The Prozbul Perversion
If One More Person Says “Prozbul”…
I have a vague recollection that the first time I heard the word ‘Prozbul’ was in December 1969 at the International USY Convention in Buffalo. The subject was ‘The Sabbath’ and the thrust of many of the sessions was how to bring Sabbath observance into sync with Modern Life. Not surprisingly, high on the agenda was the Conservative legal opinion that one is allowed to drive back and forth to the synagogue on Shabbat, a copy of which was included in the source book. I was very much taken with the supreme confidence expressed by our discussion leader, a rabbinical student at JTS, not only that the Torah could be efficiently ‘brought up to date,’ but that ‘we’ are fully qualified to do so. When asked, whence stemmed their confidence, the answer was: Prozbul.
Neither I, nor anyone else in the room, had a clue as to what a Prozbulwas so, so our leader kindly explained that the Torah annuls loans after seven years. However, this led to wealthy people not extending loans to the poor for fear of never being repaid, so Hillel created a legal fiction that annulled the annulment, overrode the Bible and that the vehicle by which this effected is entitled called ‘Prozbul’ (Cf. M. Shevi’it 10,3). We must, the leader continued, follow the example of Hillel and use it as a precedent to legislate in order to bring Judaism into the Twentieth Century. Allowing driving on Shabbat was one, sterling example of this type of activity.[1]
Over the subsequent decades, it seems that whenever I have encountered discussion of halakhic change, Prozbul is invoked.[2] Prima facie, it makes sense. After all, according to the Mishnah, Hillel the Elder did find a mechanism to address a social ill by effectively avoiding the abrogation of debts in the sabbatical year. However, the way the prozbul is cited goes far beyond this. It seems to me that it is appealed to as some sort of magic wand, an ‘Halakhah ex machina’ that can justify any and all situations wherein the Torah is perceived to be out of sync with the human condition.[3] Invoking Prozbul, then, is a way of expressing the (at best) extremely problematic assertion: ‘Where there’s a rabbinic will there’s an Halakhic Way.’[4]
I find this latter usage deeply distressing. Waving any kind of flag in a discussion of ideas is extremely shallow, and its use often verges on demagogy. Perhaps that explains why prozbul is a ubiquitous trope in social media. As if the Internet had not done enough damage in dumbing down contemporary intellectual intercourse, social media engenders superficiality of brain numbing proportions. Nevertheless, in the over-heated atmosphere of Facebook and Twitter polemics, whenever someone challenges the need, appropriateness or authority to change Jewish Law…out comes Prozbul. Quod erat demonstrandum. ‘Nuff Said.
This type of use of prozbul is not only distressing in its shallowness, its shallowness is itself deeply offensive. After all, discussions such as these within an Orthodox context, do not concern quotidian matters. They treat of the interpretation, and application, of what Orthodox Jews are supposed to believe is ultimately the Word of God. Discussions in that context demand the polar opposite of Internet arrogance and anger, or of social media anti-norms. They require, instead, precision of thought, meticulousness of formulation, and (above all) a deep and abiding reverence for the subject and of the broad implications of the analysis. And, while I obviously cannot do anything about the comportment of others (only of my own), I would like to revisit the prozbul as a literary and intellectual topos in order to flesh out my larger point.[5]
The origins, even the very meaning, of prozbul were long debated by scholars.[6] Today, it is accepted that the word is of Greek origin, and refers to a legal instrument presented to a court.[7] As noted above, loans are annulled at the end of the sabbatical year (Shemittat Kesafim; Deut. 15, 1-2). Inter alia, this was intended to introduce a degree of debt relief for the agricultural poor. At the turn of the first millennium, though, this situation had boomeranged. In fulfillment of a situation which the Torah had envisioned, and against which it had warned, people had begun to withhold loans on the fear that they would lose their investment upon the arrival of the sabbatical year. According to the Mishnah (Shevi’it 10, 1), this situation spurred Hillel the Elder into action: [A loan secured by] a prosbul is not cancelled [in the sabbatical year]. This was one of the things instituted by Hillel the Elder. For, he saw that people refrained from lending to one another, and there transgressing that which is written in the Torah…’[8]According to the Mishnah, Hillel ruled that debts that were presented to a court for collection were unaffected by the sabbatical year amnesty.[9]
The question is, of course, whence derived Hillel’s authority and ostensible audacity at effectively circumventing the Torah’s mandated debt amnesty? Indeed, both the Yerushalmi and the Bavli express (mild?) shock at the implication that Hillel permitted something that the Torah had explicitly forbidden.[10] The best of intentions, both imply, do not justify a gross abrogation of an explicit Biblical injunction.[11] The upshot of both Talmudic discussions (part of which are anticipated in the halakhic midrashim) is that Hillel’s actions and authority lay well within the parameters of accepted Rabbinic jurisprudence, and his authority was rooted in his standing as the head of the Sanhedrin. According to one opinion, Biblical Law allowed for the exemption of debt from the sabbatical year amnesty via its assignment to a court. Or, since the amnesty itself was only rabbinic in origin already in Second Temple times, it was fully within the purview of the rabbis to legislate an exemption (Hem amru ve-hem amru).[12]
From My Obiter Dicta, here.
