Laws and Customs
Feb. 22nd, 2006 11:31 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
rhuDaf 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.
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.
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(no subject)
Date: 2006-02-22 07:25 pm (UTC)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
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.
(no subject)
Date: 2006-02-22 07:39 pm (UTC)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.