Adapting the Law

April 5, 2019 by Jeremy Rosen
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The Bible emerged in, and out of, a world that was predominantly agricultural. A world where seasons and produce determined how societies flourished or perished

Rabbi Jeremy Rosen

Biblical stories such as that of Cain and Abel illustrated the rivalry of shepherds and farmers. Ranchers versus cowboys. The Tower of Babel was concerned with the complexities of new urban centres. As societies turned towards different economic models, rabbinic leaders acted creatively and sought ways of making life livable for Jews in a rapidly changing world without jettisoning many of the important concepts and ideals of Judaism.

Many of the Biblical Laws became very difficult to adhere to. May others were confined to Temple service only. We do not know for certain to what extent most Israelites actually kept what. How many struggling farmers could survive without being able to till the land at all for one year out of every seven? And then during the Jubilee for two consecutive years? If you read about the Prophets and the Kings, it seems that most during that period didn’t bother to keep very much of what we now recognize as Jewish Law.

In the Bible, charity consisted of letting the poor share in your harvests. If you had no land, you fulfilled your obligations by inviting the poor to join you for meals.  Or lending money without interest to encourage the poor to set up their own businesses and be self-sufficient. However, such loans would be cancelled in the seventh year.  As were contracts for indentured service and slavery.

When faced with the challenge of credit and commercial lending in a different world order, Hillel (the greatest of rabbis) might have simply scrapped the law of the seventh-year release, the shmittah, or declare it redundant. But he did not. He wanted to find a way of preserving the original idea and reminding people of its moral intent. So he left the law in place but found a way around it by getting creditors to transfer their debts to the Beth Din – the government so to speak. (Only individual debts were cancelled not civil ones). The Beth Din then collected on behalf of the creditor and ensured the money was not lost. The mechanism was known as the Prosbul in Aramaic.

For those with neither land nor outstanding debts, an agriculture ideal was turned into an ideal of study for all.  A sabbatical to devote time to return to one’s holy texts and provide free adult education. The law remained on the books. It was a great idea in theory even if the emphasis shifted. And nowadays, thousands of years later, we all know what a sabbatical is.

As banking expanded and lending for interest became the norm, Jews had to find ways of carrying on normal business practices against a Torah ban on lending for interest. They introduced the Heter Iska (Allowing Business) which was the forerunner of the Muslim Shariah compliant ways around the ban on interest (the Muslim word Riba derives from the Biblical and Talmudic word Ribit: interest). Instead of completely scrapping the law, finding a practical solution keeps the idea on the books and in the minds of the faithful, in turn, reminding them of their ideals.

On matters of civil law, they instituted the principle of “Dina De Malchuta.” The Law of the Land is the Law.  This enabled Jews living under other systems to preserve their ritual individuality while engaging within the framework of local civil laws.

They were even creative with what we would call “ritual laws”. The Bible said, “No fire in your homes on Shabbat.” That was fine in the wilderness or for wealthy Judeans who could escape in winter to the coastal plain. The rabbis wanted to ameliorate the lot of freezing peasants while keeping the idea of Shabbat as a break with the routines of weekly activity. Their answer was to arrange the fire and the hot food beforehand (and that’s the origin of lighting candles on Friday nights). Nowadays it’s how we, who keep Shabbat strictly, have come to use time-switches and hot plates!

The Bible said we shouldn’t leave our local area of habitation on Shabbat. No problem if you’re living in close family units. In the old days, cities had walls that defined your locality. Two thousand years ago, as cities began to expand enormously, the rabbis wanted to find a way of preserving the law to discourage splitting up families or going on long journeys. But they also wanted to enable people to go to meet other families or listen to lectures or pray communally. That was why they created the Eiruv – another fiction or device – as a way of fencing in an area to define it as ‘your area, your village.’

Of course, you may say it was a fiddle. But it was designed to preserve the idea of restricting oneself to one’s locale on a Shabbat while making life livable. Those who care to keep a traditional Shabbat will live within Jewish communities – as happens even in the USA in several cities. For those who choose to live farther away and want to drive on Shabbat, they simply make their own decisions. But the law makes sense – even nowadays.

Similarly, one may not carry out of one’s home on Shabbat. Another way of making Shabbat as different as possible to the rest of the week. When, in ancient cities, people lived on top of each other and courtyards led into each other, there was no problem in passing food to one neighbour or another without going beyond one’s habitable area. But as homes expanded and grew more private, the idea of an Eiruv for courtyards technically combined all the houses (or apartments in a block of flats) into one symbolic area to enable carrying on Shabbat.

In modern times, where we often live much further apart from family than we used to and have things like prams and buggies, this device was extended to allow mothers to use them on Shabbat by creating a notional ‘home area’ and extending it symbolically. I stress the symbolic way. It is not about real fences or walls but simply poles and wire and if the poles are intrusive there are lots of different ways of making them less so.

When comedians, Jewish and non-Jewish, make fun of our religious laws, most Jews don’t mind because they themselves make fun of them. We can laugh at ourselves for caring about wires on poles. And yet, we religious take it seriously, too. An eiruv makes a tremendous difference to practising Jews all over the world. Here in Manhattan, we have one. Despite the opposition (too often from other Jews) and all the furore about unsightly barriers, no one notices. An influx of religiously committed Jews certainly does not usually increase violent crime!

Another familiar way around the law was designed to deal with Hametz on Pesah. The Torah forbade us having any Hametz in our homes on Pesah. But what if you were in a business like, say, a distillery with lots of expensive grain-based stock? Or a modest store owner buying foods wholesale in larger quantities. Do you just throw it all out for Pesah? We now have the tradition of selling our valuable Hametz to a non-Jew with a legal commercial contract. At least the fiction makes you realize the importance of Hametz on Pesah. And if you think it is ridiculous, well you and your friends can just consume it all beforehand. Or give it a food bank.

You may say all this is a fiddle. In a way it is. But it preserves the ideal, even beautiful, idea of the law while making life livable. It is indeed a way of having your cake and eating it. And, in fact, every modern legal system has what we call legal fictions.

Some of us may bridle at these restrictions. But old ideas can have new relevance. With new technology (iPods, iPads and iPhones) it is becoming clear that a day’s break over a Shabbat may be highly beneficial – psychologically, socially and physiologically.  How brilliant of the rabbis not to scrap the law about fire (which was as central to life then as electricity is today) but to find a way around it. To use technology differently once a week and on festivals. We are now preparing for Pesah (those of us who cannot or choose not to go away on a cruise or to a desert island). Why do we bother? Because it is our tradition. We can make fun of all sorts of theologies and customs and holy waters and bits of wafer. But if they provide us a way of looking at the world differently and keeping us in touch with our roots, why not? They do not harm anyone. The Amish and the Sikhs manage pretty well with their quaint customs and traditions. And we do with ours. Fiddles and all.

Rabbi Jeremy Rosen lives in New York. He was born in Manchester. His writings are concerned with religion, culture, history and current affairs – anything he finds interesting or relevant. They are designed to entertain and to stimulate. Disagreement is always welcome.

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