Minhag IsraelTorahHe(TheCustomof Israel

isTorah):The Role of Custom in the Formation of

Orthodoxy 1

BY IRA BEDZOW

The emergence of Orthodoxy has been associated with the adoption of ‘‘an ultra-strict standard of observance with respect to the mitsvot (commandments),including insigni¢cant customs, stringent measures and preventative measureswhose underlying justi¢cations are at best unclear, and occasionally evenproblematic, from the perspective of the Halakha’’.2 In describing Ultra-Orthodoxy,Michael Silber has argued that in trying to preserve the Jewish legal tradition,Ultra-Orthodox leaders paradoxically employed jurisprudential methods thatwere outside the accepted norm of traditionalJudaism.3

One of the clearest, and often-used, examples of Orthodoxy’s emphasis on customand stringency is that of the traditionalist rabbis’ reaction to the opening of theHamburgTemple in 1818. The controversy that surrounds the Temple’s opening isconsidered to be the ¢rst o⁄cial clash between Reform and Orthodox Judaism.4

Upon the inauguration of the Temple, the rabbinical court (beit din) of Hamburgissued a proclamation denouncing the liturgical reforms made by the Temple asheresy and sent for responsa from numerous rabbis across Europe to give legalsupport to their decree. Among the questions asked was whether it was permissibleto pray in any other language than Hebrew. The Shulhan Arukh,5 the principalhalakhic corpus used by traditional Judaism, seemingly permits a person to pray ina language other than Hebrew. The basis for this justi¢cation is found in theMishna, the Talmud, and in the writings of mediaeval halakhic decisors. Thetraditionalist rabbis, however, who responded to the Hamburg beit din,

1 In Rabbinic literature, the expression Minhag Israel Torah He, or some variant thereof, is used toreinforce longstanding customs as a determinative factor for deciding the law in the face of halakhiccontroversy.

2Moshe Samet,‘Beginnings of Orthodoxy’, in ModernJudaism (Oct. 1988), p. 250.3Michael Silber,‘The Emergence of Ultra-Orthodoxy’, inThe Uses ofTradition, ed. by JackWertheimer,New York 1992, p. 26. Orthodox Judaism is not the only denomination to be accused of creating atradition. Andreas Bra« mer in his article argues that Reform Jewry has in fact also created atradition, in ‘The Dialectics of Religious Reform: The Hamburger Israelitische Tempel in Its LocalContext 1817^1938’, LBI Year Book (2003) vol. 48, pp. 25-37.

4David Philipson,The Reform Movement inJudaism, London 1907, p. 43.5Shulhan Arukh (literally Set Table) was written by Rabbi Yosef Karo in 1563. Together with itscommentaries it is considered to be the most authoritative legal code of Jewish law.

Leo Baeck InstituteYear Book 1^24 doi:10.1093/leobaeck/ybs007

� TheAuthor (2012). Published by Oxford University Press on behalf of The Leo Baeck Institute.All rights reserved. For permissions, please email: journals.permissions@oup.com

The Leo Baeck Institute Yearbook Advance Access published June 26, 2012

unanimously prohibited praying in the vernacular. Though part of the strategy ofdefending the prohibition was in a manner typically used in a civil law system, inwhich the rabbis applied the rules found in the halakhic codes to the situation inquestion, the more predominant method of adjudication resembled that which isfound in a common law system, where the rabbis employed a strong emphasis onprecedent, relying on the principle of stare decisis, or rather its Jewish equivalent,Minhag IsraelTorah He (the custom of Israel isTorah).

This analysis will attempt to show, through the collection of the traditionalistrabbis’ responsa, entitled Eleh Divrei HaBrit (These are theWords of the Covenant),and through the Reformers’ justi¢cation for changing the traditional language ofprayer in the Berlin and Hamburg Temples, that the newly named OrthodoxJudaism did not emphasize custom over Halakhah per se. The ¢rst generation ofReform leaders did not seek to abandon the halakhic framework, or the generalprinciple of a tradition. Rather, they sought only to reject what they saw as obsoletetraditions in order to allow for a new manifestation of Judaism in modernity.6 Inresponse to the threat of abandoning long-established customs that were seen toconstitute the principal manifestations of traditional practice, the Orthodoxleaders responded by defending the established customs and by raising them to thelevel of Torah directives in order to counter what they saw as a deliberateundermining of the foundation and authenticity of the tradition.7

Before embarking upon this examination, it is necessary to write a brief wordabout its scope. The purpose of this analysis is two-fold. The ¢rst purpose is toexamine the legal debate surrounding prayer in the vernacular between theReformers and the Orthodox in order to show that the decision by the Orthodox touphold customs was not made at random; and the second purpose is to show thattheir decision to uphold customs was not problematic from the perspective of theHalakhah nor outside the accepted norm of traditional Judaism.This analysis doesnot seek to examine why the Reformers wanted to make liturgical changes, nor toexplain the in£uence of the greater social milieu which would allow Reform toarise. Therefore, describing the con£ict in terms of the German context(Verbu« rgerlichung, Akkulturation etc.) is outside the scope of this paper.8 Also, it is

6Philipson, p. 7.7Moshe Pelli,The Age of Haskalah: Studies in Hebrew Literature of the Enlightenment in Germany, Lanham2006, p. 107.

8For information regarding the development of the Reform movement within the context ofsecularization in the broader European milieu, especially as it relates to the Hamburg community,see Peter Freimark, Ina S. Lorenz, and Gu« nter Marwedel, Judentore, Kuggel, Steuerkonten:Untersuchungen zur Geschichte der deutschen Juden, vornehmlich im Hamburger Raum, Hamburg 1983; PeterFreimark, ‘Portra« ts von Rabbinern der Dreigemeinde Altona-Hamburg-Wandsbek aus dem 18.Jahrhundert’; Juden in Deutschland: Emanzipation, Integration, Verfolgung und Vernichtung, ed. byP. Freimark, A. Jankowski and I. Lorenz, Hamburg 1991; Peter Freimark, ‘ZumVerha« ltnis von Judenund Christen in Altona im 17./18. Jahrhundert’, in Theokratia, Jahrbuch des Institutum JudaicumDelitzschianum 2 (1970-1972), Leiden 1973; Peter Freimark, Die Dreigemeinde Hamburg - Altona -Wandsbek im 18. Jahrhundert alsJu« disches Zentrum in Deutschland, Berlin 1989; Peter Freimark and ArnoHerzig, Die Hamburger Juden in der Emanzipationsphase (1780-1870), Hamburg 1989; Arno Herzig andSaskia Rohde, DieJuden in Hamburg 1590 bis 1990:Wissenschaftliche Beitra« ge der Universita« t Hamburg zurAusstellungVierhundertJahreJuden in Hamburg, Hamburg 1991.

2 Ira Bedzow

important to recognize that thewishes of the general population seeking reformandthe justi¢cation for implementing reforms are two distinct factors.9 Similarly, thegoals of the traditionalist rabbis to uphold adherence to certain customs and themethod they chose to establish their opinions, namely through legal rather thanrhetorical channels, is also distinct.10 Through examining the justi¢cations forchanges by the Reform leaders and the justi¢cations for maintaining the customsby the traditionalist rabbis, I hope to show that the predominant view regardingthe adherence to custom by Orthodox Judaism is incorrect.Yet before delving intothe legal debate, it would be bene¢cial to ¢rst review the history of its cause.

DEVELOPMENT OF REFORM LITURGICAL CHANGES

On 18 October 1818, the New Israelite Temple Association of Hamburg (NeuerIsraelitischerTempelverein) opened the HamburgTemple, which provided seats for142 men and 107 women. The Association, in order to attract those Jews who hadabandoned public worship, either due to a decreasing knowledge of the Hebrewlanguage or the belief that the traditional service lacked a sense of dignity andimportance,11 incorporated a series of reforms to the Temple service. It demandedstrict decorum during worship; it emphasized attendance for the Saturday morningservice at the expense of daily worship, abbreviated the liturgy, included prayers inthe vernacular, abolished the traditional cantillation for publicTorah reading, andincluded a sermon in the vernacular during the service in lieu of a traditional half-yearly homily.12 It also composed its own prayer book to be usedby its members.13

The Hamburg Temple prayer book, or the prayer service itself for that matter,was not the ¢rst change in ritual observance produced in the spirit of Reform; itwas, however, the most comprehensive to date although it still did not completelydepart from its traditional counterpart.14 Within German lands, liturgical reform¢rst appeared inWestphalia in 1810, where the consistory of appointed rabbis for

9The fact that later Reform leaders avoided halakhic justi¢cation may either be an intentional,ideological division between religious philosophy and law, or the unconscious dissociation ofreligious sentiment from law, which was a consequence of a change in pedagogy in German-Jewishcommunities. See Andreas Gotzmann, ‘The Dissociation of Religion and Law in Nineteenth-Century German-Jewish Education’, in LBI Year Book (1998) vol. 43, pp. 103-126.

10For information regarding whether the goal of the traditionalist rabbis to uphold adherence tocertain customs was well served by the method chosen to establish their opinions see Jacob Katz,‘The Controversy over the Hamburg Temple’, Divine Law in Human Hands, Jerusalem 1998,pp. 216-254.

