If Halakhic creativity emerges from a method of interpretation, rather than being results-driven, it must yield stringencies as well as leniencies. It will also sometimes drive the beit midrash to align with a common practice – strict or lenient – that had previously been seen as the product of ignorance, and in other cases drive the beit midrash to reject what had previously been seen as unexceptionable behavior.
Rabbi Eliezer Melamed’s discussion of the “Crocs on Yom Kippur” issue is a fascinating and useful illustration of such contemporary halakhic creativity. I have not yet studied the relevant texts sufficiently to be confident of my own interpretations. But I think it will be valuable nonetheless to present a simplified view of the issue as a standard halakhic observer might see it, and as Rabbi Melamed sees it, and hopefully our discussion will continue. (For readers not familiar with Rabbi Melamed – he is author of the popular Peninei Halakhah book series and a leading Religious Zionist posek and community leader.)
On Yoma 82a, Rabbi Yitzchak bar Nachmeni rises to his feet and declares “I saw Rabbi Yehoshua ben Levi go out wearing cork sandals on Yom Kippur”. Rabbah bar Bar Channah provides corroborative evidence from Rabbi El’azar of Nineveh, and the Talmudic narrator attests that Rav Yehudah and Abbayay behaved similarly. Finally, the narrator attests that Rabbah bar Rav Huna would wrap cloth around his feet and go out.
Following this the Talmud presents a challenge from Rami bar Chama. Mishnah Shabbat 75b records a dispute between Rabbi Meir and Rabbi Yose as to whether an amputee may wear his or her wooden prosthesis in a public domain on Shabbat. The initial assumption is that the dispute depends on whether a prosthesis is or Is not considered clothing; if it is not, then “wearing” it in the public domain violates the prohibition against carrying. Rami bar Chama cites a beraita which asserts that both positions agree that a wooden prosthesis may not be worn on Yom Kippur. He apparently assumes that if a prosthesis may not be worn, then cork sandals may not be worn, and perhaps one may not even wrap cloth around one’s feet. All these would be violations of the prohibition against wearing shoes.
Abbayay apparently responds by distinguishing between prostheses with pads and without. Rava counters that the prohibition is only against shoes, and if a prosthesis is not a shoe, then adding pads does not change its nature. He suggests instead that Rabbi Meir and Rabbi Yose agree that a prosthesis is a shoe, and disagree on Shabbat only about whether one must be concerned that the “shoe” will fall off and then be carried. Rava’s suggestion seems out of place, as it explains the beraita cited by Rami bar Chama but does not reconcile It with the testimonies that Rami bar Chama was challenging.
Halakhic decisors can deal with this conundrum In three basic ways.
1) They can choose to rule like the testimonies, and dismiss Rami bar Chama’s beraita as an error. This yields the result that only leather shoes are prohibited, or more precisely: Only shoes are prohibited, and only items made from leather are considered shoes. (There are also good grounds external to our sugya for this contention.)
2) They can choose to rule like Rami bar Chama’s beraita, and against all the testimonies. This yields a prohibition that extends to footwear made out of any materials. A variant of this position suggests that even the beraita would permit wrapping cloth around the feet, since in that case there is no shoe by any definition.
3) They can choose to reconcile the beraita and the testimonies. This results in distinguishing between leather shoes and wooden prostheses on the one hand, and cork on the other.
Our sugya provide no rationale for such a distinction. On Yebamot 103a, Rava suggests that Rabbi Meir distinguishes shoes that “protect”, such as wooden prostheses, from shoes that do not, such as “anpalya shel begged”, which seems to be the equivalent of a cloth footwrap. That sugya does not discuss cork.
(This suggestion of Rava appears to contradict his position in our sugya, and also a different position of his on Shabbat 68a.)
Rav Yosef Karo in Beit Yosef notes that all three of these positions are found in the rishonim. However, RIF and ROSH each cite the testimonies and not Rami bar Chama’s beraita, presumably meaning that they rule that only leather is forbidden. Rav Karo’s conventional heuristic is to rule in accordance with two out of three of RIF, ROSH, and Rambam, and accordingly Shulkhan Arukh OC614:2. rules that only footwear containing leather is forbidden.
