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Observance of Mitzvot: Custom and Halakhah

by Bitha Har-Shefi

Numerous accounts scattered throughout early halakhic literature indicate that women had many traditions and customs of their own. Their religious life was characterized by a degree of independence and was not exclusively dependent on external halakhic norms. The manner in which women observed mitzvot was extremely influential in the formative stage of halakhah, before it was crystallized, recorded and sealed in the Shulhan Arukh. On the one hand, the customs and laws that they kept were defined according to the traditions that were preserved from ancient times. On the other hand, through their customs women created the bridge between the “high” demands of halakhah and the basic components of daily life. Women’s connection to daily life is manifest in the type of mitzvot and customs whose shaping they affected. These were mainly the mitzvot connected to the body (menstruation and purification), eating (kashrut and abstaining from meat during the period of mourning for the Temple) and tasks in the home (abstaining from work at certain times). Other customs related to the metaphysical dimension, such as candle lighting and reciting benedictions on mitzvot to which women were not originally obligated.

The level of independence women had in determining the way they kept mitzvot derived from the fact that the manner in which halakhah was transmitted among women was significantly different from the established methods. Halakhah was not so much conveyed directly through teachers, reference books or books of Jewish law, but by observing others and through personal example. Through minhag, women’s traditions were passed on both orally and through daily practice, faithfully transmitted from mother to daughter, from generation to generation.

This brought about an ongoing and fascinating dialogue between their customs and halakhah—a kind of negotiation that was not solely within the confines of the bet-midrash (study hall) nor via correspondence of rabbis who discussed issues with each other or queried one another on various matters. It was rather between halakhah as determined in the bet midrash and minhag (custom) that evolved within the feminine sphere of religious life.

Women were active in their own way within the realm of halakhah and established norms through their customs. From the reactions of rabbinic authorities to the halakhic customs of women we can see that they regarded them as a sufficiently autonomous faction that had a hand in determining its own way of life and its customs.

WOMEN’S CUSTOMS

Ancient customs were preserved because of women, whose connection to halakhah was mainly via traditional customs. Abstinence from work at various times by women alone is documented in the Jerusalem Talmud (Pesahim 4:1). Rosh Hodesh occupied a special place among these times and for many generations women refrained from doing work on that day. Though this may have been a general custom in ancient times, in later times it was the women only who observed the day. What women themselves defined as a religious obligation allowed them to free themselves, for a day or two every month, from the heavy burden of housework and family duty. Women’s persistence in observing Rosh Hodesh as a holiday, at least until the modern period, fixed this time as “feminine territory” beyond halakhic authority. By taking upon themselves the custom of observing the day as sacred, women built their religious lives on their own special connection to time. Thus, while women were exempt from those mitzvot performed at a specific time, on Rosh Hodesh women took upon themselves a special mitzvah that is performed at a specific time, from which it is the men who are exempt. Women’s loyalty to this ancient custom allowed for no other response than respect and the main reason given for the custom, their refusal to worship the Golden Calf, provided a basis for the high religious level which their loyalty displayed.

How did women celebrate those days? Several sources indicate that, at least in some places, women gathered to spend the holiday together. One source is a will from the mid-fourteenth century in which its author, Eliezer ben Samuel ha-Levi of Mainz (d. 1357), warns against gambling with dice and specifically mentions the women who play on Rosh Hodesh. Cards were another popular game. In documents from the Cairo Genizah Shlomo Dov Goitein (1900–1985) found that women usually spent the holiday conversing, playing chess and enjoying themselves at the bathhouse. Even a woman who had vowed to stay away from the bathhouse made a specific exemption for Rosh Hodesh.

The tradition of women’s observing Rosh Hodesh by abstaining from work did not evolve in the usual manner of halakhic rulings, and it related in only a minor fashion to halakhic definitions and rules. Not only was observing the day an expression of a certain autonomy for women in religious life, since they were also the ones who transmitted the custom, but it was fashioned according to the way they observed it. As Simeon ben Zemah Duran, the Tashbez (1361–1444), eloquently remarked: “This is the women’s law. We shall learn from them what their custom is, and then we must accept what they tell us.”

