World of our Sages: Power to create obligations

One mechanism entrusted in the hands of the people can be observed in the development of the obligation to pray the evening Ma'ariv service.

Considering the contemporary lack of a binding central halachic authority, the possibility of enacting or abrogating Halacha seems remote. The halachic system, however, also contains certain alternative legislative mechanisms. While the authority and the responsibility to create law lies first with the authorized legislative body, "the people" as an anonymous, unsystematic, unreflective entity also exercise considerable halachic power. One mechanism entrusted in the hands of the people can be observed in the development of the obligation to pray the evening Ma'ariv service. Our sages tell us that Ma'ariv "is not fixed" (M. Brachot 4:1). The Talmud discusses the meaning of this assertion (B. Brachot 27b). It concludes that this is a reference to a dispute as to the status of Ma'ariv: According to one opinion Ma'ariv - like the other prayer services - is obligatory. A dissenting opinion holds that it is an elective prayer service, that is, it "is not fixed." The logic behind this position is that Ma'ariv was instituted to correspond to the evening burning of the sacrificial leftovers on the Temple altar. This procedure was not essential to the validity of the sacrifice offered during the day, and hence Ma'ariv is not essential either (Rashi, 11th century, France). The implication of the optional nature is that we are less stringent regarding the time of the prayer and there is no repetition of the Amida by the leader. Nevertheless, actively praying or even making such a decision changes the status of the service and reflects a desire to accept Ma'ariv as an obligatory prayer. While it was originally an optional service, the people accepted the service and gave it obligatory status (Bahag, eighth century, Babylon). This unofficial decision of the people carries implications for the laws of Ma'ariv: One who mistakenly recited the weekday Ma'ariv on Shabbat or on one of the festivals must repeat the prayer. Despite its original optional nature, it is now considered obligatory and hence need be repeated properly. While Ma'ariv is a well-documented and accepted example, we do have other instances of this mechanism. Women are exempt from fulfilling the obligation to count the omer between Pessah and Shavuot (Maimonides, 12th century, Cairo). The exemption is part of the rule that women are excused from time-bound commandments (B. Kiddushin 29b; B. Brachot 20b; et al). The 17th-century Polish halachist Rabbi Avraham Abele Gombiner - known by the title of his commentary Magen Avraham - writes that though women are exempt from counting the omer "they have already considered it an obligation upon themselves." While the position of the Magen Avraham is not widely accepted and is certainly difficult to source, the development he is referring to reflects the power of an anonymous body to grant obligatory halachic status. A third example of this legal mechanism comes once again from the field of women's obligation to fulfill time-bound commandments. The great talmudic mind, influential halachist and humble rabbinic figure Rabbi Akiva Eiger (1761-1837, Hungary-Poland) opens his compendium of responsa with a discussion of various women's obligations in ritual. He quotes the accepted position that women are exempt from time-bound commandments, but adds: "Most of our women are stringent upon themselves and are careful and diligent to fulfill most time-bound commandments, such as shofar, succa and lulav and similarly making kiddush on festivals, and it is as if they accepted the obligations upon themselves." He intimates that women have chosen to waive their exemption and treat these time-bound commandments as binding. A final example from the laws of Hanukka. The Talmud describes how the festival is to be celebrated (B. Shabbat 21b): The essential commandment of Hanukka is to kindle one light each night in each household. Those who wish to enhance their performance of the directive should kindle one light for each and every household member each night. A third level of observance is also prescribed for those who wish to fervently pursue and embellish the commandment: kindling a number of lights that correspond to the day of the festival. Here there is a dispute as to how this should be done. The school of Shammai felt that on the first night eight lights should be kindled and thereafter decrease each night by one light. The school of Hillel held that that one light should be kindled on the first night and each night an extra light should be added until the last night when eight lights would be burning. Thus our sages present a unique tiered system for fulfilling the obligation of kindling lights. Curiously, however, when Rabbi Yosef Karo codifies the laws of Hanukka he omits any reference to the multiple levels of the commandment, citing the third, most enhanced option alone (Shulhan Aruch OH 671:2). Indeed commentators to the code question what happened to the other tiers (Pri Megadim, 18th century, Poland-Germany). We may suggest that here too the people have taken an elective practice and raised it to an obligatory level. This has been achieved through the widespread acceptance of kindling the eight-branched hanukkiya. Indeed, nowadays no household opts for the lower tiers. Here too there are legal implications of this change in status. Even though only the first light kindled is a fulfillment of the original obligation, all lights kindled are not to be used for mundane purposes (Shulhan Aruch OH 674:1). This holy status is the result of the people's actions. Our unique halachic legal system accompanied us into exile. Since our legal institutions were destroyed and we were faced with the formidable task of preserving our tradition, we employed various ad hoc mechanisms to deal with our exilic reality. Yet one halachic institution remained strong: the people. No one person or any identifiable group can be credited with exercising control over this body. This anonymous entity, expressing its opinion unconsciously and unsystematically, continued to articulate its view on Halacha through deed. The writer is on the faculty of Pardes Institute of Jewish Studies and is a rabbi in Tzur Hadassah.