Answer

First, one must distinguish between two types of Torah-level Jewish laws: 1. Laws that the Sadducees would agree with, meaning laws explicitly written in the Torah. 2. Laws that arise from interpretation or midrash of Torah verses. Almost all the laws we have are of type 2.
Why is this distinction important? Because interpretations of type 2 are human handiwork, and as such they are definitely shaped by the norms and reality of the time of those who interpreted them that way. Note that we are speaking about Torah-level laws, but they are human handiwork. Therefore, with regard to such matters, there is certainly room to change the Jewish law at a different time, and this does not compromise the eternity of the Torah. For example, in tractate Shabbat 64b there is an early law that a woman should not apply eye paint or facial cosmetics during her days of menstruation. Until Rabbi Akiva came and argued that this would make her repulsive to her husband, and he interpreted the verse differently and changed the law (permitting a woman to apply eye paint and cosmetics).
 
As for laws of type 1, this is more difficult, but the Sages did divert quite a few verses from their plain meaning (“an eye for an eye” and the like) for various reasons. One can understand the verses as an example that is implemented in accordance with place and time. The Torah speaks of liability for damages when an ox gores an ox. But what if a car hits a dog or a chicken? It is obvious to us that this too creates liability. Why? Because an ox is an example. Similarly, there are proposals for a different application today of the Sabbatical year and of interest, because reality is so different that the Torah’s idea must be implemented differently, and the original prohibition is only an example of the proper way to apply it.
Regarding the question of “this Torah shall not be replaced,” see my article published in Akdamot on enlightened idolatry.
 
All the best,
Michi
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Questioner:
Hello Rabbi!
I understand what the Rabbi is saying regarding interpretations of Torah verses that are based on norms, but the problems I raised stem from the Torah itself!
For example, regarding betrothal, this is explicit in the Torah itself: “When a man takes a woman” (Deuteronomy 24:1). Likewise regarding inheritance, where sons come first: “And if he has no son, then you shall pass his inheritance to his daughter” (Numbers 27).
What is the Rabbi’s answer regarding such cases of the first type the Rabbi described, which seemingly clash with a person’s view of the world?
I would also be glad to hear answers on these specific examples, I think that would clarify the matter for me.
Thank you very much and Sabbath peace!
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Rabbi:
The verse “when a man takes a woman” does not say that the husband must perform the betrothal. One can בהחלט say that the Torah speaks in terms of the usual case (that was the way things were done, that the husband betrothed the woman). Only the Sages established that there is a halakhic requirement that the husband take the woman and not the other way around.
As for inheritance, there too one can say that the Torah is speaking of a situation in which the daughter is supported by her spouse and therefore does not inherit, and that is not like our situation today. It can also be interpreted that when he has no son, the estate passes to the daughter, but that does not mean that when there is a son only he inherits. Another possibility is that this applies only to hereditary land in the Land of Israel and not to inheritance generally. Likewise one could also interpret “and if he has no son” to mean a situation in which it is preferable that his son not inherit (including because of social norms). This is certainly no more far-reaching than interpreting “an eye for an eye” as monetary compensation, or the requirements regarding the law of the stubborn and rebellious son that make the whole passage purely theoretical. This requires understanding and entering into the way interpretive methods work.
But these are, of course, only possibilities and examples. I definitely do not think that in every situation one must adapt Torah interpretation to our present condition. Only in a situation where my assessment is that this truly is not the Torah’s will. Of course, in many cases it is hard to determine this using interpretive tools.
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Another questioner:
Rabbi, when you say that this is an example of the proper mode of application, please explain: proper application of what? How can one point to that “something” and isolate it?
Jonathan Levin
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Rabbi:
I’m not sure I fully understood the question, but I’ll try to illustrate. There is a prohibition in the Talmud of “lo titgodedu” — you shall not form separate factions. The Talmud explains that it is forbidden to have two synagogues in one city and to split into separate communities in the same city. According to most opinions this is a Torah prohibition. Yet for a very long time already we have not observed this, in direct conflict with the Talmudic law. The halakhic decisors twist themselves around and explain that it depends on circumstances, etc. etc. — not very convincing. Clearly they are speaking after the situation already exists and there is no way to change it, and the explanations do not really hold water.
In my opinion, what underlies this change is a change in reality. In the past, the concept of “community” overlapped with the geographic concept — city or village. People were born and died in the same place as their ancestors, and therefore the geographic community was static. But nowadays, because of the global village and human mobility within it, “community” today is not geographic (= city) but based on origin (= ethnic community). That is why the concept of custom also developed in relation to ethnic community and origin rather than place, which was its original meaning. The original Jewish law speaks primarily about local customs. (True, one can engage in casuistry about ancestral customs, but that is a personal matter, not a communal one, and this is not the place to expand.) Therefore today it is possible to establish two synagogues with different rites for two ethnic communities in the same city, despite the Torah-level Talmudic law, because these are two different “cities” in their virtual definition, and therefore there is no prohibition of “lo titgodedu” here. This is an example of a change in Torah-level Jewish law that everyone accepts, and at its base there is a conceptual understanding that most may not consciously adopt, but in my opinion this is what underlies these determinations and this halakhic conduct (even if not consciously).
That means that the term “city” used in the Jewish law is an example and not an essence. Today it is interpreted differently. Likewise the “ox” in monetary damages is an example of goring damage (intent to damage and unusual manner), and so on. This is an interpretation that treats Scripture as giving examples rather than laying down rigid laws. And the application changes with time and place.
This is also what they did regarding the term “book,” which they permitted one to save from a fire, while according to the strict Talmudic law this referred only to actual Torah scrolls (though there it is a rabbinic law), and similarly the Rosh regarding the obligation to write a Torah scroll, which can also be fulfilled with books of the Oral Torah and Pentateuchs (and there it is already a Torah-level law).
This can likewise be done with the terms “woman,” “slave,” “Sabbatical year,” and more and more. It is truly hard to set a clear criterion here for where the boundary lies, and of course this is dangerous, because one can go very far with it (beware of Reform!). But as our sages said: life is not a guava (there, there). You cannot always define something clearly, and yet that does not mean you may not rely on undefined concepts (as Mr. Robert Pirsig put into the mouth of Phaedrus, the protagonist of his cult book, Zen and the Art of Motorcycle Maintenance. He does something similar there with the concept of “quality,” and this is not the place to expand).
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Oren:
If some halakhic decisor were to arise and decide that some particular law is no longer relevant today because reality has changed (let’s say he decides that today’s women are not the “women” about whom the Sages said that they do not inherit property, and since women today are more like the “men” of the Sages, therefore they do inherit equally) — would it then be possible to act in accordance with his ruling? Or would we need a broad consensus for such a change? And if not, why do we need consensus at all? And who counts within that consensus? (Maybe Conservatives too?).

