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Building Unity Through Conformity

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p1878M-5444-RT825 Tishrei: Building Unity Through Conformity

by R. Gidon Rothstein

Soon after Sukkot 5699 (1938), R. Ben-Zion Meir Hai Uziel responded, in Shu”t Mishpetei Uziel 4;1, to a question from one of the local rabbis in Tel Aviv (where R. Uziel was chief rabbi at the time, soon to be made Sephardic Chief Rabbi of all of Mandatory Palestine). This rabbi was curious about the influx of immigrants acting each according to his custom, including how and when to shake their lulav during prayers, all praying in one shul.  While that has the positive quality of fostering peace and a sense of brotherhood, this rabbi wondered, it would seem to go against Yevamot 13b’s understanding that Devarim 14;1’s לא תתגודדו prohibits multiple sub-groups of the Jewish people.

Two preliminary notes: First, the questioner refers to the influx of Jews from all over the world. According to the figures I found, between 1931 and 1948, the Jewish population went from 175,000 to 600,000. Since many of those came after the Holocaust, it’s not unreasonable to suggest that Israel in 1938 had fewer than 400,000 Jews, a healthy growth from 1931. But nothing near what we’ve merited seeing since 1948, when Israel’s Jewish population has multiplied tenfold (and, as I once saw a video of R. Ovadya Yosef zt”l saying, kahena ve-kahena, we’d be thrilled for it to multiply that much again and again).

That many Jews in Israel brings us back to the question R. Uziel was being asked, which applies even more so today—given diversity, what does  lo titgodedu require in terms of unity? It is a question I find particularly interesting because of our tendency to opt for individual freedom and choice. Unless it’s immoral, we tend to assume, I think, that people should have the right to choose and follow their personal customs, or make a group of their own to follow their view of right and wrong. R. Uziel disagrees, in a way I think worth considering.

The Underlying Unity of Torah

His starting point is that one of the distinguishing positive traits of the Jewish people—in contrast to other nations—is the unity brought about by their shared Torah. Despite all the thousands of years since Sinai, with exiles, persecutions, people assimilating and converting out, customs and mores originally foreign to Torah being absorbed into the nation, the Torah has emerged pure, whole, unscathed. Whereas all those who tried to change it (Samaritans, Karaites, Saducees) have been lost.  This unity flows from the Divine Unity (and, I think he means to say, attests to it).

In Yevamot, Resh Lakish asserts that while the verse literally refers to not cutting oneself to express sorrow over someone’s passing, it also means (the technicalities of the derivation aren’t important here) that the “body of the nation as a whole” (R. Uziel’s words) cannot cut or rend itself. Our tradition is that this verse has a second obligatory meaning, that whenever there is an unresolved debate within a town or city, we are commanded to follow the ruling of the highest court in that city or town at that time. Rambam included in that rule a prohibition against having two courts in one city, since that leads to disputes, dissent, and dissonance.

Unity of Custom

There seems to be an exception for custom. For example, the Mishnah accepts that some places allow work on Erev Pesach morning (everyone agrees that it’s prohibited to work after midday on Erev Pesach, even in post-Temple times), without raising worries of violating lo titgodedu.  More, Maharashdam had ruled, as had Rosh before him, that even if two groups of Jews come to reside in the same city, they can each hold to their original customs.

Rambam seems to disagree, R. Uziel notes, since he prohibits one town having two courts, each following its own practices. In one of his responsa he wrote that this will forestall disputes, a worry that would seem to extend to custom as well. Rema, Orach Chayyim 493;3 ruled that way, that in one city there should not be two customs.

Yet, aside from the Erev Pesach example, the Mishnah explicitly promoted Jews from small towns reading the Megillah on the Monday or Thursday prior to Purim. Magen Avraham suggested that that wasn’t a disagreement about the law, it was applying the law appropriately to people in different circumstances, which we do often. But in any actual difference of opinion as to how to act, Magen Avraham says, all the Jews in one place would have to forge an agreement binding on all of them.

Avoiding Dispute or Keeping Torah Unified

Underlying these discussions, R. Uziel believes, is a difference of opinion as to whether the obligation is to avoid giving the impression there are two or more Torot (Rashi’s view, according to which differing customs matter less, since those aren’t Torah law). Rambam’s view that it’s to avoid disputes would apply to custom as well, since those, too, lead to disputes.

