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The Halachic Ban and its Laws (Part II)

In the article for Parashas Bechukosai (a fortnight ago), we began to discuss the issue of a halachic ban – the cherem. We outlined the basic halachah of the cherem, its fundamental nature, and the question of which sins justify invoking a cherem.

In this week’s article we turn to the particular halachos of declaring a ban, and discuss a number of bans that were actually made over the generations, such as the ban against studying foreign languages in Jerusalem. How is a ban declared, and what are its halachos? What is the jurisdiction of those making the ban? How is a ban canceled? We will address these issues, and others, below.

To Whom Does the Ban Apply?

As noted in the previous article, one of the prominent uses of the halachic ban is to give special strength to community enactments, and to protect the authority of the Sages. In this context, the community or its leaders have the power to enact a ban against those who fail to comply with local enactments.

The Ramban (Mishpat Ha-Cherem) explains that a ban by the leadership of a town applies to all townspeople – including those who reside in the town but were not present in the town at the time the ban was declared. This is affirmed by other early authorities (see Rosh 5:4; Shut Ha-Ran 65; Shut Ha-Rashba 1:781; and many other sources).

The Rema (Yoreh De’ah 228:33) likewise rules (citing the Mordechai): “No man can say: I did not hear about the ban! For even though he did not hear, the ban applied to every person.” The Rema further rules that even somebody who does not reside permanently in the town may not violate the ban, as long as he remains therein.

Concerning the undoing of a ban, the Rashba (3:303) writes that a ban declared “in the name of the congregation” can be undone by the same congregation, because it is considered as though the ban is pronounced on condition that it can be undone. However, if the ban is declared “in the name of distant communities,” it cannot be undone. The Shulchan Aruch (228:25) notes this distinction, whereas the Rema adds that “some maintain that even if it was stipulated that the ban cannot be undone, nonetheless it can be released.”

Ban on a Different Town

The Beis Din of one town does not have the jurisdiction to declare a ban on residents of a different town, and a ban can only apply locally (see Shut Alshich 59). Moreover, Shut Radach (12:2) explains that even in a single town, one community cannot declare a ban on members of a different community, unless the purpose of the ban is to address a religious issue that applies to the entire town.

Based on this halachah, the question of what defines a community takes on a degree of importance. For example, if the tovei ha-ir (community leaders) of the main community in a town declare a ban, can members of a different synagogue claim immunity because they daven elsewhere? The Mishpat Shalom (231:32) writes at length on this point, explaining that the solution to this question depends on particular circumstances, which determine whether or not there is in fact an independent community to which the ban will not apply.

Although a ban cannot apply to other localities, it can nonetheless spread to them. This happens when people from one town, to whom the original ban applies, move to a different town: If the religious issue for which the ban was declared is relevant even in the new town, the people have to continue to abide by its law (Shulchan Aruch 228:29; see Shut Maharashdam 149).

For this reason, the Beis Yosef (citing the Ran no. 53, as cited also by the Rema) explains that although the bans of Rabbeinu Gershom were initially declared for Germany and parts of France, they now also apply in Russia and Poland, where Franco-Germanic residents emigrated.

It should be noted that a ban can be declared not only by an entire town, but even by a sub-group within the town, provided it has an independent jurisdiction. The classic example for this is a labor guild (or union), which is able to enact rules for its members, to which the sanction of a ban can be added (based on Bava Basra 8b; Teshuvos Tashbatz 1:159).

The Next Generation

Community bans apply even to subsequent generations: Once the ban has been declared, children of original residents are obligated to comply with its law. However, the Yeshu’os Yaakov (cited in Mishpat Shalom 231:33) writes that for future generations, a majority of the town has the right to undo the ban.

The general rule is that where the Beis Din of a particular generation enact a law, future Batei Din do not have the authority to annul the enactment unless they are greater than the original Beis Din in both wisdom and in numbers. Thus, although future generations can undo the ban, they cannot necessarily undo the underlying enactment.

Yet, the Mishpat Shalom explains that this limitation does not apply where changes in circumstances suggest that the original Beis Din might not have enacted the law. In such circumstances, a contemporary Beis Din can annul an enactment regardless of their relative greatness in wisdom and numbers.

An additional chiddush mentioned by the Mishpat Shalom (citing Mahari Ben Lev) is that where a ban is declared not on account of a religious matter, but rather because of a technical or social issue, it follows that the ban can be undone as soon as it is in the (technical or social) interest of the community to have the ban repealed. This ruling implies that a ban can be used for a social good unrelated to a mitzvah – though other authorities write that a ban can only be applied to a matter specifically of religious significance (see Shut Re’em 57; it is noteworthy that the bans of Rabbeinu Gershom do not appear to have religious value).

The Form of a Ban

The Ramban writes that a ban can only be made in the presence of ten men. The wording that must be used is: “Anybody who violates the enactment is banned.” It is also common practice to introduce: “In the name of the congregation and in the name of Ha-Makom, we hereby ban,” and it is likewise common to bless the people who observe the enactment.

The reason for the blessing is based on the Midrash (Devarim Rabba 1:9), which states that after Moshe had delivered the Admonition (of Devarim) to the people, Hashem instructed him to bless the nation, which is why the blessings of Ve-Zos Ha-Beracha directly follow the curses of Ki Sovo. Another reason is that the curse of the wise can apply arbitrarily, and the blessing aims to protect the innocent from the possible effects of the ban (see Kol Bo 139; Sheyarei Kenesses Ha-Gedolah 334:14).

