Q&A: Rabbinic enactments whose rationale no longer applies
Rabbinic enactments whose rationale no longer applies
Question
Hello Rabbi Michael,
I wanted to ask about the enactment of the second festival day observed in the Diaspora. After all, the reason for the enactment no longer applies today, since messengers are no longer sent out from the Land of Israel to announce the sanctification of the new month. If so, why don’t we cancel this enactment?
Best regards,
Answer
This is a complicated question. As a rule, Jewish law determines that when the reason no longer applies, the enactment is not automatically annulled. (Although it seems that the Raavad disagrees with Maimonides on this; see the beginning of the Laws of Rebels.) See Beitzah 5a regarding decorating the markets of Jerusalem with produce, and the commentaries there.
And even if it is possible to annul an enactment when its rationale no longer applies, that would require the Great Court (the Sanhedrin), since something established by formal count in a religious court requires another formal count to permit it. For two thousand years we have had no Sanhedrin, and so we have sunk into a troubling state of rigidity. I am looking for various ways to get around this rigidity, and it seems to me that there are such ways. But halakhic decisors and rabbis usually recoil from them because of fear of Reform and the like. (In my opinion that is a mistake, but this is not the place to elaborate.)
Discussion on Answer
For sources on changes in enactments, see the last chapter of Rabbi Neria Gutel’s book, Changes in Nature in Jewish Law.
The law of uprooting something from the Torah through passive omission, as far as I remember, is discussed in Yevamot 90 and parallels.
Regarding the halakhic rule, “when the reason no longer applies, the enactment is not annulled,” I noticed that this rule is not always used, and so I wanted to ask: in which cases should it be used, and in which not, and why?
Also, logically speaking, I understand that the rationale behind the rule is that a religious court that issued a decree can only have it annulled by a court greater than or equal to it, and together with the assumption of the decline of the generations, in practice any decree that is issued can never be repealed, even if its rationale no longer applies. But there are things that are clear and obvious to everyone, and you do not necessarily need a particularly wise person to rule on them. If so, when there is general agreement about the rationale of something being gone, why can’t even such enactments be repealed?
There are a great many exceptions to this rule. See the last chapter of Rabbi Neria Gutel’s book, Changes in Nature in Jewish Law, which brings a great many sources on the topic. See the dispute between Maimonides and the Raavad in Laws of Rebels 2:2.
As for the assumption that a later religious court is always smaller than an earlier one, in my opinion it is completely baseless. This very rule itself proves otherwise, because in light of that assumption it becomes meaningless. And see on this matter the Raavad’s objection to Maimonides there, which assumes that very assumption. Maimonides apparently disagrees with him precisely on that point.
If there are things that are self-evident, then indeed the logic is absent, and still the sages do not split their words. In the accepted approach, the rules of Jewish law are sweeping. However, Tosafot HaRosh on Bava Metzia 90 says that we interpret the reason for a verse where the reason is completely clear, and based on that it is possible that with repealing enactments and decrees one could say something similar. Also see additional mechanisms for deviating from this rule in Gutel there.
Today, when people don’t know how to repair musical instruments, why is clapping still forbidden?
Clapping is permitted. And even applause is permitted. What they prohibited was rhythmic hand-clapping. The prohibition is making a sound, and even a decree whose reason no longer applies requires the Great Court to permit it. Above I wrote some qualifications to that.
In a case where the reason no longer applies, I can’t understand how we can set aside a positive commandment because of an enactment that is no longer relevant anywhere or to anyone in the world. I can understand why we do not cancel enactments whose reason no longer applies when they have no Torah-level implications, such as the enactment to delay inserting the request for dew and rain in prayer on Shemini Atzeret until the pilgrims had returned home from Jerusalem, since that enactment did not come at the expense of a Torah-level commandment.
As for repealing enactments, I know that for some enactments people found various legal workarounds to be lenient. For example, with wine handled by non-Jews, one can boil the wine and thereby avoid the decree by claiming that in such a case they never decreed it. And regarding the bathhouse decree, I have heard that there are opinions that are lenient about a private shower and say that in such a case they never decreed it. In the same way, why not decide, for example, that the enactment of the second festival day was not decreed in a situation where sanctifying the new month does not depend on a religious court?
You wrote that you are looking for ways to get around the rigidity, and that there are such ways. In what areas did you mean that you are looking for a workaround? And what kinds of methods can be used to work around it?
Best regards,