are not prophets, they are the children of prophets. On the next day, whoever had a lamb for the pesah had stuck the knife in the wool; whoever had a kid had stuck the knife in between the horns[so that the animals were carrying the knives, and no one was violating Shabbat by carrying].[Hillel ] saw what they were doing and remembered the halakha, and said: This is the very tradition I received from Shemaya and Avtalyon.
In this passage Hillel says that there already is a law to answer the question put to him, but that he has forgotten it. When he sees what the people actually do, he recognizes their practice as being exactly what the rabbinic legislation prescribed. So what is the weight of the people's practice in this case?
The significance of this passage is far from clear to later rabbinic authorities. The narrower, minority view is that the people’s custom merely proved that there was a prior law and is valid only for that reason. The majority view, however, is broader:“[T]he people can create law through custom, and... custom does more than merely prove the existence of a law created by some other means.” For Elon, this baraita is an example of“the creative force of custom.”
The reason why the people’s custom can be relied on to create law in this and similar instances is“because there is a presumption that the people... base their conduct on the halakhah [and] intend their practices to be true to its spirit.26 In other words, the people’s conduct in the absence of rabbinic guidance is valid because it is assumed that the people are acting out of devotion to Torah .
Freehof , like all committed Reform Jews, sees in the Reform modification of traditional practices not rejection of Judaism , but rather clear evidence of the people’s desire to remain Jews under greatly changed historical circumstances. Therefore, the changes made by the movement in liturgical and other practices meet this criterion of devotion to Torah in his estimation and constitute examples of popularly generated minhag. Pesahim 66a implies that the people’s devotion to Torah makes them a reliable source of Jewish practice. But is this true in every instance? What about, for example, Freehof ’s own brief acknowledgement that the observance of the Sabbath is virtually absent from the lives of Reform Jews?“Of course, not every custom of the people could be permitted to abrogate any law....[Custom abrogates the law only if it is the custom of respected people.” Contrary to his