After a discussion we need not repeat, R. Uziel concludes that custom is wholly dependent on place. That means that as soon as a person or even a large group emigrates from one city to another, they are no longer bound and in fact cannot hold fast to their old customs in the face of the custom of the new place. It’s a problem of lo titgodedu, making splits among the Jewish people, according to R. Uziel.

Maharashdam, R. Uziel notes, didn’t require continuing one’s prior customs in a new city, he allowed it; even he would have agreed that the immigrant can take on the new place’s customs, even to be more lenient. [He doesn’t give examples, but a simple one would be if an Ashkenazic Jew emigrated to a place where the general custom was to eat kitniyot on Pesach; that Jew would be allowed to adopt that custom].

Given that Maharashdam, too, concedes that that’s allowed, R. Uziel writes, it makes sense that that is the better way to act, to avoid dispute and dissension, as Rambam had written. [To be sure we understand, he is preferring that whenever Jews move to a new town or city, they adopt all the customs of that city—Sephardim would adopt Ashkenazic customs and vice verse].

Unity of Prayer

Maharashdam had also allowed maintaining different customs of prayer, at least as regards the parts of the liturgy not explicit in the Gemara (such as the piyyutim that were written later). However, Pe’at HaShulchan (a later authority) disagreed, and Magen Avraham had quoted the Ari to the effect that the prayers of each place on earth have their own entry-point to Heaven. If so, each place must use the same prayers, or they’ll miss their entry point.

Since Maharashdam ended up allowing two courts in one city (which R. Uziel will discuss in a moment), he allowed separate Ashkenazic and Sephardic shuls. Within a shul, though, even visitors must follow the custom of that shul (later in the responsum, R. Uziel quotes Netziv that this applies even to personal silent prayer; R. Uziel thinks that’s even true for a visitor who is still obligated by the stringencies of his original place; regarding prayer, he must follow the custom of the shul in which he’s davening).

Finally for this section, R. Uziel restricts the idea of existing custom to shuls that go back to the early days of the settlement in Israel (17th century). If new shuls arise in a locale where until then there was only one shul with one custom, R. Uziel seems to believe they would have to adopt that custom as well. Within a shul, having multiple customs makes the Torah look like two Torot, and there will inevitably be disputes.

Two Courts in One City

Rif and Rosh understood the conclusion of the Gemara to be that two courts can operate within one city. Rambam disagrees, seemingly based on a Yerushalmi that sees that, too, as a lo titgodedu problem. Magen Avraham as well did not allow different opinions about the law in one town.

Even for Rif and Rosh, that’s only established courts. If courts that until now agreed on everything, that would not constitute two courts, so if a dispute arose, they could not simply each follow their own view. They have to argue it out, come to a majority ruling, and follow that [ironically, we today think of that as causing dissension and strife; tradition saw that as a short-term view—long-term, forcing the parties to engage until they reach a conclusion produces more unity, not less). R Uziel adds that others claim that Rava understood there to be a Rabbinic prohibition in such cases, and Rivam saw it as a mitzvah min hamuvchar, a higher performance of the mitzvah, to find one way for all to follow). R. Uziel thinks Rif and Rosh would have agreed with that last assessment

Narrowing the room for disagreement further, R. Uziel limits the idea of two courts to those that existed before the completion of the Talmud, or at the very least before there were well-accepted codifications of Jewish law. Once the law has been well-considered and brought to conclusions, we cannot rule against those views.

Even where those volumes [such as the Shulchan Aruch] did not explicitly rule, we have to do our best to extrapolate from the existing rulings. That process leaves no room for establishing two courts—the relevant authorities need to do their best to extrapolate and then hash it out to a conclusion, based on majority rule. R. Uziel adds that Shiltei HaGibborim and Shach agreed, the former with the idea that the existence of codified books obligates us to build off of them and come to majority rule, the latter that the two courts must have been well-established before a particular issue arose.

Limited Permissibility

It’s also true that any time one view sees the other view as invalid– that is, to follow that view means that one has not fulfilled the mitzvah, or has transgressed a prohibition—that would be a matter of lo titgodedu. If—for an example I thought of, not R. Uziel—some people put up an eruv that others held to be invalid, those who carry with that eruv would be publicly violating Shabbat according to the other view. R. Uziel holds that raises problems of lo titgodedu.

