5. ‘If They are Not Prophets, They Are Sons of Prophets': Folk Religion (Minhag) as a Source of Rabbinic Law
Philip Alexander [+]
University of Manchester
In this paper I borrow the anthropological concept of “a great tradition” and “a little tradition” to explore the theme of the use and dissemination of religious knowledge. I argue that the relationship between the elite “great tradition” and the popular “little tradition” should be seen as a two-way street: the traditions dynamically interact, the “little” playing as crucial a role as the “great” in the overall definition of the religion. I argue this specifically for Judaism by tracing the interaction between custom (Minhag – taken roughly as folk-religion) and law (Halakhah – the Rabbinic definition of religious practice). Starting out from a close analysis of Hillel’s dictum, “Leave it to the people. The holy spirit is upon them. If they are not prophets they are sons of prophets” (Tosefta Pesahim 4.13-14 and parallels: Yerushalmi Pesahim 6.1, 33a-b and Bavli Peshaim 66a-b), I sketch the incorporation of Minhag into Halakhah from antiquity to modern times. Drawing on Legal Positivist analysis of English common law I discuss the “rule of recognition” which was applied by the Rabbis in accepting custom as law, and identify, with concrete examples, four Rabbinic attitudes to Minhag: (1) acceptance; (2) modification; (3) rejection; and (4) toleration. Thus, from an internal analysis of the Jewish legal tradition itself I argue that folk-religion is recognized by the Rabbinic elite as having made a significant contribution to Judaism. What the elite gave to the people, the people in many cases already owned.