11 ‘Constitution of the HamburgTemple’, inTheJew in the ModernWorld: Documentary History, ed. by PaulR. Mendes-Flohr and Jehuda Reinharz, Oxford 1995, p. 161.

12 Ibid, p. 157.13For a full account of the history of the Hamburg Temple, see Andreas Bra« mer, Judentum und religio« seReform. Der Hamburger IsraelitischeTempel 1817^1938, Hamburg 2000.

14For an account of the changes to the Hamburg Temple prayer book, see Mendel I. Bresselau andSeckel I. Fra« nkel (eds.), [Seder ha‘avoda.] Ordnung der o« ¡entlichen Andacht fu« r die Sabbath- und Festtage desganzen Jahres. Nach dem Gebrauche des Neuen-Tempel-Vereins in Hamburg, Hamburg 1819; and SeckelI. Fra« nkel, Schutzschrift des zu Hamburg erschienenen Israelitischen Gebetbuchs, Hamburg 1819.

The Role of Custom in the Formation of Orthodoxy 3

the district issued a series of regulations for all synagogues under their jurisdiction.In an attempt to give the synagogue a sense of decorum and reverence in order toprevent further diminishment of synagogue membership, the consistoryminimized active congregational participation, shortened the prayer service, andremoved mediaeval additions that they deemed antiquated. The language ofprayer remained Hebrew, with only the prayer for the monarch said in thevernacular.The consistory did not issue a new prayer book, and it believed, as wellas endeavoured to convey,15 that its amendments neither violated Jewish law norcon£icted with traditional religious aspirations.16

David Friedlander, one of the most prominentJews of Berlin17 during the Reformmovement’s nascency, sought to completely break with traditional Judaism18 andconsidered the reforms made by the consistory of Westphalia to be absurd andimpotent. In response to the Prussian Emancipation Edict of 1812, he published apamphlet that called for complete reform of the liturgy, removing all elements thathe deemed nationalistic or mystical and replacing mediaeval lamentations overpersecution with more modern hymns of freedom. He also sought to remove allreference to the return to Jerusalem and the restoration of the Temple andsacri¢cial cult. Rather than being accepted as the vanguard of the Reformmovement, his ideas precluded him from playing a role in communal leadershipand he withdrew from all Jewish activities.19 Friedlander’s inability to promote acomplete break with the tradition and his ultimate withdrawal due to what hethought were half-hearted reforms and conciliation with the traditionalists conveythat the early Reformers did not seek to completely abandon halakhic jurisprudencebut rather only wanted to alter what they perceived as obsolete customs that weredeleterious to a continuing religious commitment by assimilatingJews.

The notion that the Reformers desired to portray themselves as remaining withinthe halakhic sphere is supported by Menahem Mendel Steinhardt’s justi¢cation forallowing Ashkenazi Jews to eat legumes on Passover, a clear violation of RabbiMoses Isserles’ ruling in the Shulhan Arukh. In hisDivrei Igeret (Words of the Letter),Steinhardt explains that the prohibition of legumes on Passover is nowherementioned in theTalmud nor by the early Halakhists, and he criticizes what he sawas an absolute dependence upon contemporaneous legal compendia without adeep understanding of the entire legal corpus.20 In response to the challenge that

15Philipson, p. 21.16Michael Meyer, Response to Modernity: A History of the Reform Movement in Judaism, Detroit 1995,pp. 35-36.

17Friedlander was among those who founded the ¢rst Jewish school in Berlin that taught secularstudies, and he published a German translation of the prayer book in Berlin in 1786.

18Friedlander’s radicalism is demonstrated by his 1799 ‘Epistle of Several Jewish Fathers to CouncillorTeller’, where he proposed to accept Christianity under certain conditions, which in e¡ect turnedChristianity into what he desired later to make Judaism, a universalistic system with a telos towardsmoral perfection.

19Meyer, p. 45.20 It is ironic that Steinhardt justi¢es halakhic change by asserting the necessity for legal decisions toconsider the entire legal corpus and not only a particular halakhic code, which parallels theOrthodox argument to preserve certain practices despite particular rulings found in the codes

4 Ira Bedzow

he was permitting that which was previously forbidden, he compares his stanceregarding eating legumes on Passover to the talmudic account of when Rebbireleased Beit She’an from Shemittah observance. Rebbi justi¢ed his lenient ruling,despite the fact that it contradicted previous customary practice, by saying that theprevious generations had left an opportunity for a later generation to prove itselfby making a tough, yet legitimate, legal change (BabylonianTalmud [BT] Hullin

6b-7a).21 Furthermore, Halakhists of earlier generations were fearful of their rivals:‘‘. . .but, we, the members of the consistory, because of the cry of the poor and ofthe Jewish soldiers, are not concerned on account of the sco¡ers and gossipmongers among our people’’.22

Israel Jacobson, the former president of the Westphalian consistory, andconsidered to be the founder of the Reform movement, founded a Reformsynagogue in Berlin in 1814 along withJacob Herz Beer.The synagogue ¢rst beganwith services in their respective homes, which lasted until 1823. The liturgy wasmodi¢ed but was still seen by the Reformers to be within the traditional structure.The service was conducted primarily in Hebrew, with Sephardi rather thanAshkenazi pronunciation. Michael Meyer attributes the change in pronunciationto a contemporary debate regarding whether the Sephardi pronunciation wasmore authentic. Therefore, the change demonstrated the Reformers’ contentionthat a tradition thought to be erroneous need not be maintained.23 It does notre£ect a desire to make changes without regard to the authority of tradition.

Another indication of the Reformers’ intention to de¢ne their movement as beingboth within and authenticating the Jewish tradition is the establishment in 1819 ofThe Society for the Advancement of the Science of Judaism (Verein fu« r Cultur und die

which could justify a change in practice. For more information, see Menahem Mendel Steinhardt’s‘Divrei Iggeret, Harbinger of reform’, in Proceedings for theWorld Congress of Jewish Studies 10 (1990), pp.207-214.

21Beit She’an is in the north of Israel and has played an important role historically due to itsgeographical location at the junction of the Jordan River and Jezreel Valleys. There was adisagreement over whether the area was part of the land of Israel, and thus subject to the laws ofShemittah. For a long time, it was considered to be subject to the laws, yet Rebbi allowed for itsexclusion. Shemittah, also referred to as the Sabbatical year, is the seventh year of the seven-yearagricultural cycle mandated by the Torah for the land of Israel. During the Shemittah year, the landmust lie fallow. All agricultural activityçincluding ploughing, planting, pruning and harvestingçis forbidden by Torah law. Regarding all Babylonian Talmud (BT) translations, they come fromSoncinoTalmud,1981, with some aesthetic changes, such as the removal of abbreviations.

22Meyer, p. 37. Regarding the changes made in the Hamburg Temple prayer book, David Ellensonremarks: ‘‘The fact that the Hamburg Reformers drew upon traditional Jewish practices as warrantsfor their changes is historically noteworthy, and indicates how deeply embedded they remained inthe rabbinic tradition. At the same time, this should not obscure the fact that they drew upon thesewarrants rather selectively, and that they selected them so as to forge a new Jewish communalidentity over and against the traditional rabbinic establishment and because these precedentsallowed them to compose a liturgy whose manifest content was more in keeping with their ownbeliefs than was that of the traditional Ashkenazic rite that was their immediate patrimony.’’ DavidEllenson, ‘The Israelitische Gebetbu« cher of Abraham Geiger and Manuel Joel: A Study inNineteenth-Century German-Jewish Communal Liturgy and Religion’, in LBI Year Book (1999) vol.44, p. 146.

23Meyer, p. 49.

The Role of Custom in the Formation of Orthodoxy 5

WissenschaftdesJudentums) inBerlin.HeadedbyLeopoldZunz, oneof thepreachers inthe BerlinTemple from1821-1822, theVerein aimedat identifying thehistorical originsof Jewish practice, and its perspective on theJewish tradition became the scholarlyfoundation for the second generation of Reformers.24 TheVerein, however, did notuphold the idea of objective, unbiased scholarship in its own right. Itsmain objectivewas to raise the prestige of Judaism among the German intellectual elite in order tofurther political and social emancipationthrough its anti-rabbinismand its rejectionof Talmudism.25 Regarding theVerein’s progress in achieving greater social equality,Leopold Zunz stated, ‘‘There’s nothing to be done until the Talmud has beentoppled.’’26 Zunz undertook to show that prayer in the vernacular was permittedçand even commanded in certain instancesçby all authorities, and that reformingthe traditionwould be, in e¡ect, returning its authenticity. He eventually publishedhis ¢ndings in‘TheHomilies of theJews,HistoricallyDeveloped’.27

Due to pressure fromboth the government and the traditionalJewish community,the Berlin Reformers commissioned a defence for their liturgical modi¢cations,giving as justi¢cation that their decisions were legitimate according to theHalakhah.The defence consisted of a collection of responsa, entitled Nogah HaTsedek

(Light of Justice), and included an appendix by its editor, Eliezer Lieberman, aHungarian Jew with rabbinical training. It had little in£uence in either evoking aresponse from the Berlin Jewish community or in justifying itself to thegovernment, which eventually closed the Temple and ended any sanctionedReform presence in Berlin in 1823.The responsa, and the expanded work, Or Nogah(The Shining Light), which was published in 1818, played a signi¢cant role,however, in demarcating Reform and Orthodox positions in the controversy overthe HamburgTemple, which opened in the same year as its publication.

PRAYER IN THEVERNACULAR ACCORDINGTO THE HALAKHIC CODES

In order to understand the reasons behind the Reform and Orthodox positions, it isimportant to have a grasp of the traditional halakhic discussion and the legal

24Philipson, p. 38. For an indication of Zunz’s contention that the study of Jewish history would lead tothe religious reform see his Etwas u« ber die rabbinische Literatur, Berlin 1818.

25Mordechai Breuer, Modernity WithinTradition:The Social History of OrthodoxJewry in Imperial Germany,NewYork 1992, p. 177. In the beginning of his Die gottesdienstlichenVortra« ge derJuden, Zunz writes,‘‘Mitder bu« rgerlichen Hintansetzung der Juden steht die Vernachla« ssigung ju« discher Wissenschaft imZusammenhange. Durch gro« ssere geistige Cultur und gru« ndlichere Kenntnis ihrer eigenenAngelegenheiten, wu« rden nicht allein die Juden eine ho« here Stufe der Anerkennung, also desRechts, errungen haben: auch so manche Missgri¡e der Gesetzgebung, so manches Vorurtheilgegen ju« disches Alterthum, so manche Verurtheilung neuer Bestrebungen ist eine unmittelbareFolge des verlassenen Zustandes, in welchem seit etwa 70 Jahren, namentlich in Deutschland, sichju« dische Literatur undWissenschaft des Judenthums be¢nden.’’

26Breuer, p.177; Zunz wrote this in a letter to teacher Samuel Meyer Ehrenberg, see Nahum N. Glatzer(ed.), Leopold and Adelheid Zunz. An Account in Letters, 1815-1885, London 1958, p. 13.

27See Philipson, p. 40.

6 Ira Bedzow

decision as determined by the Shulhan Arukh, before analyzing the debate over thelegitimacy of prayer in the vernacular.The Mishna enumerates which expressionsof worship may be recited in the vernacular, including in its list the recital of theShema, prayer (the Amida or Shemoneh Esreh), and grace after meals (BT Sotah 32a).With respect to the recital of the Shema, theTalmud records that while the rulingis in accordance with the majority of the sages, Rebbi disagrees and rules that therecital must be said in Hebrew (BTBerahot13a; BT Sotah 32b). Similarly, praying inthe vernacular is a matter of disagreement, albeit limited only to the use ofAramaic as a language of prayer. Rav Yehudah is of the opinion that a personshould never pray in Aramaic due to Rabbi Yohanan’s declaration that if anyoneprays for his needs in Aramaic, the Ministering Angels will not pay attention tohim because they do not understand the language. Nevertheless, the Talmudreconciles the disagreement, and in e¡ect mitigates the preclusion, by assertingthat Rav Yehudah referred only to the prayer of an individual and would agreewith the statement of the Mishna with respect to prayer of a Congregation (BTSotah 33a).

Rabbi Isaac Alfasi (1013-1103) rules that the recital of the Shema may be said inthe vernacular, and he bases his ruling on two di¡erent halakhic principles. First,when there is a disagreement of opinion in the Talmud, the Halakhah follows theopinion of the majority. Second, when the Talmud contains a Mishna that iswritten anonymously, so that it seems that it is a unanimous position, but there islater a disagreement in the Talmud over the ruling in the Mishna, the Halakhah

follows the ruling stated in the anonymous Mishna.28 Regarding prayer, RabbiAlfasi con£ates the Mishna and the pursuant discussion in theTalmud to rule thatprayer in any vernacular, and not just in Aramaic, is only acceptable when it is theprayer of the community and not of the individual.29 Because recital of grace aftermeals, and all other blessings by extension, in the vernacular was never a point ofcontention, theHalakhah permits it.

Maimonides (1135-1204) concurs with Rabbi Alfasi and rules that the recital ofthe Shema can be said in any language; however, he cautions that if a person recitesit in a foreign language, he must be as scrupulous in his enunciation of thevernacular as if he were reciting the Shema in Hebrew.30 Rabbi Abraham benDavid of Provence (1125-1198) disagrees with Maimonides and argues that since alltranslation is, in e¡ect, interpretation, there is no purpose in being scrupulous in

28TheTalmud has two components: the Mishna, the ¢rst written code of Oral Law which was writtenin 200 CE, and the Gemara or Talmud, which is an elucidation of the Mishna. The terms Gemaraand Talmud are often interchangeable. Therefore, it is possible to have a seemingly unanimousMishna followed by a section of Talmud that shows a disagreement over the ruling.

29Berahot, dapei HaRif 7a. The reason why Rabbi Alfasi ruled regarding all foreign languages and didnot forbid only Aramaic may be that he understood the talmudic discussion in a similar manner asRabbi Samuel Edeles who writes that by mentioning Aramaic, which is a language closely relatedto Hebrew, theTalmud is making an a fortiori argument for other languages.

30Hilhot Keriat Shema 2:10. All references from Maimonides that begin with Hilhot are from varioussections in the MishneTorah.

The Role of Custom in the Formation of Orthodoxy 7

reciting a translation. Regarding prayer, Maimonides’ words are somewhatambiguous. He writes as follows:

When Israel was exiled in the time of the wicked Nebuchadnezzar, they becameinterspersed in Persia and Greece and other nations. Children were born to them inthese foreign countries and those children’s language was confused.The speech of eachand every one was a concoction of many tongues. No one was able to express himselfcoherently in any one language, but rather in a mixture [of languages], as [Nehemiah13:24] states,‘And their children spoke half in Ashdodit and did not know how to speakthe Jewish language. Rather, [they would speak] according to the language of variousother peoples.’ Consequently, when someone would pray, he would be limited in hisability to request his needs or to praise the Holy One, blessed be He, in Hebrew, unlessother languages were mixed in with it. When Ezra and his court saw this, theyestablished eighteen blessings in sequence [the main prayer known as theAmida].31

Maimonides removes the emphasis on angelic understanding and replaces it withthe understanding of the supplicant. While he acknowledges that originally theform of prayer was determined by the individual,32 because of the inability ofindividuals to properly express themselves ^ clearly due to a lack of linguisticpro¢ciency ^ prayer became standardized, both in form and in language. Thepractical rami¢cation for Maimonides’ explanation is that there exists a doubtwhether Maimonides would rule that because prayer in Hebrew becamestandardized it could no longer be changed, or if only pidgin languages areforbidden, but a pure vernacular would be an acceptable substitution for Hebrew.

The most lenient perspective regarding prayer attempts to resolve the talmudiccaveat against prayer in the vernacular with the thirteenth-century custommentioned by Rabbi Yona Gerondi of women praying in languages other thanHebrew. The rabbis of France give as justi¢cation for this custom that individualsmay pray in a foreign language when their prayer is only a translation of thestandard form and not, as the Rabbi Yohanan says, for one’s personal needs. Anyprayer that uses the same supplicative form as the standard prayer, even when saidindividually and not with a quorum, is considered as a prayer of the Congregationand need not be said in Hebrew.33 Rabbi Asher benYehiel (1250-1328) resolves theissue by asserting that Rabbi Yohanan’s statement only pertained to Aramaic. Hesupports his claim by saying that angels know a person’s thoughts; therefore, theTalmud must not mean that Aramaic is unintelligible to the angels. Rather, it mustbe that Aramaic is considered abhorrent. Other languages, however, would bepermissible to use in prayer, as indicated by the Mishna.34

31Hilhot Te¢lla 1:4. Excerpts and translations of the MishneTorah are by EliyahuTouger, MishnehTorah,NewYork, 2007, and they can be accessed at the following website:http://www.chabad.org/library/article_cdo/aid/682956/jewish/Mishneh-Torah.htm.

32HilhotTe¢lla 1:1-3.33BeitYosef, Orah Hayyim 101:4.34Rosh, Berahot 2:2.

8 Ira Bedzow

Rabbi Yosef Karo (1488-1575) in his Shulhan Arukh rules according toMaimonides that the Shema may be recited in any language but that the personshould nevertheless be scrupulous in his pronunciation of the words even whenreciting it in a foreign language.35 With respect to prayer in the vernacular,Rabbi Karo gives deference to all three opinions of the mediaeval decisors. Hisruling is as follows:

One is able to pray in any language hewants, and this is regarding communal prayer butan individual may only pray solitarily in Hebrew. There are those who say that[necessity of prayer in Hebrew] only regards personal supplication of one’s needs, like ifone were to pray for [the healing of] one who is sick or has some misfortune in hishouse, but a standardized form for community worship can be stated in any languageeven by an individual when praying solitarily. There are those who say that even apersonal prayer of supplication may be stated in any language that [the supplicant]desires except forAramaic.36

As is clear fromRabbi Karo’s ruling, there is broad halakhic justi¢cation in the codesfor prayer to be said in the vernacular, both in terms of reliance upon varyinglegitimate opinions and in terms of di¡erentiating between di¡erent modes ofworship. Such £exibility in the statutory component of the Halakhah greatlyhinders the disallowing of prayer in the vernacular based solely on the reliance oflegal texts.

