The Gemara פסחים נא ע”ב, states—שלא ישנה אדם מהמנהג—when there is a custom in a particular city to behave in a certain manner, it is forbidden to acquit oneself in an alternative way. In particular, if there is an opinion to be stringent or indeed lenient in respect of a particular Halacha in a given town, it is forbidden to effectively inhabit that town and alter the Minhag.
The Ramo in his responsa (שו”ת סי’ נד) considers the question of barrels that had previously been smeared with lard, and were now used to store olive oil. Was one permitted to use the olive oil if it sold in these used barrels? The Ramo decides that it’s permitted without qualification to buy the olive oil, and furthermore, this is a long and established convention. The status of this practice being a custom, not only means that it is limited to a permissive ruling. The Ramo expresses the view that someone who desires to be stringent based on the opinion of their own Rabbi, should not do so, even if that person is a בעל נפש—a punctilious individual.
On the category of בעל נפש, It is common for contemporary Poskim to decide Halacha, and then provide additional direction to the בעל נפש. This is found in the משנה ברורה and אגרות משה. (See also (חולין מד ע”ב) for a more fundamental source). Yet, in the case of the barrels, the Ramo specifically directs the בעל נפש to not be מחמיר. Why so? Surely one is always entitled to adopt a stringency? The Ramo’s reasoning is that since it is permitted and בני ישראל behave in consonance with that היתר, their practice should not be indirectly questioned in any way through the stringent actions of those who wish to take upon themselves an alternative ruling. There is much more to say on the general issue of חומרות. For example, in יו”ד סימן פט ס”ק יז, the Shach cites the earlier opinion of the Maharshal who considers those who wait six hours after hard cheese before consuming meat as not only “simpletons”—the Maharshal coins them as apostates (דברי מינות)! Not every חומרה is sensible, and one who is really a בעל נפש will be cognisant of not offending others or foisting their private practice upon the masses. המחמיר יחמיר על עצמו
The Maharashdam who was a contemporary Rishon at the time of both the Ramo and Beis Yosef, limits the aforementioned rule of the Ramo (יו”ד סי’ קצג) to
- a Psak which involves a דין דרבנן, a Rabbinic law. However, if one wants to be מחמיר because they fear an infraction of a דין דאורייתא, a Torah law, they may do so.
- a situation where the act of being מחמיר is not assumed by the existing population who settled and live in the city. Newcomers to a town, may not exert their חומרא on the townspeople. (Note that majority or minority is not the consideration here; מנהג המקום is the determining factor and we do not say חוזר וניעור).
There are groups of people in Israel, known by many names, who
- assume levels of צניעות which can only be described as חומרות
- settle in existing cities, such as בית שמש, and not only wish to practice their own חומרות, but seek to force others to adhere to those same חומרות.
To be sure, members of these communities falsely claim that their standards are
- not extreme,
- involve איסורים דאורייתא, and
- may even imply the need to act in a manner of יהרג ואל יעבור.
Such claims are false.
The actuality is that צניעות is, by definition, a set of lines followed by a grey area. The grey area is defined and governed by societal practice. Societal practice cannot be determined by fiat, violent or otherwise; it is also relative to time and place.
Ironically, when extremist women commenced wearing black Burkas as an “extra” level of צניעות, even the usually strict Edah Charedis exclaimed that “enough is enough”. To add to the irony, the Edah objected despite the fact that one could cogently show that were one to live among Muslim women, it might well be a Rabbinic imperative to match their levels of צניעות! I don’t expect we will find such a judgement emanating from the Beis Din of the Edah even though I contend that such a ruling could quite cogently be constructed.
A line was drawn. Grey areas exist in every city, town or village. I do not hold the view that, for example, in Melbourne, one can talk about מנהג מלבורן unless it is something that all the religious communities have practiced and continue to practice. If Adass, the Litvaks, Ger or Chabad or whoever do things uniformly in a particular way, then it is a matter for those communities. They cannot and should not ever impose their practice on anyone else. Ironically, it may well be דינא דמלכותא that preserves the halachic status quo outside of the State of Israel.
Bet Shemesh, on the other hand, is and was, an established city and it had its lines and grey areas. Those areas were amorphous and pluralist but never included the consideration that men and women walk on either side of a road. (This was also not the practice in Poland, for example, except allegedly in Kelm). The line never extended to the disgraceful dehumanisation and targeting of women who wear Tichels and skirts down to their knees. The line didn’t consider a woman who “heaven forbid” displayed her toes through sandals as licentious and through whose toes was causing lustful thoughts in these less than holy בעלי נפש thereby “polluting” the atmosphere with such פריצות. (Yes, one lady wearing a long skirt and sandals was indeed set upon by unruly ruffians for this most trivial reason).
I have been disturbed for days by the sad picture of that little girl holding her mother’s hand while trembling on her way to school because she feared the modern zealots would spit and accost her. שומו שמים … how far have we strayed from דרכיה דרכי נועם.
If zealots feel the need to build their own עיר מקלט city, where they can enact all level of stringency, that’s their business. If they are permitted to do so by the law of the land, then let them go ahead. If a person wants to live or visit, it would be a good idea to follow those stringencies within the boundaries of that city. This is not different from להבדיל Mecca, where Muslims have accepted certain extra practices only within that city. This would not ever imply though that mindless automatons are justified in resorting to spitting and other forms of violence if someone does not follow their city-based dicta. A city whose Rabbi encourages such practices of violence either directly or indirectly will face a דין וחשבון in due course. I would call such a city that duly practices such abominable acts a modern-day example of an עיר הנדחת.
For a little more perspective, let me conclude with a rather prophetic and incisive psak from no less a גאון than Rav Chaim Berlin ז’ל.
Rav Chaim Berlin was the son of the famed Netziv (from the Netziv’s first wife) and a half-brother of R’ Meir Bar Ilan. He was Rosh Yeshivah in Volozhin, Chief Rabbi of Moscow, and at the end of his life became Chief Rabbi of Jerusalem after R’ Shmuel Salant ז’ל.
R’ Chaim Berlin’s halachic responsa were published posthumously by alumni of Yeshivas Chaim Berlin in the USA. In Even Ha-Ezer, R’ Chaim was asked by a former student now in the USA what to do in the event that a woman stretched out her hand to him as part of common business practice. R’ Chaim answers that according to the letter of the law עיקר הדין there is no איסור because the act is not occurring בדרך חיבה—amorously—and since the student is visibly religious and is expected to be doing so simply as part of business etiquette, it is permitted. Interestingly, and this is the part that I found very impressive, R’ Chaim quotes the Gemara יומא פו:א
ואהבת את ה’ אלוקיך – שיהא שם שמים מתאהב על ידך
You shall love Hashem your God—[implies that] Heaven should become beloved [by others] on account of your hands [actions]
R’ Chaim contends that the person who is clearly a religious Jew, and is visibly seen as such, and who does not behave with common business etiquette is likely to encourage Non-Jews to think that Jews and their Rabbis are fanatical madmen! Accordingly, he says that failing to shake the hand, in the case of that student, would constitute a חילול שם שמים!
These are powerful words. I’m not a Posek suggesting that anyone simply make their own halachic conclusions based on this insight. However, it is quite clear, that we have witnessed over the last few weeks is exactly what R’ Chaim Berlin was warning us against.
The actions of an ungainly ugly tail of extremist Jews have through their own prescribed grey areas caused Judaism to be seen by many as no different to the Taliban or Salafist Wahhabis. My accusation extends to the imbeciles who berated a blind woman when she sat at the front of one of those new separate buses.
עת לעשות לה’ הפרו תורותיך