The Sedei Chemed (Ches no. 43) discusses the question of a cherem that was written but not spoken, and writes that this is a matter of dispute among authorities. Some rule that a written cherem is not valid (like the halachah of an oath), whereas others validate a written cherem (see also Pischei Teshuvah, Even Ha-Ezer 165:10).

Ban on Returning to Spain

An interesting case in point is the ban declared by Jews exiled from Spain on returning to the country that had so bitterly betrayed them. The existence of such a ban is only known by hearsay, so that the question becomes doubled: Does one need to heed the rumor, and even if the rumor is true, is the ban still in effect?

Rabbi Ovadyah Yosef (Yabia Omer 7:14), who was invited to come to Madrid in order to participate in the opening of a Jewish institution, cited Rabbi Toledano, who writes: “Our ancestors related to us that the Toledano family, which originates in Toledo, declared a ban upon themselves, forbidding them to return to Spain. From then on they called themselves ‘Toledano,’ meaning ‘Toledo-no,’ in the Spanish tongue.”

Rabbi Yechiel Weinberg (Seridei Eish 6) writes of this issue that there is no need to be concerned about mere hearsay, and adds that as we have already seen, people of one locality do not have the jurisdiction to pronounce a ban on others. Because there is no indication that the ban was accepted in other places, there is no need to worry about it. Indeed, Rabbi Weinberg points out that even the ban of Rabbeinu Gershom (against bigamy), who was leader of the Diaspora, was not accepted in all places, and it remains non-binding for those (Sefardim) who did not take it on.

Shut Yabia Omer adds another aspect of leniency to the matter, based on the halachah of a safek cherem (a cherem in doubt), which was discussed in the previous article. He proceeds to note that even according to stringent opinions, there is greater room for leniency in merely visiting Spain, rather than going there as a permanent resident. Due to the many factors of leniency involved, Rabbi Yosef concludes that he did not have a problem to travel to Spain as requested.

It is noteworthy to mention the discussion, also raised in the above teshuvah, concerning the suggestion that was raised in the wake of the Holocaust, to declare a ban on all Jews against entering Germany. Shut Kol Mevaser (13) rejects this proposition out of hand, writing that in our generation we do not have the power to pronounce a ban on all the Jews of the world, and adding that it would be a decree that the majority will be unable to uphold – rendering it null.

Bans of Jerusalem: Lone Bachelors and Studying Foreign Languages

As part of his discussion, Rabbi Yosef discusses the status of various bans that were pronounced in different contexts, and in particular the ban against bachelors over the age of twenty living in Jerusalem – a ban that was pronounced and signed many years ago by a number of great Sephardic authorities, including Rabbi Yitzchak Yaakov Algazi, Rabbi Nissim Chaim Moshe Mizrachi, and others.

Rabbi Yosef writes that today it is clearly the custom for “old bachelors” to reside in Jerusalem – even those who are yeshiva students and careful in their religious observance – and nobody opens their mouth against them. Therefore, Rabbi Yosef agreed to annul the ban, and for this purpose convened a Beis Din (together with Rabbi Yehudah Tzadka and Rabbi Ben-Zion Abba Shaul), which undid the ban.

One of the most famed Jerusalem bans is the ban against the study of foreign languages (in groups), which was declared by many of the elders of Jerusalem (led by Rabbi Bardaki) some hundred and fifty years ago. In practice, many schools, even with students from the most observant families, teach foreign languages in groups, and therefore the question is raised: Is there not prohibition in this, on account of the cherem that was never rescinded? ((It is noteworthy that when Rabbi Yechiel Michel Pines was banned by some Jerusalem rabbis for his support of an institution that included vocational studies, Rabbi Shmuel Salant stated that “this prohibition has not been accepted, and did not spread … and several rabbis and leaders of the generation and the communities strongly object to this matter.” Although Rabbi Salant headed a Beis Din that lifted the ban on Rabbi Pines, Rabbi Yehoshua Leib Diskin was one of the authorities who affirmed it.))

Some permit the study of foreign languages in Jerusalem under the pretext that the original ban applied to the old city of Jerusalem alone, and not to the new city. According to this logic, it follows that only descendents of the original settlers of the New Jerusalem, who had previously resided in the Old City, would be subject to the ban. It is noteworthy that this logic was rejected by Rabbi Shmuel Salant with regard to the ban on playing music at weddings in Jerusalem.

Rabbi Kook (Letter 635, from year 5674) is lenient for a different reason, explaining that in these matters one must always follow the intention of the original ban. He explains that the intention of the ban was to strengthen the Jewish (Orthodox) school system, and to protect it from foreign influence. Today, however, the banning of teaching foreign languages in schools would actually damage the Orthodox school system, because many parents would refrain from sending their children to the schools on account of the lack of education in foreign tongues. Because today the rationale behind the ban no longer applies, it follows that the ban is null and void, and it is permitted to teach languages in school.

Rav Kook likewise writes to Rabbi Tuchchinsky (Letter 654) affirming his support for the opening of schools that include foreign languages and secular studies in their curriculum, but adding that he himself was afraid to open a school of his own and to go against the rabbinic ban of previous generations.

We are yet to discuss the specific bans of Rabbeinu Gershom (against bigamy/polygamy and against reading others’ letters), and we will, please G-d, dedicate a future article to this matter.

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