Popular Practice And The Process Of Pesak

The Role of Custom In Jewish Law

Introduction
Today’s installment is a write-up of my Mahshevet Hazal shiur on Minhagim. The reason why I’m focusing specifically on customs is that most halakhic arguments are based, either implicitly or explicitly on communal practices and preferences. Still working under our assumption that for Orthodox Jews the Oral Law is authoritative, it would make sense to first see how the Torah Shebe’al Peh defines the role of communal norms in the halakhic system.

Minhagim, or customs, can serve many purposes depending on the circumstance. They may be private and personal expressions of religion, or they may be communal regulations made for various reasons. Not surprisingly, the Torah Shebe’al Peh defines the rules and regulations for customs including when they must be followed and when they are forbidden to be followed.

B. Ta’anit 26b distinguishes between the terms “halakha,” “minhag,” and “noheg.” Laws are taught publicly as official rulings. Minhagim have an official status, but not to the same degree as halakhot; while not taught publicly, minhagim are to be prescribed as private rulings. “Noheg” (general practices) seems to have no official status and are not instructed even privately. While differences between minhag and noheg are important, these distinctions seem to apply only to the particular case in Ta’anit, and not to the rest of the Talmud. For the sake of this essay, the term minhag will have the broadest possible definition, incorporating any general practices or mores not explicitly mandated by Jewish law.

Some Examples

In Rabbinic literature, customs can take many forms. Customs may be personal as in the case of R. Akiva’s practices while praying. In public, R. Akiva would shorten his prayer so as not to cause unnecessary trouble to the congregation to wait for him. Privately however, he would prostrate repeatedly to the extent that he would start his prayers at one corner of the room and finish in another (B. Brachot 31a). They can also be universal, such as the collective of Jewish women who accepted upon themselves a stringency regarding the menstrual laws (B. Niddah 66a). Finally, they can be communal. For example, whether one works on Erev Pesach (M. Pesahim 4:1), works on 9 Av (M. Pesahim 4:5), or if one repeats verses of Hallel (M. Succah 3:11) will all depend on the custom of the community.
Customs may also be passed down from generation to generation. The reason we keep two days of Yom Tov is based on “minhag avoteichem beyedeichim” – maintaining the customs of our fathers (B. Beitza 4b). This of course does not mean that customs must be transmitted from a previous generation or that any innovation is inherently prohibited. Would this be the case, then most customs would have to be abolished since at one point in time, every custom would have to be an innovation. More importantly, the torah shebe’al peh rejects this premise in saying “ein lo ra’inu re’ayah” – the fact that one did not see an action has no halakhic validity (M. Zevachim 12:4).

Minhag As Law

Despite being labeled a custom, there are circumstance where customs can become normative and/or take on the force of law. For example, in the cases cited above of “makom shenahagu,” halakha mandates the individual must defer to the existing practices of the community. Furthermore, if a community has adopted a stringency, it is forbidden to act permissively in public (B. Pesahim 50b). The logical extension to this would be that if a practice is accepted by all Jews1, then that practice would be universally normative as well (see for example B. Hullin 91a).

In addition to determining specific practices, communal customs may be a source of Jewish law in the absence of a definitive ruling. R. Avin in the name of R. Yehoshua ben Levi states, “for any law that is unclear in the court (bet din) and one does not know which way is preferable, go and see what the community does, and follow them.”(Y. Peah 7:5 20c) Thus, if a decision has not been rendered, then the halakhic policy is to follow whatever the community happens to be doing. The implied corollary to this principle would be that if the court were to issue a definitive decision, their ruling would supersede the existing practice.

The case Hillel the Elder provides an example of this R. Yehoshua ben Levi’s ruling in practice. Normally, Hillel would follow the teachings of Shemaya and Avtalyon, the leading Rabbis of his generation, and in fact rebuked an entire town for their lack of connection with these sages. However, when he forgot a particular law, he declared to “let the Jews be (hanach lahem leyisrael) – if they are not prophets, then they are the children of prophets” (B. Pesahim 66a). Following the mindset of R. Yehoshua in the Yerushalmi, when Hillel knew the law, he followed his tradition. Only when he was unsure of the law, did Hillel rely on the community’s practice.

Necessary Limits of Minhag

It should seem obvious that customs must first adhere to Jewish law. If Jewish law is defined by custom, the effectively any communal practice will be automatically legitimated, regardless of any biblical or rabbinic transgressions. Rather, according to the Talmud, when the popular practice violates biblical or rabbinic law, that practice is simply rejected as illegitimate.
The most extreme example of a contrary communal custom is the case of an “ir nidachat” – a town where the majority worships avoda zara. In this instance, the halakha is not to follow the minhag hamakom, but to destroy the city and wipe out its inhabitants (M. Sanhedrin 10:4).

In other cases, Jews are held to the standards defined internally by the Oral Law. Specifically, for a law to become universally normative, it must be ratified by the central court. These laws passed by the central court may only be overturned by a court which is greater in number and wisdom – even when the original reason is no longer applicable (B. Beitza 4b).2 If there are restrictions to when an official court may repeal or rescind a halakha, then certainly the mass population would not wield a greater authority.

