“Everyone does it” is never an excuse. It does not constitute a legal or religious exemption from consequences. While Jewish law does indeed treat ignorant or unintentional violations differently than willful sins, it generally does not allow for the intentional setting aside of a rule out of common convention. There are, however, exceptions. The first is when the rule will anyway be ignored. Rather than raise the level of sin to intentional, the rabbis must forgo thair pedagogical mandate in exchange for religious expediency. Another is when a law is debated by earlier authorities.

Everyone Does It

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I. Ignorance of the Law

“Everyone does it” is never an excuse. It does not constitute a legal or religious exemption from consequences. While Jewish law does indeed treat ignorant or unintentional violations differently than willful sins, it generally does not allow for the intentional setting aside of a rule out of common convention.

There are, however, exceptions. The first is when the rule will anyway be ignored. Rather than raise the level of sin to intentional, the rabbis must forgo thair pedagogical mandate in exchange for religious expediency. Another is when a law is debated by earlier authorities. Even though the majority of decisors side in one direction, if common practice follows the minority then there is room to invoke the concept of “look around and see what people are doing” (Berakhos 45a).

II. Three Categories

R. Tzvi Hirsch (Maharatz) Chajes (Darkei Ha-Hora’ah, ch. 3 – link) lists three categories of common practices that contradict established halakhah but require no rabbinic corrective:

  1. Common practice is stricter than the law. If informing people of the leniency will cause confusion that risks their neglecting the law itself, then rabbis should do nothing.
  2. Common practice is against an undisputed halakhah but the people will ignore rabbinic objections. In such a case, the rabbis refrain from intervening because “it is better that people sin accidentally than intentionally” (Beitzah 30a).
  3. Common practice is contrary to an established halakhah but there is a lenient post-talmudic minority opinion. In such a case, says the Maharatz Chajes, the custom overrides the law.

III. Milk

A common example of this final case is something we have discussed before — Chalav Yisrael (link). The talmudic rule is that milking must be supervised by a Jew to ensure that small amounts of non-kosher milk is not mixed with the kosher milk. Most authorities consider this an official rabbinic enactment that applies even when the reason does not but a minority of significant authorities (including, particularly, the Rambam) holds that the enactment need not be observed if we can be fairly sure the kosher milk remains pure. The Birkei Yosef writes explicitly that while the halakhah follows the majority view, someone who finds himself in a community that has a lenient custom may likewise follow the minority opinion.

IV. Trust

There is another case where “everyone does it” impacts halakhah. How much can you trust someone who does not observe halakhah? Someone who does not feel the divine obligation to observe a particular law may be too quick to allow something that a more scrupulously observant individual would not.

The general rule is that you cannot trust such a person regarding a law he does not observe but you can trust him on those he fulfills (Shulchan Arukh, Yoreh De’ah 119:1,4). There are more details, as described in the rest of that chapter, but one in particular fits our discussion. The Rema (ibid. 7) writes that someone who does not follow a specific law that most people fail to observe is believed about it, which the Shakh (19) explains means that we believe him if he swears about it. Because “everyone does it,” he retains credence he would otherwise have lost.

Ignorance is not bliss if it leads to failure. However, the Torah respects Jewish practice and offers it credibility wherever possible.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

21 comments

  1. >While Jewish law does indeed treat ignorant or unintentional violations differently than willful sins, it generally does not allow for the intentional setting aside of a rule out of common convention.

    What about mumar leteyavon? I’ve long wondered why following the crowd isn’t the quintessential tayva.

  2. “it generally does not allow for the intentional setting aside of a rule”
    That makes it sound like we might consider the action permissible.

    “the rabbis must forgo thair pedagogical mandate in exchange for religious expediency”
    That makes it sound like the action is totally forbidden, but we might choose not to publicize the fact.

    Those are very different categories, and confusingly, you mix them.

  3. ‘everyone does it’ also sometimes creates halachic precedent –such as Rema’s justification of not sleeping in Sukka.

  4. S: What about mumar leteyavon? I’ve long wondered why following the crowd isn’t the quintessential tayva.

    That is a very interesting idea. Requires serious thought.

