This article—drawing extensively on the research of Professor Marc Shapiro— examines the term ‘Halachic fiction.’ It is used to describe legal constructs in Halacha (Jewish law) that are not literally true, but serve as mechanisms to reconcile the demands of Halacha with the realities of lived experience. In other words, there is a category of Halacha—popular during the post Shulchan Aruch period (from the sixteenth century to this day)—where the “community’s ritual instinct” (Halbertal 2002:166, citing Jacob Katz), as well as custom, determine the law, sometimes to a greater extent than the rabbis.
Background
Moshe Halbertal explains the idea of a “community’s ritual instinct”:
“The community creates…norms organically, without negotiation with a rabbinical authority, and, sometimes, on the basis of advice received from educated dilettantes [non-scholarly dabblers or amateurs] who have not attained the status to rule authoritatively on legal questions. After the norms have become rooted, halakhic authorities examine them in light of legal sources. Sometimes they consent to the norms ex post facto; sometimes they reject them; and sometimes they reinterpret the halakhic sources to make them fit the norms that have been created” (Halbertal 2002:166).
Importantly, these types of popular community practices are either a) accepted as they are as Halachically permissible, b) rejected, or c) creatively reconciled to Halacha by the posek (Halachic decisor, or legal authority). This means that even in the era when the codified law of the Shulchan Aruch is widely available, it is regularly overridden and reshaped by communal pressure. Significantly, these communal practices are often retroactively reconciled and justified by the posek, employing what Shapiro terms ‘Halachic fictions.’
Halachic and legal fictions
A Legal fiction— in the secular legal sense—is defined as “an assertion accepted as true, though probably fictitious, to achieve a particular goal in a legal matter” (www.lexico.com/en/definition/legal_fiction). So, for example, a ‘corporation’ is considered to be like a ‘person,’ owning property, entering into contracts and suing. Yet we know a corporation is not a person. Shapiro maintains that a secular legal fiction is not different from a Halachic fiction: like selling Chametz before Pesach (despite the sale being legally binding by secular law), because the seller intends to reclaim it afterwards. Likewise, a Prozbul is the legal workaround created by Hillel the Elder to prevent debt cancellation during the Sabbatical year, ensuring economic stability. An Eruv—the symbolic merging of private and public domains—allows objects to be carried and transferred on Shabbat. There is often a fine line between the legitimate Halachic process involving formal legal argumentation for and agaist a matter—based on solid Halachic precedent—and Halachic fiction, which is an ex post facto justification on an issue that has fallen into neglect. Halachic fictions raises some serious issues because in many instances:
“we are confronted by nothing less than a de facto abolishment of explicit Talmudic halakhot, although for understandable reasons the halakhist never uses such language. From his perspective, the halakhist must portray any changes in halakhic practice as having been inherent in the system all along” (Shapiro 2022:26).
In other words, the use of Halachic fiction is not something that is going to be readily acknowledged or admitted by the Halachic posek. Let us now turn to some examples of how laws are allowed to change over time:
Women wearing veils
A modern posek, R. Shalom Messas (1913-2003), acknowledged that it is often the people—not the rabbis—that inform the law. A case in point is Maimonides, who requires Jewish women to wear veils:
וְאֵלּוּ הֵן הַדְּבָרִים שֶׁאִם עָשְׂתָה אַחַת מֵהֶן עָבְרָה עַל דָּת יְהוּדִית. יוֹצְאָה לַשּׁוּק אוֹ לְמָבוֹי מְפֻלָּשׁ וְרֹאשָׁהּ פָּרוּעַ וְאֵין עָלֶיהָ רְדִיד כְּכָל הַנָּשִׁים. אַף עַל פִּי שֶׁשְּׂעָרָהּ מְכֻסֶּה בְּמִטְפַּחַת
“When a woman performs any of the following acts, she is considered to have violated the Jewish faith: a) she goes to the marketplace or a lane with openings at both ends without having her head [fully] covered - i.e., her hair is covered by a handkerchief, but not with a veil like all other women” (Mishneh Torah, Hilchot Ishut 24:12).
