Sunday, February 11, 2018

If One More Person Says “Prozbul”…

   I have a vague recollection that the first time I heard the word ‘Prozbul’ was in December 1969 at the International USY Convention in Buffalo. The subject was ‘The Sabbath’ and the thrust of many of the sessions was how to bring Sabbath observance into sync with Modern Life.  Not surprisingly, high on the agenda was the Conservative legal opinion that one is allowed to drive back and forth to the synagogue on Shabbat, a copy of which was included in the source book. I was very much taken with the supreme confidence expressed by our discussion leader, a rabbinical student at JTS, not only that the Torah could be efficiently ‘brought up to date,’ but that ‘we’ are fully qualified to do so. When asked, whence stemmed their confidence, the answer was: Prozbul.
Neither I, nor anyone else in the room, had a clue as to what a Prozbul was so, so our leader kindly explained that the Torah annuls loans after seven years. However, this led to wealthy people not extending loans to the poor for fear of never being repaid, so Hillel created a legal fiction that annulled the annulment, overrode the Bible and that the vehicle by which this effected is entitled called ‘Prozbul’ (Cf. M. Shevi’it 10,3). We must, the leader continued, follow the example of Hillel and use it as a precedent to legislate in order to bring Judaism into the Twentieth Century. Allowing driving on Shabbat was one, sterling example of this type of activity.[1]
Over the subsequent decades, it seems that whenever I have encountered discussion of halakhic change, Prozbul is invoked.[2] Prima facie, it makes sense. After all, according to the Mishnah, Hillel the Elder did find a mechanism to address a social ill by effectively avoiding the abrogation of debts in the sabbatical year. However, the way the prozbul is cited goes far beyond this. It seems to me that it is appealed to as some sort of magic wand, an ‘Halakhah ex machina that can justify any and all situations wherein the Torah is perceived to be out of sync with the human condition.[3] Invoking Prozbul, then, is a way of expressing the (at best) extremely problematic assertion: ‘Where there’s a rabbinic will there’s an Halakhic Way.’[4]
I find this latter usage deeply distressing. Waving any kind of flag in a discussion of ideas is extremely shallow, and its use often verges on demagogy. Perhaps that explains why prozbul is a ubiquitous trope in social media. As if the Internet had not done enough damage in dumbing down contemporary intellectual intercourse, social media engenders superficiality of brain numbing proportions. Nevertheless, in the over-heated atmosphere of Facebook and Twitter polemics, whenever someone challenges the need, appropriateness or authority to change Jewish Law…out comes Prozbul. Quod erat demonstrandum. ‘Nuff Said.
This type of use of prozbul is not only distressing in its shallowness, its shallowness is itself deeply offensive. After all, discussions such as these within an Orthodox context, do not concern quotidian matters. They treat of the interpretation, and application, of what Orthodox Jews are supposed to believe is ultimately the Word of God. Discussions in that context demand the polar opposite of Internet arrogance and anger, or of social media anti-norms. They require, instead, precision of thought, meticulousness of formulation, and (above all) a deep and abiding reverence for the subject and of the broad implications of the analysis. And, while I obviously cannot do anything about the comportment of others (only of my own), I would like to revisit the prozbul as a literary and intellectual topos in order to flesh out my larger point.[5]
The origins, even the very meaning, of prozbul were long debated by scholars.[6] Today, it is accepted that the word is of Greek origin, and refers to a legal instrument presented to a court.[7] As noted above, loans are annulled at the end of the sabbatical year (Shemittat Kesafim; Deut. 15, 1-2). Inter alia, this was intended to introduce a degree of debt relief for the agricultural poor. At the turn of the first millennium, though, this situation had boomeranged. In fulfillment of a situation which the Torah had envisioned, and against which it had warned, people had begun to withhold loans on the fear that they would lose their investment upon the arrival of the sabbatical year. According to the Mishnah (Shevi’it 10, 1), this situation spurred Hillel the Elder into action: [A loan secured by] a prosbul is not cancelled [in the sabbatical year]. This was one of the things instituted by Hillel the Elder. For, he saw that people refrained from lending to one another, and there transgressing that which is written in the Torah…’[8] According to the Mishnah, Hillel ruled that debts that were presented to a court for collection were unaffected by the sabbatical year amnesty.[9]
The question is, of course, whence derived Hillel’s authority and ostensible audacity at effectively circumventing the Torah’s mandated debt amnesty? Indeed, both the Yerushalmi and the Bavli express (mild?) shock at the implication that Hillel permitted something that the Torah had explicitly forbidden.[10] The best of intentions, both imply, do not justify a gross abrogation of an explicit Biblical injunction.[11] The upshot of both Talmudic discussions (part of which are anticipated in the halakhic midrashim) is that Hillel’s actions and authority lay well within the parameters of accepted Rabbinic jurisprudence, and his authority was rooted in his standing as the head of the Sanhedrin. According to one opinion, Biblical Law allowed for the exemption of debt from the sabbatical year amnesty via its assignment to a court. Or, since the amnesty itself was only rabbinic in origin already in Second Temple times, it was fully within the purview of the rabbis to legislate an exemption (Hem amru ve-hem amru).[12]
Either way--- and while saying this should be obvious, it is unfortunately not --- while Hillel is reported to have responded to a societal need, his area of action was fully determined by and confined to the accepted rules of rabbinic jurisprudence. It is inconceivable (and the Talmudic expressions of shock express as much) that Hillel would have coerced the Torah to ‘adjust’ itself to a new reality, beyond where the Torah itself allowed him to go. Such an action for a person of faith would have been nothing less than a blasphemous sacrilege.[13]
This post is, as should be obvious, not a discussion of theories of the historical development of Prosbul, but of the manner in which Rabbinic Tradition understands itself, and the ignorance thereof. As a system of Law and Lore that is rooted in an a priori faith commitment, the legal reality that Prozbul actually represents in Rabbinic Law must be both acknowledged and respected.[14] In contemporary terms, that means that deference to accepted principles of Post-Talmudic jurisprudence: the supremacy of the Babylonian Talmud, jurisprudential divide between Rishonim and Aharonim, the authority of consensus (sugya de-alma) and, above all a healthy dose of reverence for the judicial moment (Yirat Hora’ah), cloaked in deference to the Giver of the Torah (Yir’at Shamayim), even to the inconvenience of the individual.[15] Those who misrepresent prozbul, and Halakhic Jurisprudence by extension, are guilty of ignorance at best, and willful, disrespectful distortion, at worst.  
This is not to imply that Halakhah ‘on the ground’ (as it were) is (or was ever) meant to be static. However, the interaction of Law and Life is both delicate and nuanced.[16] Orthodox belief maintains, and historical study confirms, that Halakhah possesses its own integrity and was never viewed as a plasticine toy in the hands of the halakhist. On the other hand, the type of contemporary legal paralysis that has engendered a society based on fear, on adoration of stricture and the compulsive need to satisfy ever transient opinion ever uttered is equally egregious and must be countered by those qualified (present and/or future) to liberate Halakhic decision making from its chains.
           There is, however, a difference. The latter, an admittedly egregious situation, is an internal development that can be rectified from within. Waving the flag of prozbul, with historicist fervor and revolutionary ardor, will leave nothing more than scorched earth.

