Jerusalem in Jewish Law and Custom: A Preliminary Typology
Golinkin, David, Judaism: A Quarterly Journal of Jewish Life and Thought
Jewish literature(1) written during the past 2,000 years has preserved hundreds, if not thousands, of laws and customs related to the city of Jerusalem. This material has been collected in many books and articles, but no attempt has been made thus far to organize this vast corpus of laws and customs. I therefore present a preliminary typology which will facilitate further study and investigation.
The laws and customs related to Jerusalem can be conveniently divided into three major categories: (1) Laws and customs in Talmudic literature which are attributed to Second-Temple Jerusalem; (2) post-Destruction laws and customs observed by Jews throughout the world in order to remember Jerusalem; and (3) post-Destruction laws and customs observed in the city of Jerusalem itself by Jewish residents and visitors.
1. Laws and Customs Attributed to Second-Temple Jerusalem
This category consists of at least fifty laws and customs. I only mention them briefly since they have already been listed and investigated by quite a few scholars.(2) About twenty of these laws are contained in a list which has come down to us in four different versions.(3) The most well-known version (B Bava Kamma 82b) reads as follows:
Ten things were said about Jerusalem: That a house sold there can be redeemed even though it's a walled city (see Leviticus 25:29-30); that it does not bring a heifer whose neck is broken (see Deuteronomy 21: 1-9); that it can never become a condemned city (see Deuteronomy 13:13-18); that its houses cannot be defiled through leprosy (see Leviticus 14:33-53); that neither beams nor balconies are allowed to project; that no dunghills are made there; that no kilns are made there; that neither gardens nor orchards are cultivated there, except for the rose gardens which existed from the days of the former prophets; that no chickens may be raised there; and that no dead person may be kept there overnight.
Scholarly opinion is divided about the historical veracity of these traditions. Some scholars, such as Finkelstein and Bialoblocki, accept most of these traditions at face value. Guttmann, on the other hand, views most or all of them as apocryphal. He points out that of the twenty laws found in the four versions of the list, only four occur in all four versions. Furthermore, most of these laws do not occur in the Mishnah. In addition, there are over 300 disagreements in Rabbinic literature between Bet Shammai and Bet Hillel, and yet none of them concern the laws of Jerusalem. Lastly, even the four laws found in all four versions are contradicted by other rabbinic sources.(4) He therefore suggests that these laws really started out in the realm of aggadah or non-legal material:
The predominant tendency after the fall of the Temple was to emphasize the unique and distinguished status of the city by pointing to its superiority not merely from the viewpoint of beauty, sanctity, historical past, etc., but also from the vantage point of the law. Accordingly, the Tannaim put special effort in finding and creating laws and practices that would set Jerusalem apart from all the other cities of the land. As a consequence, we find that halakhot are being used in the same way as aggadot.(5)
A recent study by Safrai takes a more balanced view. Regarding the four lists, he admits that "it is not unlikely that some items were not traditions from the time of the Temple, but only imaginary creations... that developed after the destruction of the Temple." But he then proceeds to examine four specific laws and to show through careful analysis of rabbinic sources, Apocrypha, Josephus, and the Dead Sea Scrolls that they were "actually practiced in Jerusalem during the time of the Second Temple or at least ... reflect the reality of that time.(6) Safrai's approach to these laws and customs is, no doubt, the appropriate one. We should not take them at face value nor reject them en masse as apocryphal. We should, rather, critically examine each custom using rabbinic and external sources in order to see whether it can be dated to Second-Temple Jerusalem. …