74 Laws and Yet It Is Not Enough – Parashat Ki Teitzei
By: Rabbi Melanie Aron
Parashat Ki Teitzei contains the most laws of any Torah portion, seventy-four, more than one tenth of all the laws in the Torah, but it is also a good reminder that for the development of the halachah, Biblical law was just a building block. For example, the somewhat confusing law, that one must place a parapet on one’s roof; (Deuteronomy 22:8) not only becomes the basis of the Jewish equivalent to OSHA (Occupational Health and Safety Administration) regulations, but also is used by more contemporary authorities to develop a Jewish legal objection to second hand smoke. (OU Israel, Aliyah-by-Aliyah Parashat Ki Teitzei).
Clearly, Halachah is much more than the laws of the Torah, even with their explication and development. There are also rabbinic laws that emerge independently of the teachings of the Torah, such as takkanot, rabbinic enactments, and gezeirot, laws, which put a fence around pre-existing laws. On top of it, all there are minhagim. The English translation of minhag as “custom” does not do justice to its status in Jewish law. As an Orthodox source explains:” It is important to note that these “customs” are a binding part of halakhah, just like a mitzvah, a takkanah, or a gezeirah.” (Judaism 101 Halakhah) Thus, we have the saying, “minhag Israel Torah hee,” the custom of Israel is Torah (Law).
Our Reform movement has struggled with law, being at times antinomian. Seeing Judaism as an ever-evolving civilization, we recognize the element of culture in Jewish law, the influence of the customs and values of a particular time and place. Thus, we do not feel bound by all of the Rabbinic law, understanding it as a human creation.
In particular our Reform movement has been most dismissive of the idea that minhagim were particularly binding. Their concern with the excessive power of minhagim was not unique. The Jewish Encyclopedia (1903) in an article on Custom points out that “Maimonides vigorously decried this “minhag sickness,” as Güdemann calls it, and Rabbenu Jacob Tam (1100-1171) said, in his epigrammatic style, that “minhag,” when inverted, spells “gehinnam”; and that if fools are accustomed to do certain things, it does not follow that the wise should do likewise.” Similarly the Maharshal writes: “What shall I do, the people attribute more weight to trivialities than to the most important statutes:’ (Maharshal, Teshuvah 72 in “The Minhag” by Joseph Kalir Tradition: A Journal of Orthodox Jewish Thought, Vol. 7, No. 2 (SUMMER 1965), p 95
Reform Judaism, particularly in the period of Classical Reform, preferred a return to what was often viewed as the purer roots of Judaism, the Bible rather than the Rabbinic literature and rejected many long standing minhagim, like the second day of Yom Tov, a minhag embraced by more traditionalist groups, even as they understood that its origins were rendered moot by later calendar calculations.
Despite our Reform heritage of devaluing custom, recent events in the United States have given me a new appreciation for minhagim. Those things, which are not statuary law, I now understand can still be critical to our democracy for the values they bolster. Since we cannot legislate everything, common practice and accepted norms play an important role in safeguarding our values.
Philo of Alexandria in his book on Special Laws, wrote: “Customs are unwritten laws, the decisions approved by men of old, not inscribed on monuments or leaves of paper which the moth destroys, but on the souls of those who are partners in the same society.” Currently in the United States, many are wishing that these unwritten laws were more firmly imprinted on human souls.
In each of our congregations, there are probably minhagim, unique to our community, time hallowed and viewed as normative, at least until someone attends services somewhere else. Perhaps they arose due to a particular need at that time, as in the old joke where bowing at a particular point during the hakafah, was traced back to the existence of a low beam in the congregation’s old building, or and cutting the brisket for holidays, just so, back to the size of grandma’s pan. Recently I have come to appreciate the power of minhag to express a community’s values and to provide a sense of identity.
The laws in this week’s Torah portion are numerous and far reaching, but communities require also something beyond law to set norms and provide an external expression of values.
About the Author:
Rabbi Melanie Aron, Congregation Shir Hadash, Los Gatos California, USA
We are sharing the sermon through the courtesy of the World Union for Progressive Judaism. We are immensely grateful to the WUPJ.