Q&A: Custom, the Interpretation of the Sages
Custom, the Interpretation of the Sages
Question
Hello and blessings,
I wanted to ask the Rabbi for a reference to the root of the discussion in the topic of custom at one point that branches into two directions. 1- The source / rationale that a custom is binding even where it is known that the truth is not as the custom has it—for example, what Maimonides wrote, that a priest is called first to the Torah even if there is a Torah scholar there greater than him, although in a responsum he attacked this opinion. And he explained the halakhic ruling on the grounds that this was already the accepted custom. 2—It seems very reasonable to me that nowadays it is simply impossible to create new customs—for example, it seems entirely implausible that lighting bonfires on Lag BaOmer could, 100 years from now, become a binding custom for every community and synagogue…. And by simple reasoning it seems that when the root of the custom is known, in halakhic and historical literature, then it is an empty custom. If so, can one argue that there is some specific point—for example, the development of printing or the spread of printed books—from which onward no new custom should be accepted? (And if we do point to such a point, it is a bit hard to understand why Maimonides ruled that a priest should be called up first, even though it is clear that the root of that custom is a mistaken understanding of the words of the Sages in the Talmud. And seemingly the Talmud was widespread enough… And I don’t think one can say that bonfires on Lag BaOmer really will become a custom if people just don’t study history… meaning, it does not seem plausible that a custom can be accepted if knowledge about it is not widespread among people, even though it is available to anyone seeking knowledge.)
I apologize in advance for this question; I assume the Rabbi has written a lot on the site about this (and indeed I remember having read things on this issue here in the past, but I didn’t find a place that puts a finger on exactly this point).
One more note.
I recently read an old article (from 2011, if I remember correctly) that the Rabbi wrote about nullifying rabbinic laws where the reason no longer applies, or where it seems by reason that they erred in interpretation. I wanted to mention the words of the Jerusalem Talmud in Horayot chapter 1: “As it was taught: One might think that if they tell you about right that it is left, and about left that it is right, you should obey them; therefore the verse says, ‘to go right and left’—that they tell you about right that it is right, and about left that it is left.” (And one should also add the words of the Talmud in Yevamot 92a, that in a factual error it is not considered a legal ruling.)
Another important source is Maimonides’ responsum no. 218 regarding marriage to a ‘woman whose previous husbands died’—“I am utterly astonished at these dear Torah scholars, constantly engaged in Torah, that the gradations of prohibitions should be so unclear to them to such an extent that they do not distinguish between what is prohibited by the Torah, what is prohibited by rabbinic decree, and what is merely unbecoming with no prohibition at all. And even more astonishing in your question is the comparison to capital matters, etc., where concern is entertained in the manner of superstition, sorcery, fantasies, and imaginings, etc. Rather, in our opinion, this woman who has such a presumption is merely considered improper to marry to other men, but there is no prohibition here at all. And there is no difference between a man who marries such a woman with a presumption and one who eats fish that was prohibited only because it is distasteful, and the like. And the practical Jewish law among us in all the lands of Andalusia has always been that if a woman’s husband dies after husband—regardless of the number of husbands—she is not prevented from marrying, especially when she is in her younger years, because of the loss that one must fear in such a case. We have already found that the sages of the Talmud permitted violating prohibitions of benefit and freed a maidservant so that no stumbling block remain for the immoral; so how can we endanger the daughters of Israel, causing them to go astray, etc. And so ruled the court of our master Rabbi Isaac, author of the Halakhot, and so too the court of our master Rabbi Joseph Halevi, his disciple of blessed memory, and so did all who came after them, and so have we ruled and done in the land of Egypt from the time we arrived there.”
(One may note that from these words of Maimonides it seems impossible to say that, from the standpoint of custom, all the words of the Talmud were accepted wholesale. And this also opens a door to the above-mentioned question regarding the laws of custom.)
(And just one small note. The Rabbi referred to the words of Tosafot in Yevamot 88a regarding a single witness in the case of a woman. I think the straightforward reading of Tosafot tends toward the Ritva there, that regarding the credibility of the witness we rely on something that will eventually become publicly known—and the Ritva also combined this with the reasoning that a woman checks carefully before remarrying; and Maimonides also wrote at the end of the laws of divorce that in a matter that will eventually become publicly known, one witness is credible by Torah law, and there he omitted the part about the woman checking carefully. And Scripture entrusted this to the Sages, etc. The simple explanation is that what we believe the witness about is only that he truly saw / thinks as he testifies to us. But that alone is not enough to turn it into established knowledge for a religious court. And Scripture entrusted to the Sages whether to rely on and accept the witness’s words themselves or not (as in the well-known explanation of the Hazon Ish on the above Ritva).
Thank you very much—both for the quality and the quantity of the writing, and in particular for answering every question, and this one in particular among the “particulars.”
Answer
- Giving precedence in being called up to the Torah is not a clear-cut Jewish law. There is room for honors that stem from circumstances and norms.
