Academic journal article Emory Law Journal

Custom as a Source of Jewish Law: Some Religious Reflections on David J. Bederman's Custom as a Source of Law

Academic journal article Emory Law Journal

Custom as a Source of Jewish Law: Some Religious Reflections on David J. Bederman's Custom as a Source of Law

Article excerpt

Professor David J. Bederman's seminal work, Custom as a Source of Law,1 seeks to answer several foundational questions in the fields of legal theory and formation. One of the central concerns: Can custom itself be law? That is to say, can custom alone become binding as custom, acting in ways that we would typically think of as legal, even before it is ever recognized or stamped as obligatory by the institutions that we would normally think of as creating compulsory law, for example, by word of an authoritative legislative body or by way of judicial precedent?2 And, if so, at what point does that pivotal shiftfrom "should" to "must" occur?

While Professor Bederman's work is, as always, learned, thorough, and convincing,3 in addition to elucidating the principles for secular custom as a source of law, he has opened the door for us to speculate on the question's applicability to another set of rules and practices, namely, religious laws and norms. And so, we ask in this short piece, can and when does minhag (customary Jewish practice) become halakha (Jewish law)?

It is important to define some terms at the outset, seeing that custom acting as law in this context will often serve the same purpose as, and be hard to distinguish from, regular legislation. Both operate to solve new problems for which there is no existing law or arise when the existing law requires modification, clarification, or reform. As Israeli Supreme Court Justice Menachem Elon once put it, "The formal distinction . . . between custom and legislation is that legislation operates openly under the direction of an authorized body, whereas custom operates anonymously and nondirectedly by the agency of the entire people or of some particular segment of the people."4 To put it simply, if we wish to study a law or an enactment, we go to the legislative authorities or the courts; if we wish to know about a custom, we "go and see what the people do."5

There is one school of thought in which this Tribute would be a very short piece indeed; according to this view, at least from a Jewish law perspective, the custom of the people cannot ever directly create de facto law. The fact that the public follows a particular practice is considered to be merely sufficient evidence to prove the existence of some other once-created, now-forgotten (but definitely formal) legal rule. Custom is simply a legislative trust, preserving the tradition for later generations even when the original source is lost in time. While there are several Talmudic passages that understand custom in this manner, perhaps the clearest restatement of that view comes from the post- Talmudic responsa of R. Yitzchak Alfasi: "The source of any practice customarily followed . . . is an enactment . . . and even if in the course of time the source of the practice has been forgotten, nevertheless the practice has been generally accepted and retains its legal force."6

Following that line of thought, Nahmanides writes, "Custom is considered to be binding only when the townspeople or the communal leaders specifically and formally adopt it, but any custom not so adopted cannot override an existing legal rule unless the rule is doubtful."7 Again, according to this view, custom never masquerades as law; it simply teaches us what the original law was.

The majority of Jewish law authorities, however, do believe that custom alone can itself be the source of independent legal authority, at least sometimes. The following examples, drawn from the fields of labor law and commercial law respectively, will hopefully illustrate the contours and limitations of that process.

Before we continue, it is important to note that Jewish law can be divided into two main areas of law: civil law (encompassing all of the fields that we tend to think of as part of any legal system) and ritual religious law, with family law somewhere in between. While we will attempt to test the strength and bounds of custom in the area of civil law, there are some inherent distinctions between "regular" legislation and customary law in regard to ritual religious law, where the scope and power of custom is by nature more limited. …

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