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132.

Abrogation

THE JEWISH ENCYCLOPEDIA

Absalom by

creditor oniilil tmnsfer the debt to the so tlml tli<' hitter might collect it iu spite of the Siibbiiticul year (Mishimh Slieb. x. 3, See Accommodation ok tiik Law. 4). While the Sabbatical year, especially in so far as it concerned the fallow land (I-cv. xxv. 3-7), was striclly observed during the period of Disconthe second Temple, and even after its tinuance of destruction, there is no historical recJubilee. ord of the observance of the jubilee year as ordained in Lev. xxv, S-1'2. Accordin.5 to the Talmud (Ar. S'ih). the observance of the juViilc'C ceased from the tim<' when the tribes of Keuben and (Jad and the halftribe (pf Manasseh were carried otT by the kinjr of Assyria. The Talmud justities the abrojration of this I>il)lical institution by a rather loo literal interpretation of the words in the law conceruiri!;- the jubih'c year: " And ye shall proclaim liberty llirimghout the land unto 111! the inhabitants thereof"; only when all the inhabitants were in the land was the jubilee to be observed, but not when some tribes were exiled from it ('Ar, ibid.). The abrogation of other Biblical laws on accoiuit of chaiiL'ed circumstances is ascribed to Ral)bi Johanan luii Zakkai. as the abrogation of the water of thv ordeal, ordained in Nimi. v. 11-31 for the trial of a woman suspected of adultery (Sotah, ix. 9) and the alirogalion of the solemn rite of expiation (Eglah 'Arufali) for a murder the l)erpetrator of which is unknown, as ordained in Dent, xxi. 1-9 (To.sef.. Sotah, xiv. 1 and ihiil.). In consequence of the destruction of the Second Temple by the Romans numerous laws were suspended, especially the .sacrificial laws After and most of the laws concerning Lethe Second vilical unelcanliness and purification. Temple. The Sauhcdrin of .Tabueli, on the motion of Riibbi Joshua ben Hananiah, permitted an Ammonite to enter the Jewish congregation of Israel, thus actually abrogating the Hiblical law in Deut. xxiii. 4 [A. V. 3]: "An Anuuonite shall not enter into the congregation of the Lord." The reason for setting this Biblical law aside was that it was claimed by the rabbis that in consequence of the conquest of the land of the Anuuonites by Sennacherib, the rer.l descendants of that nation could not with In certainty be identified (Jlishnah Yad. iv. 4). connection with the above-mentioneil cases in which were abrogated, the following one may Biblical laws here be referred to; though it does not concern any express Biblical law. it deals with one which was considered to have a Biblical basis. For many centuries it was regarded as a transgression of the Law to commit the traditional law to writing; it was to be transmitted only from mouth to mouth, and was therefore called the oral law, in contradistinction to the written Law contained in the Pentateuch. The purpose of this i>rohibition was probably that the traditional law should not be regarded as of equal sanctity with the Law of Moses. A Biblical basis for this prohibition was found in the passage of Ex. xxxiv. 27; " Write thou these words," etc. By emphasizing the word "these" the passage was interpreted to mean " Only these words (of the divine Law) you may write, but not the traditional law." Nevertheless, when in the course of time the subjectmatter of the oral law had acciunulated to such an extent that it became almost impo.ssible to preserve it by oral transmission, it was written down in the >Iishnah and kindred works and the abrogation of the prohibition so long regarded as Biblical is justified in the Talmud by a reference to the principle: " It is better that one law be set aside rather than that which

court in

till'

wriliii;;.

,

,





the whole

Law

be forgotten" (Tem. 144).

132

As regards the abrogation of rabbinical laws, cus toms, and institution,s, the following princii>les are laid down in the Talmud: "A later court [that is, an authoritative assemPower of biy of scholars] may abrogate the decision of a former court oidy when it Later is superior in learning and in numCourts. bers" (Mishnah 'Kduy. i. ."d. "A prohibition passed by a majority of votes recpiires for its abrogation another majority of votes" (Be7.ah. must not impose on the community a .%). restriction which the majority can not endure " ('Ab. Zarah, 'M'xi) In accordance with these |)rinciples and their actual application in cases mentioned in the Talnuid. Maimonides formulates in his code the

Abrogative

"We

.

following rules: customs, whether prohibitory or 1. Laws and mandatory, if cstaljlished by a former authority and generally accepted in all Israel, may only be abrogated by a later assend)ly that is superior to the former, both in learning and in numbi-r. By the latter term is meant the number of contemporaneous .scholars endorsing the authority and the decision of that assembly. 2. Kestrictive mea.sures, however, which were enacted by a former authority as a necessary "hedge" to ]>rotect the Torali,and which have been accepted in all Israel, may not be abrogated by a subsequent though higher authority. 3. If it is found that such laws are not as generally acceiited or as generally tolerable as was formerly supjiosed. a later though inferior a.ssi'mbly

may

abrogate them. Every law, however,

may be set aside temponirily by a minor authority, when it is necessary for the maintenance of religion in general ("Hilkot 4.

Mamrim,"

ii.

2-7)

may

liere be made of cases where the motives which had caused the enactment of a law have ceased to ojierjite. According to Maimonidcs even such a law can be abrogated only by an assembly of superior authority: while, according to Abraham ben David, the celebrated critic of Mnimonides' code, and according to Asheri and others, the abrogation of stich a law can be decided by any rabbinical assembly, though it be of lesser authority than that which ha<l enacted the law. During the Jliddle Ages and down to the last century the religious leaders in Israel kept within the limits of the above-stated rules regarding the Abroga-

Jlention

tion of Ijaws.

In the seclusion of their ghetto

life,

and under the ojipression and ]iersecution which they had to endure, the Jews felt neither the necessity nor the desire to abrogate any of the sacred laws and customs inherited from their forefathers. The teaehei's were in general inclined rather to increase than to diminish the burden of the law. From the time, however, when in most

Modem

of the civili/ed countries the Jewsbegan toenjoy the bles.singsof emancipation and to [larlicipatc in the modern culture of the world, the necessity for abrogating some of their ancestral laws and customs which were not compatible with their new circumstances became more and more apparent. Not having, as heretofore, their own judicature, the civil law of the Pentateuch, so elaborately developed in the Talmud and in the rabbinical codes, w:ls of necesIn this respect even the most consity set aside. servative willingly acquiesced in its abrogation, following the princi|)le laid down by Saiuuel, one of the most prominent teachers in the beginning of the third century, (liiin di-innlkntu (Una ("the civil law of the land in which we live is our law," Git. 104).

Times.