From A TREE OF LIFE: Diversity, Flexibility, and Creativity in Jewish Law (SECOND EDITION) by LOUIS JACOBS, The Littman Library of Jewish Civilization, 2000
But this whole question of changes in the law because of changed conditions is complicated by the existence of a mishnaic rule that seems to militate against any possibility of change.[1] This is the rule that no court is empowered to set aside a law promulgated by another court unless the second court is superior to the first 'in wisdom and number’. I. H. Weiss has argued that this rule referred originally only to two contemporary courts, but that it was later extended to courts in different periods in order to preserve the unity and stability of the law: rigidity was the price that had to be paid if anarchy was to be avoided.[2] Be that as it may, the rule found its way into the Talmud in its extended form, applying even to courts of different periods. Moreover, the idea evolved that no post-talmudic court could ever be the equal, let alone the superior, of a court composed of Talmudic sages.[3]
The combination of these two ideas-that a later court can set aside the rulings of an earlier court only if it is possessed of greater wisdom, and that a later court can never, in fact, be possessed of greater wisdom might have prevented any progress at all in the development of the law were it not that various qualifications to the rule were introduced by the halakhists in order to promote at least a degree of flexibility so that the halakhah should not become petrified. Maimonides applied the rule against change even where the original reason for the earlier court's ruling no longer obtained,[4] but Abraham ibn David, the Rabad, holds that a later court is empowered to set aside laws laid down by an earlier court, even where the later court is inferior, when the original reason behind the promulgation of a law no longer obtains.[5] For all that, the virtual dogma of the infallibility of the talmudic sages or, at least, the idea that all the talmudic laws were permanently binding because they had been accepted as such by the consensus of the whole House of Israel, undoubtedly came to operate in favour of an extreme conservatism.
If changes in the law did, none the less, take place, it was because, as in the examples drawn from the tosafists, the original law was seen not as categorical but as having application only in the circumstances where the reasoning behind it still had meaning. In the nineteenth century, with the rise of the Reform movement and the resultant clamour for radical changes in the law, the halakhists found themselves bound to consider anew the question of which changes were legitimate and which unlawful.[6]
For all the valiant attempts at a consistent theory of change, no acceptable theory emerged. How could it have been otherwise? As I have noted, the changes came first; the theory was no more than an attempt to legitimize a change that had already taken place under the pressure of events over which the halakhic theorists had no control. The halakhah managed to retain its viability by yielding to the demands of contemporary life: to borrow the metaphor that the rabbis use for the ideal character, the halakhah was not like the unyielding cedar tree, which a really powerful wind can break, but like the pliant reed, which allows itself to be moved by the winds and is thus never uprooted by them.
A rather different method adopted by some halakhists when confronted with the need for change was to argue that the mishnaic rule which bans change by an inferior court applies only where there is clear evidence that a law was actually promulgated by the earlier, superior court. If the earlier court had stated that its members had taken a vote on whether such-and-such was the law, then, indeed, that law could never be repealed, even if the reasons behind the decision were known and no longer obtained. But if the Talmud states that such-and-such is the law because of this or that reason, without stating that there was an actual meeting of the court and a formal ruling by the court, then the talmudic law continues to be binding only if the reason is still operative. Thus, a contingent rule only becomes categorical when it has been declared so to be; otherwise it remains contingent and subject to alteration. For instance, the Talmud prohibits the drinking of milk obtained from gentiles unless a Jew has been present at the milking, on the grounds that the gentile might have introduced into the milk a quantity of forbidden milk such as the milk of asses or camels.[7] Some halakhists, like Hezekiah da Silva in his Peri Hadash, hold that the prohibition has fallen into abeyance 'nowadays', when 'unclean' milk is rare or where government authorities have very strict regulations against the adulteration of milk.[8] The argument followed is that the talmudic sages did not issue a 'court order', a blanket prohibition by a court voting on the matter, so that the question of repealing a ruling of an earlier court does not arise. All they did was to warn against the use of 'gentile milk' because it might contain forbidden milk. There was never any prohibition against it, only a stern warning against the possibility of adulteration. It follows that, in a situation where no fear of adulteration need be entertained, there is no prohibition. That this analysis is correct can be seen not only from the absence of any reference to a formal court prohibition but also from the qualification in the original statement that 'gentile milk' is permitted if a Jew is present at the milking. If a Jew is present there is no fear that the milk has been adulterated, and the same holds true whenever adulteration is known to have been impossible. Thus in countries where the adulteration of milk is illegal, Jews know that there has been no adulteration, with the result that in such countries a Jew is, as it were, always 'present at the milking'.
