[Avodah] Minhag Yisroel

[Micha Berger]

The list has gotten very active lately, and frankly I can't keep up.
As moderator, I know vaguely that there is more on the topic that I
didn't yet read well enough to comment on, but I realize that if I
wait any longer to be caught up before writing, I'll never get to it.

So, let me take a step back and try to draw a picture starting from
first principles. I reviewed the following and it addresses everything
on this topic I wrote in the margins of my printed copies of the past
couple of weeks' digests. Whether or not I actually quoted the
individual emails. (I print up the digests to read and mark up on the
bus. This way, I have the time to think about each reply twice, and
checking sources is more likely -- although "more" only in a relative
sense.) Please comment on it, this is clearly a blog entry in the
making.



Eilu va'eilu divrei E-lokim Chaim... This means that there is some
variation in halakhah between people -- and yet both are right. So, we
can't expect everyone to take the same data and reach the same
conclusion.

We've discussed numerous times the various models to explain this. I
will here work just with the Maharal's, rather than keep the
discussion too broad for an email list posting.

The Maharal's shitah is that "divrei E-lokim Chaim" is simply too rich
and too complex to exist in this world. Therefore they are mapped to
oversimplified models, related to Hashem's words the way a shadow is a
flattened representation of the original.

And thus, different people looking at the problem from different
directions will get different shadows -- even though they are all
accurate representations of the same thing.

To finish out the nimshal: The angle at which we look at Devar Hashem
is our "derekh". This, just like in the mashal, is determined by two
things: mei'ayin masa, ule'an ata holeikh -- where the lamp is, and
the angle it points. Different people were put together differently,
and can have different emphases in how they interpret the ultimate
goal.

The complexity of devar Hashem causes the illusion (to us) of paradox.
It's no more real of a paradox than the 5 blind men who argue about
the nature of the elephant. The one who felt the elephant's ear would
argue an elephant is like a fan. The one who felt its leg would think
it is like a tree. (Google will turn up the story, if you do not know
the reference.) But it's only because we can't capture the full
picture.

We therefore see the Torah as demanding conflicting values and duties.
(Unresolvable dialectics, in RYBS-speak.) Depending upon which we
choose to prioritize, followers of different derakhim will obtain
different results. But you won't make it to the top of the mountain if
you first try this route and that that. You need a consistent plan.

One of the issues that different derakhim will weigh differently is
sevarah and textual halachic mechanics vs minhag avos vs aggadic
concerns. The Gra and Brisk place those as I listed them, in
descending order. A Yekke would put minhag avos first. A Chassid or
Mussarnik may look at aggadic concerns first. (And, BTW, they
intertwine. As in what I wrote on RHS and shinui, below, there are
sevaros about how minhag avos binds. And being able to connect to a
mitzvah because of nostalgia or because of being able to feel the
shalsheles hamesorah is an aggadic concern. Etc...)


And even within each category... Ravina veRav Ashi sof hora'ah means
what relative weights to give pesaqim that have no known formal
discussion until after them? Different poseqim, different
prioritization. Do we value the zehirus inherent in zemanei tefilah,
or the kavanah possible with extra sleep and hachanah that might run
beyond sof zeman tefillah? And since tefillah tzerikhah kavanah, Shema
too, this is arguably the greater HALACHIC priority, not just an
aggadic desideratum.

I think RRW's project is doomed to failure because he is looking for
boolean "a trumps b" rules, whereas I would phrase them as differences
in weighting. So that for Rav A, it would take a more important
concern of type X to oughtweigh one of type Y than it would for for
Rav B. Even with the same basic rules. But then, the rules about how
to evolve the rules of halachic evolution apply to themselves. Which
in itself will lead to eilu va'eilu rather than a single set of rules.
More about this, later.


When citing the Gra's system of pesaq or RHS's position, we are
talking of people very close to the sevarah corner of that triangle.
It doesn't mean their views are anything like universal. Nor do they
necessarily shtim between eachother. Brisk resembles the Gra in many
ways, but they are not identical; and RYBS isn't necessarily RCS.

The Gra is not only sevara centric, he also places a huge gap in
authority between Ravina veRav Ashi and anything afterward. Between
the two, Shas ends up carrying a lot of weight. Much more than in the
weighting system of anyone else that comes to mind. (Except maybe the
Rambamists, in theory. But they believe the Geonim and the Yad
accurately record pre-Shas textual mesorah, and thus give them that
kind of weight as well.)

==

While on the subject of textualism, a tangent. On Tue, October 23,
2007 12:36am (EDT), RAF replied to RRW:
:> OTOH, MB seems to have a multi-faceted shita re: z'manei hayyom that
:> leave me confused. He does not seem to follow strictly GRA nor Magen
:> AVraham nor Rabbeinu Tam nor Levush. See what I mean?

: ... that the MB was much more mimetically oriented as some make him
: out to be?

