YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #2: Halakha and Custom

As is well known, Halakha attaches great significance to custom. Many halakhic authorities regard general custom as a crucial factor when they come to decide Halakha. In this lecture, we shall investigate the source of the legal authority of custom. Why are we obligated to follow custom? Jewish customs were certainly not given at Sinai, as were the mitzvot of the Torah, nor did they issue from the mouth of God. Why, then, are they endowed with binding force?

A. THE VALIDITY OF CUSTOM DERIVES FROM HALAKHA

According to one approach – conceptually, perhaps, the simplest – the validity of custom derives from Halakha itself. With regard to customs pertaining to Choshen Mishpat, i.e., civil law, the matter is simple: the halakhic validity of general custom stems from the fact that, presumably, the two parties to the transaction agreed to be bound by that custom. Halakha states that in civil matters, "a person may make stipulations on what is written in the Torah," or one may contract agreements outside the parameters of what is laid down by the Torah. In other words, the two parties may determine for themselves the business model that they wish to follow. For example, a person may accept a bailment under conditions different from those mentioned in Halakha. If two people, therefore, agree that the one will buy a car from the other, and according to local custom, the buyer bears the cost of having the car tested, this too is implicit in their agreement. Thus, we understand why custom is binding in civil matters.

The problem arises with regard to customs pertaining to other areas of Halakha. Even in these areas, however, the simplest approach is that the validity of custom is based upon clear halakhic foundations.

1. CUSTOM REFLECTS ANCIENT HALAKHA
R. Yitzchak Alfasi (Rif) argues that the force of custom stems from the fact that custom reflects an ancient takkana (enactment).

"This is the source of customs that we follow: a majority of the community consults with the elders of the community, and they enact a takkana as they decide, and observe it. This is custom. Even after many years, when they no longer remember the source, as long as it had been maintained, it stands on its presumption." (Responsa Rif, no. 11)

According to Rif, the validity of a custom stems from the fact that we presume that the custom reflects a takkana enacted by the community in accordance with the strict halakhic criteria for enacting takkanot. A custom is an enactment whose rationale has been forgotten, and we continue to observe it only because we presume that when it had been first established, it was a valid halakhic takkana.

R. Asher ben Yechiel (Rosh) writes in a similar vein:

"Where Halakha wavers in your hand, follow custom. This means: If there is vacillation regarding the law, it being unclear to you according to whom the Halakha was decided, and you see that people conduct themselves [in a certain way] – follow the custom, for one may presume that the authorities who established the custom thought that this was the law." (Responsa Rosh, no. 55, sec. 10)

Like Rif before him, Rosh also argues that the validity of a custom stems from the fact that we assume that it reflects ancient Halakha. Rif presumes that custom reflects an ancient takkana, whereas Rosh presumes that it reflects an earlier determination of a law that had been the subject of a difference of opinion. Rosh narrows the area in which custom has force. Even according to Rif, however, we appear to be dealing with a rather limited area: custom is only binding in an area where a takkana would be relevant. Both seem to agree that there is no room to speak of custom in an area that is clearly non-halakhic, e.g., the color of the ark-covering used on the High Holidays, or the apple dipped in honey eaten on Rosh Ha-shana. It should be pointed out that this approach is quite prevalent among the Acharonim.[1]

2. CUSTOM AS A VOW
The Chatam Sofer raises another possibility regarding the source of the validity of custom. He too bases custom on clear halakhic foundations.