It doesn’t mean, I stress, that we have to follow those who rule stringently (or those who are most obstinate). It means the relevant authorities have to meet, hash out the question, and have a majority-rule vote that becomes incumbent upon all residents of that place. [In practice, another topic R. Uziel does not address, this isn’t so simple, because we have to figure out who counts as “relevant authorities.” His views, in other words, might not be feasible; I review them because I think they remind us of an halachic goal —quite possibly a matter of Torah law– that might be currently beyond our capabilities to achieve.]

Remembering the Goal and a Possible Exception

This, R. Uziel writes, should be our goal and our prayer, that Hashem unite us to serve Him with one heart, in real unity. [We today confuse a friendly openness to everyone doing what they want with unity; R. Uziel is promoting the higher unity of working together to articulate a joint form of service, even if most or all of us would have to submit to the majority on many issues). Certainly, he writes, we should not be adding further divisions to the people, since, as Yalkut Amos 9 tells us, the Jews won’t be [fully?] redeemed until they become one again.

All of which means that members of one shul must adhere to one custom, of mitzvot in general and all the more so within the wording of prayers and actions of mitzvah that occur within that shul. Allowing divergent practices turns it close to a mitzvah ha-ba’ah ba-aveirah, a mitzvah that comes at the expense of transgressing a prohibition [creating divisions within the Jewish people] while performing it.

Rema did allow being more stringent than a local custom. R. Uziel holds that even there, the person must be careful to be clear that he believes it’s better but not necessary to be stringent. He is acting this way to achieve a higher value, not the baseline value required by the Torah. If he doesn’t do that, he is holding to his stringency at the cost of making the Torah seem like two Torot, a worse outcome.

Because, for R. Uziel, the obligation is to uphold and promote the unity of the Jewish people and its Torah. That unity is what the Gemara indicated when it spoke of Hashem’s tefillin as including the verse “Who is like Your nation Israel, one nation in the Land.” It’s that oneness that makes the Jews the people to announce Hashem’s Oneness.

About Gidon Rothstein

14 comments

  1. It seems the halachic system does allow for overarching visions to impact specific psak.

  2. Joseph Kaplan

    I’m a bit surprised that the concept of a family minhag wasn’t discussed. The Rav has been quoted many times on the importance of following such minhagim. I also wonder if the ease of transportation vs. people never traveling more than 20 miles during their lifetime has anything to do with changed feelings about this issue.

  3. gidonrothstein

    Joel Rich,
    I think it’s clear that there are some issues where overarching visions impact psak; but it’s also a question of sources. In this instance, my own study of the sources (years ago, in a series of shiurim I gave when I was still giving shiur at the Riverdale Jewish Center) was that custom is in fact related to place.
    That’s why, Joseph Kaplan, I am not as clear as to where the idea of family custom comes from. There is an idea of accepting one’s family’s pesakim, such that if the family follows x halachic view of a debate among authorities, that gets passed down through the generations. As to actual customs, though, I know that the Rav and others spoke of it, and I don’t understand how it fits with these clear sources.

  4. R. Rothstein. I’m not sure I understand, in this context, the difference between pesakim and minhagim. For example, are eating in a succah on shmini atzeret, or putting on tefillin on chol hamoed or kitniyot on pesach pesakim to be followed per family actions for generations or minhagim that should be disregarded on the basis of lo titgodadu?

  5. “All of which means that members of one shul must adhere to one custom”

    In my town, there’s been a proliferation of shuls and batei medrash (between 20-30 for a orthodox population of under 2000, in my estimation). While some of that “growth” is to address members’ Shabbos/Yom Tov walk issues, a lot of other issues are also involved.

    Is this the model of ‘achdus’ envisioned by the Torah?

    Technically speaking, it conforms with the excerpt from the article I cited above. On the other hand, there’s competition for paying members and a lot of pressure on both institutions and residents to accommodate less accommodating attitudes.

    Again, is this the model of ‘achdus’ envisioned by the Torah?