According to the haqdamah, the MB is intended to be a survey of
opinions since the Shach and Taz. He obviously often gives his own
opinion of what the halakhah is, which RSMandel convinced me (in a
discussion here some years back) is his opnion of what it should be in
theory, based only on textual sources.

IOW, R' Yisrael Meir Kagan wasn't as much of a textualist in practice
as the MB is. (As is known from MANY examples, the most famous to
those here during that earlier conversation: the CC's kos for the
seder was less than the MB's shiur; the CC didn't wear his tzitzis
out; vechulu...) But the MB has to be very textual, or the haqdamah
claiming to be a survey for those who don't have access to later
acharonim doesn't make sense.

==

The concept of minhag hamaqom impacts two different things -- actual
minhagim and local pesaqim. I'm now addressing only the latter. A
community can't survive with too much variation, so we standardize
local pesaq on many issues.

To my mind, this means that a kehillah's members are limited in the
"angle" at which they look at the Torah. One is obligated to follow
minhag hamaqom, and if one is going to be consistent, one is limited
to derakhim that include that element in their "shadow".

Nowadays that tends to run in the reverse -- people who have strong
opinions one way or the other pick their kehillah. Someone chooses to
be chassidish or to join RYBS's followers, I even heard of people
leaving "Breuer's" (!), and the pesaqim follow.

This also impacts the parameters of pesaq shopping. If one isn't
careful, one could be left with an inconsistent set of pesaqim. The
shadow they live by doesn't represent Devar H' because they have bits
of the shadow as seen from one lighting, and bits as seen from another
-- producing something that would never be cast by the actual object.

==

A second problem with pesaq shopping is not only must a gavra be
consistent, a cheftza can be given a chalos. And because we all share
the same universe (within limits, pace REED or Slabodka hashkafos),
that can only be one thing.

To rephrase a point made by RMYG on 10:58pm Tue as being told to him
by an unnamed rav:
When a rav is proclaiming a chalos, pesaq shopping is impossible. When
he is proclaiming only a chiyuv or issur (and not a chalos that causes
them) you have some lattitude. IMHO, that latitude would require:
(1) One must be motivated to perfect one's avodah rather than adding
ease (or glory of being more machmir than the neighbors).
(2) One still must go back to the first rav to close the circle. This
isn't so much a chiyuv direcly because of the rules of pesaq, but
midinei kavod harav one is better to be inconsistent than to imply
disrespect of the first rav.

==

Some of the thornier problems of eilu va'eilu is the self referential
nature of halakhah.

One paradox I've posted here before is that the range of opinions
about which one can say eilu va'eilu is itself subject to eilu
va'eilu. But how can I say that I accept someone's pesaq as a
"va'eilu" when he can't similarly accept my position?

Another aspect of this was raised by RRW when he asked on Tue, October
23, 2007 11:59am:
: Are the rules themselves fixed? ...
: Question: Can the RULES for making Halachah evolve?

The making of a pesaq is itself subject to halakhah, and thus subject to
machloqes.

So let's say we define a valid "eilu" as one produced by a proper use
of the halachic process. Well, since that process itself is subject to
machloqes, there are bound to be decisions that aren't in my range of
"va'eilu" because they follow a different set of pesaqim about how to
make halakhah than I follow. But those pesaqim too came from the
process... at some point there must have been a common ancestor, and
it could very well be that if we look at this metaprocess, both sets
of pesaqim about making pesaqim are valid after all. A self-denying
paradox, depending on how deep you look at rules for making rules or
the rules for making the rules by which we make the rules.... Im kein,
ein ladavar sof, no?

==

Pesaq "changes" in a number of very different ways. I put the word in
quotes, because I'm including things I do not consider an actual
change in pesaq.

When RHS writes of the difference between appropriate halachic
creativity, "chiddush", vs unauthorized change in established din,
"shinui", much rests on whether one is actually changing established
din, and whether that change is authorized.

(BTW, the fact that RHS doesn't say "IMHO" shouldn't be taken to mean
much. Everything written is in the author's opinion. "IMHO" stresses
what should be self-evident. And doesn't belong in a polemic or in a
teshuvah. Now, had the chiddush vs shinui bit appeared in a survey, or
lomdus about the various shitos, then one could take issue with only
including one opinion.)

1- The realia change in some subtle but relevent way. What seems like
a new pesaq for an old situation is actually a pesaq for a new
situation. This isn't what RHS would call chidush or shinui, it's not
really a change of halakhah. Chiddush -- it's a new pesaq for a new
case.

If teaching girls Torah were declared "assur" rather than "tiflus",
the CC's grounds for backing Beis Yaakov would qualify. He held that
universal secular education for girls was a change in realia which
changed the definition of "teaching them enough to keep them shomeros
Torah umitzvos". Teaching halakhah is no longer enough; they now must
also see that Torah has greater beauty than the other systems of
thought to which they are exposed. As it is, the CC justified a change
in minhag Yisrael, which is KEdin and thus follows the same rules --
but what was changed wasn't actually din itself.

