just a midrash; Exodus itself says nothing like that. But still, Michael’s is a good point.


  1. Stuart Newman March 28, 2015 at 1:11 am | #

    “…the Exodus story is so insistent that the covenant spell out all the terms of the Israelites’ obedience to God is precisely because the memory of slavery in Egypt was so fresh.”

    The Jews were never slaves in Egypt.

    • Corey Robin March 28, 2015 at 1:26 am | #

      I read the Bible with very little interest in, or assumptions about, its historical accuracy or inaccuracy. I read it as a text, which has its own narrative conventions that can help or not help us make sense of what that text is saying. In the text, the Jews were slaves in Egypt; that’s what precedes the covenant at Sinai. And that backstory — whether it happened in history or not — is what helps make sense of the story. If you want to discuss the historical accuracy of the text, you should probably take that up with someone who knows something about that.

  2. walt March 28, 2015 at 12:58 pm | #

    Reminds one of the famous Israeli saying, ‘God does not exist and he gave us this land’.

  3. Will Boisvert March 28, 2015 at 2:41 pm | #

    On the other hand, there’s the Book of Job, where Job complains that he’s kept each and every commandment to the letter, yet God has still rained calamities on him. To which God replies, Covenant, shmovenant–shut up and worship Me! As with every other subject, the Bible’s POV on contract law is a muddle.

  4. Akiva Cohen March 30, 2015 at 3:31 pm | #

    You’ve left out another Midrash that is decidedly in the opposite direction:

    “One of the most famous images in the Talmud is that portrayed by Rav Avdimi in Shabbat 88a; G-d held Mt Sinai over the heads of the Children of Israel and threatened: if you accept the Torah – fine, but if not – this will be your burial spot.”


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