All legal systems require procedures for abrogating or amending the law. Such mechanisms are a necessity in order to accommodate change, transition, development, and evolution. In most legal systems, legislation is a central tool. Alas, in modern Jewish law, legislation in its various forms – takkanot and gezeirot – is seldom an effective legal instrument.
To illustrate the point: When Rabbi Asher Weiss (b. 1953) discussed light and air easement law – namely, claims based on the right to the passage of sunlight or air to a property – or the notion of a protected vista according to halakha, he was well aware that traditional Jewish law did not offer protections that are now commonly accepted:
If I had the power I would gather together all the heads of rabbinical courts, with the approval of the greats of the generation [who serve as] the eyes of the community, to consider with the mind and with the heart legislating regulations and establishing rules of adjudication for these matters and for many similar matters in many fields of hoshen mishpat [Jewish civil law] (Responsa Minhat Asher 1:98).
R. Asher Weiss was well-aware that this was not a practicable solution; rather, it was a legal dream. He, therefore, set about using other legal tools in order to provide protection under Jewish law.
Notwithstanding the decline in legislative power, hasidic masters made contributions to this field of legal writing. Some legislation by hasidic masters addressed the hasidic community and was more reflective of spiritual leadership than legal authority. For example, Takkanot de-Lozni issued by Rabbi Shneur Zalman of Liady (ca.1740-1812) around the 1790s in a bid to regulate visits by hasidim. Or rules instituted for Ger hasidim in the second half of the twentieth century, such as the unwritten guidelines – colloquially known as Takkunes – of Rabbi Yisrael Alter (1895-1977) and his successors regarding intimacy in a marriage.
Some rules were adopted by groups of hasidim as part of their quest for spiritual life. On occasion these rules may have been inspired or ratified by a hasidic master. For example, Rabbi Mordechai Shlomo Friedman of Boyan-New York (1890-1971) visited Israel in the winter of 1957/58, and his visit motivated a group of hasidim in Jerusalem to accept upon themselves particular rules of conduct and study.
From a legal perspective, regulations that impacted the wider community are significant because they reflect authority beyond a circle of adherents. Hasidic masters who served in official rabbinic positions, had the opportunity to exercise legal authority for the entire community under their jurisdiction. For example, in 1809, soon after taking up the post of rabbi of Iaşi, Rabbi Avraham Yehoshua Heshel (ca.1747-1825) ratified the existing regulations of the local cobblers’ association. A few years later he did the same for the local tailors’ association.
Similarly, Rabbi Zvi Elimelech of Dynów (1783-1841) enacted Takkanot Tamkhin De-orayta (Legislation for the Support of Torah Education) in 1827 or 1828 during his brief stint in the Munkatch rabbinate. This legislative act was designed to provide religious education for all Jewish males in Munkatch. To this end the legislation established a Society responsible for the implementation of the regulations and an elaborate taxation system that was to be applied to members of the Society in order to guarantee funding for the programme. The regulations also sought to socialise both students and teachers. The issues emphasised in the ordinances – such as wearing tzitzit – provide a window into the socio-religious challenges and priorities that occupied R. Zvi Elimelech in the 1820s. The commandment to tie tzitzit to a four-cornered garment appears in the Bible and is discussed in the rabbinic corpus of Jewish law, so “enacting” such a requirement is strange. R. Zvi Elimelech realised that readers would find it absurd that he was “legislating” existing laws. He explained his predicament:
But what can I do? About this my heart is faint, for nowadays there are many people in this country who wantonly transgress in these matters. And it is not in our power to protest, for it has become for them like something that is permissible.
Thus Takkanot Tamkhin De-orayta provides a perspective into religious observance in Munkatch, Hungary in the 1820s.
One particularly interesting collection of hasidic legislation is the posthumously published compendium of directives issued by Rabbi Menahem Mendel Schneerson of Lubavitch (1902-1994). The collection appeared in 2012, and was then translated into English and published in 2019 in a bilingual edition. The original title, Takkanot Ha-Rebbi (legislation of the Rebbe), suggests that this is a work of law. In the introduction to the volume, the author argues that the contents are not just hora’ot (instructions) aimed as specific people, mivtsa‘im (campaigns) aimed at the masses, or matters concerning minhagim (customs); rather, these takkanot have special legal standing. The author does, however, acknowledge that the distinction between the categories is not always clear cut: a by-product of no central, recognised legal authority. The 2019 bilingual edition seemed to soften the legal language by calling the work The Rebbe’s Directives and excising the legislative emphasis from the introduction.
Most of the Lubavitch legislation demanded additional conduct. For example, the 1952 directive requiring young men to complete rabbinic ordination before marriage, or the 1986 directive requiring each individual to appoint a personal rabbinic mentor.
One legislative act was termed Gezeirat Ha-mashke, the drinking edict, and it placed limitations on imbibing alcohol. In the 1960s, the rule limited hasidim to three shots; while in the 1980s four shots were allowed. The rules addressed men below the age of forty, especially those not married. Those who were over forty were also told to keep a cap on their drinking. It was not just the number of shots that were regulated; the rule also delineated a maximum volume. The rules applied equally to weekdays, as well as to Shabbat and Festivals. Only Purim was excluded from the legislation. The regulations were not limited to a particular jurisdiction or geographic territory; they were to be followed everywhere.
The Lubavitch “Prohibition” laws have never been repealed.
The Maggid of Melbourne is on the faculty of Pardes Institute of Jewish Studies and is a rabbi in Tzur Hadassa. He is a teaching fellow at Tel Aviv University’s Faculty of Law. His column appears in The Jerusalem Post Magazine. He can be contacted at firstname.lastname@example.org.