Maimonides lived in Muslim lands, and this may—or may not—have had a bearing on such rulings. Either way, in his Mishneh Torah, he codifies these laws as binding upon all Jews. Yet, we know that today, the law requiring women to wear veils has been abandoned. R. Messas, however, acknowledges that this law only changed due to the pressure from the community and not the rabbis. Messas presents the pragmatic dynamics of Halachic decision‑making in a way that few Halachists are willing to concede:
“[T]hey [the people] are the ones
who abolish the practice little by little. At first, the rabbis of the time
scream at them, but they [the people] do not pay attention, and little by
little it is abolished. [Regarding the permissibility of wearing a sheitel
instead of a veil] it turns out that the ones who establish the custom are the
people, they are the ones who begin to enact change...”
נמצא שמי שקובע המנהג הם המון העם שהם המתחילים לשנות
(Messas, Shemesh uMagen, 1986:2:249).
The rabbis usually prefer to frame change as rooted—not in the people—but in textual exegesis or legal reasoning. R. Messas, however, exposes the mechanics that often result in Halachic change, and it's not the rabbis who abolish the law, but the people who simply stop observing it.
“Yet often this [rabbinic] approval was only ex post facto when there was nothing the rabbis could do, and instead of ‘approval’ a better word would be ‘toleration’… [The Halachic decision-making process in] the post-Shulhan Arukh era…has not been systematically studied…[W]e still await a detailed examination of how Jewish law has developed and been adapted and ‘updated’ in recent centuries” (Shapiro 2022:27).
Shapiro’s bold confrontation with the reality of Halachic fiction may indeed be the pioneering step in this area of research.
Mezuzahs were not always as common as they are now
Today, most Jewish homes probably have at least one Mezuzah. But it wasn’t always like this. During Medieval times, Mezuzot were not common in Ashkenaz (Northern France and Germany):
“In what appears to be an example of halakhic fiction, R. Peretz (d. circa 1295) claims that people did not put up mezuzot because they relied on a supposed rabbinic statement [apparently in Talmud Yerushalmi] that a city that has pigs in it does not require mezuzot” (Shapiro 2022:28, n.15).
More than a century later, during the time of R. Yakov Moelin, known as Maharil (d. 1427), attitudes changed, and Mezuzah observance became slightly more popular, with some affixing Mezuzot, although not necessarily to all the doors of their homes (She’elot uTeshuvot Maharil, no. 94).
At that very time, R. Yisrael Isserlein (d.1460) writes from Austria that the vast majority (רובא דרובא דעלמא) of Austrian Jews—including Torah scholars—do not observe the custom of Mezuzah on all their doors (Terumat haDeshen: She’elot uTeshuvot, no. 106.
The author of the Ashkenazi version of Shulchan Aruch, R. Moshe Isserless (Ramah, d. 1572), writing in Kraków, Poland, notes (regretfully) that the general practice was only to have one Mezuzah at the entrance of the home (רוב העולם סומכין על מזוזה אחת) (Yoreh Deah 287:2). There was also widespread neglect of Tefillin during Medieval times [see: Kotzk Blog: 437) The historical neglect of Tefilin].
The neglect of such important precepts prompted one Tossafist, R. Yehudah ben Yitzchak Messer Leon of Paris, to ask, “On what do they rely?” (She’elot uTeshuvot Maharik, no. 174). In other words, he seems to have intrinsically assumed that they obviously relied on some rabbinic dispensation. It was just that he was simply unaware of the Halachic chapter and verse. He could not imagine that Jews would simply abandon a mitzvah without rabbinic sanction. This ties in with the hypothesis that sometimes rabbis retroactively (and reluctantly) create Halachic explanations—even fictions— transforming what looks like neglect into something that can be framed within the law:
“[I]t is often the behavior of the community that will determine what is correct for Judaism” (Shapiro 2022:29).
