[Avodah] Maharil & Maharam miRutenburg -- two views of Minhag

[Micha Berger]

The Maharil famously championed the notion that the accepted practice
is the cornerstone of pesaq. Contrast this to the shitah of R' Meir
miRotenburg, as described in an email shiur by R' Elyakim Krumbein
from Gush <http://vbm-torah.org/archive/gaon/04gaon.htm>:

    The Tosafot on the Talmud that have come down to us, are built,
    in the great majority, on the Torah of two giants [Rabbeinu Tam
    and the Ri -micha], even though they were only written generations
    after their passing. But over time the spread of the Torah of Spain,
    and the awareness that "it is possible to argue otherwise" shaped
    matters to the point that the last of the Tosafists -- R. Meir of
    Rotenburg -- maintained that one ought not to rely simply on the
    accepted Ashkenazi traditions.

    In many of his rulings and customs, this same Maharam expressed
    the belief that the Halakha is in doubt, and therefore one should
    be careful and try to act stringently in accordance with all
    opinions. Let us take an example from the laws of zimmun. According
    to the Tosafot, if two people ate bread, and one drank wine or
    ate vegetables, they may join for zimmun, as opposed to the Rif who
    requires that they all eat bread. Maharam was careful about the matter
    when he ate with another person -- "he would not allow another person
    to drink unless he was able to get him to wash hands and eat with them
    grain in the size of an olive," and only when this was impossible
    "would he rely on the Tosafot and recite zimmun together with the
    person who drank."[1] As stated, the same phenomenon is evident in
    many of his other rulings.

    The Maharam applied the same principle in cases of monetary matters,
    and this caused a major revolution. Until his time, courts would
    decide the law according to certain judicial traditions, even if the
    tradition was the subject of a controversy. Maharam made extensive
    use of the principle of "kim li" ("my opinion is") as an argument
    that can be made by the defendant in a suit. When the earlier
    authorities disagree about a certain point, and according to one
    opinion the defendant is free of liability, he cannot be forced to
    pay based on judicial tradition, for he can argue that in his opinion
    the other viewpoint is correct, and we cannot prove that he is in
    error, and the rule in such a case is that the burden of proof falls
    upon the plaintiff. In practical terms, money cannot be collected
    from the defendant unless he is liable according to all opinions,
    a situation that is very rare. Many today lament this situation,
    which to a great degree paralyzes Rabbinic courts.

    For many generations there was nobody who could challenge this deeply
    rooted tradition of doubtfulness, until R. Eliyahu of Vilna appeared
    on the scene....

    [1] Hagahot Maimuniyot, Mishneh Torah, Hilkhot Berakhot, chap. 5,
    no. 7.

The Gra is then described as instead replacing minhag with a different
sort of textualism, one of confidence in one's conclusions.

In any case, the question of how to weigh the various factors that go
into pesaq is an old one.

-Micha

-- 
Micha Berger             "'When Adar enters, we increase our joy'
micha at aishdas.org         'Joy is nothing but Torah.'
http://www.aishdas.org    'And whoever does more, he is praiseworthy.'"
Fax: (270) 514-1507                     - Rav Dovid Lifshitz zt"l