Laws and Customs

[rhu]

Daf Yomi has been covering the prohibitions regarding possession of chametz during Passover. I have a meta-observation to make.

Both here and in the laws of eruvin the pattern seems to be that the Torah establishes some basic laws, the early Rabbis enacted a system around the Torah requirements to (a) create a "fence" (or buffer zone) so that one would avoid accidentally violating a Torah law, (b) clarify cases where the Torah law might be ambiguous, or (c) enact other requirements that they deemed important for the greater good of the community.

Now here we are, 2,000 years later, and most of us are not sages, and we receive a largely undifferentiated corpus of laws and traditions. And then there are what look like legal fictions but were actually built into the original code. A few examples:

* Eruvin: The common understanding is "You can carry inside a building but not outside. But if someone calls the electrical wires walls then suddenly you can carry outside." (Or "You can carry inside a privately owned dwelling, but you can magically designate the whole town your private domain."). But the actual legal principle is "Everyone agrees that you can carry inside a bounded space and you can't carry into or through a major thoroughfare. But most of the outside space is in neither category and carrying there is permitted by Torah law; the Sages enacted a restriction that carrying outside is only permitted within an area whose boundary is explicitly marked, making it a bounded area and unambiguously permitted."

* Pesach: I can appoint my Rabbi as my agent to sell my chametz over Pesach. I move all my chametz to a corner of my basement, seal it away, and then an hour or so after Passover I can unseal it and move it back to my kitchen. That seems to be a legal fiction working around the prohibition of owning chametz or having it in my physical space. But (as I've been learning in Daf) the actual prohibition that it dodges is a Rabbinic enactment that "If one finds chametz that one owns over Passover, one might forget that it is forbidden and eat it; therefore, one most dispose of chametz that one owns, but one need not eliminate chametz owned by a non-Jew or which has been designated for use in the Temple (hekdesh). And it is preferable for such chametz to be removed from sight so one will not encounter it and forget." In other words, the selfsame law that prohibits possession of chametz explicitly exempts chametz owned by a non-Jew that is nonetheless still in one's physical property. (One case considered by the Talmud is a Jewish-owned store with non-Jewish employees who bring in their lunches. No problem.)

I'd analogize to leap years: The rule for adding a bissextile day under the Gregorian calendar has many levels of exceptions built in. (Feb. has 28 days. Unless the year is divisible by 4, in which case it has 29. Unless the year is divisible by 100, in which case it has 28. Unless the year is divisible by 400, in which case it has 29.) And many people got confused six years ago because they had never learned all the levels of the original rule. (And even the Catholic church moved bissextile day from Feb. 24 to the 29th. sigh.)

It's not like the law had originally been simple and absolute and we're somehow "cheating," or cutting corners. The law started out complex, but for most of us today (a) we've lost the distinction between Torah law, Rabbinic law, and custom, and (b) we aren't presented with the full complexity of the law, so certain practices that make life easier are considered to be "legal fictions" at best or "infractions" at worst, rather than as legitimate expressions of how the law was supposed to work in the first place.

Comments

[angwantibo.livejournal.com]

First, on the observations as opposed to the meta-observation, the concept of carrying was the very first halacha that I learned with Rabbi C. from the Chabad of West Hartford. The original concept is not transferring an object between domains. We're just setting up a large courtyard to make a single domain. It's interesting that Chabad does not hold by the eruv. I'm not sure why. As an eruv checker, I'm quite aware of what is a valid doorpost. :)

Regarding Pesach, the prohibitions are, not to see chametz and not to own chametz. There is nothing against having it in your possession. As a kid, we used to use up all of our chametz and then sell the remainder in one or two paper bags to our next door neighbor for 1 penny. We never bought it back. Either this or the shaliach are simple ways of handling the problem. The main difference is the inventory of chametz that you like to keep or if you consider cosmetics to be chametz.

Back to the meta-observation... Since I've been following these for so long, it is hard to differentiate between complicated rules and legal fiction. It just is as it is. Are you concerned that many people see these as legal fictions and thus are pointless and not worth following?

