Reeh: How Hillel created precedent for changing law

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Deuteronomy 11:26-16:17

Isaiah 54:11-55:5

"Every seventh year you shall practice remission of debts. This shall be the nature of remission: every creditor shall remit the [debt] due that he claims from his neighbor; he shall not dun his neighbor or kinsman, for the remission [of debt] proclaimed is of the Lord" (Deuteronomy 15:1-2). This practice, known as shmita, was in effect for centuries until Hillel instituted a radical change in the procedure. This week's Torah portion, Re'eh, provides the basis for understanding this unique transformation of Jewish law.

While this law provides a divine mandate for the cancellation of all debts once every seven years, no business, ancient or modern, could withstand periodic debt cancellation without seriously undermining the financial security of the lenders. The poor, those with the lowest credit ratings, would fare badly, for few lenders would provide credit to the indigent, knowing that all debts would periodically be forgiven.

Through a reinterpretation of a Torah principle, Hillel resolved the crisis caused by debt cancellation every seventh year. According to Torah, a creditor who tried to collect debts owed him was subject to the law of remission, but if the creditor handed over an obligation to the court, the debts owed him would not be canceled under any circumstances.

Working with this principle, Hillel went one step further. He created a legal fiction making it unnecessary for the debt to actually be handed over to the court in order for it to be collectible. The lender could sell the debt to the court, which, in turn, would empower the lender to collect the debt in the name of the court. The deeds from that period include not only the sale of the debt to the court, but also a power-of-attorney given by the court to the lender to collect the debt at any time — thereby avoiding the problem of cancellation in year seven.

There was no legal precedent for this prozbul, the name given to a rabbinic enactment circumventing tradition. This legalistic maneuvering represents one of the very few times that a rabbi used his power to contravene an explicit requirement of the Torah — without legal precedent. Hillel and those who followed him de-emphasized and camouflaged the revolutionary nature of this change, making it appear that there was legislative precedent, when in fact there was none.

In order to maintain the illusion that Hillel's unique interpretation was instituted within the confines of the law, later generations of rabbis and legal scholars created legal fictions that protected the integrity of halachah by reaffirming the appropriateness and legality of Hillel's unilateral, unprecedented action outside the contemporaneous legal tradition.

Mishnah Gittin 4.3, simply states: "Hillel established the prozbul in order to repair the world." But Mishnah Sh'vi'it 10.3 rationalizes Hillel's prozbul:

Hillel, it says, established the prozbul because people refrained from giving loans to another (in anticipation of the Sabbatical Year) and transgressed what is written in the Law, "Beware lest you harbor the base thought, `The seventh year, the year of remission, is approaching,' so that you are mean to your needy kinsman and give him nothing'" (Deuteronomy 15:9).

Thus, Hillel used one law to rationalize overpowering another law. To insure against rabbis utilizing unilateral prerogative and operating outside the law, the talmudic discussion of Hillel's prozbul makes it clear that defining and maintaining parameters of rabbinic power were issues of deepest concern. Talmudic debates conclude that rabbis do not have the authority to "uproot" the laws of the Torah (Y'vamot 89b-90b).

Ultimately, the rabbis' legislative power established the supremacy of the Torah as they created the fiction that Torah MiSinai (the concept of Moses receiving the Torah — the written law) included the oral law as well. This dictum, spelled out at the very beginning of Pirke Avot (The Ethics of the Fathers) legitimizes the transmission of the law through a new and different order.

By the time Judaism emerged from antiquity, both the written and the unwritten law were merged into one seamless law, its interpretation solely the responsibility of the rabbis. Thus, Hillel may have inadvertently provided solid precedent to foster rapid change in the law in order to update and renew Jewish life.