  6. gidonrothstein

    Eating in a sukkah on Shemini Atseret, as it happens, is a practice about which I heard that the Rav specifically told people to ignore their family practice and sit (except in Israel where, it seems to me, it is prohibited to sit, even for those who keep two days). Tefillin on Chol haMoed is clearly place-based, just that many places have lost sight of having a custom– in Israel, where it’s a firm non-tefillin place, one would be required to follow the custom of the place. Kitniyot is more complicated–everyone treats it as a matter of family custom, for reasons I don’t understand.

    The last two are certainly custom, the first seems to be a simple ruling of the Gemara, not challenged. The difference between pesak and minhag is that pesak is an issue that arose in the Gemara, was dealt with as a matter of law, but different authorities came to different conclusions. Minhag are those things that are a matter of practice, without clear legal defining qualities. I don’t think the line is always perfectly clear, but that’s a starting point for a definition.

    • I also had heard that the Rav said that about succah on Chol Hamoed. But when I mentioned that to R. JJ Schacter, he pointed me to an online shiur of the Rav (which I listened to) where the Rav finds a limud zechut for not eating in a succah. But he ends the shiur by saying, seriously he emphasized, that if you don’t eat in a succah you can’t eat gebructz on Pesach. You have to be consistent and take chassidishe minhagim lekula and lechumra.

  7. We should realize that we’re looking at a reality in transition, and not an equilibrium state.

    The norm for minhag is to be set by one’s current location, not ancestry. There are cases in Makom sheNahagu (Pesachim, ch 4) in both talmuds of groups that move to an area that has no established minhag who are told to maintain their minhag avos (the custom they inherited from their ancestors).

    We’ve just undergone a huge remixing of population. The last time a community was formed on this scale led to the emergence of a single Minhag Ashkenaz, a millennium ago.

    Specifically Israeli, American, and other minhagim may well arise in time, although I would expect the arrival of the messiah and the rise of a new Sanhedrin will start new trends before that happens. But it certainly began, with American Jews of Lithuanian and Yekkish background making their sons an upsherin, or their Israeli counterparts not wearing tefillin on chol hamo’ed.

  8. Micha: Why do you say that the norm is for minhag to be established by place and not family? The poskim disagree on how to read the Gemara in Pesachim: some say that Bnei Beishan are from a family and others say they are from a place. It seems to me that the simplest translation is that they are a family, and that also is the simplest utilization of the biblical phrase “al titosh toras imekha.”

    • 1- What’s the name of the pereq in question again?

      2- The question in the gemara is “what do we do now that we moved”? Which would be a non-issue if minhag avos were primary.

      3- Weak, but: When Abayei turns a minhag avos into a derabbanan (Yom Tov sheini) it goes by who is in the golah right then. It is not that people from Bavel (et al) 1600 years ago keep two days, and those whose ancestors were in EY keep one.

      4- Lo sisgodedu is applied to two customs being followed in the same shul, or under the same beis din (in the same town if the town only has one BD). Not between two wings of the same family. This application of lo sisgodedu defines an obligation to have a minhag hamaqom explicitly even if families involved has different minhagim, no?

      5- Toras imekha is tied to minhag by homoletically reading it “toras umasekha”. It would seem chazal consciously avoided the simplest utilization.

      • I think you are misquoting the Gemara and/or not putting in any effort to understand the important machlokes between the Pri Chadash and the Pri Torah. They both discuss these issues and texts at great length. Sorry but I don’t have time now to summarize them. I think I wrote about them this past summer.

  9. I wonder where yom tov sheni fits into all of this. If anything is, that was initially instituted for geographical reasons and yet the predominant practice seems to be to act as if one is home rather than where one actually is, although I keep on hearing more and more MO observe only one day in Israel which, actually, is my rabbi’s pesak.

    • Yom Tov sheini today is a din derabbanan that commemorates a minhag. The minhag was caused by necessity — ignorance about which day was Yom Tov. But Yom Tov sheini today is has the stringencies of a derabbanan, not the lesser binding nature of a minhag.

  10. But the mintage it commemorates was a geographically based mintage. So why should the din derabbanan change the minhag? IOW, making it a derabbanan means if you don’t follow it you are over a derabannan rather than simply not following a minhag. But why should the mintage change? And the mintage was you followed whatever was being done in the location you were at.

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