Nowhere is the principle of change in response to changed social conditions more pronounced and far-reaching than in the area of women's rights and status. From the earliest period in the history of the halakhah, efforts have been made to introduce new legislation in order to prevent injustices to women that could result from application of an earlier law.
The ketubah, the marriage settlement, was introduced in order to curb the powers given to the husband in biblical law.[9] The laws regarding the provisions of the ketubah effectively prevented hasty divorce without the wife's consent and made ample provision for her if she became a widow or was divorced by her husband. Although only the husband could initiate divorce, legal machinery was introduced by means of which the wife could in certain circumstances (one of which was her husband taking up a noxious occupation, such as that of a tanner) petition the court for a divorce. In these circumstances, the husband could be compelled-by the exercise of physical force, if necessary-to issue a get. Assent under duress, not normally considered valid, was treated as valid assent for this purpose, it being argued that the husband essentially wishes to behave correctly so that despite the physical coercion, the assent eventually given may be regarded as unqualified assent. The conservative attitude continued to prevail, however, among many of the post-talmudic halakhists; they were extremely reluctant to engage in this kind of coercion except in those cases where the Talmud explicitly demands it.[10]
Judging by their different approaches, it is plausible to suggest that the medieval French and German halakhists were more concerned to uphold the position and social standing of women than were their counterparts in Islamic lands. Thus Maimonides denies the community the right to appoint a woman to any communal office, whereas the French authorities debate only whether a woman could be appointed as a judge, some of them permitting even this.[11] Maimonides rules that a married woman who fails to carry out her wifely duties may be physically chastised by the court, whereas the authorities who lived in a Christian environment were horrified at the very thought. The Talmud rules that a married woman need not recline at the Passover Seder, out of respect for her husband, unless she is 'a woman of high rank' (ishah Hashuvah);[12] a famous German authority roundly declares: 'All our women are of high rank.'[13] Although the Talmud exempts women from the performance of precepts depending on a given time,[14] such as hearing the shofar on Rosh Hashanah and taking the lulav on Sukkot, it would seem that this means that if women do voluntarily carry out these precepts they should not recite beforehand the usual benediction which includes the phrase 'who has commanded us to'. Yet the practice in France was for women not only to carry out these precepts but to recite the benediction, the practice being defended by the French halakhists.[15]
A very far-reaching change in favour of greater leniency among the post-talmudic authorities is in connection with the sabbath laws. According to the Talmud, the prohibition on carrying objects into and in the public domain on the sabbath is derived from the biblical prohibition on the Israelites carrying when they encamped on the Sabbath during their journeyings to the Promised Land. Without anything remotely approaching an explicit statement in the Talmud to this effect, the post-talmudic halakhists limited the scope of the prohibition by arguing that since there were 600,000 males in the encampments in the wilderness, no domain qualifies as a 'public' one unless it is regularly transversed by at least 600,000 people. There is thus no 'public domain' according to biblical law (though there is a rabbinic prohibition) 'nowadays', and this principle is accepted by the later codifiers with various leniencies that stem from it.[16] We can only guess at the reason for this limitation on the full application of the law, but it may well have been social, based on the need to make sabbath observance easier and more attractive than would have been the case if every act of carrying into the public domain involved a desecration of biblical law, and hence a desecration of the most severe kind.