    Shlomo: Those are very different categories, and confusingly, you mix them.

    Good point.

    carlos: That is sort of a variation on the Maharatz Chajes’ third category.

  5. I know it is different than the categories presented above, but isn’t a gzeira she’ein ha-tzibbur yachol la-amod ba a type of public veto of what the chachamim wanted to be normative halacha?

  6. Shades of Gray

    “Everyone does it” is never an excuse, but “no one does it”, is a problem that can be just as detrimental.

    Regarding, in general, the balance between “when will my actions reach that of my forefathers” vs. perfectionism, see Dr. Benzion Sorotzkin’s article linked below. If one would want to offer balance to his paper, it might be the Ramchal’s statement in the Mesilas Yesharim, of “any kulah needs bedikah”, and that “going slowly”, may be done with the wrong motivations(there is also an article by R. Avi Shafran, where he points this out regarding a counter-balance to R. Hutner’s well-known letter on the topic ,ie, the discussion of gedolim books and the Chafetz Chaim on lashon hara).

    http://drsorotzkin.com/pdf/pursuit_of_perfection.pdf

    In general, this touches on the topic of “Judaism and Mental Health”, a braod topic in of itself(there can be tensions between psychological and Torah approaches, though a sefer such as Alie Shur deals overtly and explicitly with both, from what I have seen, though there are obvious sources in Rishonim as well).

    (Also of interest, there is a new MP3 on Dr. Sorotzkin’s website titled “Torah Perspectives on “Boundaries, Restrictions, and Sexuality”, which was given at a well-attended Ohel gathering for mental health professionals this month.)

  7. >That is a very interesting idea. Requires serious thought.

    Thanks. To me its incomprehensible how anyone really blames the vast majority of Orthodox women who did not cover their hair, for example. And, in fact, in practice I think people don’t, somehow still seeing their, and other, Bubbes as the pious women they really are and were. Maybe that’s something our generation is still capable of, while the next generation will not really remember what things were like.

  8. Shalom Rosenfeld

    The individual who chooses to worship idols on his own gets a harsher form of the death penalty (stoning) than people in a town who were “all doing it” (decapitation). Apparently “everyone was doing it” reduces culpability ever so slightly — but it’s still the death penalty either way!

  9. My understanding of ‘LETAAVON” is related to the individual’s own personal desires.
    Once you increase it to ‘What the Shapiro’s do.’ ,that is a slippery slope.
    However the issue of “can the entire tzibbur stand by it’ may be another way of looking at it.

  10. R’ Moshe Feinstein begins a teshuvah (regarding doctors’ fees): “While in general there is no need to doubt a matter that is universal custom, since you were apparently so troubled, I reviewed your words … (Sefer Igrot Moshe, Yoreh Deah 4, SIman 52)

  11. What about the concerpt of Mutav Sheiyu Shoggin Vlo Mezidin, except for those transgressions which are explicitly stated in a Torah verse?

  12. Re: Milk

    Just to be clear R’Moshe’s heter is NOT based on the Rambam. He holds the gezeira applies and government supervision complies with the gezeira.

    Also, I thought your comment of “The first is when the rule will anyway be ignored. Rather than raise the level of sin to intentional, the rabbis must forgo thair pedagogical mandate in exchange for religious expediency” would be about ein hatzibbur yecholin laamod bo.

  13. Fotheringay-Phipps

    Former YU: “Just to be clear R’Moshe’s heter is NOT based on the Rambam. He holds the gezeira applies and government supervision complies with the gezeira.”

    To be even more clear, there is no such Rambam altogether. There are poskim who hold to that opinion – most notably the Radvaz, Pri Chodosh & Pri Toar – but the Rambam is not one of them. (It’s known in halachic circles as the Pri Chodosh’s heter.)

    As you say, RMF rejected relying on this position and came up with a new heter. (The Chasam Sofer and Aruch Hashulchan were particularly emphatic about rejecting this position as well – I wonder why Gil decided to cite the Birkei Yosef.)

  14. Shades of Gray-thanks for posting a link to Dr Sorotzkin’s article. Those who think that RY and Mashgichim are obsessed with issues of everyone maximizing their spiritual growth at all costs, Tznius and Shicvas Zera Lvataklah should read the article and the Mareh Mkomos, therein, especially a quoted portion from the Keser Rosh.

