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Incrementum ad Institutum and the Persistence of Plainly Forbidden Practices

September 15, 2013

Friends and neighbors have been asking me about my opinion concerning the prevalence and seeming halachic acceptance of horrible practices like chicken kapparois and tashlich. How, they ask, could things so allegedly wrong be practiced by so many good, religious Jews and be approved of by the classic decisors of halacha?

The answer is historical, in the sense that it has happened many times in our history that the worst possible sins have become ingrained in our national culture, and because of certain Big Names, are practically irrevocable. The best example is brought in Sanhedrin 101b-102a:

R. Nahman said: The conceit which possessed Jeroboam drove him out of the world, as it is written, “Now Jeroboam said in his heart, Now shall the kingdom return to the house of David: if this people go up to do sacrifice in the house of the Lord at Jerusalem, then shall the heart of this people turn unto their Lord, even unto Rehoboam king of Judah, and they shall kill me, and go again to Rehoboam king of Judah.”  He reasoned thus: it is a tradition that none but the kings of the house of Judah may sit in the Temple Court. Now, when they [the people] see Rehoboam [King of Judah] sitting and me standing, they will say, The former is the king and the latter his subject; whilst if I sit too, I am guilty of treason,  and they will slay me, and follow him. Straightway, Wherefore the king took counsel, and made two calves of gold, and said unto them, it is too much for you to go up to Jerusalem: behold thy gods, O Israel, which brought thee up out of the land of Egypt. How did he ‘take counsel’? — R Judah said: He set a wicked man by the side of the righteous [in the council chamber] and said to him, ‘Will ye sign [your approval] of all that I may do?’ They replied, ‘Yes.’ ‘I wish to be king,’ he went on; and they again said, ‘Yes.’ ‘Will ye execute all my commands?’ he asked. Again they replied ‘Yes.’ ‘Even for the worship of idols?’ Whereupon the righteous man rejoined, ‘God forbid!’ ‘But,’ urged the wicked upon the righteous, ‘do you really think that a man like Jeroboam would serve idols? He only wishes to test us, to see whether we will give full acceptance to his orders?And even Ahijah the Shilonite erred and signed. For Jehu was a very righteous man, as it is written, And the Lord said unto Jehu, Because thou hast done well in executing that which is right in mine eyes, and hast done unto the house of Ahab according to all that was in mine heart, thy children of the fourth generation shall sit upon the throne of Israel. Yet it is written, But Jehu took no heed to walk in the law of the Lord God of Israel with all his heart; for he departed not from the sins of Jeroboam which made Israel to sin.  Now what caused this? — Abaye said: A covenant is made for the lips, as it is written, [And Jehu gathered all the people together, and said unto them,] Ahab served Baal a little; but Jehu shall serve him much.  Raba said: He saw the signature of Ahijah the Shilonite, and was thus led into error.

(This is from the Soncino Translation.)

Note this well. The running theme of the Book of Kings and many of the Twelve Prophets is that the sins of Jeroboam are what led to the Assyrian conquest of the Ten Tribes and their disappearance from history, yet generations of Jews refused to heed the words of the prophets to abandon those practices. Rabbi Avigdor Miller wrote about this extensively. Money quote from Behold a People, 502: “Jehoram [and other kings of the Ten Tribes] relied on the opinion of Jeroboam who founded these shrines, as men today rely on the opinions of the ancient and eminent Torah authorities.” You can find always find a Big Name to back up your golden calf or your kapparois, but you will be held responsible for not seeking the truth.

This then is how the forbidden become accepted practice: The few scholars who actually look into the matter realize that a practice should not be adopted, and marshall all sorts of halachic proofs to their position, and the weak masses, among them some who may even be kings or rabbis, rely on “what has been done” without considering  any of those arguments.

Actual scholar: “Kapparois is an alien and pagan practice! It involves numerous Torah prohibitions, and was never mandated by Moses or our sages, and many great decisors have sought to do away with the practices. Here is a mountain of proof to my position.”

Follower: “Yeah, but the Rema mentions the practice, and the aharonim have all sorts of intricate details about it, so we are going to do it anyway.”

What the second of these two players has done is deflect a well-reasoned and truthful halachic argument with the old “that’s what we do” line. I would like to offer that this type of fallacious argument be termed “Incrementum ad Institutum” which is Latin for “increasing [any innocuous practice] into a set custom”, that is, certain Jewish systems, not those of Maimonides and the Vilna Gaon, allow for the perpetuation and sanctification of  any practice that has been around for a long enough time and has had some Big Name practitioners, just like Jeroboam’s golden calves had the endorsement of Ahijah the Shilonite and generations of received practice.

This applies to many other parts of frum culture, and our generation’s challenge is to weed them out so that we can focus on following actual commandments, like feeding the poor and rebuilding the Temple.

One may ask: does not the Talmud state that minhag yisrael din hu, a Jewish custom has the force of a rule? The answer is that what our sages termed a minhag is not what you and I nowadays refer to as a minhag. Today, it means any and all practices of cultural Judaism, and even things mentioned in sefarim, whereas then it referred to very specific practices that were related to the performance of the commandments. R’ Schachter wrote about R’ Soloveichik’s limited halachic defintion of minhag. The best examples are the actual minhagim discussed in the fourth chapter of Pesahim, where the first practice mentioned is the avoidance of melacha on the fourteenth of Nisan.  Thus, it can not be that we should just follow minhag blindly, as that can be used as a justification for the worst crimes, like idolatry. Rather minhag, i.e., standard practice, has weight when deciding between two perfectly valid halachic practices.

Examples: may one perform melacha on Monday, the 14th of Nisan? It depends on local practice. May one eat non-sacrificial roasted meat on the the night of the 15th of Nisan? It depends on local practice. (Hametz and Matza, 8:11) In these cases, minhag decides between two equally valid positions.

May one sacrifice chickens on some street in Brooklyn on the 9th of Tishrei? Heaven forbid, because even though there is some “minhag” to do so, it is not valid halachically, unless one subscribes to Incrementum ad Institutum, and any and all components of Jewish culture are halachically sanctified and sanctioned.

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From → logic, original

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