This way, even the neglect of something as important as Mezuzot on all the doors of a house can be turned into a custom only observed in certain geographical areas. Another example may be the religious Jews of Germany, who historically did not wear yarmulkas.
Yet the rabbis were generally reluctant to admit that established customs based on simple neglect did exist in Judaism. This reluctance is well-attested to in rabbinic literature throughout the ages, where a very different position is taken:
דמה שהמנהג מוסכם אצל כלל ישראל הוא ע״פ רוח הקודש
“The fact that a custom is common among Jews is [not an accident, but] through a spirit of holiness” (R. Eliyahu Ragoler, Yad Eliyahu, Pesakim, no. 25).
In another example, this time from the Chida (d. 1806), we see:
שכל דבר שהוא מורגל בצבור ראוי לסמוך עליו כאילו
הם דברי נביא
“Everything that the community is accustomed to, may be relied upon, as if they were words from a prophet” (R. Benyamin Espinoza, cited in R. Chaim Yosef David Azulai, Yosef Ometz, no. 10).
What this amounts to is that:
“[A] practice of the religious community often has a presumption of correctness and authoritativeness, even if it appears to be in opposition to accepted halakhah” (Shapiro 2022:29).
R. Haym Soloveitchik similarly observed:
“Once the existing becomes identified with the appropriate (as it does in any vibrant traditional society), this identity can easily spill over and legitimize practices that fall beyond the halakhic perimeter” (Haym Soloveitchik, 2013:1:255).
How can Halacha
change if it is unchangeable?
The big question is how can Halacha change—in both directions: including the institution of new laws, and the abolishment of old ones—if it is immutable?
Conservative guardians of the Halachic tradition, such as R. David Bleich, declare “Jewish law does not change.” But, historically, it is very easy to document numerous and significant changes to Jewish law over time:
“[W]hile Bleich’s approach might make good dogma, it is bad history” (Shapiro 2022:30).
Still, many rabbis remain uncompromisingly adamant in denying that any Halachic changes have ever occurred. This, especially in light of the publication of the Shulchan Aruch of R. Yosef Karo in the sixteenth century. Shapiro (2022:34), however, documents several blatant examples of changes and departures from the supposedly immutable and binding Shulchan Aruch:
Halachic divergences from the Shulchan Aruch
1) According to the Shulchan Aruch (Orach Chaim 25:11), immediately after putting on the hand Tefillin—but before winding the strap around the arm—the head Tefillin is to be donned. This is apparently a universal custom because even the Ramah does not object to this. Yet the general practice followed by both Ashkenazim and Sefaradim today is to continue binding the strap on the arm—up to the wrist—and only then, to don the head Tefillin. Although this widespread custom accords with the mystical teachings of R. Yitzchak Luria, the Arizal, it nevertheless stands in conflict with the normative rulings of the Shulchan Aruch.
2) According to the Shulchan Aruch (Orach Chaim 101:2), the Shemona Esrei, or Amidah, must be said loud enough for the person praying to hear themselves, but not so loud that others nearby are disturbed. Yet there are communities today that generally recite the Amidah silently, moving lips but without audible sound. This, too, follows the custom of the Kabbalists.
3) According to the Shulchan Aruch (Yoreh Deah 340:5), all those who happen to be present when another person passes away must tear their clothing (Keriah), not just the immediate relatives. This ruling is not disputed by the Ramah, so it remains universal and authoritative. Yet the practice today is that only the immediate family perform the Keriah. In fact, the custom in Morocco and Baghdad was that women never performed Keriah at all.
4) According to the Shulchan Aruch (Even haEzer 1:3), if a man was not married by the age of twenty (and he is not studying Torah full time), the Beit Din can force him to get married. It seems, however, that this ruling of the Shulchan Aruch has never been applied.