1b- Technology advanced to make a new option possible. With a new set
of options, we have a new reality. This may well call for a new pesaq.

IVF-H means that a poseiq might decide not to wave the minhag Yisrael
of shiv'ah neqi'im, and require IVF to fulfill piryah verivah. If he
so decides, it's a new pesaq for a new case.

RSZA held that modern ink making methods are such that indoor mezuzos
ought not be check. The chance of a letter cracking due to age are far
smaller than the risk caused by unrolling and rerolling the kelaf.
Previous pesaqim are ignorable, since this was only true as grinding
and ink making improved.

1c- One can not overturn din because of the motivation of the din. If
the motivation no longer applies, eg refu'ah beshabbos, we may find
that the balance of conflicting values shifted. But the din itself,
when no conflict exists, stays on the books.

The exception is where the motivation is codified in the din. For
example, RRW's case of YD 1:1, why women don't shecht. If the pesaq
was that quesy people who would be unable to maintain the yishuv
hadaas for good shechitah should shecht, eg women, then a veteran of a
MASH unit may very well be allowed to shecht lechat-chilah. However,
if the pesaq is that women may not shecht, and the pesaq made because
of assumptions about women, and not the pesaq is "mesorah" (RSH-speak)
or "mimetic tradition" (Dr Gra"Ch-speak) or "minhag Yisrael", then we
do not have such latitude.

This is a subcategory of #1 because we aren't giving a new pesaq to an
old situation. We are recognizing the fact that the current situation
is actually a different one than what the precedent was set for.

2- "Halachic technology" advanced. Someone thought of heter mechirah,
or of a "kohein box" or whatever. If a poseiq feels that it's obvious
enough that if it were good, someone would have utilized it by now,
then he would find that lack of usage to be a ra'ayah. However, if
it's not obvious, then pruzbul or a rider for the kesuvah to protect
the kallah from a mesareiv get, etc... have not been ruled out. And
so, some such proposals are actually shinuyim, and others are healthy
new growth, chiddushim.

Here we aren't changing the pesaq, we are orchestrating a new
situation in order to be able to be subject to a different pesaq.

3- The realia don't change, our knowledge of them does. The advance of
science. But what to do when the realia change is a huge machloqes
that we've discussed before -- another machloqes in the dinim of how
to determine din. The subject of chiddush vs shinui will therefore be
omitted in this case; it depends on how one believes the halakhah
should change -- or not. Does precedent matter, or was it ta'us?

==

Another side-issue...

RRJ (who is not the president of YU <g>) wrote on Sun, Oct 21, 10:01am:
: Bkitzur -the existence of several levels doesn't mean there isn't an
: algorithm. The Heisenberg Uncertainty Principle comparison interests
: me-can any of our physicists tell me whether the identity of the
: observer makes a difference(all other things being equal)

My beqitzur:
There is an algorithm, but
1- Different people feed the formulae different constants.

2- The algorithm is fed itself. (Comment to other techies: Kurt Goedel
would be proud!) Therefore, at this point in time, the outermost layer
of the onion might look different in different people's hands. And,
while I wrote this, I didn't find any examples of this in our
discussion, or while trying to scratch my brain for some.

About the Uncertainty Principle: It says that certain pairs of values
never exist to full precision. The more one is determined, the more
the other behaves as a random variable, to be determined by less and
less certain statistics.

According to the more popular (for now) Copenhagen Interpretation:
This determination is caused by observation. There is therefore no way
to say if the observer changed what the outcome was, except that over
time, the outcome does bear out in the same frequencies as the
calculated odds.

String theory pushes the Multi-World Hypothesis, that the probability
is really caused by the universe splitting. The more likely outcome
exists in a wider "slice" of the universe. Observation is how you
first become aware which universe you're in, which is more likely to
be part of that wider slice.

REED and Slabodka thought would say quite definitely. Reality is more
about what you impose on what's out there than the unknowable
objective thing out there. (In Chabad, what's out there is Hashem
Echad, and everything we think exists is us imposing our perspective
on the Unknowable.) This is fundamental to the REED's explanation of
time, of time during beri'ah, of the Maharal's position on nissim, of
the 4 alomos -- my blog is full of this stuff.

But they would not say it depends on the observer because of the
effect of the observer *within* the Uncertainty Principle, but because
of our effect on the existence of a scientifically study-able reality
the principle altogether. (Similarly REED predates R' Dr Schroeder
that the amount of time during the 6 Yemei Bereishis is dependent on
the observer. But not because of relativity and its effects on what is
time vs what is space, but because the observer imposes the notions we
identify space and time on reality. Until the eitz hadaas, that kind
of observer didn't exist, so neither did space or time resemble what
we think they are.. It's all very Kant.)

SheTir'u baTov!
-micha

-- 
Micha Berger             One who kills his inclination is as though he
micha at aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv