suggests that it is somehow illegitimate to evaluate its legal cogency. We are supposed to obey the custom just because that is the accepted practice. Customs are not, in a word, legally“neat,” with explicit details specifying who and what is involved and with clearly stated rationales open to analysis, challenge, and change. Instead, custom emerges from the masses—in our case, from Schechter’s“Catholic Israel.” As such, its rationales, its demands, and the scope of the communities it governs are often unclear. Moreover, because it emerges from the populace in given times and places, it is likely to differ from one Jewish community to the next.
I'he ways in which custom remains or changes are also hard to grasp and even harder to control. Those customs that are never formalized in law but rather passed down in the form of “what we do around here” may become so entrenched that they cannot be uprooted despite compelling reasons to do so. Rabbis Sometimes try, denouncing certain customs as stupid or foolhardy(minhag shtut), but rabbinic opposition, even if unanimous and forcefully expressed, does not always succeed in Uprooting objectionable customs. Indeed, in their time and lace, customs may become every bit as binding as statutory aws or rabbinic rulings—so much so that after awhile rabbinic rulings may officially recognize a given custom and enforce it.
efore a given custom becomes well established, however, prac
ices will differ, and judges that have to base their rulings on
What the parties could legitimately have expected will want to
tear out their hair. This is especially problematic because customs can pass out of existence just as quickly and inexplicably as they appear.
Custom as a legal genre, then, is definitely not for the anal COmpulsive, It requires one to ride with the waves, as it were, eng flexible enough to adjust to ill-defined and changing practices and expectations. In that way, it is like living languages as °Pposed to dead ones; the dead ones have the advantage of “¢Ing set and determined, but the living ones, that can drive you
zy with their ever-changing words, nuances, and phrases, 14
tVertheless have the distinct advantage of being alive.
K Lest I be misunderstood, I am not saying, a la Mordecai
aplan, that custom should replace law in our time. Law, whether stom shot ef