[Avodah] Minhag Yisroel and Gra on 2 Matzos vs.3 Matzos/Rabbi shopping

[Richard Wolpoe]

On 10/26/07, Chana Luntz <chana at kolsassoon.org.uk> wrote:
>
>
> On another topic RRW writes:
>
> > I have a bitter fed with a colleague of mine - let's call him
> > Rabbi ABC.
> > let's recap:
> > He claims that the Bavli trumps all and THAT is a rule of pesak:
> >
> >    1. is that a fact?  is the Bavli the final arbiter of pesak?
> >    2. Or is the the decisiveness of the Bavli a matter of debate?
> >    3. are there sources to prove one side or the other?
> > [believe me I am
> >    looking at this ll the time?
> >
> > Toby claims that R&C rabbis decide the issue first and find
> > support in texts that suits their agenda.  But Rabbi ABC
> > posits that Behag, Toafos and many Orthodox rabbis do this
> > frequently, too. That a decision is mad on some agenda and
> > sources are mustered to make the argument plausible, or
> > cogent post facto.  First comes a minhag afterwards come the
> > rationale.
> >
> > How can  I answer Rabbi ABC? As a jew in need I request YOUR help!
> >
> > Disclaimer: I do not consider Rabbi ABC an honest broker of
> > the facts of how Halachah works. But in the interest of da
> > mah lehashiv, I need something that can be "makheh es shinav".
>
> The irony of this discussion is that if you were only analysing the
> halachic aspect of this (and leaving out the cries of misogyny) this Rav
> sounds like a Sephardi.


Rabbi ABC has a strong pro-Sehapridc tilt. [I think he studies with R.
Mordchai Eliyahu.But he claims that Bet Yosef follows the peshat of th
Talmud as his basic rule. Well, re: 3 matzos that ain't so because the
passage in the Talmud as codified by Rif and Rambam and as supported by GRA
clearly favors the 2 matzo rule. The Bet Yosef himself says the world
follows Rosh and Tosafot and therefore he follows consensus over text. [in
this case GRA is more Sphardic than Mechabeir]  A careful read of  the
hakdamot of R. Karo to both Bet Yosef and to SA will reveal that he makes
NOT attempt to get the best original read of the sources but rather is about
looking at the Talmud through the prism of Rishonim only, and then getting
the best Bet Din of Rishonim together. Rema essentially does the same but
simply has a different Beis Din

While the Rambam certainly could repeal Gaonic literature via Talmudic
citations, BY made noe such effort and rather looked to an amdau v'gamru
from Rishonim to decide pesak - with a few exceptions.

Also Rambam himself uses Yerushalmi and Tosefta to override Bavli. E.G.:
Lannochri Tashich he rules as per Sifrei over Bavli  [Shm Ase 198]



>
> Of course the Sephardi halachic analysis is precisely this - the Bavli
> trumps the Tosephta, and we don't follow Tosphos and the Rema.  And
> while highly I doubt misogyny would be something that would be raised,
> one of the Sephardi criticisms of a lot of Ashkenazi psak is precisely
> about using what seem to be external sources and dubious minhagim to
> trump the Bavli (and some of it might be argued to be not that polite -
> I think I have read some pretty strong things about not sitting in the
> sukkah on shmini atzeres).
>
> Now of course, if you want to talk about women making brochos on mitzvos
> aseh shehazman grama ...


Actually a Sepharidc young lady made a passioante anti-Ashkneazic argument
during Sukkos 2006 agaisnt Ashkenazim and their brachot on Sukkah for Women
etc. I then whipped out the BY who goes throug hboth sides. The Ashkenazic
position is artualted by  guess  who? It is the RAN!  Now how can Sephardim
attack this halachah as an Ashknezic deviation when it is th Ran himself who
articulates it and the BY gives it credibilty before deciding the other
way?!

And where does minhag end and halacha begin and
> end in such a case?  What about taking positions in a community?


Our esteemed moderator  recently took me to taskk by conflating minhag,
pesak and legislation. Anyone reading any major book on Halacha after the
Rambam will find these conflations to be par for the course.


I can
> think of two cases here - one is that one of the Rabbis at Aish here is
> Sephardi in origin (Syrian from the US, son of a Rav there), and very
> steeped in the Sephardi tradition.  But he is working with, on the main,
> Ashkenazi not yet frum, and within an Ashkenazi organisation.  He has in
> general chosen to put on a united front - including, for example,
> dancing and clapping on shabbas - to raise my earlier topic - where all
> the sources on which he has to rely are Ashkenazi.


True that Tosafos allows this, but Rema does so ONLY reluctantly. Ayein Rema
on 339 where his first opinion really  is closer to the mechabeir.  What is
fair to say is that some Ashkneazim not only ignore the Talmud or the
Shulchan Aruch to follwo a minhag - they wil ignore the Rema, too. And
conider that single men do not ewear a Tallis as  having been decried by the
Mishna Brura, we see that Minhag trumps  MB, too!


Is he picking and choosing?


Rabbi ABC is claiming that modern Poskim are playing games with Halachah by
not following the Talmud.  I am not a "TAlmudic-Karaite" but I do concede
that few poskim feal that they serve a particualr set of rules.  Bet Yosef
limited himself to an objective Bet Din for the most part. Few Ashknazic
poskim follow a unifrom shita nad feel free to pick and chosoe as they
please.   At least with yekkes, there are  sourcs that usually  trump
others.  E.G. in  liturgy and  Masoretic Stuff Heidenheim is the main
authority. For Minhag there are seforim that are consulted, Maharil being a
major source.


.  The whole thing boggles my mind.  Having read now quite a lot of
> ROY teshuvos, I would be really surprised if you would get a psak from
> him where the Mechaber would be trumped by a Tosphos.  Does it matter?
> Does the quality of the gadol matter more than their derech even when it
> is so far away from what one might expect their tradition to produce?
> Can one pick and choose if one has (like this case of megilla) the
> Sephardi tradition on which to rely - especially if one really believes
> that that is the "right" answer.
>
>
> Shabbat Shalom
>
> Chana
>

The question remains. Are poskim bound by any set of rules or are the
entitled to make them up as they go along?

What Rabbi ABC and other Sephardim mis-understand re: Tosafos is that
actaully Tosafos was notquite so innovative re: Halachah, and usually Tos.
was more about conserving traditional practices [mimetics over text]  It
would be unfair to say that Tosafos was unbound, aderabba, he was quite
bound  b certain rules, just DIFFERENT rules.

Aruch Hashulchan rarely repeals practice based upon original reads. Mostly,
he accepts precedent, tradition, and Minhag.


-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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