122 Joan S. Friedman
prohibition is violated. Two individuals may agree to conduct their business by Torah law, by any customary procedure developed over the centuries and recognized by the halakhic authorities, or by some new procedure they themselves develop or adopt. This principle allowed for maximum flexibility to meet changing commercial conditions. Over the centuries, vast structures of halakhah dealing with commercial transactions, communal taxation, and other“civil” matters were thus constructed and reconstructed, virtually all based on minhag. Minhag easily outweighs halakhah in the entire realm of mamon.
The reason why the same flexibility cannot apply in“’religious’ law,” as Elon’s translators render the term, is evident. In the words of R. Simeon ben Solomon Duran:“Obviously, if we may repeal a prohibition on the basis of custom, then all prohibitions may be repealed one by one; and the Torah , God forbid, will be abrogated.”?® In other words, from the perspective of halakhah, no matter how normative in any Jewish community civil divorces and eating lobster may be, such“customs” can never override the laws which regard that woman as eshet ish and which declare that food to be treif.
Elon notes one great exception to this rule in the realm of issur. Minhag plays an enormous and highly valued role in the area of liturgy and ritual practice.“[ T]he principle‘custom overrides the law” was used to establish various rules that relate neither to mamon nor to issur, such as laws relating to prayer..."”% Indeed, even a very casual perusal of the halakhic literature through the marvel of computerized databases bears this out: The phrase from Berakhot 45b,“Go and see what the people do,” occurs overwhelmingly in mamon or in matters of ritual and liturgical practice. By contrast, there are few if any instances where minhag determines practice in matters of ishut, gerut, kashrut, or other questions of issur.
What, then, are we to make of Freehof’s misrepresentation of the meaning of several halakhic texts? From a halakhic perspective he has made an egregious error in using proofs from mamon and liturgical and ritual practice to justify changes in issur. Yet given his prodigious scholarship, it is impossible to believe that he simply erred. The even more dismaying alternative, however, is that he deliberately blurred the meaning of his sources to buttress his argument—a disturbing tendentiousness that would fatally weaken his case and certainly would do him no credit.