Because the Torah is traditionally considered to be a living, eternally relevant,authority, however, statutory legislation was never the sole component of the law.Just as the Torah was believed to have been received both in a written and anoral medium, which were complementary and of equal importance, so didHalakha develop both in the form of legal codes and as common law. The Jewishtradition, as common law, is demonstrated by the existence of common customsthat have historic continuity and are integrated into the legal corpus so as tomaintain the integrity of a single, coherent legal tradition. Justi¢cation ofcustoms thus becomes a matter of proving their deep-rooted existence.‘‘The onlymethod of proving that this or that maxim is a rule of common law’’, wrote SirWilliam Blackstone in the mid-eighteenth century, ‘‘is by shewing that it hathbeen always the custom to observe it.’’37 Despite statutory permissibility andparticular instances of prayer in the vernacular to the contrary, the generalcustom among Jewish communities was to pray in Hebrew. The custom of prayerin Hebrew has biblical roots, was o⁄cially sanctioned by the Great Assembly inthe times of Ezra, and can be shown to be continuously practised from theprayer books of the Geonim38 to the present day.

35Shulhan Arukh 62:2.36Shulhan Arukh 101:4.37William Blackstone, Commentaries on the Laws of England, vol. I, Oxford 1765-1769, p. 68.38The Geonim were the presidents of the two great Talmudic Academies in Babylonia, and wereconsidered the spiritual leaders of the Jewish community worldwide in the early mediaeval era. Theperiod of the Geonim lasted from 589 CE until 1038 CE.

The Role of Custom in the Formation of Orthodoxy 9

JUSTIFICATION BY THE REFORMERS TO INTRODUCEPRAYER IN THEVERNACULAR

The literature the Reformers used to justify liturgical changes in the Berlin andHamburg Temples attempted to portray the new practices as within the range ofhalakhic acceptability and in accord with the acceptedJewish approach towards thedevelopment of ritual practice. The two main works of the Reformers were Or

Nogah andHerev Nokemet Nekam Berit (The SwordWhich Avenges the Covenant). OrNogah was published in 1818, and contained responsa from two Italian and twoHungarian rabbis, as well as an appendix by Eliezer Lieberman.39 Herev NokemetNekam Berit was published in 1819 as a response to the Orthodox charges in Eleh

Divrei HaBrit, and was written by M.I. Bresslau, one of the two editors of theprayer book used in the Hamburg Temple.40 In Or Nogah, the traditional halakhicsources are provided in order to remove any doubt as to the statutory legitimacy ofprayer in the vernacular. In Herev Nokemet Nekam Berit the halakhic sources are citedfrom theTalmud and its commentaries to the Shulhan Arukh and its commentaries,even going so far as referencing the responsa literature. Its extensive use of halakhicsources demonstrates a desire to prove halakhic legitimacy to the proposed changeswith equal fervour as the Orthodox’s desire in Eleh Divrei HaBrit to show that theliturgical changes were prohibited.

Citing the halakhic statutes pertaining to prayer alone, however, was not deemedsu⁄cient support. The Reformers also tried to allay the broader consequences oftheir changes by showing that they did not indirectly transgress otheradmonitions. For example, both Eliezer Lieberman and Rabbi Aharon Chorinargued that because the liturgical changes were only a change in custom and not abreak with the law, the admonition of LoTitgodedu, or creating sects or factionswithin a community, did not apply.41Furthermore, the Reformers argued that evenif one could claim that praying in Hebrew was a law and not a custom, it would notmake any di¡erence, since in the event of a lack of religious commitment even abiblical law may be transgressed in order to preserveJudaism.42

The decision of the Reformers to include halakhic considerations outside of thelimited realm of prayer demonstrates that, like their Orthodox contemporaries,the Reformers understood that change in one area of law had rami¢cations for thelegal tradition in general.Though many have written about the Orthodox leaders’

39See Eliezer Lieberman, Or Nogah: Kolel Divre Hakhmah uMusar be-Inyene Avodat ha-Shem, Dessau 1818,p. 16: ‘‘After seeing that all the legal authorities permit prayer in the vernacular . . .’’. Unless notedotherwise, the citations and quotes from Eleh Divrei HaBrit, as well as from other Hebrew and/orrabbinic texts, are the author’s translation.

40Meyer Israel Bresselau, Herev Nokemet Nekam Berit, tyrb <qn tmqn brj, Dessau 1819.41 Idem, p. 21; Eliezer Lieberman et al., Sefer Nogah ha-Tsedek. Kolel She’elot u-Teshuvot . . .Derekh ha-k. odesh,Dessau 1818, p. 22.

42Eliezer Lieberman, Or Nogah, pp. 8-9; Meir Israel Bresselau and Donald B. Rosso¡, An AnnotatedTranslation of H. erebh Noqemeth Neqam Berith (Rabbinic diss., Hebrew Union College-Jewish Institute ofReligion, 1981), p. 88. For the talmudic source for this idea and how it was used in the past, see BTGittin 60; BT Berakhot 63.

10 Ira Bedzow

attempted expulsion of Reformers from theJewish community as a consequence ofwhat they saw as the Reformers’ schismatic innovations,43 few have admitted thatthe early Reformers anticipated such a response. By attempting to show that theadmonition of LoTitgodedu, or creating sects or factions within a community, didnot apply, both Eliezer Lieberman and Rabbi Aharon Chorin recognized thatmany may see the proposed changes as exactly that. The same notion applies tothe Reformers’ perception of the relationship between the letter and the spirit ofthe law. In order to show that, despite their uncritical acceptance of the codes, thedecisive authority for the Ultra-Orthodox resided not in the letter of the law, but inits spirit, Michael Silber quotes Rabbi Hillel Lichtenstein, a student of the HatamSofer and one of the three major voices of Orthodoxy in his day, who commentsregarding the talmudic passage which condones abrogating the Torah in order topreserve it, that if it applies to lenient rulings then a fortiori it should apply tostringent rulings.44 However, the same argument regarding their perception of therelationship between letter and spirit applies to the early Reformers, who, as seenabove, not only relied on the codes to justify their proposed changes, but also usedthe same talmudic dictum to support them!

The Reformers did not stop at demonstrating the permissibility of praying in thevernacular, as well as the other liturgical changes; they attempted to show why itwas bene¢cial to do so. Warning against the petri¢cation of customs, theycontended that one should not maintain a custom solely on the basis that it is long-standing;45 rather, one should recognize that no custom can last forever due to thenatural growth and change of a community over time. M.I. Bresslau gives thisargument with strong opinion:

How can ye speak so rashly saying that custom liveth a thousand years twice told,therefore its reason still stands and its sense has not departed, and it should beobserved as theTorah? No doubt, but ye are only human beings, and wisdom shall diewith you! Know ye not? Hear ye not? Have ye not understood that time andhappenstance a¡ect them all, and custom, when its reason changes, is observed inmadness.46

Eliezer Lieberman further argues that because people no longer can speak andunderstand Hebrew, their prayers have turned into curses and therefore have agreater detrimental e¡ect than just the lack of personal feelings of spirituality.47

Only by changing the language of prayer to the vernacular could the o¡encescreated by maintaining the custom of praying in Hebrew be ameliorated.

43For further examination, see Adam S. Ferziger, Exclusion and Hierarchy: Orthodoxy, Nonobservance, and theEmergence of ModernJewish Identity, Philadelphia 2005.

44Michael Silber,‘The Emergence of Ultra-Orthodoxy’, inThe Uses ofTradition, ed. by JackWertheimer,NewYork 1992, p. 36.

45Eliezer Lieberman, Or Nogah, p. 3.46Bresselau and Rosso¡, pp. 90^91.47Eliezer Lieberman, Or Nogah, p.16; Sefer Nogah ha-Tsedek. , p.18.

The Role of Custom in the Formation of Orthodoxy 11

The most inapposite justi¢cation for liturgical change used by the Reformers,giving their defence an air of specious halakhic legitimacy, and probably the reasonfor Orthodoxy’s strong reaction, was exoteric to the Jewish community. Ratherthan perceiving the necessity of change as a natural internal development, theReformers promoted transforming the traditional service in order to be morehighly considered by the Gentile world. Eliezer Lieberman thus defends thenecessity of liturgical reform:

When theministers and sages [of the Gentiles] come to our places of worship to observeour customs and to hear the words of our teachers, who instruct the people regardingthe path they are to follow, they merely hear the sound of noise in the camp of theHebrews and do not understand anything. Instead of saying, ‘They are a wise andunderstanding nation,’ they say, ‘They are a misguided and confused people, animpetuous nation.’48

Nevertheless, Lieberman does not allow his desire to be esteemed by the nations tobe perceived as one that is not authentic to traditionalJudaism. Quoting the wordsof RabbenuTam, Rabbi Bahya ibn Paquda, and Maimonides, and in referencingother major contributors to the development of theJewish tradition, he attempts toframe the necessity of reform for the purposes of assimilation as a traditionalJewish value.