"The Sages attached great importance to this custom [= the second day of Yom Tov observed in the Diaspora], for it is indeed great. How great is the force of this custom, that we say in Kiddush, 'this festival of Atzeret,' and similarly in the Amida prayer …  Would it be a light matter for our Rabbis, the Tosafists, to mention falsely, 'this festival,' unless this custom were strong and severe? 
I am close to saying that it involves a Torah prohibition, created through a vow taken by the community and spreading to all of Israel. All the leniencies regarding its observance and the punishment [for its violation] … are due to the fact that, from the outset, they accepted [the custom] as a Rabbinic prohibition. But that which they accepted, and the manner in which they accepted it, involves the Torah prohibition, 'He shall not break his word' (Bamidbar 30:3). Acceptance [of the custom] is regarded as a vow…
I have spoken about this at length because, as a result of our many sins, the lawless in our nation have now grown in number. They present a false vision, ridiculing the second day of Yom Tov, that it is merely a custom. They do not wish to follow in the footsteps of the Sages of Israel; they speak against their own lives; they know not, nor do they understand; they walk on in darkness." (Responsa Chatam Sofer I, OC, no. 145)

The Chatam Sofer argues that a custom has the force of a vow that is binding by Torah law: once the members of a community observe a custom, it is regarded as if they had accepted it upon themselves by way of a vow. He, too, finds the source of custom's validity in Halakha, though obviously in a manner very different from that of Rif and Rosh. It should be pointed out that the Chatam Sofer's assertion that the violation of a custom involves a breach of a Biblical vow is a bit extreme. He himself testifies that his ruling was issued in the context of his public struggle with the proponents of religious reform, who treated custom with disdain.

3. SOCIAL CONSIDERATIONS
We have seen that the Chatam Sofer may have been influenced by social considerations. There is, however, another authority who was quite explicit in relating to such considerations in this connection:

"No established custom should be changed … This is the Torah of the perfect man, to hold fast to the deeds of his fathers, without deviating to the right or the left. For were every individual to rely on his own discretion and judgment, instituting practices as he sees fit, without regard to those who came before him – one custom would be abolished today, a second tomorrow, and similarly the next day. All customs would disappear, and a new Torah would be established in every generation. This would spread even to matters that people treated as forbidden following the Torah authorities of their day. One transgression would lead to another." (R. Chayyim Palagi, Masa Chayyim, Minhagim, no. 213)

R. Chayyim Palagi (Turkey, 19th century) understood the social dynamics that custom creates. A person who treats customs with disdain will come to scorn the mitzvot proper as well. He too maintains that the validity of custom stems from Halakha, but in a different sense: observance of custom acts as a social guarantee for the observance of Halakha. 

This argument should not be treated lightly. A society that honors its deeply rooted customs, even when in and of themselves they appear to lack all rationale, instills in its members a respect for tradition, as well as the sense that they still have much to learn. People often tend to despise, with no apparent justification, anything that was created in the past. Faced with the choice between unfounded scorn for the past and unjustified respect, I would opt for unjustified respect.

According to all three views that have been mentioned, the validity of custom stems from Halakha. Clearly, then, according to the proponents of these theories, there is no room to consider customs that are contrary to Halakha:

"You also wrote that one should not deviate from accepted custom because of what people may say.  The word minhag (m-n-h-g, 'custom'), however, is the same as Gehinom (g-h-n-m) spelled backwards. For if fools acted in a certain manner, the Sages did not do so. Even a fitting custom does not override the law, unless the law is in doubt." (Responsa of the Ba'alei Ha-tosafot, no. 14, in the name of Rabbenu Tam)

B. CUSTOM AS THE JEWISH WAY OF LIFE

In contrast to the aforementioned views, which see Halakha as the source of custom's validity, other approaches emphasize the independent value of custom as an expression of the Jewish way of life. This is what Rav Hai Gaon, for example, wrote in a classic ruling. 