But what about Rambam? Rav Karo will often cite Rambam’s minority positions as an alternate, yet in this case he rules absolutely, and Rav Moshe Isserles appears to agree.
In Hilkhot Shevitat Asor 3:7, Rambam rules that cork and rubber sandals are permitted, and that a person may wrap cloth around his feet, because “the hardness of the ground reaches his feet and he is conscious of being unshod.” It is not clear what he means by “the hardness of the ground” (see e.g. Tzafnat Paneach), or why cork and rubber would not block this experience, or on what basis this rationale is introduced. He astonishingly fails to mention wooden prostheses one way or the other. Beit Yosef accordingly dismisses Rambam’s position as “enigmatic” and gives it no halakhic weight.
Bottom line: the conventional halakhah, in theory and in practice, is that only footwear containing leather is forbidden. A reasonable stringency would be to ban wooden clogs as well, but cork and rubber are clearly permissible, and refusing to wear them might well be spiritual arrogance (yuhara), as one would be “holier than” the various Talmudic rabbis who publicly wore them.
Enter Rav Melamed. Rav Melamed’s method involves having mitzvot make experiential sense whenever possible. A prohibition against leather shoes alone makes no experiential sense nowadays. Many if not most shoes for daily wear are not made out of leather, and many people therefore will have no sense of doing anything different on Yom Kippur – they will have no consciousness of עינוי/affliction. It is therefore unlikely that the prohibition today is limited to leather.
Rather, it must be that the prohibition – even according to RIF and ROSH – includes shoes made out of whatever materials ordinary daily shoes are regularly made from. (Rambam assumes that daily shoes are intended to prevent one’s feet from feeling the hardness of the ground.) Which materials these are may vary over time, as both manufacturing processes and social practice vary. The goal is to ensure that everyone on Yom Kippur experiences themselves as unshod.
Rav Melamed thus presents a dynamic halakhah which Is sensitive and responsive to changes in technology and society. This dynamism leads, in our case, to a broad new practical stringency.
There are many ways to challenge his result.
Formally, one might argue that while he has correctly described the intent of the law, its specific content was nonetheless frozen in Talmudic times, either because it was a Rabbinic decree (as Rav Melamed suggests in a footnote) or because it was an area where the Torah was given over to Rabbinic definition (as I was taught in yeshiva).
Sociologically, one might argue that high-end dress shoes are still primarily made from leather. One might also argue that in Talmudic times many people generally walked around barefoot, and so Yom Kippur was not in that regard experientially different for them than it is for us. (One might also argue specifically regarding Crocs and other soft-soled shoes that they do not prevent feet from feeling pebbles and the like, and therefore perhaps not all our daily shoes are “shoes” even if one accepts that the prohibition isn’t limited to leather.)
Symbolically, one might argue that the ban referred specifically to leather because Ezekiel 16:10 is understood by Talmud Yebamot 102b as connecting shoes and leather specifically (in the context of chalitzah; see e.g. Rabbeinu Manoach), or because the prohibition somehow relates to the garments G-d made for Adam and Eve (see ARI).
Experientially, one might argue that the Talmudic rabbis whom the standard halakhah follows clearly felt that the prohibition was not intended to cause actual pain, as they used all legitimate means to cushion their feet. What was needed was not a physical experience but rather a heker, a mental realization of a symbolic prohibition. Checking our shoes to ensure that they don’t contain leather – which we don’t have to do any other day of the year – suffices for that. There is no fundamental requirement to physically feel unshod. It is ok if the mitzvah-experience on Yom Kippur changes in the same way that our experience of kashrut has moved from slaughtering animals to checking for hekhsher symbols.
For all these reasons, I am still comfortable being comfortable in my Crocs on Yom Kippur. I am nonetheless attracted to Rav Melamed’s method, and think it has much to contribute, so long as its audience is willing to embrace both its stringent and its lenient implications.