JUSTIFICATION BY THE ORTHODOX TO PROHIBITPRAYER IN THEVERNACULAR

The beit din of Hamburg and the Orthodox rabbis who responded, andwhose letterscomprise the book, Eleh Divrei HaBrit, did not justify the exclusive use of Hebrew asthe language of prayer solely because of their preference for custom without anyregard for the Halakhah and its development. Rather, as any student ofjurisprudence would recognize, their decisions demonstrate their belief in thesingularity of the Halakhah and its legal tradition, which does not di¡erentiatebetween customary and statutory law in determining the proper judgement. Onecan immediately recognize that the Orthodox rabbis considered that a universal,as opposed to local, custom creates precedential constraint, even if seeminglycontrary to a statute, in the introduction to Eleh Divrei HaBrit, where the Hamburgbeit din poses its questions regarding the innovations made in the Reform HamburgTemple. Fully aware of the rulings in the Shulhan Arukh regarding communalprayer, the beit din asks the question regarding prayer in the vernacular in thefollowing manner:

At that timewe asked about this matter, tomake us aware if it canbe permissible to deferto the Reformers with respect to the customs of our prayers, and after great consideration it

48 ‘Or Nogah’, in Mendes-Flohr and Reinharz, p. 165.

12 Ira Bedzow

came from our brothers that the halakhic decision . . . that it is prohibited to praycommunally in the synagogue in any other language than the Holy Language [ofHebrew] according to the custom ofall of Israel [emphasis added].49

By asking the question as they did, the beit din avoided the necessity of defendingtheir question in the face of the ruling in the Shulhan Arukh. In essence theirquestion was: ‘‘Despite the ruling of the Shulhan Arukh, does the universal custom ofpraying in Hebrew create a binding precedent upon Israel to continue the practiceof praying in Hebrew?’’ If all that was read of Eleh Divrei HaBrit was theintroduction, scholars could make a strong argument that Orthodoxy emphasizedcustom over the halakhic code, as determined in the Shulhan Arukh; however, as theresponsa demonstrate, the Orthodox position of adhering to the universal customof praying in Hebrew combined both the demonstration of the existence ofcustomary law (common law as developed by customs) and statutoryinterpretation to determine legislative intent, conjoining the letter and the livingspirit of the law into one authentic halakhic tradition.

Because the majority of the letters give similar reasons for defending prayerexclusively in Hebrew, I will outline the general halakhic arguments rather than gothrough all the rabbis’ analyses, which di¡er more in style and length than incontent. The responsa include justi¢cations based both on strict legal analysis andas a matter of social policy. Since the largest hurdle the rabbis were forced toovercome was defending the authority of custom over a strict reading of the statutebased strictly on legal grounds, let us ¢rst go through their doctrinal argumentsbefore proceeding to those of social policy.

Doctrinal Arguments

The basic Orthodox argument for why it is prohibited to pray communally in thesynagogue in any language other than Hebrew is that the community of Israelaccepted upon itself the form and language of prayer instituted by Ezra and theGreat Assembly.50 Furthermore, the situation giving reason for Ezra to establishthe language of prayer, where the Jews lived under the same kingdom and spokethe same vernacular, is analogous, if not a fortiori, to the contemporaneoussituation, where the Jews lived in di¡erent communities and spoke di¡erentvernaculars.Therefore, one cannot di¡erentiate between the precedent set and thesituation at hand.51 Because prayer in Hebrew has become the accepted custom,one cannot change it. This is justi¢ed by two halakhic principles, ‘‘the custom ofIsrael isTorah’’and ‘‘all whomake a change [in practice] are at a disadvantage’’.52 Itis further reinforced by the admonition in Proverbs: ‘‘Do not forsake your mother’sTorah’’. The following statement made by Rabbi Hertz Scheuer of Mainz

49Introduction, Bet DinTsedek (Hamburg, Germany), Eleh Divre ha-Berit: . . . u-fesak. din asher yatsa mi-piBet din tsedek. de. k.k. Hamburg . . . le-hafer dat h. adashah, Al.ona 1819.

50Eleh Divre ha-Berit (EDB), Letters 2, 3, 5, 16, 18, 21.51EDB, Letter 18.52See BT Bava Metsia 75b-76a and its commentaries.

The Role of Custom in the Formation of Orthodoxy 13

eloquently epitomizes the Orthodox argument, albeit with a stronger emphasis onlocal custom than generally presumed:

And so, it is prohibited to change any establishedcustom, not only thosementioned in theTalmud that are in all domains, even all the customs of particular countries, and allkehillot, that have been received from early times, from the days of our fathers and ourfathers’ fathers. And this is as what is written by our sages, of blessed memory, ‘Becareful with the customs of your fathers, etc.’53 as it says at length in the Chapter ‘Mi

Shenahagu,’54 unless it is absolutely clear from its inception that it is an erroneouscustom. And as it is said there [in reference to the above Talmudic passage] in the[writings of the] Rosh [Rabbi Asher benYehiel] and other halakhic decisors, that evenin permissible matters where others have made it the custom to prohibit those generallyestablished customs, there is no recourse to change or to nullify any of them, and aboutthem it is said,‘Do not forsake your mother’sTorah.’ So says the wise King [Solomon] inEcclesiastes, ‘Whoever breaks through a wall may be bitten by a snake.’And so writesMaimonides in his introduction of Seder Zeraim, that [these warnings] refer to onewho contravenes ordinances or customs, even if [the contravention] neither diminishesnor adds [to the accepted practice], a fortiori [if the contravention is] by somethingde¢cient or [it is a contravention] to that which has already been legally established.55

According to the Orthodox position, the history of Jewish practice is not a series ofadaptations so that Judaism can better acclimatise to its environment. Rather,there exists a unitaryJewish tradition, passed from generation to generation, whichadjusts when necessary, but only through halakhic channels and with halakhic

permissibility.56 TheJewish tradition determines which practices are acceptable forthe Jewish people; Jewish practices are not accepted solely because one may ¢ndjusti¢cation for them in the halakhic cannon.

Because the Reformers attempted to justify praying in the vernacular by claimingits halakhic validity via the di¡erentiation between custom and law, in order toconvey the cohesiveness of the entirety of theJewish tradition the Orthodox rabbishad to show that the custom of praying in Hebrew did not con£ict with thestatutory ruling but rather conformed to its true legislative intent. Their generalinterpretation of the Shulhan Arukhçand its legal background as found in theMishna,Talmud, and medieval halakhic decisorsçis that while it is permissible topray in the vernacular, the only instance in which the ruling applies is when theone praying does not understand Hebrew and is praying casually and not as part ofa regular regiment.57 The rabbis support their contention that praying in the

53BT Beitsah 4b; This reference is to observing two days of festival in Exile despite the fact that thecalendar had been ¢xed and the reason for the custom no longer applied.

54This should actually be Beitsah SheNolad.55EDB, Letter 2.56The most common justi¢cations for change in the Halakhah are: ‘‘The Torah is not in Heaven’’, and‘‘Eit la’asot laShem, hefeiruToratecha’’, which has been given the two-fold connotation of ‘‘It is time toact for God, they have violated your Torah’’, and ‘‘It is time to act for God, violate your Torah!’’.While a discussion of how and why halakhic decisors may justify changing the halakhic traditionwould give better understanding of the emphasis on customary law in Orthodox jurisprudence, it isoutside the scope of the present study.

57EDB, Letters 2, 3, 4, 8, 10, 14, 16, 17, 18, 20.

14 Ira Bedzow

vernacular is not an ab initio ful¢lment of one’s obligation with the fact that theGreat Assembly established the standard form of prayer to be in Hebrew eventhough the Jews of the time neither spoke Hebrew in every day conversation norwere they even able to properly communicate in Hebrew without mixing otherlanguages into their speech. If, they claim, praying in the vernacular wasfavourable, why would Ezra and the prophets of the Great Assembly not establishonly the form of prayer and leave the language of prayer to the discretion of thesupplicant?

Moreover, they argue, the custom described by Rabbi Yona Gerondi and theFrench rabbis substantiates this interpretation because women were not as wellversed, to say the least, in Hebrew during the time their particular customdeveloped. Therefore, they were allowed to pray in the vernacular ex post facto inorder to ful¢ll their obligation to pray.58 Women are also not included in a quorum;therefore, their prayers would automatically not be part of a set regiment butrather would be considered casual occurrences. Hypothetically, even if there weresupport for vernacular communal prayer based on the assumption that the entirecommunity did not understand Hebrew,59 one could still not rule leniently sincethere were teachers who could teach the Hebrew language, and standardized andwell-published prayer books, and numerous commentaries which would help eventhose with weak language skills still be able to understand the meaning of theprayers in Hebrew.60 As such, praying in Hebrew is a custom with a strongfoundation in theJewish tradition and with not any statutory con£ict, and thus ‘‘thecustom of Israel isTorah’’.

The halakhicprinciples of ‘the customof Israel isTorah’and‘allwhomake a change[in practice] are at a disadvantage’, as well as the admonition,‘Do not forsake yourmother’sTorah’, are not modern innovations used by Orthodoxy to counter halakhicdistillation by the Reformers. The relationship between customary precedent andhalakhic codes has existed since the giving of the Torah,61 and is well documentedthroughout theJewish legal tradition.62

58EDB, Letters 2, 13, 14.59EDB, Letter 20.60EDB, Letters 4, 20.61A law that has no o⁄cial source in the Written Torah but is nevertheless considered as a laworiginating from theTorah is called a Halakha L’Moshe MiSinai.

