Does “It’s Never Been Done” Imply “It Should Never Be Done”? Part 2

by Rabbi Aryeh Klapper

Part 1 of this series can be found here. Part 3 of this series can be found here.

PART 1 of this series established that there is no bar under halakhah to arguing that an unprecedented action is halakhically permitted.  This principle is expressed pithily by Mishnah Zevachim 12:4 as “אין לא ראינו ראיה”, “‘We have not seen’ is not proof”.  Nonetheless, scholars may be required to conform when unsophisticated communities object to a practice on the grounds that they have never seen it done, even when the objection is halakhically groundless.  I argued that the Modern Orthodox community should be regarded as sophisticated by historical standards, but that there might – or might not – be reasons to treat it as if it were unsophisticated in certain cases.

RAMO Choshen Mishpat 37:22 expresses the position that despite the Mishnah Zevachim, there are circumstance under which “לא ראינו הוי ראיה”, “‘We have not seen’ is proof”.  This installment will seek to identify as precisely as possible the conditions under which this statement of RAMO applies.

Siftei Cohen (Shakh) to 37:22 connects this RAMO to the opening of Shulchan Arukh Yoreh Deah (YD), the very first topic covered in the formal semikhah curriculum.  YD 1:1 itself is based on the opening line of Mishnah Chullin: “הכל שוחטין ושחיטתן כשרה”, “everyone slaughters, and their slaughtering is valid”.  Who is included in “everyone”?  Talmud Chullin lists a variety of marginal men, which leaves open the possibility that women are excluded.   Beit Yosef mentions that the peculiar work Hilkhot Eretz Yisroel excludes women, but presents the position that women are included as the near-absolute consensus of halakhic authorities, and to my knowledge this claim has not been challenged since.

However, granted that this is true as halakhah, Beit Yosef also cites the position of Agur, a late fifteenth century German-Italian halakhic collection.  Agur writes that while all halakhic authorities agree that women may slaughter legally, a custom has arisen that they do not slaughter, and this custom should be regarded as having legal force going forward.  Agur takes this position using extravagant rhetoric, describing it as “מנהג מבטל הלכה”, “custom nullifying law”.

אף על פי שדעת הפוסקים כן

המנהג בכל גלות ישראל שלא ישחטו  

ומעולם לא ראיתי נוהג לשחוט  

ולכן אין להניחן לשחוט  

כי המנהג מבטל הלכה  

.ומנהג אבותינו תורה היא

Even though the opinion of the decisors is such (that women may slaughter)

the practice in all the diaspora of Jewry is that they should not slaughter

and I have never seen a woman practice slaughter

and therefore one should not allow women to slaughter

because the custom nullifies law

and the custom of our ancestors is Torah.

Beit Yosef himself nonetheless rejects Agur.

:ואני אומר

– שאם היה אומר שהיו רוצות לשחוט ולא הניחון

,היה אפשר לומר שהיא ראיה

.אך ראיית לא ראינו אינה ראיה

But I say:

If he has said that women wished to slaughter and were not allowed to do so –

It would be possible to say that this is a proof

but a proof of the form ‘We have not seen’ is no proof.

He accordingly codifies in Shulchan Arukh that women may slaughter.  RAMO, however, cites what appears to be the position of Agur:

יש אומרים

,שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

וכן המנהג שאין הנשים שוחטות

Some say

that women should not be allowed to slaughter

as they have already adopted the practice of not slaughtering.

and this is the custom: Women don’t slaughter.

Shakh contends that RAMO’s adoption of Agur’s position here reflects his statement in CM 37:22 that under some circumstances “I have not seen” is a valid proof.

[בזה ישבתי בתחילת ספרי שפתי כהן ליורה דעה [סימן א’ סק”א] דברי האגור [סי’ אלף ס”ב


שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

.שהב”י שם השיג עליו דלא ראינו אינה ראיה

,ואני כתבתי דבמנהג הוי לא ראינו ראיה

.וכמ”ש מהרי”ק והר”ב כאן  

On this basis I justified at the outset of my work Siftei Cohen to Yoreh Deah the words of Agur,

who wrote that

women should not be allowed to slaughter,

as they have already adopted the practice of not slaughtering.

