[Avodah] TEXTUAL JUDAISM AND THE LIVING TORAH

[Rich, Joel]

An old Avodah favorite :)
KT
Joel Rich


http://etzion.org.il/en/siman-114-prayers-wind-rain-and-dew

TEXTUAL JUDAISM AND THE LIVING TORAH

            In his introduction to the Beit Yosef, R. Yosef Karo clearly asserts that since it is impossible for someone of his stature to set himself up as arbiter among the great Rishonim, for his rulings will be based on the majority of the opinions of the Rif, the Rambam, and the Rosh.  Yet, here we have a case where the Rambam and the Rosh agree that an entire country which needs rain can mention and ask for rain in the summer, while the Rif does not dispute this ruling since he does not relate to this case.  Although the Rambam's ruling is in the commentary to the Mishna, this has the same status as the Mishneh Torah - so I understand from Kesef Mishneh, also written by R. Yosef Karo, to Hilkhot Talmud Torah 3:10 at the end - and in addition, the Beit Yosef on our siman claims that the Mishneh Torah also rules like the commentary to the Mishna.  How can the Beit Yosef rule against them?!

            The Beit Yosef emphasizes that the custom of the entire world contradicts the Rosh's ruling.  He also suggests that this ruling was never accepted in practice.  How can we weigh these factors against the authority of the written sources?

            There is a general difference in approach among poskim regarding how to weigh local custom against textual authority.  The Tosafot in many places endeavor to reconcile the text with the custom (see for excample, Shabbat 48a<https://www.sefaria.org/Shabbat.48a?lang=he-en> d.h. De-zeitim); other sages more readily condemn custom on the authority of the plain sense of the text.

            It seems that several factors bear on the relative importance:

1. How universal is the custom?  Responsa frequently point out that the reaction to a seldom-encountered situation can not be considered a "custom" - merely a precedent.

2. Among whom is the custom widespread?  If we are certain that even scholars and meticulous people conducted themselves in a certain way, this has more weight than the behavior of the common people, pious though they may be.

3. Are opinions opposing the custom recognized?  Sometimes we find statements to the effect that if a community had been aware that a great authority opposed their custom, they would not have adopted it.  Conversely, a custom may be defended by pointing out that it was upheld even though opposing views were clearly known.

4. Perhaps in an area of halakha whose basis is in custom, though it subsequently achieved the status of binding halakha, we should give greater weight to custom.

            In our case, the Beit Yosef perceived that the custom of going according to Eretz Yisrael was universal, even among scholars, and even among people who were certainly aware of the statements of the Rambam and the Rosh.  In addition, he may have considered the "customary" aspect of prayer to have special importance - the fact that we pray as a community renders special importance to community customs.  Therefore, even though the Beit Yosef is, according to his own assertion, an extreme "textualist," in this case he was persuaded to rule in accordance with custom.

            Almost all Acharonim are extremely reluctant to dispute Rishonim - though there are notable exceptions, such as the Maharshal (who lived, in any case, close to the era of the Rishonim).  However, many later scholars do feel that however unworthy they may be, it is their responsibility as decisors to decide AMONG the Rishonim.  The Beit Yosef's reticence in this regard is far from universal.

            A lot of noise is still being made regarding an article written a couple of years ago by a leading scholar of Judaism (who is also a Talmid Chakham, though the two do not always go together) who posits that only recently have texts taken such a central role in Jewish life.  He claims that before World War II custom was king, and accepted customs of respectable communities were not scrutinized in the light of codes.  I can not comment on the historical reality of three generations ago, but I think we should keep in mind that the tension between custom and written authority is an ancient one, and the "advocacy" of texts is hardly a new idea.


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