B. Beitza 30a records two instances where people were violating rabbinic enactments, and the Rabbis who observed these transgressions kept silent. When asked why the Rabbis did not rebuke or correct the mistaken practice, the response was “Let the Jews be – (hanach lahem leyisrael) better they sin in error than sin intentionally.” Like the sugya in Pesahim 50a, the Rabbis let the current practice stand. However, in this case, the practice was incorrect. The Rabbis maintained their silence not from tacit approval, but for the pragmatic reasons that they would be ignored by the people. Here, the Talmud relies neither on the communal practice for legitimacy, nor on the silence of the Rabbis as a sign of approval. Rather, the practices are seen as being incorrect, and in violation of halakha.

In addition to blatant transgressions, there is another way in which customs can compromise halakha and that is when a custom is confused with law itself. One example of this would be when people believe that their custom is in fact a law, and treat their custom accordingly. In some cases, this would violate a biblical prohibition of adding to the Torah (Deut. 13:1). In others instances, by treating a custom as law – in effect equating the two – one could easily come to violate the actual halakha by giving preference to a minhag. In this latter case, the Talmud actually encourages violating a custom in other’s presence so that they will recognize the difference between what they do as custom and what is really halakha (B. Pesahim 50b-51a).

Minhag Mevatel Halakha

A curious idiom found in the Yerushalmi is the phrase “minhag mevatel halakha,” which literally means “a custom can nullify or overturn a law.” At first glance this statement seems to contradict the pattern we have seen thus far by placing the authority of custom over that of halakha. However, upon looking at these relevant sources, we will find that this idiom has a different meaning in context. In fact, the sugyot of minhag mevatel halakha will actually support what we have said earlier that customs may have the status of law when halakha is not compromised.

The phrase minhag mevatel halakha appears twice in the Yerushalmi, and not at all in the Bavli. The first instance deals with the rights and obligations of workers. Biblically, there are no time limits as to when a worker could work, and aside from requiring the employer to pay his employees on time, there are no other regulations for employment. However M. Bava Mezia 7:1 mandates that the employer must follow the customs of his location. If the custom is that employees do not work too early or too late, an employer is forbidden to force his employees to do otherwise. Furthermore, where it is the custom (makom shenahagu) for employees to have breaks in the middle of the day, the employer is obligated to follow. In general, the Mishna adds, everything depends on the custom of the locale.

Commenting on this Mishna, R. Hoshia says that this law indicates “minhag mevatel et hahalakha” – that the customs supersede the law (Y. B.M. 7:1 11b). Since the Torah does not mandate most employment conditions, the employer is technically free to do as he wishes. However, the business practices of the community restrict the employer further than the biblical halakha dictates. In this case there is no law which is being broken. In requiring the employer to follow the mores of his place, there is no transgression of either biblical or rabbinic law. Rather the employer’s workplace restrictions simply limit his biblical rights.

The other source discusses with which type of shoe halitza may be performed – the sandal or the na’al. In the course of the debate, Rav Yehuda name of Rav says that should Elijah the Prophet come and tell us that the na’al is valid, then we would listen to him. But were he to say that the sandal is invalid for haliza, we would not because the majority of people use the sandal for halitza and “minhag mevatel et hahalakha” – the existing practice would nullify future legislation (Y. Yevamot 12:1 12c).

While this language of this sugya implies a custom can trump halakha – Eliyahu’s pesak is overruled by the existing practice – the law in this sugya is not firmly established halakha. At this point in the sugya there is an uncertainty as to the validity of certain shoes. Eliyahu’s hypothetical ruling would be its own act of legislation which would restrict a previously permitted and practice. Since according to the Talmud, “we do not make legislation which cannot be followed by the majority of the Jewish people” (B. Bava Qamma 79b), the general acceptance of performing halitza with a sandal would preclude Eliyahu from enacting a new prohibition.3

Therefore it is not that the existing practice overturns an established law, but that it may prevent a takkanah from being established in the first place as universally normative halakha. It should also be noted that the parallel sugya in the Bavli retains the dispute and the positions, but omits the explanation of minhag mevatel halakha (B. Yevamot 102a). I would conjecture that this omission is because the case does not demonstrate a custom overturning a law.

Summary

The goal of this essay was to show the Talmud’s definition of customs and their role in Jewish law. First, customs are important in Jewish law. They can be obligatory, or even be a halakhic source. However, while there are times when a custom must be followed, there is not necessarily any intrinsic merit to the practice, but because the laws of minhagim require it. As such, there are times when one is allowed to follow existing customs, but is not required to do so. Finally, there are times when it may be forbidden to follow the custom, where it contradicts existing Jewish law,4


1. And not just Ashkenazim
2. Note that even the Tosafot are inconsistent in how they deal with this law. In Beitza 30a, they claim that if the reason is irrelevant so is the law. However, a less frequently cited Tosafot in Sanhedrin 59b not only holds the contrary opinion, but even agrees with Rashi that the court must official repeal even those enactments which were explicitly for a specified time.
3. Rambam’s principle that for any prohibition to be authoritative it must be accepted by all Jews could also apply here (Mamrim 2:2). I have not found an explicit gemara which supports this statement, but Hullin 91a comes close.
4. For the Talmud, this would mean halakhot which were ratified by a bet din, and were not overturned by a superior court.

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