5) A Halachic dispute exists regarding Shabbat times: Rabbeinu Tam maintains that both its commencement and conclusion occur later than the view of the Gaonim. The Shulchan Aruch (Orach Chaim 261:2) rules according to Rabbeinu Tam, with a later time stipulated for the onset and departure of Shabbat. However, our contemporary practice is not in accordance with the Shulchan Aruch but sides, instead, with the view of the Gaonim. We thus assume the earlier times for both the beginning and ending of Shabbat (and this was endorsed by both R. Shneur Zalman of Liadi and the Vilna Gaon). This means that:
“We are in the strange situation that as far as one of the most fundamental issues of Halachah is concerned, the onset of the Sabbath, universal Jewish practice today is contrary to the explicit ruling of the Shulhan Aruch. We also know that universal practice today is contrary to the common practice in Eastern Europe in the last [nineteenth] century… [Accordingly] most people perform melakha [prohibited work] on Motza’ei Shabbat at a time when, according to most Rishonim and the Shulchan Arukh, doing so constitutes a Shabbat violation, punishable with [the biblical penalty of] sekila (stoning)” (Shlomo Sternberg, cited in Shapiro 2022:35).
These examples (and there are many more) reinforce the notion that:
“the Shulhan Arukh has never been regarded as an absolute binding code… Some of these ‘violations’ remain quite widespread and most people are completely oblivious to the matter” (Shapiro 2022:37).
Understanding
‘traditional’ societies
Haym Soloveitchik, as mentioned, offers a compelling interpretation of some of these deviations and innovations in Jewish law, viewing them not as uniquely Jewish phenomena but as natural consequences inherent to all traditional societies:
“Anyone who imagines that the rich and variegated corpus of religious practice is laid out on a Procrustean bed [Procrustes was a bandit who forced travelers to fit into his iron bed—stretching them if they were too short, or cutting off their limbs if they were too tall—reprersenting the imposition a set of rigid, one-size-fits-all standards, universally and unnaturally -GM] of canonized texts, and all the numerous protuberances lopped off, has little knowledge of how a traditional society functions. Such a view also underestimates the creativity of religious communities, even the most norm-oriented ones. . . . There is no such thing as perfect compliance…and halakhists are only too well aware of this… [L]egitimacy comes with age [and practice and acceptance by the people over time] in a traditional society (Soloveitchik 2013:2:56).
Someone who well-understood this idea of traditional societies even before Soloveitchik was R. Shlomo Kluger (d.1869). There used to be a custom for brides to light candles and recite a certain blessing just before they got married. Kluger knew that the practice was nonsense, but instead of forbidding it—even though it entailed a blessing formulation which is taken very seriously in Halacha—he suggested it continue, as it could be understood as chinuch for when they light Shabbat candles (like a teacher who instructs children in blessings). This relates to what Shapiro terms “Halachic fiction.”
Halachic fiction
Halachic fiction is where poskim (Halachic decisors) try:
“to find some, indeed any, justification for what is clearly a violation of the codified halakhah…[illustrating] how the living law is brought into line with the book law. When the community refuses to accept the book law, the halakhists are often led to revise the book law so that there is a new halakhic standard.” (Shapiro 2022:38).
An earlier rabbi who employed the mechanics of Halachic fiction was R. Yom Tov Lipman Heller (d. 1654), known for his Tosefot Yom Tov commentary on the Mishna. In a case where people were showing disregard for a book law, he claimed that the ‘olam’ (the Jewish world) had always relied on certain interpretative leniencies to justify their (now questionable) deeds. Realistically and historically, however, the ‘olam’ did not always follow the rabbis:
“In fact, the reality was the exact reverse scenario. The [‘olam’ or] ‘world’ did what it wanted to do, and it is the halakhist who for religious and sociological reasons must create the halakhic fiction…” (Shapiro 2022:41).