Rav Hai was asked about a custom pertaining to the blowing of the shofar on Rosh Ha-shana. In Rav Hai's day, and for a long time afterwards, it was customary to blow a single TShRT (tekiya, shevarim, teru'a, tekiya) during the Malkhuyot blessing, a single TShT (tekiya, shevarim, tekiya) during the Zikhronot blessing, and a single TRT (tekiya, teru'a, tekiya) during the Shofarot blessing, or in other words, a sum total of ten shofar blasts during the Amida. This custom seems to contradict halakhic logic, for the TShRT, TShT, and TRT combinations represent three alternatives for the teru'a blast, only one of which can be correct. It would appear, therefore, that in order to properly fulfill one's obligation, one would have to blow each alternative three times.[2] Rav Hai addresses this difficulty:

"The way we fulfill our obligation and perform the will of our Creator is correct and clear to us, a three-fold inheritance, faithfully copied and transmitted from father to son, generation after generation in Israel … The law has spread throughout all of Israel. And since we conduct ourselves in this manner, it is correct and a law to Moshe at Sinai that we have already fulfilled our obligation, so that any objection has already been removed. 
One might argue: If TShT is correct, then surely TRT is null, and if TRT is correct, then TShRT is null! Our response to him begins: How do we know that there is a mitzva to blow the shofar on this day? And regarding the Written Torah itself, how do know that it is the Torah of Moshe dictated to him by the Almighty? Surely it is on the word of the people of Israel who testify to it. They also testify that we fulfill our obligation in this manner, and that thus they have received by tradition from the prophets a law to Moshe at Sinai. 
What the community says serves as proof for the entire Mishna and the entire Gemara. More than any other proof, go out and see what the people are doing. This is the essence and the basis. Only afterwards do we consider all that was said in the Mishna or in the Gemara concerning the matter. If whatever follows from them can be reconciled with our established practice, fine. And if they contain anything that does not match what is in our hearts [i.e., what we practice] and cannot be clarified with proof, it will not override the essential thing." (Rav Hai Gaon, Temim De'im, 119)

Rav Hai then continues to explain why his customary manner of blowing the shofar does not contradict halakhic logic. The essence of what he has to say (which some have understood in the context of Rav Hai's anti-Karaite polemics), however, remains: objections raised against custom from the Talmudic passages are invalid, for custom is the foundation and basis for Jewish practice. According to Rav Hai, Halakha does not give custom its validity, but rather the testimony of the people of Israel is what validates Halakha. The essence, according to Rav Hai, is not the written tradition of Halakha, but rather the living tradition of the Jewish way of life. 

When Rav Hai argues that custom represents a tradition which is also "law given to Moshe at Sinai," he does not mean to say that custom restores ancient Halakha. Rather, he means that just as the theoretical laws were transmitted at Sinai, so too were the practical customs given there. The halakhic tradition is paralleled by a tradition of custom, the latter superior to the former. Prof. Israel Ta-Shema has outlined this approach as follows: 

"According to the point of view described above, 'practice' precedes 'law' not only in importance, but in logic as well. This is not like the question, which came first – the chicken or the egg. For we know with certainty that the practices existed first, and only later were the halakhot formulated. The relationship between Halakha, that is to say, the Talmud, and actual conduct may thus be compared to the relationship between the rules of grammar and a living language. Our ancestors started with actual talk, and not with learning the grammatical rules, which are nothing but an a posteriori description of 'standard' linguistic practice. Halakha is nothing but an attempt to generalize in an abstract manner the wealth of diversified practices." (I. Ta-Shema, Minhag Ashkenaz Ha-kadmon, p. 69)

A practical application of this approach may be found in the Talmud Yerushalmi:

"Were the prophet Eliyahu to come and say that chalitza may be performed with a shoe, we listen to him. [But were he to come and say] that chalitza may not be performed with a sandal, we do not listen to him. For it is the general practice to perform chalitza with a sandal, and custom overrides Halakha." (Yerushalmi, Yevamot 12:1)

Modern scholars have already noted,[3] however, that in this instance there is no direct clash between custom and Halakha, for the classical Halakha as it has come down to us correlates well with the common custom. The Yerushalmi's formulation implies, however, that there are circumstances in which custom is, indeed, given priority over Halakha. This position cannot be explained according to the approaches presented at the beginning of this lecture. Indeed, this is the way the Jewish community living in Eretz Israel understand the Yerushalmi's position:

"He [= Rav Yehudai Gaon] also sent a letter to Eretz Israel concerning … mitzvot regarding which they conduct themselves in a manner that is contrary to Halakha, and in accordance with customs they adopted during periods of persecution. But they rejected what he said, and sent him in reply: Custom overrides Halakha." (Ginzei Shechter, II, p. 559)

According to the view that assigns priority to custom over Halakha, it is clear that custom is not restricted to the realm of Halakha. According to this approach, we are not surprised to read the following:

"Halakha does not become fixed until it has become customary practice." (Tractate Soferim 14:16)

Upon this view, it is not Halakha that grants validity to custom, but rather custom that grants validity to Halakha.