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Rabbi:

The decisor himself may want there to be a consensus before he rules that way, and it depends on his judgment and assessment. Therefore he is also supposed to decide who, from his point of view, counts in that consensus. But as far as the layman is concerned, this has no significance at all. Once there is a decisor who has ruled that way, if that decisor is your rabbi you may act according to his view. If not, then this falls under the category of cherry-picking leniencies from here and from there (wicked).
And regarding what the decisor himself is able to do: in the new article I sent you to upload to the site (by the way, I don’t see it there), which deals with reasoning and its halakhic status, I showed that reasoning is binding by virtue of being reasoning, and there is no need for an authorized institution to enact or establish it. At the end I also brought that this is true even for a layman (though he takes a risk that his reasoning is foolish, in which case he will be held accountable in the judgment of Heaven, because it is reckless to act on your own reasoning when you are not competent in the matter).

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Yitzhak:
Could there not be laws that were given because that was the situation then (and indeed that was the just arrangement in that situation), but once they were given they became a binding norm — and that more sharply expresses the fact that we observe them because of the command, not because of the justice itself?
For example, it may be that many commandments were stated as part of the struggle against idolatry (according to Maimonides, meat and milk), but even when they are no longer relevant they remain a binding norm…
Admittedly, the discussion is still relevant with respect to the issue of “the Torah’s will” and “circumventing the Jewish law”… One can sign various legal documents so that the laws of inheritance will not be relevant (or perhaps observe them only with respect to a small sum)… In the case of betrothal, one could institute the transfer of some item from the man to the woman after the betrothal ceremony… or institute illegitimacy for the man’s acts of adultery…
If we understand that the law is tied to the reality of that time, then this is the Torah’s will; and if not, then this is a legal fiction against the Torah’s will…