Q&A: The Authority of Custom
The Authority of Custom
Question
I wanted to ask the Rabbi whether this distinction seems reasonable to him:
- Customs that create new Jewish laws (for example, accepting the evening prayer as obligatory) do not have the power to change Jewish law and create new law.
- But customs that nullify Jewish laws (for example, tefillin on Hol HaMoed or washing one’s feet before Shacharit) do have the power to change Jewish law (perhaps only rabbinic enactments?), like a decree that the public cannot endure.
I would be glad to hear the Rabbi’s opinion regarding this distinction.
Thank you very much!
Answer
I did not understand the reasoning and/or the source for this distinction, and therefore I cannot express an opinion about it. At first glance, it does not seem logical.
You also need to define what it means for a custom to create or nullify a Jewish law. Does it reshape the law, or does it override the law?
Discussion on Answer
The whole point of custom is that you do not need authority in order to institute it. Therefore, insofar as custom can create Jewish law, that does not depend on authority. And uprooting a law by force of custom, insofar as that exists, likewise does not require authority for the same reason. Once a decree has taken root, it cannot be canceled on the basis of the rule that it did not become widespread.
Regarding the evening prayer, the halakhic decisors wrote that nowadays it is obligatory. The fact that they append as a lenient factor that technically it is optional does not materially change things. As I wrote to you, the concept you used (that this “enters Jewish law”) is not well defined.
The reasoning is that in order to create a new Jewish law you need an authorized institution (the Sanhedrin), and the Talmud is the last institution that had authority, so any custom introduced after the sealing of the Talmud is not binding.
But in order to nullify a Jewish law (to set aside a law established in the Talmud), there is a mechanism built into Jewish law itself, something like a decree that the public cannot endure, which determines that if the Jewish people did not practice a certain act established in the Talmud, then from the standpoint of Jewish law that act is not binding, because it was not accepted by the people as a whole.
The sources for this are mainly examples of laws that were accepted as obligatory, such as the evening prayer that I mentioned. Even though people practiced them as obligatory, that still did not give them the genuine status of an obligation (there are several leniencies Maimonides lists that stem from the fact that the evening prayer remains optional even nowadays).
And there are several examples of laws established in the Talmud as binding that people did not practice observing, as I noted, and as the Rabbi has written several times in answers here on the site, such as immersion for those with seminal impurity, ritual hand-washing for something dipped in liquid, tefillin on Hol HaMoed, washing one’s feet before Shacharit, and so on.
Sorry if I’m still not being clear. And thank you very much!