  15. “To me its incomprehensible how anyone really blames the vast majority of Orthodox women who did not cover their hair, for example. And, in fact, in practice I think people don’t, somehow still seeing their, and other, Bubbes as the pious women they really are and were.”

    Or put it this way. How do we know the Torah is true? We have a mesorah from our parents, grandparents, and so on back. How do we know women don’t have to cover their hair? We have a mesorah from our parents, grandparents, and so on back.

    There are of course counter-arguments to this, but there’s also a deep logic.

  16. R’ Shlomo,
    I must respectfully protest your equation (-although I am certainly sympathetic to your wish to vindicate the righteous ladies of Israel, and I applaud you on your noble effort to do so). Belief in the truth of the Torah is an absolute halakhic obligation, as per the gemara in Sanhedrin 99a. This is the sole legitimate interpretation of that gemara (as well as three thousand years of Jewish history). By contradistinction, belief that ladies are exempt from covering their head is one possible legitimate interpretation of the gemara in Ketubot 72a (which has been eloquently presented by R. Michael Broyde), but one which is equally disputed by R. Eli Baruch Shulman (as one may gather from their exchange in Tradition 43:2). Stated otherwise, one can only be an Orthodox Jew by believing in the self-evident truth of the Torah; whereas the question of whether a lady must cover her head is a technical halakhic dispute which is subject to legitimate controversy among poskim. In fact, I am so certain of my point that I am confident that R. Broyde will be happy to affirm that there is no equation between the two issues. Perhaps our Rosh Yeshiva R. Student could to contact R. Broyde for the sake of affirming this point and assuaging R’ Shlomo’s conscience (-which, I emphasize, is a conscience I fully agree with and whose sentiments I applaud).

  17. Re: “a conscience I fully agree with”. By that I mean, I fully agree with R’ Shlomo’s enterprise to be melamed zekhut on all our righteous mothers, grandmothers, great-grandmothers, etc. This agreement of mine exists in harmony with my perfect and independent conviction in the truth of the Torah (as per the gemara in Sanhedrin 99a).

  18. >That is a very interesting idea. Requires serious thought.

    R’ S.,

    Yes: just as a tanya dimisa’ya lakh, R. Yissochor Frand has a sermon about this (at the end of his tape on kidney donation [-of all subjects!] for Parashat Behar-Bechukotai). He quotes the Sefer Hachinukh who asks why the shofar is blown on the Yom Kippur of Yovel, when the shofar was just blown ten days earlier on Rosh Hashanah (as it is on every year). Sefer Hachinukh explains that sending free one’s slaves is an enormous financial loss, and only the knowledge that “everyone is doing it” will give a slave-owner the emotional fortitude to part with his slaves. Thus, the shofar is blown to remind slave owners that “everyone is doing it”. R. Frand takes this Sefer Hachinukh as an indication of how powerful peer pressure can be (-in this context, for a positive goal, as it inspires everyone to comply with the mitzvah of shilu’ach avadim).

  19. R’ Shalom Spira,

    Thanks. I wonder what he would say about its force for the negative.

    Shlomo,

    >Or put it this way. How do we know the Torah is true? We have a mesorah from our parents, grandparents, and so on back. How do we know women don’t have to cover their hair? We have a mesorah from our parents, grandparents, and so on back.

    ? Many people are third, fourth, fifth generation non hair coverers. And if you’ll say that of course before then the women in the family tree did cover their hair, but they probably also spoke Yiddish, and according to some that’s an obligation per the list of the 18 takkanos in the Yerushalmi. So where do we draw the line? At a certain point people do live how they were raised and keep to the strong traditions of their family, without going back 200 years.

  20. Actually, the Rambam may be a source for the Pri Chadash. the Rambam in peirush hamishnayos avodah zara perek 2 says that you do not need to use chalav yisrael for cheese since there is no chashash of chalav tamei in cheese. This may or may not be his position in Mishneh Torah Maachlos Asuros perek 3, see the Magid Mishna.

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