[Avodah] minhagim

[Micha Berger]

On Wed, Jul 17, 2019 at 11:50:34AM +0000, Rich, Joel via Avodah wrote:
: Minhag is one of those Humpty Dumpty words ([like Chazakah?] ...

I don't think so, for either word.

The problem is that both refer to facts, not halachic categories. And the
same fact needn't be the same halakhah.

Minhag means that which is done. It could be commonly done because a particular
ruling became accepted in some region as the law (bet yosef chalaq) or
as beyond the law (glatt), by a given person ("I don't use community
eiruvin"), etc...

A chazaqah is a presumption. We presume when something would be true
by normal laws of nature or human nature (chazaqa disvara), or because
it's what we saw last time we check and we do not expect change (chazaqa
demei'iqara).

Sheiv Shemaatsa (6:22) proves that chazaqa disvara has no bearing in
a case of terei uterei. Specific case "ein adam chotei velo lo" does
not give one set of eidim more neemanus than the other. However,
a chazaqa demei'iqara would still stand even after eidim disagree
about whether the metzi'us changed.

But the word still means only one thing -- "held" to be true.


Similarly, gerama means causation. But the scope of what is gerama differ
when the topic is melakhah or when it's neziqin -- because neziqin splits
between gerama and garmi. Not because the word is wobbly.


The nafqa mina in this bit of linguistic theory is to be on the alert
when learning:

Brisker Lomdus spends a lot of effort on chalos sheim. So you pick up a
habit that words are labels and should be 1:1 with halachic categories.
And besides, we take buzzwords and apply the same buzzwords to disparate
sugyos -- cheftza vs gavra was borrowed from nedarim and shevu'os!

But it's not a consistently valid habit. Not everything is indeed intended
as a buzzword for a halachic category. Halakhah may not even be about
where to apply labels. Brisk might not be the only emes.

: 1. There is not always a strong mesorah for the source of minhagim.

Except according to Rambam Hil' Mamrim ch 2.2 "BD shegazeru gezeirah
or tiqenu atanah *vehinhigu minhag*", who seems to say minhagim are
established by beis din -- or perhaps posqim in general.

But I think most assume minhag, of all sorts, means grass roots.

Which is then verified post-facto:
: 2. Later, authorities use what data they can collect related to the
: specific minhag to establish a narrative for the original practice...

: 3. The narratives may also be impacted by a desire to cohere definitions
: and/or rules amongst multiple tangentially related practices (e.g.,
: mlacha, candle lighting).

Not sure how often this happens outside of... well, I hate to say it again,
but outside of Brisk.

RYBS rewrote much of the 3 weeks based on a theory that minhag must follow
halachic forms, and therefore each stage of aveilus in the Ashk minhagim
of 3 weeks must parallel a stage of aveilus derabbanan for a parent r"l.

But his pesaqim are idiosyncratic.

: 4. Halachic intuition plays a very strong role in determining "good"
: and "not so good" minhagim. (Maybe of the nature of "what would I have
: seen/done if I were a poseik back when the minhag was forming?")

Also in pesaq. I think "libi omer li" followed by seeing if the seikhel
can formally confirm what the heart said is a far more common pesaq
approach than we usually discuss. But we can argue how strong of a role
it plays in pesaq some other time.

As I have said here frequently, the difference between a moreh hora'ah
("Yoreh? Yoreh!", ie a poseiq) and stam a learned guy is shimush. (Sotah
22a) Why do you need the hands-on time with a rebbe, why isn't having
your head filled with the right facts enough? Because pesaq is an art,
requiring a feel for the subject. Or in your words, "developing an
intuition".

So I don't think #4 is a rule about minhag. It's a rule in hora'ah in
general.

Tir'u baTov!
-Micha

-- 
Micha Berger                 If you won't be better tomorrow
http://www.aishdas.org/asp   than you were today,
Author: Widen Your Tent      then what need do you have for tomorrow?
- https://amzn.to/2JRxnDF            - Rebbe Nachman of Breslov