Women were also pivotal in keeping the tradition of abstaining from meat during the days of mourning commemorating the destruction of the Holy Temple. In the Middle Ages this custom was not yet widespread nor commonly accepted. On the one hand it had no authorized source such as the Babylonian Talmud or the Geonic halakhot, yet on the other hand there is special mention that women adhered to it since ancient times. This fact testifies to their special role in preserving this tradition. An additional women’s custom with ancient roots is the custom of not sewing or weaving during this special time.

Women’s perseverance in preserving these customs proves, more than anything else, the existence of folk-feminine channels for passing on tradition. The independence of such channels is emphasized by the fact that these customs were noted only in the Jerusalem Talmud, a source that is not studied in the bet midrash and does not serve as a basis for halakhic decisions.

Other days during which women refrained from work, which are not mentioned in the Jerusalem Talmud but are cited in a number of early halakhic works, are Hanukkah and all evenings of the seven weeks of the Omer period. The partial abstinence from work during the Omer period is explained as being an expression of mourning for the students of Rabbi Akiva and the special role women played in burying them. During the Crusades of 1096 and the years following, when Jews were made to convert or die, women especially refused to betray their faith. In several communities they played a leading role in choosing martyrdom. These events reinforced their expression of mourning during the Omer period.

It should be pointed out that sectorial customs did not usually affect halakhic literature in the way that local customs did. However, in the matter under discussion—the gender variable, i.e. customs that were kept by women wherever they might be—the term “women’s customs” existed, a concept that has no parallel in the literature of halakhah and custom.

We may assume that just as local customs spread and were preserved because of residential proximity and life in a common community, so women’s customs in the Middle Ages were preserved through the power of tradition and a network of family and social connections among women themselves. On the other hand, the very existence of special customs strengthened their formation into a discrete, distinct group. Though the women expressed their individuality primarily in a passive way, by refraining from work, this method was appropriate for their position and function in religious life. In this way, they expressed their freedom and their sense of belonging to a unique social group with deep-rooted religious customs.

WOMEN’S AUTHORITY

At times, the customs and traditions kept by women served as an important source of halakhah. Accordingly, we can even find requests from rabbinic authorities to women regarding the halakhah of mitzvot pertaining especially to women, or mitzvot for which they were mainly responsible.

Because they were responsible for the kashrut of their homes, women preserved traditions of what was permitted and prohibited in this area and how everything should be done. In a responsum about the kashrut of a chicken with a broken leg, Isaac ben Samuel of Dampierre (the Ri, d. 1185), one of the major tosafists, relied on the custom of women, in addition to learning through deduction and observation. This was on the assumption that they encountered such problems in their everyday activity and that their customary practices reflected halakhic tradition. The Ri also asked his mother-in-law about women’s customs in cooking meat and milk in the same oven and cites references from the kitchens of other women in the family. He also frequently turned to women for clarification on niddah customs. Women’s customs thus provided guidance in halakhic areas under dispute.

The major influence of women’s customs on halakhah was in areas that were dominated by them. However, their influence extended to other issues where halakhah had not yet been fully established. In Leket Yosher, written by a disciple of Rabbi Israel Isserline (fifteenth century), we find reference to women’s expertise on matters of mourning, an area where custom carried more weight than law. In the matter under consideration, a doubt was expressed regarding the custom of accompanying the dead on special days (those days when the Tahanun prayer is not recited). The proposed solution was to find out the custom women had in dealing with the situation and to follow their example. In this instance as well as in other situations it was said of women: “They may not be prophets, but they are certainly the daughters of prophets.” In other words, one must give women’s customs and traditions due consideration when determining halakhah.