62For a selection of rulings among the mediaeval halakhic decisors which use a form of ‘‘the custom ofIsrael is Torah’’, or ‘‘the custom uproots the Halakhah’’, see the following: Rabbi Simha ben Samuel(died 1105), Mahzor Vitri, Siman 226; Rabbi Eliezer ben Nathan (born 1090), Responsa Ra’avan,conclusion; Rabbi Jacob ben Meir Tam (1100-1171), Sefer HaYashar (The Book of the Upright), Siman537; Tosafot of Talmid Rabbenu Tam (12th-14th cent.), Bava Kama 38a; Rabbi Elazar of Worms (born1160), Sefer Rokeah, Hilkhot Berakhot, Introduction; Rabbi Yitzchak ben Rabbi Moshe (1180 - 1250),Sefer Or Zarua, Helek II, Hilkhot Kriat Arba Parshiyot u’Moadim, Siman 393; Rabbi Mordechai benHillel (1240 - 1298), Sefer HaMordechai, Bava Batra Chapter Lo Yahpor; Rabbi Shem Tov ben RabbiAbraham ibn Gaon (born 1287), Migdal Oz, Hilkhot Te¢lla Chapter 12, Hilkhot Eruvin Chapter 1;Rabbi Joel Sirkes (1561 - 1640), Bach, Orah Hayyim Siman 596,Yoreh Deah Siman 97; Rabbi Moses benIsrael Isserles (1525 - 1572), Darkhei Moshe HaKatzar, Yoreh Deah Siman 39, 242. The citations are bychapter or Siman, as it is customary to cite Jewish (Hebrew) law books in this manner.

The Role of Custom in the Formation of Orthodoxy 15

Custom can supersedeHalakhah in three possible ways.63 If a custom develops fora certain reason which no longer applies, yet the customary practice continues tobe an obligation despite halakhic permissibility to the contrary, then custom hasreplaced statute in determining the law. Similarly, if a custom develops without aparticular reason and has become an accepted practice, then it also supplants thestatutory legislation. The most obvious example of customary law surpassing theauthority of its statutory counterpart is when there exists a custom that directlycontradicts a statute, and the statute cannot be interpreted so as to be consistentwith the custom, yet, nevertheless, the custom establishes the rule by which thecommunity must act.

TheTalmud records cases of each of the three possibilities. As alluded to above byRabbi Hertz Scheuer of Mainz, during the time when the calendar was dependenton visual witness of the new moon, the custom developed for communities in theDiaspora to observe two festival days instead of the requisite one day as decreed bythe Torah. The reason for the custom was because the community in Israel couldeasily be informed whether the new moon was consecrated by the Sanhedrin inJerusalem on the thirtieth or thirty-¢rst day; however, those in the Diaspora werenot as easily noti¢ed due to distance and external interference. Therefore, becauseof the possible doubt of when the month would be consecrated, Jews in theDiaspora kept the appointed festival day for two days in order to be sure that thecorrect day was observed. When visual con¢rmation of the new moon was nolonger a practice for calendrical calibration, the custom was no longer necessaryand should have been discontinued in favour of following the original halakhicrequirement of observing one day. When abandonment of the custom wasproposed, however, its practice was reinforced with the warning to ‘‘give heed tothe custom of your fathers’’. (BTBeitsah 4b)

An example of customary law replacing legislation in the establishmentof a rule isthe performance of Halitsa (literally ‘‘drawing o¡’’, the performance which annulsthe obligation of Levirate marriage).When a woman is widowed and left withoutchildren, the deceased husband’s brother must either perform Yibbum (Leviratemarriage), whereby he would marry the woman and the ¢rst born child of theirunion would continue the namesake of the deceased, or Halitsa, which is a formalprocedure that releases the Yibbum obligation. The Torah describes the Halitsa

procedure as having the widow remove the brother’s shoe from his foot, and thenspitting in his face. She then states, ‘‘So shall it be done to the man that does notbuild up his brother’s house’’. (Deuteronomy 25:9) Regarding the brother’s

63Tractate Soferim (14:15) gives the parameters for the concept that ‘‘a custom can nullify the Halakha’’ inthat it must be an ancient custom that can be justi¢ed by the Torah and not one that solely resultsfrom social preference and rational justi¢cation. This idea is also mentioned in JerusalemTalmud,Bava Metsia 27b (hyu?whbr). See Beit Yosef, Yoreh Deah 1:1 (1); 259:2 (4), 3 (2); and Hoshen Mishpat46:3-5, 7 (1); 201:2; 232:19 and their corresponding Halakhot in the Shulhan Arukh for furtherelucidation as to how this concept has determined the Halakha.

16 Ira Bedzow

required footwear for the e⁄cacy of the procedure, theTalmudquotes the followinglegal opinions:

Rabbah stated in the name of Rabbi Kahana in the name of Rav: If Elijah shouldcome and declare that Halitsa may be performed with a foot-covering shoe, he wouldbe obeyed. Were he, however, to declare that Halitsa may not be performed with asandal, he would not be obeyed, for the people have long ago adopted the custom [ofperforming it] with a sandal. Rabbi Yoseph, however, reported in the name of RabbiKahana in the name of Rav: If Elijah should come and declare that Halitsa may notbe performed with a foot-covering shoe, he would be obeyed. Were he, however, todeclare that Halitsa may not be performed with a sandal, he would not be obeyed,for the people have long ago adopted the custom [of performing it] with a sandal.64

The practical rami¢cations with regards to the legality of using a foot-covering shoeaside, the rabbis a⁄rm that the custom of using a sandal for the Halitsa procedurehas become a ¢rmly acknowledged law. Reference to Elijah does not imply thesupremacy of the sages to the prophets in jurisprudence nor is it an allusion to thenotion that prophets cannot add or subtract laws from theTorah. In theTalmud, alllegal disagreements that cannot be resolved are said to be left for Elijah to comeand to settle. If, when Elijah comes, he is unable to discredit the use of a sandal forHalitsa, it means that there is no legal dissent in relation to the validity of thecustomary law.65

The strength of a custom in supersedinga halakhic ruling di¡ers depending on theparticular area of law. With regards to monetary matters, a custom has theauthority to both permit that which is considered prohibited by the halakhic codes,and to forbid a legally permissible action. In areas of a religious, as opposed to acivil, nature customs may only implement stringency, forbidding that which isacceptable to Halakhah. Rabbi Solomon ben Simon Duran (c.1400-1467) explainsthis principle in the following manner:

The principle that a custom supersedes the lawapplies only to one that does not involve aforbidden act. But [a custom may not supersede the law if it involves] the abrogation ofa prohibition. Know, for the Talmud says in the ¢rst chapter of [Tractate] RoshHaShana,‘In the face of a prohibition do we permit people to persist in their customarybehaviour?’. . .And the matter is self-evident, for if we would abrogate a prohibitionbecause of a custom, all prohibitions would be abrogated one by one, and the Torahwould become null and void, God forbid.66

64BTYevamot 102a.65 Jerusalem Talmud, Yevamot 66a records the discussion regarding the performance of Halitsa with asandal, albeit with di¡erent students speaking in the name of Rav. Besides the di¡erences in who isspeaking, the discussion in the JerusalemTalmud expands upon the reason of Rav. It agrees with itsBabylonian counterpart that the reason is that people have long ago adopted the custom ofperforming Halitsa with a sandal, but legitimizes the custom with the statement that ‘‘the customnulli¢es the Halakhah’’. From this statement, one may assume that the use of the sandal wasoriginally deemed to not be acceptable for the performance of Halitsa but gained acceptancethrough customary practice despite the Halakhah.

66Responsa of Rashbash, no. 419. Author’s translation. See also Responsa no. 562 where hedi¡erentiates between monetary and religious areas of law.

