Adapting the Law

by: Rabbi Jeremy Rosen

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. 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 centers. 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 neighbor 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 practicing Jews all over the
world. Here in Manhattan, we have one. Despite the opposition (too often from
other Jews) and all the furor 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 round 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.