[Avodah] tefillin on chol hamoed

[Micha Berger via Avodah]

On Mon, Oct 31, 2016 at 07:45:55AM -0400, Akiva Miller via Avodah wrote:
: People say that deleting this piyut is an unjustified change to the
: established minhag, but I wonder if *introducing* the piyut is an
: unjustified change to the established minhag. There must be rules to answer
: this, and if those rules could be determined, these questions would go away.

You'll be unsurprised to learn that R Gil Student has a well laid-out
discussion of rolling back minhagim. Starting with a taxonomy of
kinds of minhagim (by type, by scope, by source). He doesn't discuss your
"why", but it's well worth a read
<http://www.torahmusings.com/2015/08/how-to-undo-a-minhag>.
He in turn is basing himself on R' Baruch Simon's Imerei Barukh: Tokef
haMinhag baHalkhah, ch 3-5.

Closing summary:
> ... you can discared a curom if:

> 1. It falls into the category of a mistaken custom
> 2. It is based on a prior halakhic ruling and one of the unique Torah
>    scholars of the generation ruled against this practice
> 3. All (or most) of the people subject to the custom formally annul it
>   (which is not possible with a universal custom)
> 4. You move to a place with a contrary custom, except for family customs
> 5. You change families

For my own thoughts:

This may be a question according to the Rambam, if Mamrim 2:2 implies the
rabbinate makes minhagim. "BD she.... vehinigu minhag, upashat hadavar
bekhol Yisrael..."

Most contemporary people (and most google hits), not that I have an
explicit source, would assume that the word minhag is more literal. That
the primary difference between a din derabbanan and a minhag is that the
latter is more grass roots -- the people follow a practice that stands
up to rabbinic review.

And while I do not have an explicit source, it is implied by Nedarim
81b and the Ran ad loc who say that a minhag is a neder created through
the mere action of performing it. Which derabbanan would be a binding
neder. Similarly, the case we've revisited ad infinitum from Maqom
sheNahagu (Pesachim 50b) is where the people of Baishan are apparently
being told by R' Yochanan to follow minhagt because the parents did it.
In Nefesh haRav, RHS cites R Moshe SOloveitchik saying that despite the
above, the Rambam holds that breaking minhag is assur as perishah min
hatzibur. A machloqes with the Ran, but still appears to be saying that
a minhag is a minhag by virtue of common practice. Not formal enactment.

And perhaps the Rambam in Mamrim means a BD must actively ratify
(not just fail to strike down) a minhag, which then -- even if it then
spread to the rest of Kelal Yisrael -- could be repealed by a BD gadol
bechokhmah uveminyan.

And if minhag is not formally enacted, one cannot ask centuries later
if the idea was okay to initiate. All we can say is that by the time
rabbis were asked, the piyut was ratified as an oay minhag. Here one
is asking for rabbis to use rules in favor of removing a piyut, which
would be a different, non grass roots, process.

Tir'u baTov!
-Micha

-- 
Micha Berger             Man is capable of changing the world for the
micha at aishdas.org        better if possible, and of changing himself for
http://www.aishdas.org   the better if necessary.
Fax: (270) 514-1507            - Victor Frankl, Man's search for Meaning