One example of constant adjustment to social needs is the history of Jewish criminal law. Theoretically, since the destruction of the Temple, no court has been legally empowered to inflict capital punishment. Indeed, the practice appears to have ceased long before the destruction of the Temple.[17] In the Holy Land fines could also be imposed only by ordained scholars.[18] However, to have insisted on these limitations would have meant that all powers of coercion-indeed, of proper administration of the law-would have become impossible in the Diaspora communities, an obviously unacceptable situation if Jewish law were to continue to be operative. A number of counter-measures were therefore introduced. The Babylonian authorities were allowed to exercise essential Juridical functions on the basis of the legal fiction that they were acting on behalf of the ordained Palestinian authorities, who had been empowered to delegate their authority.[19] Another astonishing principle is that when 'the times demand it' a court was authorized to act against the Torah law, i.e. to inflict otherwise illegal punishments.[20] This latter maxim means that what the law has taken away with one hand it has given back with the other. In practice, since when the 'times demand it' the court is, in any event, acting with an authority that is basically outside the law, any court can inflict fines and other punishments without regard to the due processes of law when it senses that social needs require this. This paradox---of the law itself giving its practitioners extra-legal powers -resulted, in theory at least, in the courts possessing virtually unlimited powers to do as they pleased if they felt it to be for the furtherance of justice; and moreover there were now no checks on abuse by the courts. It is notorious that the Jewish communities of medieval Spain, acting through their courts, not only flogged offenders with the utmost severity but occasionally even went so far as to execute criminals whose activities were held to threaten the safety of the Jewish community.[21]
Particularly in laws based on the ancient rabbinic knowledge of the physical nature of humans and animals and of scientific matters generally, difficulties arose when increased and more accurate knowledge tended to cast doubts on the continuing application of these laws. Thus, the statement in the Talmud that a woman who marries after the age of 20 is capable of conceiving only until she reaches the age of 40 and not afterwards,[22] and the law based on this statement, had to be qualified by later halakhists.[23] Some halakhists, faced with the facts but reluctant to admit that the talmudic sages could have been in error, even with regard to science, went so far as to postulate that changes had taken place in nature since talmudic times.[24]
In all the instances noted in this chapter, the principle of change in the law where social needs and changing conditions warrant it, is fully accepted, although the matter is far from simple and tensions abound.[25]
[1]
Eduyot 1:5.
[2]
Weiss, Dor dor vedoreshav,ii. 61-6.
[3]
See the oft-quoted, 'If the early ones were like angels then we are like human
beings, but if the early ones were like human beings then we are like donkeys' (Shabat112b).
Cf. Yad, Mamrim
2:1 and Caro, Kesef
mishneh ad loc.on the
Talmud as the final authority.
[4]
Yad, Mamrim 2: 2.
[5]
Rabad on Yad, Mamrim 2: 2.
[6] See the summary by Israel Lipshutz (1782-1860) in his Tiferet
yisrael, Eduyot I: 5, pp.
I7Ia-b, and the series of articles by Ettlinger
and others in the journal Shomer tsiyon hane'eman, vol. i, issues for 1846-7. Cf.
[7]
Avodah zarah 35b.
[8]
See SA, YD 115:I; Peri
Hdashad
loc.; ETxv. 178-9 for
all these opinions.
[9]
See Epstein, The Jewish Marriage Contract.
[10] See SA, 54: 21.
[11]
See Tosafot on Bava kama 16a S.v.asher
tasim, and Uziel, Piskei uzi’el, 228-34.
[12] PesaHim
108a
[13] See Isserles,
SA, OH 472: 4.
[14] Kidushin 33b-35b.
[15] See Yad,
Tsitsit 3: 9, that they must not recite the
benediction, whereas Rabad, ad loc., holds that they
may recite it. Cf. tosafot on Eruvin 96 as.v. dilma; Jacob of Marvege, She’elot uteshuvot min hashamayim, no.
