A question that we often have to
deal with as religious Jews is whether the Torah or some parts of it are
relevant to the modern world. The main halachic question is when and if a
mitzvah can be declared inapplicable due to the reason behind it becoming
obsolete. This topic is huge in terms of the amount written by Chazal and their
commentaries, but I will try to explain the general principles and discuss a
few examples.
Ta’ama d’Kra
The gemara in many places
explains that there is a fundamental dispute between the Tana’im whether we
expound the ta’ama d’Kra, the reason for what is written in the Torah.
From the cases given, it is clear that the dispute includes whether or not we
have the right to limit prohibitions to cases where the reason is relevant.
The classic case is the
commandment not to take the clothing of a widow as security for a loan.[1] R’
Yehuda says that this prohibition applies to any widow, rich or poor. R’ Shimon
disagrees, maintaining that the only problem with taking this security is the
necessity to return it whenever the borrower needs it.[2] A
poor widow will need the clothing often, and if the lender is constantly coming
to her house to return people will suspect an inappropriate relationship. With
a rich widow this problem doesn’t exist, as she will have plenty of clothes and
will manage without one item.[3]
The halacha follows the opinion
of R’ Yehuda, and it is forbidden to take clothing as security even from a rich
widow.[4]
However, the Rambam explains that this does not mean that the reason of R’
Shimon is rejected. The reason for the prohibition is indeed the possible bad
name that the widow may get, but it applies even when the reason does not
exist.[5]
As the Rambam writes elsewhere,
the benefit that comes from mitzvos can only be for the majority of people.
Some will even lose out in this world by keeping the Torah, but it is
nevertheless necessary to have one rule for everyone. The alternative, allowing
different boundaries according to the person, would cause everyone to lose out.
Similarly, the mitzvos cannot all be tuned to the needs of every generation.[6]
For this reason, the Torah gave
certain powers to the Chachamim to uproot mitzvos at times of need. Examples of
this are the writing down of the Oral Law to prevent it being forgotten,[7] and
the institution of Pruzbul to prevent loans being absolved in the shmita
year.[8]
However, these powers have boundaries and are limited to cases where the need
is communal. Furthermore, only the Sanhedrin is granted such powers.[9]
Without the Sanhedrin we really
are left with major problems without good solutions.[10] But
we can have no complaints about this, as it is our responsibility to take steps
to facilitate the re-establishment of the Sanhedrin (see Ubitul
Sanhedreya).
Rabbinical Institutions
Until now we have discussed Torah
laws, given to us by Hashem. When it comes to rabbinic enactments, the issue
becomes more complicated. The mishna tells us that even the Sanhedrin cannot rescind
a decree of previous generations, unless they are greater both in wisdom and
numbers than their predecessors.[11]
Without a Sanhedrin, under normal
circumstances we cannot even consider annulling a rabbinic enactment (with the
exception of monetary issues, which can be defined by communal agreement as we
explained in Nezikin)
The question we need to answer is what happens when the reason behind them
ceases to be relevant.
This question is debated by the
Rishonim. The Rambam writes explicitly that a Beis Din cannot rescind an
institution of its predecessors unless they are greater in wisdom and numbers, even
if the reason for this institution disappears. The Ra’avad points out a
difficulty with this statement, seemingly indicating that he disagrees.[12]
However, from the case that the Ra’avad quotes, it is clear that his
disagreement is only about the requirement for a greater Beis Din. He
maintains that even a lesser Beis Din can rescind a decree that has become
obsolete, but he also agrees that the decree does not dissolve automatically.[13]
This would seem to shut the door
on any possibility of the rules changing from the times of the gemara onwards.[14] The
truth is that it is not so simple, as elsewhere it is explicit that some
rabbinic enactments do dissolve automatically when they become irrelevant. In the
mishna we are told that a virgin woman must get married on a Wednesday.[15] The
gemara discusses the reasons for this, and concludes that as nowadays these
reasons are no longer relevant, this requirement no longer applies.[16]
The Ritva explains that although
usually rabbinic decrees do not dissolve automatically, this case is different.
Here, a clause in the original decree stated that it would apply only as long as
the current conditions applied. The clear implication is that most decrees were
made without such a clause. But is this true about all other decrees?
This question seems to be an
issue of some debate. Tosfos in many places assume that certain rabbinic
prohibitions and obligations only apply when the reason for them still exists.
Thus in places where snakes are uncommon there is no prohibition of drinking
water that was left uncovered,[17] in
places where there is no ‘salt of Sodom’ there is no obligation to wash ones
hands after a meal,[18] and
when we do not know how to fix musical instruments, dancing on Shabbos is permitted.[19]
All of these issues are debated,
although to different degrees. The Vilna Gaon was stringent concerning all of
these questions,[20] and the
Rambam also does not mention any leniencies. However, while many are particular
about washing after a meal, and some refrain from dancing on Shabbos for
halachic reasons, it is extremely rare to find someone who is particular about
drinking water that was left uncovered.[21] How can
we understand this, and what is the correct way to decide these questions?
