The default setting of Orthodoxy is that all Biblical commands have eternal application. The question is how far and how often we can move off the default.
Some argue that when a Talmudic rabbi declares that a law “never was and never will be”, he is actually signaling a moral shift in which a Torah law is quietly put out to pasture.
I am not convinced by this argument. It is true that these laws include the ethically challenging cases of the “rebellious son” and the “idolatrous city”. But they also include the innocuous law of the leprous house. This suggests the operation of an exegetical principle rather than moral discomfort.
In other cases, we have developed workarounds to prevent the application of certain laws. For example, the prozbul document largely eliminates the rule of shemitat kesafim (loan-forgiveness every Sabbatical year) by formally assigning loans to rabbinic courts, which are allowed to collect such loans. The courts then hire the original loaner as their collection agency, at a 100% commission.
These workarounds are often celebrated as evidence of the Rabbis’ “judicial activism” when confronted by moral or practical challenges. But this perception carries a price. When halakhic authorities deny that they are free to legislate as they will, and insist instead that they are heteronomously bound by their most authentic understanding of Torah, they are critiqued as lacking ethical sensitivity. The implicit subtext is that rabbis should find ways to sideline all areas of Halakhah that are in moral tension with the values of their laities.
I suggest a different perspective on these workarounds. Perhaps they are best seen as attempts to shore fragments against ruins, as efforts to salvage some remnant of a law from a failure of interpretation.
Take prozbul. Shemitat kesafim seems intended to prevent the accumulation of debt, and loan forgiveness has been a tactic for relieving the poor, and preventing revolution, from ancient times until today. The Torah is unique in scheduling such forgiveness in advance rather than doing so reactively.
Enforcing shemitat kesafim would not shut down the mortgage markets, because Halakhah permits explicitly negotiating loans with terms longer than seven years. But the standard halakhic loan is due in thirty days, and is therefore subject to shemitat kesafim. The Torah warns us against using this as an excuse not to give out loans. Hillel discovered that the poor were nonetheless being denied access to credit, and so he developed the prozbul.
The result is that shemittat kesafim can be avoided for all loans, of whatever term. The only consequence of the law is the requirement to write a prozbul. In some cultures, even that requirement fell away, and Rav Moshe Feinstein suggests that where there are secular legal barriers to the effective use of a prozbul, the requirement is waived. In other words, the pruzbul is not a substantive requirement, but rather a mnemonic, a reminder that such a law exists even though it currently has no meaning.
The process of chokification, of relating to a halakhah as lacking any humanly discernible purpose, often leads to that halakhah having its application narrowed to the point of nonexistence. But I submit that it is better, when possible, to find a way to restore meaning to the law.
What would that entail? My favorite example is from the laws of ribbit and neshekh, the prohibitions against charging interest to fellow Jews. The Torah sets these out in Shemot 24:34, Vayikra 25:35-38, and Devarim 23:20-21. As with shemitat kesafim, enforcing these rules under current social conditions would freeze credit, which was not the Torah’s intention. We therefore developed the heter iska, a document that formally converts interest payments into distributions of investment profits. This document serves a purely mnemonic function. Israeli banks write one such generic document to cover all their otherwise forbidden activities in advance.
Rabbi Chayyim Dovid HaLevi, the late Sefardi Chief Rabbi of Tel Aviv, boldly suggested (Responsa Aseh Lekhah Rav vol.1 p. 182) that it was simply wrong to use a heter iska indiscriminately. He argued that the heter iska was developed to allow business loans in a capitalist society. Using it for private loans, which are expected to be manifestations of chesed, is an abuse.
Rabbi Halevi thus reclaims the prohibition of ribbit as rational and morally powerful in the most capitalist of societies. In his understanding, the heter iska is a mechanism for protecting the genuine purpose of the eternally relevant law, rather than an effort to preserve the form of law whose purpose is defunct.
Rabbi Halevi’s approach to ribbit seems to me a model of Orthodox best practice for dealing with apparent Rabbinic evasions of Biblical law.