As a parent raising a child, I try to be very clear as to what is d'oraita, d'rabbanan and custom or chumra. My son's school is usually pretty clear on these issues as well. I think this is very important later in life to make an informed decision.

So, the bigger question is, why do we need the distinction? The better question is, why do we have these rules?

Regarding the eruv, it was forbidden to work on the tabernacle on Shabbos and one of the av melachot is carrying. Carrying stuff around is a very simple form of labor. A good comparison would be regarding the building of a sukkah on shabbat chol hamoed sukkot. Maybe we shouldn't be carrying heavy tables out to the sukkah. An eruv places a limit on how far we can carry heavy objects. This is work that most people get paid for (e.g. pizza delivery, grocery delivery, furniture delivery). It's one thing to carry a little food for a pot luck lunch. It's another thing to carry an entire oneg shabbat.

The principle for chametz is also very clear. If I didn't have the pantry taped up, I would probably eat chametz by accident. Setting it aside and selling it are 2 barriers against accidentally eating chametz on pesach.

Teaching the principles may be a better way of teaching the halacha.

The distinction between law and custom becomes less important initially, but more important when two laws conflict.

This method also dissolves the legal fiction argument

Thoughts?

[530nm330hz.livejournal.com]

I don't want to get bogged down in technical discussion of the halacha, so I'll respond to most of your points by attempting a different formulation of original statement: The mechanisms of, inter alia, eruvin and mechirat chametz are applications of, not exceptions to, the fundamental law, yet there are many (both Jews and non-Jews, both observant and non-, both respectful of Judaism and dismissive of it) who view them as being untrue to the original intent of the law and, Heaven forbid, an attempt to evade [what are supposedly] God's commandments.

You ask: Are you concerned that many people see these as legal fictions and thus are pointless and not worth following?

Yes. There was a recent thread on eruvin in gnomi's LJ where some of the comments were, let's say, dismissive of the whole concept of keeping Shabbat. I've had similar conversations elsewhere where the other person started off by declaring that if we could, in his view, basically eliminate a Shabbat prohibition by declaring the outside to be inside, we obviously didn't really take Shabbat seriously in the first place.

You write: it is hard to differentiate between complicated rules and legal fiction [...] why do we need the distinction?

Yes, it takes effort and learning to distinguish between intrinsic exceptions and invented workarounds. But I think we need the distinction because without it we (a) diminish our own practice, and (b) violate lo tosif by allowing the accretion of fences around fences and the elimination of legitimate leniencies.

Finally, you ask: The better question is, why do we have these rules?

Well, either one believes it's because that's the way God wants it (in which case I think the distinction between an exception that represent's God's will and an exception that represents human cleverness is critical), or one believes it's because this is our societal norm (in which case I think the distinction becomes moot).

And so maybe working backwards from here, I see the importance one attaches to the distinction between inherent exemptions and invented ones testifies to the strength of one's belief in the Divine provenance of the Torah.

[angwantibo.livejournal.com]

I miss studying w/ you. You make very valid points and reinforce my belief that the principle of the law is the purpose of the law, not the logical discourse as it sometimes seems. :)

I'm glad that you also are serious about lo tosif. I've regressed a bit and concentrate on d'oraita and the original principles. If I follow the rabbinical prohibitions and customs, so be it. It seems that getting bogged down in the details can detract from understanding the principles and the Torah ceases to be living. The Torah is there to teach us how to live, not to confuse or cause others to reject it out of hand.

Take care.

[sethg]

The process, as I see it, is:

The Torah makes some prohibition P. If you look at the fine points of the midrash halakha, P is very narrowly defined. It would be possible, albeit inconvenient, for someone to totally evade violating the letter of P but massacre the spirit--and if such evasions became commonplace, then every once in a while someone would violate P, by accident or by negligence.

To prevent such a thing from happening, the rabbis add a prohibition Q, which is much broader than P. But they realize that there are many cases where holding everyone to the Q standard would cause needless hardship to the community.

Therefore, the rabbis added leniencies, R, which are exceptions to Q but do not actually violate P.

Years later, a non-Jew or a non-observant Jew sees the difference between Q and R, not understanding the difference between P and Q, and says, "What a crock!"