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Everyone Does It

I. IGNORANCE OF THE LAW

“Everyone does it” is never an excuse. It does not constitute a legal or religious exemption from consequences. While Jewish law does indeed treat ignorant or unintentional violations differently than willful sins, it generally does not allow for the intentional setting aside of a rule out of common convention.

There are, however, exceptions. The first is when the rule will anyway be ignored. Rather than raise the level of sin to intentional, the rabbis must forgo their pedagogical mandate in exchange for religious expediency. Another is when a law is debated by earlier authorities. Even though the majority of decisors side in one direction, if common practice follows the minority then there is room to invoke the concept of “look around and see what people are doing” (Berachos 45a).

II. THREE CATEGORIES

Rav Tzvi Hirsch (Maharatz) Chajes (Darkei Ha-Hora’ah, ch. 3) lists three categories of common practices that contradict established halachah but require no rabbinic corrective:

1. Common practice is stricter than the law. If informing people of the leniency will cause confusion that risks their neglecting the law itself, then rabbis should do nothing.

2. Common practice is against an undisputed halachah but the people will ignore rabbinic objections. In such a case, the rabbis refrain from intervening because “it is better that people sin accidentally than intentionally” (Beitzah 30a).

3. Common practice is contrary to an established halachah but there is a lenient post-talmudic minority opinion. In such a case, says the Maharatz Chajes, the custom overrides the law.

III. MILK

A common example of this final case is something much discussed in our community — Chalav Yisrael. The talmudic rule is that milking must be supervised by a Jew to ensure that small amounts of non-kosher milk is not mixed with the kosher milk. Most authorities consider this an official rabbinic enactment that applies even when the reason does not but a minority of significant authorities (including, particularly, the Rambam) holds that the enactment need not be observed if we can be fairly sure the kosher milk remains pure. The Birkei Yosef (Yoreh De’ah 115:1) writes explicitly that while the halachah follows the majority view, someone who finds himself in a community that has a lenient custom may likewise follow the minority opinion. (This is aside from the lenient views of Rav Moshe Feinstein and Rav Yosef Eliyahu Henkin.)

IV. TRUST

There is another case where “everyone does it” impacts halachah. How much can you trust someone who does not observe halachah? Someone who does not feel the divine obligation to observe a particular law may be too quick to allow something that a more scrupulously observant individual would not.

The general rule is that you cannot trust such a person regarding a law he does not observe but you can trust him on those he fulfills (Shulchan Aruch, Yoreh De’ah 119:1,4). There are more details, as described in the rest of that chapter, but one in particular fits our discussion. The Rema (ibid. 7) writes that someone who does not follow a specific law that most people fail to observe is believed about it, which the Shach (19) explains means that we believe him if he swears about it. Because “everyone does it,” he retains credence he would otherwise have lost.

Ignorance is not bliss if it leads to failure. However, the Torah respects Jewish practice and offers it credibility wherever possible.

Rabbi

Gil Student