The Role of Custom in the Formation of Orthodoxy 17

TheTalmud records an incident where Rav saw a man sowing £ax on Purim andcursed him so that his £ax would not grow. Rav’s action was questioned because itwas understood that, according to the Halakhah, one is allowed to work on Purim.The Talmud explains the seemingly contemptible action by explaining that Ravonly intended to enforce the legitimacy of a custom, since working on Purim is ofthe ‘‘things which are permitted but others have made a custom of abstaining fromthem’’. (BT Megillah 5b)67 The Talmud even uses the admonition in Proverbs tojustify following a stringent custom over a halakhic permissibility. In this case, thematter in question regards whether something is kosher to eat:

Rabbi Yohanan said to Rabbi Shaman ben Abba,‘Crushed testicles are permitted, butyoumust not eat them for it is written,‘‘Forsake not the teaching of your mother’’.’68

The Shulhan Arukh records both the halakhic permissibility and the stringent custom,with the explanation that even though it is not forbidden by theTorah, one may noteat them since it has become the custom of Israel to refrain.69

Custom plays a considerably in£uential role in the history of liturgicaldevelopment. Already in the ninth century in communities where everyone whowould be called to theTorah would have to read the section for himself and couldnot appoint a representative to read on his behalf, Rabbi Natronai, Gaon of theacademy at Sura, ruled that if there were not enough men who knew how to readfrom the Torah, those who could read should be called to the Torah more thanonce. Normally, one would have to worry about pronouncing a gratuitous blessingand thus saying God’s name in vain, which is one of the prohibitions in the TenCommandments. Rabbi Natronai permits the action, however, because the customhas been established for seven Aliyot, each with the requisite blessings, and ‘‘oneshould not nullify a custom of Israel’’.70

During the repetition of theAmida, the central prayer in the liturgy, theKohanimwould gather to bless the congregation. The Talmud relates that based upon theintroductory verse for the priestly blessing which states: ‘‘Thus shall you bless thepeople of Israel. Say to them . . .’’ (Numbers 6:23), Abbaye asserts that there is atradition that the communal representative who recites the repetition of the Amidaexclaims ‘‘Kohanim!’’ when two (at least) are present but he does not exclaim‘‘Kohen!’’when there is only one to bless the congregation.TheTalmud continues toa⁄rm that the Halakhah is in accordance with Abbaye’s position (Sotah 38a-b),and Maimonides’MishneTorah and the Shulhan Arukh rule in kind.71 Nevertheless,Rabbi Simhah ben Samuel, who composed the MahzorVitry in the twelfth century,writes that where only one Kohen goes up to bless the congregation it has become awidespread custom that the communal representative recites ‘‘Kohanim!’’ for him,

67See Shulhan Arukh, Orah Hayyim 696:1, which mentions that in areas where there is a custom to abstainfrom work on Purim, the custom overrides the halakhic permissibility to do so.

68BT Hullin 93b.69Shulhan Arukh,Yoreh Deah 62:4.70Responsa of Rav Natronai Gaon, Orah Hayyim, Siman 43.71HilkhotTe¢llaVeNesiat Kapaim 14:8; Shulhan Arukh, Orah Hayyim 128:10.

18 Ira Bedzow

even though the Talmud rules otherwise, and the word is plural. Nevertheless,despite being grammatically incorrect, he recommends that communities shouldstill continue the practice.72 In Ashkenazi communities, the custom mentioned intheMahzorVitry is still the norm.

For one ¢nal example of how custom has shaped the liturgy (although one can¢nd many more instances of customary in£uence), Rabbi Yosef Karo, in his BeitYosef, discusses the correct congregational response during the recital of theKaddish. After mentioning a number of legal opinions, he writes,

It seems to me that one should not change the established text [of the Kaddish] that wasestablished by the sages for any reason of [textual] interpretation and since we receivedfrom our ancestors to say [it the following way] . . . anyone who makes a change [inpractice] is at a disadvantage.73

TheOrthodox rabbis who sought tomaintainHebrewas the language of prayer didnot introduce the idea of a binding customary tradition with respect to the liturgy;they were just the latest in having to defend it against those who denied its existence.

Before proceeding to reasons of social policy, there is onemore legal principle thatmust be discussed, as it pertains to the historical continuity of the Jewish traditionand is mentioned by Rabbi Moses Sofer in defending the sole use of Hebrew forprayer.74 Regarding the authority of later courts in relation to the actions ofprevious courts, Maimonides writes:

Whenacourt issuedadecree, institutedanedict, or establishedacustomandthis practicespread throughout theJewish people and another court arose and sought to nullify theoriginal order and eliminate the original edict, decree, or custom, [the later court] doesnot have [this authority] unless it surpasses the original court in wisdom and in itsnumber. If it surpasses the original court inwisdom, but not in number, or in number butnot in wisdom, it cannot nullify its rulings. Even if the rationale for which the originalcourt instituted the decree or edict is nulli¢ed, the later court does not have the authorityto negate [their rulings] unless they are greater than them. How is it possible that [thelater court] will surpass [the original court] in number, since every [Sanhedrin] consistsof seventy-one judges? [The intent is] the number of sages in the generationwho consentand accept the matter stated by the great court without opposing it. When does theabove apply? With regards to matters that were not forbidden to create a safeguard forthe words of Torah, but rather [resemble] other laws. [A di¡erent principle applies,] bycontrast, with regard tomatters which the court thought necessary to issue a decree andcreate a prohibition as a safeguard. If the prohibition spread throughout the Jewishpeople, another great court does not have the authority to uproot [the decree] and grantlicense even if it was of greater stature than the original court.75

Rabbi Abrahamben David disagrees with Maimonides on two counts. He is of theopinion, basing his view on the discussion of the eighteen rulings of Beit Shammaithat were accepted over those of Beit Hillel (BT Avodah Zara 36a), that once

72MahzorVitry, Siman 130.73BeitYosef, Orah Hayyim 56. Author’s translation.74EDB, Letter 3.75Hilhot Mamrim 2:2-3.

The Role of Custom in the Formation of Orthodoxy 19

a decree has gained widespread acceptance, it may not be nulli¢ed even by Elijahand his future court. He does, however, concede that if the rationale for an edictor decree has been nulli¢ed, the edict or decree can be nulli¢ed even by a courtwhich is lesser than the one which instituted the measure. Leaving aside thenecessity of reinstituting the Sanhedrin, because the form and language ofprayer was established by Ezra and his court and spread throughout the nationof Israel, it would seem that the ruling in the Shulhan Arukh would be irrelevantbased upon the reasoning of Rabbi Abraham and also upon the view ofMaimonides if the reason for the custom was to protect adherence to the Torah.Rabbi Sofer is more lenient than Maimonides and maintains that even if the beitdin established a practice to safeguard the Torah, if the rationale for thesafeguard no longer exists, a court of greater stature may nullify the previouscourt’s decree.76 Because the Reformers denied the necessity of the traditionalSanhedrin, for the Orthodox to defend the binding nature of previouslyestablished customs without allowing for a £ippant dismissal by a beit din thatarrogates the authority to nullify customs they considered no longer warranted,they must demonstrate that the rationale for the custom still applies and is vitalto the maintenance of the Jewish tradition.

Argumentsof Social Policy

In defending Hebrew as the language of prayer, the Orthodox rabbis emphasizedthose values that the Reformers rejected ^ nationhood and traditional education.The two o¡ences which were committed by praying in the vernacular were‘‘separating from the community’’77 and ‘‘you shall not form separate sects orfactions’’.78 The Talmud intimates that one who separates from the community isone who says,‘‘I will go to my house and I will eat and drink and all will be wellwith me’’, while the community is in trouble, and it makes no mention of anycriteria of Torah observance. (BT Ta’anit 11a) However, in the Shulhan Arukh onewho separates from the community is de¢ned as one who removes the yoke of thecommandments from his neck and does not include himself in the community ofIsrael but rather sees himself as an independent man and like the rest ofhumanity.79 As the de¢nition in the Shulhan Arukh is interpreted by the Orthodoxrabbis, adherence to the commandments and including oneself in the communityof Israel is one and the same. The traditional manner in which the Torah ispractised is the Jewish way of life; to break from traditional Jewish practice meantfor Orthodoxy to break away from theJewish community.

By using the admonition of not forming sects or factions, the Orthodox rabbismay have been allowing for the possibility of halakhic sanction for praying in thevernacular while still prohibiting it based on the necessity of communal cohesion.The prohibition of forming sects or factions applies when two Jewish courts are

76Hatam Sofer,Yoreh Deah, Responsum 13.77EDB, Letters 2, 8.78EDB, Letters 8, 14, 21.79Shulhan Arukh,Yoreh Deah 365:5.

20 Ira Bedzow

established in a city, whereby each court maintains its own unique customs.80 Suchan environment inevitably creates social con£ict and a breakdown in communalunity, which could ultimately result in the dissolution of the Jewish nation. RabbiYaakov Loberbaum expresses this point in the following way:

Whenwe begin to allow ourselves to change the customs of our fathers in any way, whowill be able to restrain us from [allowing ourselves] to do whatever we wish? Today weallow it one way, tomorrow will bring an opinion which rejects that way. Each andevery one of us will abolish the tradition of our fathers until there is nothing left, whichwill result in the loss of faith and our excision, God forbid.81

Where the Reformers were attempting to replace the national character of Judaismwith universal sentiments and individual religious edi¢cation, the Orthodoxdemanded that only through communal unity and national identi¢cation wouldJudaism exist.

From an educational perspective, the Orthodox defence of Hebrew as a languageof prayer served a two-fold purpose. The ¢rst reason for the necessity of Hebrewand the rejection of the vernacular was to avoid the total loss of Hebrew as thelanguage of the Jewish people. The Constitution of the HamburgTemple justi¢edreform‘‘since public worship has for some time been neglected by so many, becauseof the ever decreasing knowledge of the language in which alone it has until nowbeen conducted . . .’’.82 Rather than have people either attend a service in whichthey felt they could not participate or have them not attend at all, the Reformersdesired to institute what they believed were the requisite changes in order ‘‘torestore public worship to its deserving dignity and importance’’.83 The Orthodox,on the other hand, sought to increase the level of Hebrew pro¢ciency rather thanadulterate what they saw as the authentic, traditional service. Simply stated byRabbi Sofer, ‘‘If the commoners do not understand Hebrew, it would be better todecree that everyone learn Hebrew and pray in that language than to decree thatpeople pray in the vernacular.’’84 Furthermore, as explained by Rabbi YaakovLoberbaum, translating the prayers from Hebrew into a foreign languagenecessitates a certain degree of distortion of the original meaning due to linguisticinterpretation.Therefore, those who pray in the vernacular will not only forget theHebrew language, they will also be unable to convey the traditional meaning ofthe prayers and will allow foreign ideas to permeate into the traditionalsupplication.85

According to theOrthodox, the value of preservingHebrewdoes not only bene¢tcommunal worship. The entirety of the Jewish tradition bases itself uponknowledge of theJewish canon.Were someone to reject Hebrew, only to familiarize

80BTYevamot 14a; Hilhot Avodat Kokhavim 12:14.81EDB, Letter 19. Author’s own translation.82 ‘Constitution of the HamburgTemple’, in Mendes-Flohr and Reinharz, p. 16183Ibid.84EDB, Letter 3.85EDB, Letter 19.