Beit Yosef there challenged him by saying that “I have not seen” is no proof,

But I wrote that with regard to minhag “I have not seen” is a proof,

as Maharik and RAMO write here.

The key distinction Shakh makes is about the level of halakhah.  In areas that are Biblical or Rabbinic law, “I have not seen” is no proof.  But in areas of customary law, “I have not seen” is proof.  

Shakh does not suggest, or even contemplate, a claim that the fact that something hasn’t been done is the reason that it may not be done going forward; it is merely evidence that a custom to that effect was deliberately instituted.  

,וטעם נכון יש בדבר

דכיון שהמנהג כך

,והדבר שכיח כן

,אם היה הדבר מותר – אי אפשר שלא היינו רואים פעם אחת כן נוהגים להתיר

,אלא ודאי המנהג הוא כן

שנהגו בכונה לאסור

וכן להפך

There is a solid rationale for this.

Since the practice is such

and the matter comes up frequently

if it were permitted – it is impossible that we would not have seen once them practicing allowing this,

rather certainly the custom is such,

meaning that they intentionally adopted the practice of making it forbidden

or vice versa.

Shakh states that his position is based on Maharik and RAMO.  The question then is whether Maharik and RAMO in fact support his distinction between levels of law.  

Shulchan Arukh CM 37:22 discusses a halakhic difficulty with democracy.  In a democracy, every member of the community is party to any suit between the community and an individual member, just as in the United States government attorneys appear for “the People”.  Therefore, every member of the community should be disqualified as a witness in such case as nogeia (interested), and all laws and agreements should be unenforceable.  Mechaber explains that democratic “social contracts” include a waiver of the requirement for valid witnesses.  For this reason, even relatives can testify in such cases.

RAMO adds the following:

– כל דבר התלוי במנהג בני העיר

,אין אומרים בו תרי כמאה

אלא אזלינן ביה בתר הרוב

וכן כל כיוצא בזה

.שאין אנו צריכים עדות ממש

,(וכן לא אמרינן בכיוצא בזה ‘לא ראינו אינו ראיה’, אלא הוי ראיה (מהרי”ק שורש קע”ב

Everything that depends on the minhag of the citizens –

we do not say regarding it that two witnesses are the equivalent of 100;

rather we follow the majority of witnesses.

and all similar standards

since we don’t require formally valid testimony.

Similarly, we do not say in such matters that “’I have not seen’ is no proof”, rather it is a proof (Maharik 172)

The key sentence here is the first – “Everything that depends on the minhag of the citizens”. SHAKH apparently understands minhag here to refer to law at the halakhic level of custom.  I contend, however, that this is clearly incorrect in context.  Minhag here does not refer to customary law, but rather to facts of practice which are in and of themselves halakhically neutral, but which issues of Biblical or Rabbinic law depend on.

For example:  Halakhic day-labor contracts include an implicit stipulation that the hours and conditions of work conform to standard local practice.  Suppose that an employer hired a day-laborer and then sought to force that employee to pay to rent the necessary tools from him.  The employee objects and brings witnesses who state that no employer has ever made such a demand, and that it therefore violates community standards.  A beit din would accept this testimony, even though it has the form “we have not seen”, and decide for the employee.

However – other employees and employers would be free in the future to explicitly agree to such a rental.  The beit din’s ruling is based on descriptive minhag, and relates to Biblical and Rabbinic law; the issue has nothing to do with prescriptive minhag.

Accordingly, RAMO here has no relationship to the position of AGUR regarding prescriptive minhag, and SHAKH has no evidence that testimony of the form “I have not seen” is acceptable in cases regarding prescriptive minhag.  In other words, the argument that “It’s never been done” means “It should never be done” is not correct in any area of halakhah, whether Biblical, Rabbinic, or customary.

In PART 3 of this series we will see that RAMO’s position correctly represents Maharik, and that many great acharonim have similarly concluded that SHAKH’s contention regarding minhag cannot be sustained.

Shabbat shalom!


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