IN AN AVOWEDLY REVISIONIST HISTORY entitled Refashioning Ashkenaz: The Human Face of Franco-German Jewry, 1000–1250, David Malkiel, a well-known historian of early modern Jewry, devotes an entire chapter to demonstrating how widespread deviance was in the Ashkenazic community of the Middle Ages. I would like to first examine some of his underlying assumptions and then turn to the specific criticisms leveled against my article ‘Religious Law and Change: The Medieval Ashkenazic Example’.

Dr. Malkiel posits the existence of a vast grid of religious requirements and argues that anything that is in the slightest way incongruous with this grid is deviance—whether it be more than the letter of the law demanded (le- ḥumra), less than the law demanded, or even simple custom, if the popular practice did not originate in the canonical literature. Thus, the deviance of Ashkenazic Jewry comes to the fore (a) in its supererogatory conduct, for example its voluntary martyrdom and slaughter of its children lest they be baptized, its refusal to abrogate the irksome ban on Gentile wine (yein nesekh), and its more limited use of Gentile services on the Sabbath (goy shel Shabbat) than was allowed by law; (b) in breaches, for example the widespread trade with Gentiles in the Friday markets; trade with Gentiles at any time in objects that the Talmud has forbidden, such as horses and oxen; women braiding their hair on the Sabbath; women wearing jewelry outside the home on that day, something the Talmud bans for fear that they might take off a brooch or bracelet to show to friends and take a few steps with it (to get better light for viewing, for example) and thus carry an object in the public domain (reshut ha-rabbim) on the Sabbath— an act forbidden by halakhah; (c) finally, in such customs as women immersing themselves, after their menses, three times in the ritual bath (mikveh), rather than just once as is required by the law; their not doing work on the day of the New Moon (Rosh Hodesh); and their similar refraining from labor while the Hanukah candles burn.

If custom is deviance, then Jewish life throughout the ages has been grossly deviant, as law provides religious life with only a skeletal framework. There is the widest variety of ritual behavior which is textually rootless, or rooted textually much after the fact.