Sadly, I have no great answer. It
is extremely hard to prove the issue either way. As we are dealing with a
question on a rabbinic level and the prevalent custom is not to be particular
about uncovered water or washing hands after a meal,[22] I
also am not particular about these issues. When it comes to dancing on Shabbos
I tend to refrain, as it is not at all clear to me that the reason for this prohibition
does not exist.[23]
Advice
Sometimes it is more
straightforward to be lenient. Often Chazal advised against certain practices
without making an official decree. For example, in the Mishna we are told that
teaching one’s daughter Torah is tantamount to teaching her promiscuity.[24]
Although the Rambam limits this statement to the Oral Torah, he maintains that
one should ideally not even teach his daughter the Written Torah.[25]
Without getting into a discussion
about the reasons for this statement of Chazal, to my knowledge no sect of
Judaism still applies it literally. Even the most Chasidish girls schools teach
Chumash (usually with Rashi as well). Why here did no-one think to claim that the
words of Chazal hold strong here even if the reason has gone?
The answer is that here no
enactment was made in the first place. It was never forbidden to teach women Torah,
it was just ill-advised according to Chazal. The moment that teaching Torah to
women became something positive, it was obvious that it must be done.
There are many other examples of
statements of Chazal that were meant as advice, rather than formal enactments.
When deciding whether changing circumstances change the halacha, it is crucial
first to determine whether we are dealing with a prohibition or obligation, or
merely with good advice. It is not always one hundred percent clear what falls
into which category, and clarifying this often requires familiarity with the
language of Chazal.
[1] In Devarim
24:17
[2] See Shemos
22:25-6, Devarim 24:12-3 and Bava Metsia 113a-114b
[3] Bava Metsia
115a
[4] See Choshen
Mishpat 97:14
[5]
Commentary to the Mishna, Bava Metsia 9:13.
See also Sma and Shach to Choshen Mishpat 97:14, who give alternative reasons
applicable to all widows.
[6] Moreh
Nevuchim 3:34. See also 3:29 there,
where the Rambam explains that many of the mitzvos were necessary in order to
distance us from the idolatrous and ridiculous practices of the ‘Tzaba’ sect
that were prevalent in the times of Avraham Avinu.
[7] See Temura
14b, and the Rambam’s introduction to Yad HaChazaka.
[8] See
Gitin 36a. See also Rambam and Ra’avad, Hilchos Shmita v’Yovel 9:16 who dispute
whether this could work during times when Shmita applies Biblically. Here, a
mitzvah meant to help the poor by wiping debts, in fact caused them more
problems when no-one was prepared to lend them money.
[9] If
everyone could decide for himself, we would come back to the same problem
described by the Rambam. See Responsa Sridei Eish 1:77, at the end of section
8.
[10] One
example that bothers me a lot is the prohibition of lending and borrowing with
interest. This mitvah was clearly intended to prevent exploitation of the poor,
and to encourage helping those in need. However, nowadays when the global (and
local) economy depends on the ability to borrow large sums of money, it simply
is not possible to run a country while avoiding this prohibition in simple
terms. The solution of heter iska is far from perfect halachically, and
also can effectively kill off the entire prohibition with all its benefits.
Other potential solutions would require some creativity, and the power of the
Sanhedrin to make them practical and enforceable.
[11] Eduyos
1:5. The gemara in Avoda Zara 36a goes even further, explaining that some
decrees that were accepted by all of the Jewish People cannot be nullified even
by a greater Beis Din. See Rambam, Hilchos Mamrim 2:2-3 and Ra’avad there who
dispute exactly when this applies.
[12] Mamrim 2:2
[13] His
proof is from the gemara in Beitsa 5a-b concerning fruit produced by a tree in its
fourth year. Such fruit must either be taken to Yerushalayim and eaten there in
a state of purity, or redeemed with money (this money must later be taken to
Yerushalayim in order to buy food there to eat in a state of purity). An
institution was made that any fruit within a day’s journey from Yerushalayim
should be taken itself and not redeemed, in order to decorate the streets of
Yerushalayim with fruit. When the city was destroyed and occupied by non-Jews,
R’ Yochanan ben Zakai (the head of the Sanhedrin at the time) annulled this obligation
despite the fact that he was not as great as those who instituted it.
[14] See How does halacha work? where we
explained why nowadays (until the re-establishment of the Sanhedrin) the gemara
is the only ultimate halachic authority.
[15] Kesuvos 2a
[16]
Ibid. 3a. The gemara stipulates that this is on condition that the husband
ensures to make all the required preparations beforehand.
[17] Avoda
Zara 35a (ד"ה
חדא). Chazal forbade drinking
such water, as they believed that it was dangerous to drink water that snakes
had drunk from.
[19] Beitsa
30a (ד"ה תנן). Chazal forbade dancing on Shabbos out of concern that people
might fix musical instruments (Ibid. 36b). Here even if we don’t except the
position of Tosfos, there is some discussion as to what kind of dancing was prohibited.
See Aruch Hashulchan, Orach Chaim 339:9.
[20] Biur
Hagra, Orach Chaim 181:10
(concerning washing after a meal); Ma’aseh Rav, Hilchos Ma’achlos Asuros 95
(concerning water left uncovered).
[21] Even
in Eretz Yisrael, where snakes are far more common than in Western Europe
(where the Ba’alei Hatosfos lived).
[22]
Although many men have taken on mayim acharonim (washing hands after a
meal), I have very rarely seen families where the women were particular about
this. As there is no halachic difference between men and women here, this can
only mean that even those men who are particular about this do so as a chumra
(additional stringency).
[23] See
Aruch Hashulchan, Orach Chaim 339:8. If everyone is dancing and abstaining would
make a scene, I simply walk round in the circle with everyone else. This certainly
cannot be considered dancing.
[24]
Sotah 20a. See Rambam, Hilchos Talmud Torah 1:13 and Shulchan Aruch, Yoreh Deah
246:6 who rule like this view in the Mishna.
[25] Ibid.
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