A long-lasting breach

AP photo by Kevin Frayer

Recently I linked to Chakira�s post about Rabbi Hayyim Hirschensohn. There is a reference there to an article in the Edah Journal by Marc Shapiro.

(I am now going to quote parts of the article verbatim)
The most interesting, and radical, of [Rabbi Hayyim Hirschensohn�s] proposals�: "Are we at present able to find a heter for some rabbinic prohibitions, based on the principle that a decree that has not spread among most of the community can be voided by a lesser Beit Din [than the one that instituted it]?" The basis for this suggestion is Maimonides' ruling (Mishneh Torah, Hilkhot Mamrim 2:6-7):

If the court has issued a decree in the belief that the majority of the community could endure it, and after the enactment thereof the people made light of it and it was not accepted by the majority, the decree is void and the court is denied the right to coerce the people to abide by it. If after a decree had been promulgated, the court was of the opinion that it was universally accepted by Israel and nothing was done about it for years, and after the lapse of a long period a later court investigates the doings of Israel and finds that the decree is not generally accepted, the latter court, even if it be inferior to the former in wisdom and number, is authorized to abrogate it.

Traditionally, this halakhah has been understood to mean that if, at the time of the decree, the people never accepted it, then it can be revoked. What [Rabbi Hayyim Hirschensohn] suggested was that since it is the Jewish people who, at the end of the day, decide if a decree is to be binding, then perhaps this authority does not only apply to the first generation, but for all time. In other words, the Jewish people have a continuing role in ensuring the validity of rabbinic legislation. Therefore, if the Jewish population�and he has in mind those who are generally observant�chooses to ignore a rabbinic decree that in years past was accepted, then this very lack of observance, which at first was understandably regarded as sinful, could itself give authority to the rabbis to formally void the decree.

This is, to be sure, an extreme position, in that it places the continuing, binding nature of rabbinic authority in the hands of the people. Yet it is not as radical, or unique, as many will think. To begin with, no less a figure than R. Joseph Karo claims that this approach is a plausible explanation of Maimonides� statement. Furthermore, it is basic to halakhic history that the response of the community plays a role in the authority of halakhah. That is, when enough people flout a halakhah, and the sages are unable to improve matters, it is usually not long before rabbis begin to develop justifications for the people's behavior (limmud zekhut). In fact, R. Abraham Isaac Kook even provided the theological justification for this phenomenon of halakhic "updating". In a famous passage from Arpelei Tohar, which because of its daring was censored by a "theologically correct" editor, R. Kook writes:

At times, when there is need to transgress the way of the Torah, and there is no one in the generation who can show the way, the thing comes about through breaching. Nevertheless, it is better for the world that such a matter come about unintentionally. Only when prophecy rests on Israel is it possible to innovate such a matter as a "temporary measure". Then it is done with express permission. With the damming of the light of prophecy, the innovation comes about through a long-lasting breach, which saddens the heart with its externals, but gladdens it with its inner content.

What is particularly noteworthy about the [Rabbi Hayyim Hirschensohn�s] suggestion is that it is not concerned with ex post facto justifications, but is raising the possibility of formal abolishment of rabbinic prohibitions by contemporary rabbis. Think of a rabbinic prohibition that is widely ignored in the traditional community�and in early twentieth century America there were many�and imagine bringing it before a rabbinic court that would then abolish it.�What used to be a violation becomes accepted, even among the halakhists.