The Role of Custom in the Formation of Orthodoxy 21

himself with contemporary European languages, he would be unable to becomefully acquainted with his own tradition. The fears of the Orthodox in this matterwere proven correct by the history of Jewish Enlightenment education. Leaders ofthe Enlightenment had begun a campaign for the introduction of secular studiesinto Jewish education. Naftali Herz Wessely described secular studies as ToratHaAdam (the teachings of man), which he believed was anterior toTorat Elohim (theteachings of God) and should therefore be acquired ¢rst in order to prepareoneself to learn God’s Torah.86 Wessely’s ideas of educational reform weresupported by Moses Mendelssohn and his disciples and were expanded upon bythe ¢rst generation Reformers, who in their youth attended schools modelled onWesseley’s ideas. By the time of the opening of the Hamburg Temple, theproportion of traditional Jewish studies to secular studies completely reverseditself.87 With this background in mind, Rabbi Mordechai Banet rejected theadoption of prayer in the vernacular with the following critique:

Besides all this, it is not proper to pray in any languagebutHebrew, for if this were not so,theTorah will expire, God forbid, because these days the youth have become negligentin their Hebrew studies and the language of Hebrew is falling in the depths offorgetfulness since it has no usefulness at all, not to study Torah, Talmud, or halakhicdecisors since they have placed themselves in the corner of this world [and not theworld to come through the ful¢llment of the commandments], and not to learnTanakh,since it has already been translated into German. If prayer would also be inanother language, one that is spoken by this nation, in the future Hebrew will beforgotten by Israel.88

Prayer had become the last avenue in theJewish tradition where Hebrew was bothnecessary and utilized. Its Orthodox defenders could not allow what they saw asthe last connection to tradition to be severed.89

Although the existence of precedential customs was not a new discovery by theOrthodox defenders of tradition, the vehemence with which they argued for themaintenance of established norms does bespeak of a reactionary phenomenon.Customs are habitual practices followed by a people; if the practice is no longerfollowed, the strength of the custom declines commensurately.90 The question

86 ‘Divrei Shalom veEmet’, in Mendes-Flohr and Reinharz, p. 70.87With the advance of German as the language of written and oral communication among the Jews inGermany, familiarity with Hebrew declined not only among Liberal Jews, but even among theOrthodox. See MaxWeinreich, Geshikhte Fun DerYidisher Shprakh, NewYork 1973, vol. 1, pp. 251-320.

88EDB, Letter 4. Author’s own translation.89Interestingly enough, Seckel Isaac Fra« nkel, the other of the two editors of the prayer book used in theHamburg Temple, gave as a reason why Hebrew was retained for certain portions of the servicethat it would prevent Hebrew from being forgotten and that a total abandonment of Hebrew wouldlead to the suspicion that Judaism would eventually be abandoned as well. See Jakob Petuchowski,Prayerbook Reform in Europe, NewYork 1968, p. 53, for more details.

90A few examples of customs that have been abandoned and/or replaced are the following: (1) Thecustom of putting ashes under the te¢llin of a groom has been replaced with him breaking a glasscup after the recital of the marital blessings (Kol Bo, Hilhot Ta’anit, Siman 62); (2) The custom of amourner turning over his bed and covering his head are no longer practised; the custom of whenthe mourner removes his shoes has also undergone changes (Arukh HaShulhan,Yoreh Deah 375:5); (3)The custom of re-interring the deceased into a family plot after the body has fully decayed is no

22 Ira Bedzow

therefore remains: even if therewas a customof praying solely in Hebrew and not inthe vernacular, why must the rabbis feel the need to so earnestly uphold a practicethat had begun to subside? The answer may be found in the responsum of a youngercontemporary of Rabbi Sofer, who also had to contend with the abolition ofliturgical practices by the Reformers. Although not dealing with the same type ofdrastic changes as those made in the HamburgTemple, he writes the following:

Certainly there is no intrinsic damage in the abolition of these customs. But considerthe great controversies caused in our time by the abolition of these customs inGermany, so that many communities were split, and separate synagogues werecreated, and the two sides are still locked in noisy battle. See now, in our land and inmost of the districts of Poland and Russia the saying of yotserot and piyyutim have beenabolished these many years and this caused no dissension. The reason for this wasthat they were not abolished by loud announcements, nor was there public discussionof it, nor were special societies set up for this purpose, nor were synagogue relationsdrawn up. For we have always known that all such customs that do not accord withthe age and the place do not endure against the passage of time. And the wise men ofour generation in our areas guided us . . . to stand aloof, neither opposing norfavoring these changes, but to let each do as he pleases . . .But the public andsectarian approach is harmful for many reasons, for the masses . . .who cannotdiscriminate between a custom based on the law of the Torah and an insigni¢cantcustom, who think that he who questions any custom ^ even a stupid custom ^ is adenier of God, when these masses see the public . . . abolition of [an] old custom, theyare drawn to the most damaging idea that even the ¢xed laws of the Torah are alsosubject to the will of the Sages who may do to them as they see ¢t . . . .91

Rabbi Tsevi Hirsch Chajes not only recognizes that the general authority of acustom is limited to its adherence, but he is keenly aware that the tradition, and thecustomary law, must undergo a natural evolution in order to preserve itsauthenticity. The desired changes by the Reformers, however, were not a result ofnatural development, despite the fact that they justi¢ed change as for the purposesof attracting assimilated Jews who no longer observed these practices. Rather, theReformers made a very public and deliberate e¡ort to institute change.

The reason why the Orthodox ‘‘made its ¢rst public appearance as an organizedmovement in response to the challenge posed by this revolutionary experiment’’92

of the founding of the HamburgTemple is because this was the ¢rst time that theReformers challenged the unity of the tradition through public and institutional

longer practised (Responsa Hatam Sofer, Helek 2, Siman 333); (4) The custom of using the years of thecountry’s monarch’s reign on deeds of divorce and contracts for the purposes of social peace, which ifnot done invalidated the document, was replaced with dating documents according to the years ofCreation (Arukh HaShulhan, Even HaEzer127:43).

91Kol Sifrei Maharatz Hayyot, I, 238; quoted from Gerald Blidstein,‘Early Reform and Its Approach’,inTradition (Fall 1970), p. 87.

92Samet, p. 255.

The Role of Custom in the Formation of Orthodoxy 23

means. The beit din of Hamburg gives the following reason for distributing theresponsa prohibiting the HamburgTemple’s liturgical reform:

Beholddue to our sins over thesemany years, men fromthe children of Israel have begunto scorn the word of God, the words of the Sages, of blessed memory, the masters of theMishna and Gemara, and break through the fences that we have made [around thelaw] . . .However, with all of this they did not break from the community to make theirown sect and to pronounce to the hearts of the children of Israel to publicly change thecustoms of Israel and the faith of our holyTorah, God forbid.

Yet today the ignorance of Israel spreads, because these men began to gather togetherand to make enactments of darkness to change the customs of Israel against the wordsof the holy Sages, of blessed memory. They are joining in wicked and evil companies,prompting them over committing transgressions saying to them that the path on whichthey walk is good, and hardening their hearts to remain steadfast in their rebellion.93

Orthodoxy did not react in a public, dogmatic fashion because there were those inthe community who did not uphold the tradition. On the contrary, the existence ofindividuals who did not uphold the tradition was perceived as a collective failure.Only when there emerged an established group of people who deliberatelyattempted to change the tradition, as opposed to individuals who recognized itsauthenticity yet chose not to adhere to it, did Orthodoxy emerge to defend it.

While this analysis is too limited in its scope to come to any de¢nite, all-encompassing conclusions, one must recognize that the arguments around theHamburg Temple controversy do not support the contention that Orthodoxyshould be associated with preference for custom without regard to halakhic

legitimacy. Orthodoxy, in contrast, should be associated with the upholding oftradition, with preserving and defending the unity of the customary and statutoryHalakhah against opposition.When that tradition is allowed to naturally progressthrough the ages, so as to maintain its authenticity, customs that do not accordwith a particular age and place do not endure against the passage of time.Whencondemned as obsolete and threatened to undergo a calculated rede¢nition,Orthodoxy will defend the traditionby asserting that ‘‘the customof Israel isTorah’’.

93EDB, Introduction. Author’s own translation.

24 Ira Bedzow