[1] I am not going to here revisit the Conservative allowance to drive to the synagogue on Shabbat. As issued, it amounts to little more than rough historicism. Ironically, a very cogent rebuttal thereto was issued by the Masorti Movement in Israel. 

[2] Also popular, though less invoked, is M. Keritot 1, 7.

[3] Cf. Sefer Hassidim, ed. Witstinetzki-Freimann, no. 1068 and H. Soloveitchik, ‘Three Themes in the ‘Sefer Hassidim,’’ AJS Review, I(1976), Part One.

[4] I much prefer the bon mot of Professor David Shatz, אם תרצו, אין זו הלכה. Cf. H. Sabato, Seeking His Presence: Conversations with R. Aharon Lichtenstein, Jerusalem 2016,         .

[5] On this use of topos as a literary trope, see E. Curtius, European Literature and the Latin Middle Ages, New York 1953, 80. The term was most significantly used in Jewish Intellectual History by the late Prof. Isadore Twersky.

[6] A recent discussion of the origins and development of Prozbul, with prior bibliography, is found in E. Ancselovits, The Prosbul – A Legal Fiction? Jewish Law Annual, 19, 1-16. However, while his discussion is quite thought provoking, it does not address the point at bar here.

[7] I am following the discussion of the topic by my colleague, R. Prof. David Henshke, ‘Ketzad Mo’il Prozbul? Le-Toldot Be’uro shel Taqqanat Hillel,’ Shnaton HaMishpat HaIvri, 22(2001-2003), 71-106. Both, per se and for purposes of the central focus of this essay, his presentation is the most persuasive and the most apt.

[8] The Mishnah in Gittin (4, 3) describes prozbul as an enactment for the correction of a societal ill (Tiqqun Olam).

[9] There is a difference of opinion as to the exact mechanism at work here. See Henshke, (85-92) and the sources cited there. Ancselovits (passim) describes the subsequent stages of development of the institution.

[10] PT Shevi’it 10, 2 (39c) and BT Gittin 36a.

[11] BT Hullin 49b:  Rav ve-issura de-orayta ve-at amrat Ha-Torah hassa al mammonam shel Yisrael?

[12] Henshke notes that the Mishnah’s characterization of Prozbul as an ‘enactment’ (taqqanah) can be squared with either approach. The word can mean either ‘regularization’ or ‘legislation.’ The former connotation is appropriate with viewing Prosbul as an expression of a Biblical hermeneutic.

[13] Cf. H. Soloveitchik, ‘Religious Law and Change: The Medieval Ashkenazic Example,’ Collected Essays, I, Oxford 2013, 239-240. It is my conviction that even by the atheist-materialist standards of academic thought, the historian must presume the religious probity of the medieval individual (unless decisively proven otherwise). Cf. J. Woolf, The Fabric of Religious Life in Medieval Ashkenaz (1000-1300), Leiden 2015, 12-21; A. Gurevich, Categories of Medieval Culture, London and Boston: Routledge & Kegan Paul 1985. Startling confirmation of this contention is provided by the diaries of King James I of Aragon. Cf. R. Burns, ‘The Spiritual Life of James the Conqueror King of Arago-Catalonia,’ The Catholic Review, 62 (1976), 1-35.

[14] A review of the way that prosbul was adjudicated in Post-Talmudic Halakhah bears out this contention. See Henshke, passim and Y. Dinari, Hakhme Ashkenaz be-shelhe Yeme Ha-Beynayim, Jerusalem 1984, 200-203. Regarding the last point, see my essay ‘Masorah in the Teachings of Rabbi Joseph B. Soloveitchik zt’l,’ published here.

[15] This is not to deny that historical change does represent one variable, one tool, in the halakhist’s tool box. The parameters of the use to which such can be put to use is an very important topic on its own. It goes far beyond t he confines of the present discussion.

[16] I address this point in a forthcoming review essay in the Hebrew journal, Zion.

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