Q&A: A Note on the First Lesson, ‘Jewish Law and Reality’
A Note on the First Lesson, ‘Jewish Law and Reality’
Question
You take it as something obvious that no halakhic decisor would rule on the basis of a presumption stated in the Talmud when reality has changed.
I once had a conversation about this with Rabbi Hillel Zaks, of blessed memory (he was one of the few in our sector who didn’t shut his eyes to what was in front of him—within the limits of what he could do, of course). I got into this discussion with him in the context of the reasoning behind “better to dwell as two.” I asked him how people can rule today on the basis of presumptions that stopped being presumptions a long time ago. And not just that they even extract money on that basis (where perhaps there may be some room for leniency). From there we moved on to many monetary presumptions where the culture has simply changed since then. The bottom line was that in the end he said to me, “So, you see why I thank the Holy One, blessed be He, every day that I’m not a judge?” I said to him: but still, don’t we bear some responsibility toward the world? And so on. He answered me, “If only my strength were sufficient,” etc. Accordingly, it is clear and obvious to me that any Haredi judge (I don’t know what goes on across the divide, and there too there are so many shades) who would dare rule not in accordance with the Shulchan Arukh—even when it is plain and obvious that the presumption is no longer a presumption… Ah, I just remembered something: Rabbi Hillel said that he does not see anyone in our generation who can do anything about this, and that this is just another proof that we need the messiah now (… of course only in a borrowed sense, God forbid, etc.).
Another simple example from monetary law: a carpenter supplied a buyer with a cabinet exactly according to the specifications, but made a mistake in the cabinet’s color. I took this question around to judges and halakhic decisors, and all of them held one unequivocal opinion: “color is not part of the essence of the sale, and therefore this is not a mistaken transaction.” Even when I argued that nowadays people would give up on the whole cabinet and simply throw it in the trash, they remained firm in their view that color is not part of the essence of the sale.
Now I’m thinking that perhaps Rabbi Asher Weiss really would rule differently.
Answer
I think many judges would rule not in accordance with the Shulchan Arukh on questions like the color of a cabinet. Especially those who actually sit in judgment in practice (not in a yeshiva). In my opinion, these are everyday cases—provided it is clear that the presumption really has changed.
As for “better to dwell as two,” the problem is that this is a sensitive issue because of Reform, feminism, and so on, and therefore there is great reluctance there.
In the past I told several activists in women’s organizations that in my opinion it would be worthwhile for them to conduct a broad, systematic survey through a professional and well-known polling institute, which would examine women’s views on the question of “better to dwell as two” (with rabbinic guidance, of course, so as to know exactly what to ask). Faced with such unequivocal results, it would be hard for judges to stand their ground. As long as this is not done, one can hide behind loyalty to the Talmud.