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.
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