The Legal Significance of Custom in the Halakhic Jurisprudence of Rabbi Yechiel Mikhel Epstein’s Arukh Hashulchan

Touro Law Review Volume 36 Number 1 Article 13 2020 The Legal Significance of Custom in the Halakhic Jurisprudence of Rabbi Yechiel Mikhel Epstein’s Arukh Hashulchan Shlomo C. Pill Emory Law School Michael J. Broyde Emory University School of Law Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Courts Commons, History of Religions of Western Origin Commons, Jewish Studies Commons, Jurisprudence Commons, and the Legal Commons Recommended Citation Pill, Shlomo C. and Broyde, Michael J. (2020) "The Legal Significance of Custom in the Halakhic Jurisprudence of Rabbi Yechiel Mikhel Epstein’s Arukh Hashulchan," Touro Law Review: Vol. 36: No. 1, Article 13. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol36/iss1/13 This Article is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact . Pill and Broyde: The Legal Significance of Custom THE LEGAL SIGNIFICANCE OF CUSTOM IN THE HALAKHIC JURISPRUDENCE OF RABBI YECHIEL MIKHEL EPSTEIN’S ARUKH HASHULCHAN Shlomo C. Pill * & Michael J. Broyde ** I. INTRODUCTION H.L.A. Hart, one of the great twentieth-century scholars of Western jurisprudence, observed that “custom . . . has a genuine though modest place in most legal systems.” 1 Custom enjoys only a modest prescriptive and determinative role in most modern Western legal regimes where laws are largely a product of legislative and administrative activity, and where lawmaking is in an important sense designed to impose deliberate, policy-focused standards from the top down, and to create some measure of order in a complex heterogeneous society where many different customary practices may coexist. At the same time, however, even in modern systems, custom is enmeshed with lawmaking, legal interpretation, and law enforcement in important ways. Customary practices in family and commercial life influence policy and law-making in these areas in substantial ways. Indeed, law in these and other spheres cannot ignore customary norms lest doing so create too great a rift between the way things are socially and the way the law prescribes that they ought to be. In the realm of constitutional jurisprudence, custom arguably plays an even larger *Senior Lecturer, Emory Law School; Senior Fellow and Associate Director of Law and Judaism, The Center for the Study of Law and Religion, Emory University. SJD, 2016, Emory Law School; LLM, 2013, Emory Law School; JD, 2012, Fordham University School of Law. Parts of this article also appear in the authors’ recently published book, MICHAEL J. BROYDE & SHLOMO C. PILL, SETTING THE TABLE: AN INTRODUCTION TO THE JURISPRUDENCE OF RABBI YEHIEL MIKHEL EPSTEIN’S ARUKH HASHULHAN (2020). ** Michael J. Broyde is a professor of law and the projects director of the Center for the Study of Law and Religion at Emory University. Much of this article was written or revised last year when he was a Fulbright Scholar at Hebrew University or in the Fall 2019 semester visiting at Stanford Law School. 1 H.L.A. HART, THE CONCEPT OF LAW 26 (3d ed. 2012). 165 Published by Digital Commons @ Touro Law Center, 2020 1 Touro Law Review, Vol. 36, No. 1 [2020], Art. 13 166 TOURO LAW REVIEW Vol. 36 role. As Jack Balkin has argued, customary modes of constitutional practice do as much—if not more—to define the political norms and standards of American government, and revolutions in constitutional custom represent very real changes to our constitutional order, even absent any formal amendment process. 2 Still, different legal systems rest of different jurisprudential foundations. While “genuine though modest” may well define the role of custom in English or American law, other legal systems treat customary practices—and different forms of customary practices—in different ways. This article focuses on one specific example of how custom is utilized as both a source of law and as a means of determining correct legal norms in the fact of legal disagreement and indeterminacy within Jewish legal thought.3 Specifically, we explore the ways in which the late nineteenth-century rabbinic luminary, Rabbi Yehiel Mikhel Epstein (1829-1908) treated minhag, or custom, as law in the ritual law sections of the Arukh ha-Shulhan, his major restatement of Jewish law. Part II begins by providing some important historical context for Rabbi Epstein’s Arukh ha-Shulhan, and reviews both Rabbi Epstein’s rabbinic career and his goals and methods in writing this work. Part III next reviews various rabbinic approached to the normativity of custom in Jewish ritual law, and distinguishes between personal, family, and communal customs. Finally, Part IV focuses on Rabbi Epstein’s own jurisprudence of custom in Jewish law. Using examples of his halakhic decision making in the Arukh haShulhan, we show that Rabbi Epstein treats customary practices as important sources of law, at times even creatively reinterpreting authoritative formal legal materials in order to keep them consistent with customary religious legal practices in his own time and place. II. AN INTRODUCTION TO RABBI EPSTEIN’S ARUKH HASHULCHAN Rabbi Yechiel Mikhel Epstein was born on January 24, 1829, in Bobriusk, Russia, and spent his formative years studying rabbinic texts under the tutelage of the town’s Chief Rabbi Elijah Goldberg, as See JACK BALKIN, LIVING ORIGINALISM (2011). For other treatments of custom in Jewish law, see, e.g., Michael J. Broyde, Custom as a Source of Jewish Law: Some Religious Reflections on David J. Bederman’s Custom as a Source of Law, 61 EMORY L.J. 1037 (2012). 2 3 https://digitalcommons.tourolaw.edu/lawreview/vol36/iss1/13 2 Pill and Broyde: The Legal Significance of Custom 2020 THE LEGAL SIGNIFICANCE OF CUSTOM 167 well as in the famous rabbinical academy of Volozhin. 4 After briefly pursuing a career in business, 5 Rabbi Epstein was appointed a rabbinical judge and assisted his teacher, Rabbi Goldberg, in his hometown of Bobriusk. 6 He received his first appointment as a communal rabbi in 1865 when he was selected to become the rabbi of Novosybkov, a Russian townhome to an eclectic population of several thousand Jews, that included Orthodox, secular, and Hassidic communities. At some point prior to his first rabbinical appointment at the age of 35, Rabbi Epstein married Roshka Berlin, the daughter of Rabbi Jacob Berlin and sister of the famous Rabbi Naftali Tzvi Judah Berlin, who would later become head of the Volozhin Yeshivah. 7 The couple ultimately had five children: Rabbi Barukh Epstein (18601941), a bookkeeper by trade and an accomplished Torah scholar and author in his own right; 8 Rabbi Dov Ber Epstein, who became an important communal figure in Jerusalem after moving to Palestine in 1902; 9 Braynah Velbrinski, who was twice widowed before settling into her pa (...truncated)