[Avodah] The Dynamic of Post-Talmudic Brachos

[Chana Luntz]

RRW writes:

> Essentially:
> 
> 1 Everything brachah in the Talmud is "axiomatic" - a given
> 
> IF the minhag [Catholic Israel] is to say the brachah -even If it's
> post-Talmud "ein l'vatlah"
> So "Talmudic" does not exactly equate to Post-talmudic BUT Post-
> Talmudic brachos can be legit.

I don't have a problem with this, certainly for the Ashkenazi community (and
I think the Ben Ish Chai would probably agree - see his comments regarding
the making of a brocha established by minhag in Parshat Lech Lecha).

> Now see Rambam Haqdama on post-Talmudic Taqqanos/G'zeiros/Minhaggim.
> 
> Talmud is binding because all Israel [Catholic Israel] accepts it.
> Anything later is local [but can be Nispasheit. See Rambam on the
> obligation to recite Arvit]

But all this can be reconciled with the Rosh and the other rishonim if you
understand the Rambam to be talking about takanot.  I know he uses the term
gezera to mean a local decree by a governing beis din in the use of this
threefold phrase, but you have two choices:

a) either you postulate that there is machlokus between the Rambam and the
Rosh and others, or
b) you understand that what the Rambam is describing is not what the Rosh
would understand by the term gezera, and that the dominant word in this is
takana and minhag, and you use that terminology.

Even if you postulate a machlokus, you will struggle with it, because what
the Rosh is describing appears to be in accord with the Rambam in essence,
ie it is not possible to pass a ruling which is binding on all Jews
everywhere, but only on those Jews which are local to the ruling
authorities' ruling and over which they have authority.

You can get around all this by having only two terms, takana and minhag.

The brochos you are describing above fall into the category of minhag as you
have noted, demonstrating the importance of Catholic Israel.

Takana is about the powers of a community to self regulate and set up
officers and authorities, and the powers of local betei din as described by
the Rambam neatly fit in under that without thereby involving contradiction.

I do think it is important not to forget the role played by the Rosh Galuta
in the times of the Talmud and post and some of theory about the separation
of powers between the king and the Sanhedrin.

> Summary: with this approach it lays out the issue simply
> A Talmudic Brachos are a "national" given
> B Post-Talmudic Brachos are taluy on the minhag.
> 
> -------------------------
> 
> Now you'll pretty much be able to intuit my understanding of Post-
> Talmudic
> g'zeiros too.
> 
> Viz.
> 
> A Talmudic G'zeiros are a "national" given
> B Post-Talmudic G'zeiros are taluy on the minhag. Or the acceptance or
> Catholic Israel.
> 
> I haven't seen the Ro"Sh on PT g'zeiros.
> I'm suggesting in the meantime that he might be saying:
> 
> One may not IMPOSE PT g'zeiros but one may indeed PROPOSE them.

But note that this is a step further than you have proposed above.  A minhag
is not something that anybody proposes, it is something that people accept
on themselves and nobody necessarily even knows where it comes from, ie it
originates from Catholic Israel, if you want to use that term.  Take
Kitniot.  Nobody knows where exactly this comes from, it certainly does not
seem like any pronouncement of any Rabbi. In fact various people have tried
to claim that it comes from all sorts of dubious sources.  Once Catholic
Israel were doing it, then the Rabbis commented and codified it.

Similarly with brochos, even if nobody necessarily knows where the brocha on
ner shabbas comes from - I don't believe anybody was suggesting that Rav
Amram made up the brocha on ner shabbas. And that is what you need to say if
you go this route - that he proposed it, and then all these (illiterate)
women read (?) his books and said, Oh what a good idea, we will make a
bracha and then they were all doing it.
 
> Another Caveat:
> the Mechabeir rejects Hanosein layaakeif ko'oach and Afaik she'assni
> kirtzono is said by Sephardim w/o sheim umalchus. So it follows that
> ROY might reject this entire thesis as non-comformist to the Mechabeir.
> Which is why I kinda dismiss ROY's approach as tied to a different
> paradigm.

I don't think it is necessarily tied to a different paradigm except that
there is an additional wrinkle when it comes to brochos as per ROY (and the
way he understands the Mechaber) which is that there is a d'orisa
prohibition on making brochos sheaino tzricha.

Not so surprisingly there might be different considerations  vis a vis a
minhag that goes head to head with a d'orisa than with a minhag that at most
is in violation of a d'rabbanan (as per most of the Ashkenazi poskim).

I don't think he would disagree with the idea of Catholic Israel having the
decisive word if it was not in contradiction to a d'orisa (or perhaps a
d'rabbanan).  And indeed Kitniyos is an example.  He may think it is daft,
but there is no issur from refraining from eating kitniyos on pesach, and he
thereby agrees that Ashkenazim are bound.  Again, it all makes sense.

What he objects to, and it fits this paradigm well, is Rabbis making
statements in teshuvos or other forms of psak which are of the form of new
prohibitions - not limited to the local population under the control of the
Rabbi or beis din and not arising out of any acceptance by Catholic Israel,
but statements of general halacha.  The example that started this all off is
one such case.  The Tzitz Eliezer said that we should not place cold soup on
an off hotplate before shabbas (which will subsequently come on on time
clock) lest we come to do it on shabbas, lest we come to stir.  This is not
a policy view - "it would be good if a person were to take this on
themselves " (and ROY is absolutely full of statements where, after saying
what the ikar din is, he says it would be good policy for a person to be
machmir - he has no problem with that).  This is not a takana that the Tzitz
Eliezer and his beis din imposed, because they saw the people were being lax
or whatever, and which applied only to the local people over which he had
ruling and authority (the scenario of the Rambam however you describe it).
This was a statement of halacha, put out into the halachic discourse to be
argued and debated by other rabbis and drafted as being universally
applicable.  It is these kinds of statements that ROY objects to as being
attempted gezeros and impermissible post Talmud.

I think this structure fits much better with the Rishonim (and that includes
the Rambam).  But it does mean that some of your consequences do not work.
That is, Rav Moshe could not be gozer no eruv on Manhattan, unless he had
the power and authority over the Jews of Manhattan, which despite his status
in America he never had.  And especially if people turned to him to give
psak, ie a decision as to what the halacha is universally, and his decision
was rendered on that basis, one cannot then convert that to a gezera or even
a takana.  For the latter you need a kimu v'kiblu by the people that they
were accepting the takana of Rav Moshe.  On the other hand, if the Rav of
Elizabeth says that I require that the eruv is taken down once or twice a
year, because I think it a good idea, making it clear that he is not saying
this is the halachic requirement that it must happen for an eruv to be
kosher (and that other eruvin who do not do this are in violation of the
halacha), and the people say OK, we accept your authority to make policy
regarding this eruv, then that appears to me to be a valid takana for the
community.  

That would not work in the case of Rav Moshe because he never had that kind
of relationship with the people and he did not rule on that basis.

> KT
> RRW

Regards

Chana