Q&A: Rabbi Zeira’s Stringency
Rabbi Zeira’s Stringency
Question
Hello Rabbi!
As is well known, according to Torah law a menstruating woman does not need to count seven clean days, unlike what is practiced today. Maimonides describes the stages through which the Jewish law developed into current practice (Laws of Forbidden Relations 11:3-4):
And in the days of the sages of the Talmud there was much uncertainty regarding sightings of blood, and the cycles became confused, because not all women were able to count the days of menstruation and the days of abnormal discharge. Therefore the sages were stringent in this matter and decreed that all of a woman’s days should be treated like her days of abnormal discharge, and every blood sighting should be considered possibly blood of abnormal discharge.
And the daughters of Israel were even more stringent with themselves than this, and it became the practice everywhere there are Jews that every Jewish woman who sees blood—even if she saw only a drop the size of a mustard seed—and the bleeding stopped, counts seven clean days for herself…
My question is: if a woman uses Evra patches (for medical reasons), and in that way determines her own menstrual days, so that there is no concern at all of confusion between the days of menstruation and the days of abnormal discharge—does such a woman also have to follow this stringency? After all, the basis of the stringency is the concern, and that is not relevant in her case. In other words, I wanted to know what the force of this custom is (“the daughters of Israel adopted this practice”), and more broadly, whether it is open to this kind of interpretive argumentation.
Thank you in advance
Answer
I’m not familiar with those patches. In general, where there is a concern, once the concern is gone the custom founded on it is voided as well (see Column 2 on legumes). But that is when the concern has disappeared for women in general. Here, however, we are talking about one specific woman for whom there is no concern. I think that in such a case it is hard to be lenient (others may learn from her and be lenient even when there is concern in their own case). Beyond that, this is a custom that arose because of the concern, and one would have to discuss whether this custom can be revoked.
Discussion on Answer
Well, if decisiveness were an argument, maybe you’d be right.
These are not two separate binding reasons, but one combined condition: you need an enactment of an authorized religious court, on condition that it spread among the majority of the public.
Beyond all that, secular women are not included in the count of the majority. Otherwise you would have abolished all enactments and decrees.
And finally, there is a difference between “it never spread” and “it spread and later declined.” In our case, at most it spread and later declined. But as noted, even that is not correct, because secular women are not included.
Still, here it is plainly a custom and not an enactment. Public spread here is not relevant, because that belongs to decrees and enactments, not customs. True, there is a custom here, and with regard to custom its spread also has significance, but that is not connected to the law of spread in decrees. It has the status of a custom, and I would not treat it lightly.
Today most of the public of the daughters of Israel, including secular women, do not observe this stringency, and therefore as a matter of law this stringency has lapsed.
Explanation:
For a rabbinic enactment there are two sources of obligation:
A. There is a commandment to obey the enactment of the sages.
B. It spread among the majority of the public, in which case it is like a kind of public acceptance of a good practice, like a vow for the sake of a commandment.
Even so, for a rabbinic enactment to be fully binding, such that a religious court can compel the public to keep it, both of these conditions are required together.
As Maimonides wrote in the Laws of Rebels: “If a court enacted a decree and thought that the majority of the community could abide by it, but after they enacted it the people questioned it and it did not spread among the majority of the community, it is void, and they are not permitted to compel the people to follow it.”
Regarding revoking a rabbinic enactment, Maimonides wrote in the Laws of Rebels of the following alternatives:
1. A court greater in wisdom and number than the first court because of which the public began its practice. This helps uproot both grounds, and uproots a rabbinic enactment that the entire public still observes.
2. The public stopped observing it, which cancels ground B; then even a smaller court is sufficient to cancel ground A.
The first part of the factor behind the enactment has been nullified, namely the actual public practice, and as for uprooting the enactment of the first court—
and therefore Maimonides wrote there as follows: “They enacted and assumed that it had spread throughout all Israel, and matters remained that way for many years, and after a long time another court arose and investigated throughout all Israel and saw that that decree had not spread throughout all Israel; it has permission to revoke it, even if it was inferior to the first court.”
3. A custom that is a safeguard for a commandment and that spread among the majority of the public, without a formal enactment of the sages, and is still practiced in reality today—this is like public acceptance of a good practice and like a vow for the sake of a commandment, and no court can revoke it, since it is not practiced because of a court.
4. A custom that is a safeguard for a commandment that used to be practiced, without a formal enactment of the sages, but is now no longer actually practiced by the majority of the public that had previously observed it—then it is nullified from the outset, because there is no custom here at all, and no court is needed to revoke it. Today most of the public of the daughters of Israel, including secular women, do not observe this stringency, and therefore this custom is void, has no binding force whatsoever, and no permission from any rabbi is needed in order not to observe it.