Another illustration of the generous assumptions surrounding this elusive but authoritative-sounding term ‘olam’—perhaps best understood as a constructed Jewish ‘olam’ invoked to justify Halachic outcomes—appears in the writings of R. Menashe Klein (d. 2011). Klein explains that this ‘olam,’ at times, overlooks certain Halachic requirements, such as the prohibition against lending money without witnesses. He suggests that such practices rest upon reliance on a general Talmudic dispensation— that leniencies can be used to make it easier for people to borrow money—and not on basic human negligence! This is another example of a Halachik fiction. Klein uses it deliberately to turn aside from the technical requirement to look for witnesses every time someone needs to borrow money. This burdensome practice was, in any case, already in neglect. Shapiro notes that the ‘olam’ were not deferring to Talmudic tomes every time they needed to borrow money. Instead:
“the masses do what they like, and it is halakhists such as Klein who justify these deviations ex post facto” (Shapiro 2022:44).
Halacha: by the
people and for the people
From a Halachic perspective, the widespread and common Jewish practices within the traditional community, and even their deviances, must—as far as possible—be defensible:
“People did what came naturally to them, but the halakhist, following a well-established process of attempting to justify the practices of the religious masses when they appear to be in violation of halakhah, often felt forced to find some justification, no matter how flimsy” (Shapiro 2022:42).
Shapiro conceptualises this Halachic process as a pragmatic mechanism, developed in response to the exigencies of a less-than-ideal societal framework where:
“the halakhist cannot just throw up his hands and announce that an anti-halakhic practice is to be accepted because that is what the people are accustomed to do. Rather, his job is to provide the halakhic legitimacy, so that what appears to be a divergence from Jewish law is in fact not so” (Shapiro 2022:42).
Soloveitchik, however, (perhaps in slight tension with Shapiro?) has no issues with this process at all and describes the practice of ex post facto justification as perfectly legitimate:
“This is what religiously responsible people do, and there is no reason for them not to continue doing so” (Soloveitchik 2013:2:59).
It seems that this view is followed by some of the more modern Halachists like R. Yechiel Michel Epstein (d.1908), author of Aruch haShulchan. He generally attempts to synthesise common practice and book law, because he sees “the practice of the people as an expression of halakhic truth” (Soloveitchik 1994:67).
Analysis
A Halachic fiction is a legal device that allows Halacha to adapt without formally changing its principles. It creates a framework where the law appears consistent, but in practice, it accommodates real-world needs. It bridges the gap between theoretical and rigid Halacha and practical life situations, which are complex and evolving. A Halachic fiction is technically artificial but legally valid.
The abundant
practical and historical examples of Halachic fiction directly challenge
the categorical claims of hardline traditionalists who insist that Halacha
is immutable and never changes. In contrast, academic traditionalists recognise
both the reality and the historicity of such adaptations, acknowledging that Halacha
has, in fact, evolved through carefully constructed mechanisms and
justifications that preserve its authority while responding to lived
experience. Halachic fiction illuminates how Jewish law— particularly in the post-Shulchan Aruch
era—creatively negotiates between eternal law
and everyday realities while portraying the resultant changes as “having been
inherent in the system all along” (Shapiro 2022:26).
Bibliography
Halbertal, M., 2002, ‘Halakhah, Orthodoxy, and History’, in The Pride of Jacob: Essays on Jacob Katz and His Work, Edited by Jay M. Harris, Harvard Center for Jewish Studies, Cambridge.
Shapiro, M., 2022, ‘“Halakhic Fiction” and Minhag Mevatel Halakha, with a Focus on the Post-Shulhan Arukh Era’, in Jewish Law Association Studies, no. 30, 25-60.
Soloveitchik, H., 1994, ‘Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy’, Tradition, vol. 28, no.4, 64-130.
Soloveitchik, H., 2013, Collected Essays, Littman Library, Oxford.
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