- I don’t know why that seems logical to you. In any case, even if it seems logical, it isn’t correct. There is no limitation on creating customs today that did not exist in the past. Lighting a bonfire on Lag BaOmer is not a general custom, only in Meron itself, and even there it is certainly not a binding custom. Not everyone goes up to Meron on Lag BaOmer. People enjoy it. People also enjoy eating Milky pudding. Does that now make it a binding custom?
- It is true that this raises the question of how one determines that a custom has come into being. There are no sharp criteria. But there is common sense, and there is the spread and acceptance of the custom, and seeing it as a religious custom (as distinct from Milky pudding). And of course, if it is a foolish custom, it has no validity. The very doctrine of custom is itself grounded in customs, and it is hard to provide precise markers for it.
This Jerusalem Talmud passage contradicts the Sifrei (I wrote about this somewhere here on the site). In any case, its precise meaning is not clear. What is clear is that it has nothing whatsoever to do with nullifying customs. There the issue is the citizen’s relation to the instructions of the religious court, which does not depend on the reason for the ordinance at the time it was enacted, nor later when that reason lapses.
Maimonides is not speaking about the validity of Talmudic customs but about a Talmudic ruling whose basis is danger, and in his view there is no danger here. When a ruling is from the outset based on an error, in my opinion it has no validity, but at the very least it can be nullified when necessary (that, and only that, is what Maimonides says). Like killing lice on the Sabbath and the like. And in general, when we are dealing with dangers, this is not Jewish law but caution. See this distinction in my column about legumes.
As for testimony concerning a woman, it is well known that there is a contradiction in Maimonides on this point (whether it is Torah-level or not, and whether it is based on the presumption that a woman checks carefully before remarrying or not). But I did not understand the note, because I do not remember my discussion that you were referring to. In general, the leniency regarding testimony for a woman is not in a matter of sexual prohibition. After all, if the truth is that the husband died, she is certainly permitted to remarry. The issue is only the laws of evidence—how the truth is established (two witnesses)—and there they were lenient. But no one ever permitted a married woman to the general public. When there is a real doubt, and not merely a deficiency in the formal rules of evidence, we do not find any leniency here. And many people err on this point, thinking one can be lenient with evidence in cases of agunah and permit a woman even when there is no certainty. Therefore one can say that this witness has Torah-level force, which the Sages gave him. For the truth is on his side, and the woman’s permission exists at the Torah level.
Discussion on Answer
Hello,
This length is hard for me. Maybe the fact that you weren’t able to add it here is the site hinting to you not to be quite so long. 🙂
By the way, if you have a long message and the “reply” key disappears, press Tab and it will appear.
1. I don’t know. You can search online. Even if you find a source, it will itself probably rely on customs that define the boundaries of customs. But a verse like “Do not forsake” can serve as a source for the fact that people customarily follow customs. A self-constructing principle.
If I use divine inspiration to figure out what you meant by the dispute between the Malbim and the author of The First Generations, I assume you mean the question whether exegetical derivations create law or merely support it. I didn’t understand the connection to here, but I wrote about it at length in The Spirit of Law and also in the article on the second root.
2. It seems you didn’t understand correctly. Of course they have authority over interpretation. On the contrary, this authority is completely agreed upon even by Nachmanides, who disputes their authority to legislate (he claims that this does not derive from “Do not deviate”).
3. I distinguished between factual credibility and the ability to decide the law on that basis. That seems to me very similar to what you wrote here. By the way, this distinction appears in Sha’arei Yosher at the beginning of Gate 7.
The questioner added this message:
I opened a new question because I wasn’t able to leave a comment on the relevant question. Maybe because of the length, and maybe because of a glitch.
Thank you very much for the Rabbi’s answer. Just a few comments.
1—Is there in any case an important / comprehensive source that discusses acceptance of new customs when it is known that their source lies in error (perhaps in the age of the internet—the knowledge revolution)?
In general I think that since the Sages anchored custom in “Do not forsake your mother’s teaching,” which is a verse from the Writings, there is no real source here (since Maimonides writes in the introduction to his Commentary on the Mishnah that a prophet has no authority to innovate law or Jewish law, and in that respect he is on the same level as any other sage’s opinion); rather, there is some kind of validation here for an intuition and reasoning that already existed among the Sages. And one should note the important dispute between the Malbim and Rabbi Isaac Halevi, author of The First Generations, regarding the Sages’ exegetical derivations (if I remember correctly, the dispute is about derivations that are not among the thirteen hermeneutical principles, and perhaps also about those. I don’t remember right now). In general I think this dispute is so important and not nearly as well known and publicized as it deserves to be. I’d be glad if the Rabbi would write about it. Or if the Rabbi already has, I’d be glad for a pointer to the relevant place.
2—If I understood correctly, the Rabbi agrees that the Jerusalem Talmud and Maimonides are identical in their approach: that a religious court has no authority over interpretation, only authority over its own “private” legislation. (I brought them as sources on that issue, not on nullifying custom. I only mentioned the relevant column.)
3—Regarding testimony about a woman, Maimonides wrote in two places. One is at the end of the laws of divorce—where he seemingly contradicted himself within that very halakhah—and the other is in the laws of testimony, chapter 5.