“MISGUIDED CUSTOMS”

Although women were in principle bound by halakhah, their religious life evolved naturally. Consequently customs were created that did not always suit the norms of halakhah and were therefore considered “misguided customs.”

For example, women used to bake on festival days and to do so they would measure out the flour, a form of labor forbidden on holidays. Rabbi Isaac ben Moses of Vienna (c. 1180–c. 1250), author of the Or Zarua, ruled that one should not prevent women from doing this, but should tell them about the prohibition only if they came to ask whether it was permitted. In many cases the rabbis arrived at compromises or total waiver regarding such matters, maintaining that it was preferable that the women err unintentionally rather than deliberately.

A number of misguided customs became firmly fixed in women’s lives, some of them due to extenuating circumstances. Thus, for example, women immersed themselves in rivers after their menses because they had no other option, even though such immersions were not considered halakhically acceptable. Additional customs became ingrained due to other factors that could not be ignored, simple and down to earth as they were. Thus, for example, the custom of braiding their hair on the Sabbath, regarding which it was said that “It is impossible to prevent them [from doing so], so that they do not become repulsive to their husbands” (Kol Bo, Siman 31). In many of these cases, women’s traditions were stronger than any other factor and halakhic decisors felt that their protests would be ineffective.

Yet another example is women’s custom of rhythmic drumming during family and community events, mainly in times of mourning, but also during times of joy. Women usually had a central role in such family-cycle events. They usually accompanied their drumming with lamentation or singing, depending on the circumstances. The custom was so deeply entrenched that it was impossible to abolish it when it took place on the Sabbath and festivals and there are accounts of rabbis who, by their silence, allowed women to drum even at such times. Other pastimes can be found in the responsum of Rabbi Meir ben Baruch of Rothenburg (c. 1215–1293) instructing the husband to annul his wife’s vow in a case where she swore “not to go dancing or singing, or to hear singing,” since such a vow constituted “self-mortification.”

WOMEN AND TIME-BOUND MITZVOT

Women were exempt from some major mitzvot classified as time-bound: “Any positive time-related obligations—men are obligated, and women are exempt” (Mishnah Kiddushin 1:7). Yet at the same time women in every generation attempted to take upon themselves some of the commandments from which they were exempt. These were mainly the mitzvot pertaining to special days of the year, which formed the cycle of the Jewish year.

Their wish to fulfill these mitzvot stimulated broad halakhic discussions from the Tannaitic period up to our days. During the Middle Ages, the status of the blessing women recite over such mitzvot was a focus of the discussions. Should such blessings be considered to be made in vain, and was it permitted to recite them using the conventional formula: “… Who has sanctified us with His commandments and commanded us” on mitzvot performed voluntarily and not out of obligation? Despite the clear opinion of Rashi (Solomon ben Isaac, 1040–1105), who did not allow the recitation of a blessing over a mitzvah performed without an obligation, many rabbis of Ashkenaz allowed women to recite the attendant blessings. In the twelfth century, Rabbi Jacob ben Meir of France (Rabbenu Tam, c. 1100–1171) granted full halakhic validity to blessings recited by women.

Ultimately, women’s blessings on time-bound commandments were usually recognized. According to the majority of religious arbitrators, women were permitted to utter benedictions for all of these commandments according to the accepted formula: “who has sanctified us by His commandments and commanded us…”. This was due to persistence and to the spread of the custom of reciting the blessing. The recitation of such blessings was readily accepted in Ashkenaz and France, but since the custom spread even to Spain, it was recognized there as well (by the Rashba, the Ritva and the Ran). This occurred in accordance with the teaching of Rabbenu Tam, in spite of Maimonides’s opposition. Though Rabbi Joseph ben Ephraim Caro (1488–1575), author of the Shulhan Arukh, accepted the Rambam’s position, he did not have the last word on the subject, which continues to occupy halakhic decisors to our day.

OTHER PRESCRIPTIVE MITZVOT

Most of the mitzvot women took upon themselves, such as sitting in the sukkah, applied once a year and were usually performed in a family setting. Others, such as hearing the shofar, related to a community setting. The circumstances were different regarding daily mitzvot, such as tefillin and zizit, from which women were exempt. For most women, the latter mitzvot were not a focus of religious identification and were not included in the mitzvot they observed. In this fashion, the scope of women’s observance of mitzvot was defined not only by rabbinic decision, but also by women’s own inclinations and the choices they made. Thus, from Tannaitic times until the sealing of the Shulhan Arukh, mitzvot such as zizit and tefillin underwent a slow transition from applying to women, at least according to some opinions, to being almost completely out of their sphere.

The mitzvot of zimmun and lighting the Hanukkah lamp underwent similar processes. Although according to halakhah women were permitted, even obligated, to observe the mitzvot of zimmun and candle-lighting on Hanukkah together with other members of the household, they preferred a passive role. Women did not observe the commandment of zimmun among themselves, and preferred to observe the festival of Hanukkah by abstaining from work rather than by lighting the candles. With respect to this group of commandments, the custom of women’s non-observance determined their non-obligation. In most instances, halakhah merely accepted the fact and did not challenge the existing pattern. Thus a category of mitzvot came into being which, according to early halakhic sources, women and men were equally obligated to observe; however, women exempted themselves from their obligation to perform them by the simple custom of not fulfilling them. Thus, too, with regard to the mitzvah of Kiddush, which is equally obligatory for both men and women: a common practice was that in the event that a woman’s husband was not present, another man would “volunteer” to bless the wine for her. At least one rabbi explicitly recommended not changing this precedent.

PRAYER

It was custom that to a large extent affected the patterns of women’s prayers. It seems that in the Middle Ages the earlier, unwritten type of prayer, recited in a loud voice without restrictions as to language, existed side by side with institutionalized prayer. This type of prayer was primarily characteristic of women. Lack of understanding of the language of codified prayer was a general phenomenon that women dealt with in different ways, either through private prayer or through their passive presence in the synagogue or in separate prayer groups held in the vernacular. However, due to the variety of customs and lack of evidence, it is impossible to be precise about women’s prayer in the pre-modern period.

LIGHTING SABBATH AND FESTIVAL CANDLES

Women’s task of lighting the Sabbath and festival candles was seen as a parallel to Kiddush, which was the role of the man of the family, both acts marking the sanctity of the day. The blessing over the Sabbath lights is not mentioned in the Mishnah or in Talmudic sources. It was cited for the first time by the Geonim, yet was not universally accepted until the fourteenth century.

The people’s, and particularly women’s, recognition of the blessing over candle-lighting as an integral part of Sabbath ceremony was responsible for the recognition of this blessing as halakhically prescribed. The validity attributed to the blessing extended to the candle-lighting ceremonies for festivals and the Day of Atonement.

If women had not adhered to this custom and ascribed importance to it, it is doubtful whether the blessing would have won any real support and become halakhah. The special significance attributed by women to the lighting of the candles, as a way to signal the beginning of the Sabbath’s sanctity in the household, with all it implies, gave the custom of candle-lighting the basis on which the Geonim and rabbinic rulings relied.

According to Rabbenu Tam, customs are a central part of tradition and anyone who tries to undermine them or their validity undermines the entire tradition. Just as with blessings over time-bound mitzvot, Rabbenu Tam used his considerable authority to give complete halakhic approval to women’s custom of reciting a blessing over kindling the lights.

The custom of blessing the kindling of Sabbath lights spread rapidly. At the same time, kindling the lights underwent a transformation from being a duty to provide suitable lighting for the Sabbath into constituting a distinct ceremony of its own. This was because women perceived the act of kindling as an act separating the profane from the sacred and one that signaled the beginning of sacred time. This system, in which candle-lighting determined the beginning of the Sabbath, had no halakhic basis, nor did many halakhic decisors endorse it. Nevertheless, the popular perception acquired strong support. Women saw candle-lighting as the act of welcoming the Sabbath. As a result, they were given a separate ruling, according to their custom, and after the act of candle-lighting was performed all subsequent labor was prohibited.

The focus of attention gradually shifted from the act of lighting, as a duty, to the blessing, which was seen as establishing the existence of the Sabbath. The blessing over kindling the lights acquired sacred significance and became a kind of declaration of the onset of the Sabbath with all its restrictions. For this reason, women did not accept the instructions of halakhic decisors regarding the order of the lighting ceremony. According to halakhah, one should make the blessing first, as with all the mitzvot, prior to kindling the lights, and this is what the rabbis instructed. Yet despite this unequivocal ruling, women recited the blessing after kindling the lights.

Thus, candle-lighting became a mitzvah in itself, first performed in order to light the home for Sabbath and then becoming a personal obligation, a mitzvah that every woman saw herself as obligated to perform. Just as the mitzvah of the Hanukkah lights is described as a mitzvah for “a person and his household,” which the man usually performs, women accepted kindling the Sabbath lights as their personal mitzvah. If women were not in their homes, they saw no problem in kindling the lights in the synagogue as long as they were able to fulfill the mitzvah as they perceived it. This was what they did, for example, when they had to immerse on Sabbath eve and the mikveh was adjacent to the synagogue. Thus, when they spent Sabbath eve outside their homes, the synagogue was the most convenient and appropriate place to perform the mitzvah of candle-lighting. The responsum of the Maharil (Rabbi Jacob ben Moses Moellin, 1360?–1427) on the topic indicates the gap between mitzvah and custom, in the face of which he stood helpless. He mentions the custom of kindling the lights inside the house and eating in the courtyard, rendering the act of lighting superfluous. He also mentions how, when several families eat together, every one of the women recites the blessing over the lights even though there is already a great deal of light. Nevertheless, the Maharil defended the custom of kindling the Sabbath lights in the synagogue as much as possible, using every available reference to justify the blessing over the act of lighting, which in this case has nothing to do with lighting the house for Sabbath , the original purpose of the Sabbath lights.

Many sources that discuss kindling the Sabbath lights indicate that the accepted order of lighting, as passed down for many generations, was divided into two stages. The first was the lighting itself, which took place while it was still daytime. The second stage, which took place upon the Sabbath’s entry, was the trimming of the lights or the addition of oil and the recitation of the blessing, which signaled the onset of the Sabbath. There were those who took care to extinguish the lights during the second stage and relight them with the blessing.

When a wedding took place on Sabbath eve—a customary time—women would kindle the Sabbath lights before leaving for the wedding and recite the blessing when they returned, after the Sabbath began. Covering the eyes during the blessing was considered an acceptable solution, as it were bridging the length of time between kindling and reciting the blessing.

The kindling of the Sabbath lights, with its attendant blessing, thus underwent many transformations: from an obligation to kindle lights that apparently had no accompanying blessing to kindling accompanied by a blessing, with a fairly complex connection between the two, to a blessing that was at times unconnected to the act of kindling. Often there was no need for the lights at all and kindling became a solely symbolic act. As the blessing’s status grew and the accompanying prayer (tkhine) acquired significance, the act of kindling the lights was overshadowed by the blessing. These transformations were connected with various historical and geographical factors, but they were dependent primarily on the subjective factor, the significance given to the mitzvah and the way in which its traditional performers, the women of every generation, carried it out.

FESTIVAL LIGHTS

Fondness for the Sabbath lights and the blessing over them also reflected on the lights of festivals and the Day of Atonement. Neither kindling had any halakhic validity to start with. The sources do not mention kindling festival lights at all, while kindling lights for the Day of Atonement is mentioned as a custom only. Yet this did not prevent the adoption of both acts of lighting or their being performed with a blessing.

The reason that the blessing over festival lights was accepted is the day’s similarity to the Sabbath and its similar celebration in the family setting. The use of fire to ensure sufficient food is permitted on festivals and therefore kindling the lights does not fall within the necessary preparations for the holiday. The legitimacy given to the blessing over the Sabbath lights affected the treatment of the blessing over the festival lights, even though it lacked the halakhic, moral and midrashic basis the Sabbath lights had acquired.

The Sabbath lights thus paved the way for the festival lights, not only regarding the blessing’s legitimacy but also in transforming the “mitzvah of candle-lighting” into a significant ceremony marking the transition from profane to sacred. The process described above changed the Sabbath light into a ceremony in and of itself, with no connection to the function it was initially intended to fulfill. It also gave rise to a similar ceremony for other sacred times when no special reason existed for kindling lights at their onset. Kindling lights went from a necessary act to personal-familial expression of the holiness inherent in Sabbath and festivals. And even though the festival lights were usually kindled upon return from synagogue, the ceremony of lighting them became an integral part of festival customs.

Women’s recitation of the blessing over the festival lights began as a custom with no uniform, established formula. Over time, the blessing over lighting was appended to the She-Heheyanu blessing recited on festivals, though this initially aroused some opposition. But custom triumphed in this matter too, and the blessing of time became an integral part of the occasion, in which women expressed their part in the family ceremony of bringing in the festival. Thus the ceremony of kindling the festival lights acquired the proper formality. A similar process occurred with regard to the Day of Atonement. Here, the custom spread from reciting a blessing over the lights on a Day of Atonement that fell on the Sabbath to kindling lights with a blessing on the eve of every Day of Atonement.

PURIFICATION OF THE NIDDAH

Women also left their mark on the laws governing ritual purity, which belong to the important category of laws pertaining to forbidden sexual relationships. Both stringent and lenient customs affected the consolidation of halakhah on this subject. Some customs that began as stringency pertaining to one matter were in the end lenient concerning a different law. For example, cutting nails before immersion was a custom that became a stringency women took upon themselves. This ultimately led to an easing of the restriction regarding the prohibition of work on the intermediate days of a festival. Women would cut their nails with an instrument prior to immersion on the intermediate days of holidays as they did on regular days—an act forbidden according to Ashkenazi ruling. In the end, the custom was accepted and it was permitted.

Another subject under discussion since the Amoraic period was the time at which it was most proper to wash oneself prior to immersion: during the day, or at night, close to the time of immersion (Niddah 67b–68a). In the end, both traditions were resolved as one custom, according to which women began their washing during the late daylight hours and continued until dark. Thus, through their customs, women established a system which satisfied all and which was adopted as correct by halakhah.

Finally, a vital point must be stressed. All of the dynamics between halakhah and women’s customs are revealed to us through the halakhic sources of Ashkenaz, France, Provence and Italy. According to Sephardic philosophy, there is no room for any discussion between the “high” aristocratic halakhah and the “low” popular customs. As a result, in the original “Sephardi ruling” the decision was usually made “by the book” and was determined according to the accepted rules. The Ashkenazi ruling, on the other hand, was much more inclined to validate minhag. With the infiltration of Ashkenazi and French rulings, the situation changed somewhat. The solid wall of Sephardi halakhah showed cracks; certain customs became so rooted that they succeeded in penetrating the wall and becoming valid.

Women were sometimes classified as a “separate people,” a term whose source is in the Talmud (Shabbat 62a). This term not only indicated that women were “different”; it was an expression of the divergence and independence in halakhah as practiced by women. Jewish women followed a unique path in their religious observance, suspended between voluntary observance and halakhic obligations, between custom and halakhah.

Bibliography

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How to cite this page

Har-Shefi, Bitha. "Observance of Mitzvot: Custom and Halakhah." Jewish Women: A Comprehensive Historical Encyclopedia. 20 March 2009. Jewish Women's Archive. (Viewed on December 27, 2014) <http://jwa.org/encyclopedia/article/observance-of-mitzvot-custom-and-halakhah>.

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