Ideologically, how is it possible to justify the priority given to custom over Halakha? The justification may be based on the fact that a practical tradition exists, handed down from one generation to the next, which relates to actual practice as opposed to theoretical Halakha (as argued by Rav Hai Gaon). Alternatively, it may be argued that the authority to decide halakhic issues was handed over to the Jewish people, perhaps because they have healthy intuition, a developed spiritual sense, or even the holy spirit. This is what is implied in the words of Hillel:

"They said to him: 'O Master, what is the law if one forgot to bring the slaughtering knife on the eve of the Sabbath?' He said to them: 'I received this Halakha, but have forgotten it. Leave it to Israel. Even if they are not prophets, they are still the children of prophets.' The next day, he whose paschal sacrifice was a lamb, stuck [the knife] in its wool, and he whose sacrifice was a goat, stuck it between its horns. [Hillel] saw the act and recalled the Halakha, saying: 'Thus I have received the tradition from Shemaya and Avtalyon.'" (Pesachim 66a)

Following Hillel, the author of the Yad Eliyahu wrote as follows:

"It is clear to us that the fact that all of Israel agree about a custom stems from the holy spirit. The Holy One, blessed be He, appeared among them, and instituted the practice as if through a prophet. For through their will and conduct that was directed to Heaven, God, may He be blessed, illumines to all of Israel by way of the holy spirit how to behave." (Yad Eliyahu, pesakim, no. 25)

Whatever the ideological justification may be, we are dealing here with an approach that prefers "way of life" to "law." Such an approach perforce creates service of God that is based upon the Jewish people's way of life in actual practice, rather than upon speculative Halakha. 

It follows that this approach creates a way of serving God based upon intimacy rather than commitment, upon love rather than fear. When a person performs a mitzva, he does not feel himself obeying a law that has been forced upon him from Heaven. Rather, he sees himself as continuing the traditions of his forebears, as well as the accepted way of life of his people and community. The more we view Halakha as absolute Divine law, as the embodiment of the approach of fear in the worship of God – the less we will take customs into consideration, or else we will explain our reliance on custom according to the approaches mentioned earlier, with the help of clear halakhic considerations.

The issue of the relationship between Halakha and custom is of great consequence regarding the way we view Halakha. It is significant on the practical level as well. In this context, there are striking differences between the different authorities. Across the generations, Sephardic authorities have assigned less importance to custom than did their Ashkenazic counterparts. This distinction finds expression in our day as well. Rav Ovadia Yosef, for example, assigns very little, if any, halakhic value to custom. It is difficult, however, to set iron-clad rules and distinguish between Sephardim and Ashkenazim. The Vilna Gaon, for example, also assigned very little value to custom. Let each person follow in the path of his forefathers.

(Translated by Rav David Strauss)

FOOTNOTES:

[1] Chatam Sofer, YD, 327; Iggerot Moshe, YD, I, 136; and elsewhere.

[2] It was on account of this weighty objection that Rabbenu Tam instituted the practice of blowing TShRT three times. Our custom dates from a later period, when it was instituted – following the position of the Arukh – to blow thirty blasts during the Amida. In that way, we fulfill our obligation according to all opinions.

[3] Menahem Elon, Ha-mishpat Ha-ivri, vol. 1, p. 736; see also I. Ta-Shema, Minhag Ashkenaz Ha-kadmon, p. 65.