I; see also above, p. 62; SA, OH 589:6 rules that they may not recite
the benediction, following Maimonides, whereas Isserles
follows the Ashkenazi authorities that they may. Another instance of German
'liberalism' on the question of women is the ruling of the SeferHasidim
(ed. Margaliot, no. 578;ed.
Wistinetzki, no. 965) that the obligation to rise
before the aged applies also to rising before an aged woman. On whether a woman
may perform she’itah,see Duchinsky,
'May a Woman Act as ShoHetet?' from which it appears
that the Sephardi authorities tended to permit
a woman to be a shoHete twhereas the
Ashkenazim tend to forbid it, but this is only a generalization and is no
contradiction of my contention. For women as rabbis see Azulai,
Shem hagedolim, s.v.
rabanit, p.12.
[16] See Tosafoton
Shabat 6b s.v.
[17] Sanhedrin 4la; cf. Mishnah, Makot 1: 10.
[18] Bava kama 27b.
[19] Ibid. 84b.
[20] Yevamot
90b; Sanhedrin 4-6a; cf. Caro, Beit
Yosef on Tur, HM 2.
[21] See Baron, The Jewish Community,
70 ff. and Shohet, The Jewish Court in the
Middle Ages,133-50.The Spanish authorities, especially, allowed the
execution of informers who were a real danger to the community; see Nissim of Gerona, Hidushei haran on Sanhedrin 46a,and see Margaliot, Margaliot hayam, i. 91bn. 6, that his
father told him of an actual case where an informer was drowned on Yom Kippur
as late as the 19th century; and see the further sources he quotes in n. 9,
e.g. Maimonides, Yad, Hovel umazik 8: 11 and Teshuvot
harashba 5, no. 238, and the oft-quoted passage
in Asher b. Jehiel, Teshuvot
harash,Kelal 17:8 and 18:13;see also the
astonishing responsum (Eitan ha'ezraHi,
no. 4-5) of Abraham Hakohen Rapoport
(1584-1651),where he advises mutilation but not execution for an informer who
laid false accusations against the Jews of Poland.
[22] Bava batra
119b.
[23] See Herzog, Heikhal
yitsHak, EH, vol. i,
no. 6, p.54.
[24] See Tosafo
ton Mo’ed katan 11a s.v. kavara; on Avodah zarah 24b s.v. farah, and on Hulin 47a s.v. kol and the sources quoted in Medini,
Sedei Hemed, Ma'arekhet tet,5, vol. iii, pp. 7 ff. Gumbiner, Magen avraham, OH 576: 3, applies this principle to not
fasting ‘nowadays' during an epidemic, despite the injunction of the Talmud.
[25] On the right of contemporary authorities
to hold views different from the earlier posekim
see Feinstein, Igerot moshe, YD, no. 101 end, p. 186. The author was
criticized for advancing his own theories when these are in contradiction to
the views of the aHaronim. It is not
only permitted to do this, he maintains, but it is the duty of a contemporary
authority to work out rulings on matters not found in the earlier sources, and
even if the aHaronim deal with the
matter, we are not obliged to follow them if our reason tells us that they are
in error. We are even allowed occasionally to take issue with some of the rishonim if their reasoning is less than
convincing. He quotes Bava batra 131a: ‘A judge can only decide in accordance with
what his own eyes see', which Samuel b. Meir (Rashbam) ad loco applies also to a judge's reasoning
powers. But Feinstein qualifies this: one must not decide against the SA and
Rema, because these have been accepted as the final
authorities in all our lands. To be sure, he continues, one must be very
cautious in rendering a decision in practice against that of earlier posekim, but where the need is great
independence is in order. Schwarz, MaHaneh le’igerot, no. 123,pp. 273-6
takes issue with this, arguing that whereas the rishonim
do rely on their own reasoning, it is the practice of the aHaronim to support their case by quoting
many proofs from the Talmud and the rishonim.
Schwarz points to a responsum of Akiva Eger (no. 105end) where this authority remarks that because
of a difficulty we have no right to depart from views found in the rishonim. But all this is highly subjective,
a good deal depending on general attitudes.