At the end of the laws of divorce he wrote: “Let it not be difficult in your eyes that the ‘Sages’ permitted the severe sexual prohibition on the basis of the testimony of a woman, or a slave, or a maidservant, or a gentile speaking innocently, or one witness from another witness, or from writing, and without inquiry and examination, as we have explained. For the ‘Torah’ was particular about the testimony of two witnesses and the other laws of testimony only in matters that you cannot ascertain clearly except from the mouths of the witnesses and through their testimony, such as when they testify that this one killed that one or lent money to that one. But regarding something that can be ascertained clearly not only from this witness, and where the witness cannot evade exposure if the matter is not true—such as one who testifies that so-and-so died—the Torah was not particular about it. For it is unlikely that a witness would lie about this. Therefore the ‘Sages’ were lenient in this matter and accepted one witness, even from a maidservant, and from writing, and without inquiry and examination, so that the daughters of Israel should not remain chained women.” (Thanks to Wikisource for the copy-paste. I put the contradictory terms in quotation marks.) At the beginning and end he writes that the testimony of one witness is rabbinic, but in the middle it appears to be Torah law.
In the laws of testimony he wrote in two places: “The Torah accepted one witness in the case of a sota, so that she does not drink the bitter waters, and in the case of the heifer whose neck is broken, so that it is not brought, as we have explained; and likewise by rabbinic enactment in testimony concerning a woman, when one testifies to her that her husband died.”
Here too it is clear that it is rabbinic.
I think the straightforward interpretation of Maimonides is based on the fact that accepting testimony has two different parts. 1) Believing the witnesses that they themselves really saw / think what they are testifying to us. This part is belief regarding them themselves. 2) If we rely on their judgment, then we have to adopt their perception of reality. That is the second part newly introduced in the acceptance of testimony: that the religious court must decide the law in accordance with the witnesses’ understanding of reality (similar to Maimonides’ language in the laws of the foundations of the Torah regarding witnesses, and his language at the beginning of the laws of testimony).
I think that with respect to the first part, one witness should be believed wherever the matter will eventually become publicly known. As Maimonides wrote, it is unlikely that he would lie. But this reasoning applies only to the first part—that is, only that we should believe that the witness himself thinks so; but the religious court still need not adopt the witness’s perception, and rely on him that this is in fact reality. This part is given over to the judgment of the Sages; they can set the criteria for how they themselves think about reality. And their enactment introduced adopting the witness’s perception.
Therefore, on the one hand Maimonides wrote that there is no need to examine the witness and that he is credible by Torah law wherever the matter will eventually become known. But on the other hand, the practical leniency is based on a rabbinic enactment because of chained women.
According to this, Maimonides’ words in the laws of testimony are also explained. I think Maimonides compared the credibility of one witness concerning a woman to the credibility of one witness in the case of a sota and in the case of the heifer whose neck is broken. In both places it appears that there is no need to believe the witness that reality was actually as he said; rather, only to believe him that he truly saw what he is testifying to. For in the laws of sota Maimonides writes that in truth the one witness is not believed to prohibit the woman to her husband; rather, since there is no law of making her drink, she remains forbidden to her husband (unlike what seems to emerge from Rashi in Ketubot 9a, that the Torah believed the witness that she had relations). And similarly regarding the heifer whose neck is broken, the simple meaning of the verse is that the heifer is brought only when no man knows who the murderer is; if so, there is no requirement that the religious court know who the murderer is, and it is enough that someone in the world knows who the murderer is. So what the Torah accepted there from one witness is only that he knows who the murderer is, but there is no law here that the court adopts his perception of reality.
Maimonides compared the credibility of one witness concerning a woman to that same type of credibility. For there too, the core of his credibility is regarding his perception of reality. But the legal consequence for us is a novelty introduced by rabbinic enactment.
According to this there is also new light on the division of the laws at the beginning of chapter 5 of the laws of testimony.
Law 1 refers to a place where by Torah law we adopt the witnesses’ perception: “No legal matter is decided on the basis of one witness, neither monetary law nor capital law, as it says: ‘One witness shall not rise up against a man for any iniquity or any sin’; and by oral tradition we learned that he does stand for an oath, as we explained in the laws of claims.”
Law 2 refers to a place where the witness’s credibility regarding his own perception is Torah-level. And as for the legal consequence of that for the court, there are two places where this is Torah-level, and in the case of a woman it is rabbinic: “In two places the Torah accepted one witness: in the case of a sota, so that she not drink the bitter waters, and in the case of the heifer whose neck is broken, so that it not be brought, as we explained; and likewise by rabbinic law in testimony for a woman, when one testifies to her that her husband died.”
Law 3 hints at the credibility of one witness in matters of prohibition, where one can say that the witness is not believed regarding reality but only to establish a prohibition (like a presumption and the like): “And everywhere that one witness is effective, a woman and one otherwise disqualified are likewise effective” (etc.).
As I understand it, the Rabbi cited this as a source in that same column—because by Torah law one witness is not believed in testimony concerning a woman, since “matter” is derived from “matter” from monetary law. But in any case they were lenient.
Still, it seems that the above explanation is enough to say that in practice even one witness has the same quality as two witnesses.
Thank you very much!!