537) When Did We All Start Ignoring the "Sealing of the Talmud"?

This post, by Boruch Clinton, originally appeared on the B'chol D'rachecha site.

It’s popularly understood that the completion of the Talmud around 1,500 years ago marked a critical transition in halachic history. From that point on, halachic conclusions found in the Talmud were binding on all Jews everywhere and for all time.

In fact, the Rambam writes as much in the introduction to his משנה תורה:

אבל כל הדברים שבתלמוד הבבלי חייבין כל ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמים שבתלמוד ולגזור גזֵרותם וללכת בתקנותם הואיל וכל אותן הדברים שבתלמוד הסכימו עליהם כל ישראל.

The problem is that, while everyone seems to agree in principle, there are so many exceptions that the rule has kind of gotten lost. I should note that I’m not suggesting that the many innovations in question are necessarily inappropriate. But they are indicators that the Jewish people somehow doesn’t seem to understand the principle of חתימת התלמוד the way they once did.

Here are just a few examples of explicit halachic obligations from Chazal that are no longer observed:

• The near-universal requirement to stop work and learning for a funeral (see this recent post).

• The prohibition on adding tefilos without the express permission of kehila members (see this recent post).

• The requirement to wear tefilin every day - even on chol hamoed.

• The requirement to teach one’s son a trade (it’s not at all obvious that a high school diploma - or even a college degree - satisfies this requirement).

Here are some more examples from the fourth chapter of דרכי ההוראה by the מהר”ץ חיות.

• The requirement for close relatives of a mourner to formally join in the mourning period.

• The requirement to fully cover one’s head (עטיפת הראש) while in mourning.

• The requirement to overturn beds and benches in a house of mourning.

• The requirement to avoid doing things in pairs (זוגות) - see Pesachim 111b where some are described as הלכה למשה מסיני.

• The requirement to avoid uncovered water (משקין שנתגלו)

• The prohibition to marry a woman whose previous two (or three) husbands had died - see Yevamos 64b (וע’ רמ”א שו”ע אהע”ז סימן ט וגם בית יוסף).

• A fetus born during the eighth month of pregnancy is not viable (and would therefore be muktza on Shabbos).

• The requirement to sleep in a succah (weather permitting).

• The requirement to wash one’s hands before eating wet fruits and vegetables - see Bava Basra 60b.

• The mitzva d’oraissa to sound horns (חצוצרות) during a time of serious danger.

• The prohibition of work on chol hamoed or during the week of mourning even in a context of minimal financial loss (דבר האבד). It’s true that דבר האבד is invoked by Chazal in some cases, but those always involve בהול על ממונו וכדומה.

Some of those examples are justified by mainstream poskim using arguments like “nature has changed” (נשתנו הטבעים) or “circumstances have changed”. But has anyone rechecked “nature” and “circumstances” in the five hundred years since the Shulchan Aruch, Rema, and others offered those rationalizations?

And even if it were confirmed that things really have been consistently altered, why would we not use the same logic for widespread prohibitions (like the requirement for avoiding non cholov yisroel milk) instead of insisting that Chazal might have had other reasons for their decrees? How is one change prioritized over a second?

I think it’s reasonable to understand most - if not all - of those rationalizations as efforts to justify (לימודי זכות) changes to observance that occurred outside of the normal halachic process. But the common denominator is that change is common and, if anything, the pace of change is picking up.

Does this mean that, as a community, we’re falling out of sync with “halachic” Torah Judaism?