Halacha (Jewish law) is the “bridge over which the Torah moves from the written word into the living deed. ” There tends to be a built in tension between the two, because whereas the Torah is the written word and static, life is organic, forever in motion and evolving. There are many Jewish laws which were rendered as such resulting from the Talmudic ruling that “minhag din hoo” (custom has the power of law). Many of the customs and traditions in Jewish life which we may understand as halachic in nature and origin are merely a reflection and expression of the society and culture which it sought to bridge. What happens when society continues to evolve and no longer is in need of certain customs and traditions that have evolved into halachah from earlier times? Do they fall by the way side since they no longer are meaningful or are they to be practiced with the same intensity as in the past when they genuinely reflected its culture and thus had relevance?
Many halachic references sited in Shulchan Aruch (code of Jewish Law) have become arcane due to the change in how we as Jews live our lives. Here I am not referring to Toraitic (d’oreita) law, but many laws which are the product of the geonic (Babylonian exilic) period and forward. For example, according to Jewish Law men should not have heir hair cut by a non-Jewish barber. The reason for this law was made sense at one time, in particular in the middle ages, but no longer carries any value. Initially the law was instituted because in the medieval period, the barber was also the surgeon and licensed to practice blood letting. Blood libel was of major concern to the Jewish communities of Eastern and Central Europe and there was a question of Sacanat Nefashot (imminent danger), or perhaps Picuach Nefesh (life threatening circumstances) by having your hair cut by the local barber. The barber as a result of anti-Semitic feelings could cut your hair and at the same time cut your throat. So the rabbis, in their wisdom, instituted a Jewish law whereby men should refrain from having their hair cut by a gentile barber.
I would assume that today many halachically centered Jews have their hair cut by gentile barbers. The law however is on the books and the obvious question is ought Jews be allowed to have their hair cut by a gentile since there is no question of imminent danger. If they can, then Jewish law forbidding a haircut by a gentile ought to be reevaluated, as well as many other laws.
Many of the laws handed down to us originated during the geonic and medieval periods. Many of these laws were based on superstitious beliefs that were prevalent at the time. To be sure, when these laws were legislated, they were not seen as a response to superstition, but reacting to their cultural norms. Spirits and demons were considered real, and thus to be contended with. Concepts such as “Ayin Harah, ” (evil eye) were as real to our ancestors as bacteria is real to us today.
It was quite prevalent and part of the norm for people to seek protection through the use of amulets and charms. Rashi (French Rabbinic commentator and decisor during the early middle ages) was known to hang his tefilin on the bed post in order to protect his wife and unborn child from evil spirits. The mezuzah (amulet affixed to door post) was also perceived as a type of amulet. Many contemporary rabbis consider an improper mezuzah as the plausible reason why tragedy befalls a family. I would assume that most of us do not use tefilin in this same fashion because we do not believe that hanging tefilin from a bed post will do offer protection. I merely mention this as a way of demonstrating that norms change, and as a result the way we behave “Jewishly” changes as well—but not with any consistency.
There is a Jewish law that states that a corpse should optimally be buried the same day it expired. The reason commonly given is that it is out of our sense of kavod hames (respect for the dead). However, if we examine the practice, we will soon note that its origins were based on superstitions which are no longer relevant. It was believed in the medieval period that demons would do harm to the deceased, thus it was better to bury the deceased as soon as possible.
Demons played a very significant part in of medieval Europe. There is much haggadic (folklore section of Talmud) discussion over “even and odd” numbers. There were many in the Talmudic period that believed that “even” numbers invited demonic attacks. Tosafot (commentary on Talmud-middle ages) in T. B. Pesachim discuss the merit of the fifth cup of wine as protection against demons. Naturally this has been masked with it being the Cup of Elijah, but the thirteenth century R. Samuel b. Judah Hazan speaks of the value of the fifth cup precisely to ward off the demons.
Whereas the fifth cup of wine at the Passover Seder based upon superstition can be masked by calling it the Cup of Elijah, not so can we mask the tradition of Kapparot (waving a chicken as a sign of repentance) on Yom Kippur eve. The intent of the custom is to transfer the sins of the individual on to the fowl. Fowl happens to be closely associated with magic and the numbers three and seven are also part of magical rites. Hence the waving of the chicken seven times over your head. Other similar based customs is that of Tashlic (casting bread crumbs in the water on the first day of Rosh Hashanah) which is traced back to the Maharil in early fifteenth century Germany. The waters were believed to be a place where demons thrived and throwing bread crumbs to them was a way of placating the spirits.
Spirits were very much a part of what fueled the psyche of a world seeking to make sense out of a world that they had little understanding of. The Havdalah service (Saturday night service using a candle, wine and spices to mark the termination of the Sabbath) was also fraught with concern over he spirits and the need to satisfy them through libations. Wine was poured on the ground as a good omen for the rest of the week. This originated in the Geonic period. During the Talmudic period the symbol of wine overflowing represented blessings already enjoyed. The Geonim did not like the custom of pouring wine on the floor but it nevertheless took hold. One final example is the custom sited in Shulchan Aruch for covering mirrors in the home of mourners. This custom emerged as an expression of fear that the soul projected out of the person in the shape of his reflection in the mirror might be carried off by ghosts of the departed, which is commonly understood linger about the house until burial.
I am not suggesting that as a result of these reasons we should abandon our traditions, I t is important however, to understand how our rich tradition evolved, so that we can keep in perspective the practice of Jewish law.
Shael Siegel, educated in the United States and Israel is a post-denominational rabbi, educator, commentator and observer of the Jewish religious/social landscape. He manages a web site and writes a weekly blog which can be accessed through http://www.shaelsiegel.com