[Avodah] Arukh haShulchan and Halachic Process

[Chana Luntz]

I wrote:
> A minhag chashuv seems to be a minhag of a particular place, following 
> the rulings of their particular mara d'asra - even if other 
> equivalently weighty talmidei chachamim disagree (including rulings 
> such as milk and chicken in the place of Rabbi Yosi etc).

And RMB replied:

<<Whereas I called this local pesawq idea "not really a minhag", except by
homonym.>>

But if anything your proof text seems to support what I am saying, as you
then say:

<<See the Rosh Pesachaim 4:3
<https://www.sefaria.org/Rosh_on_Pesachim.4.3.1>.
He defines a minhag chashuv as one "shenahagu benei hamaqom al pi TC veTC
nahag imahem".>>

I see this as yet another illustration of someone holding exactly as I am
saying, a minhag chashuv is one that the people of a particular place
following the rulings of the mara d'asra. 

<<That doesn't sound like the description of a pesaq, although I guess that
could be fitted into the meaning if we had to. Why "veTC nahag imahem" for a
pesaq?>>

I think it sounds exactly like a pesaq - and the reason for the " veTC nahag
imahem" is because we know that an individual psak can be tailored for
individual circumstances (shas hadchak and a whole host of other scenarios).
This can be true of community wide psak as well (think of the basic Rabbanut
hechser, so at least the people keep kosher even if the Rav himself would
only ever eat mehadrin). If the TC is at one with the people in his
performance then this demonstrates that this is clearly not a psak based on
individual circumstances or halacha v'ain morin ken or any of these.  The
point being that minhag in the form of minhag chasuv is actually the highest
form of psak.  

That is why it makes sense that the Rema says all over "and the minhag in
our lands" - the point being, that is real minhag, minhag chasuv, what we
would call standard psak.  You might get an individual psak based on your
individual circumstances that is different from this, but actually the
minhag chasuv is the baseline.

I know that isn't how we normally think about it, but it seems to me fairly
clear that this is the way the rishonim thought about it.  And when you see
that the gemoras about changing ones minhag in Pesachim 51a [when Raba bar
bar Chana came from Israel to Bavel he ate certain stomach fat] and Chullin
18b [When Rav Zeira went up from Baval to Israel he ate from meat whose
slaughter was too slanted according to Rav and Shmuel], suddenly make sense.
That is, the basic rule that if you go to live somewhere new and you don't
intend to return, you can change your minhag to the new minhag of the place
you now reside (Chullin 18b), is somewhat bafflingly, unless you understand
this way, expressed in relation to whether a certain type of cut renders the
shechita kosher or treif.    The Rabbonim in Eretz Yisrael poskened that the
shechita was fine, and hence the meat could be eaten, and Rav and Shmuel
poskened that it was not fine, and the meat could not be eaten.  That is
very much a top down psak.  And yet when Rav Zeira moved from Bavel to Eretz
Yisrael, he switched from eating according to the psak of Rav and Shmuel, to
eating according to the psak of the Rabbonim of Eretz Yisrael.  And the
Gemora there questions from the Mishna in Pesachim - doesn't Rav Zeira hold
that if you go from place A to place B, you have to keep the stringencies of
both places, with the answer, not if you move permanently.  

Hence it seems to me that the rishonim, including the Rosh you mention,
would say, following the psak of Rav and Shmuel in Bavel is a minhag
chashuv, and Rav Zeira couldn't do anything else, and then when he switched
locales, following the psak of the Rabbonim of Eretz Yisrael was a minhag
chashuv, and he could do that too.  Ie it is Rabbonim driven, and indeed, it
is the way to work out who to follow where. Because while regarding Tannaim,
we have various rules (for Beis Hillel versus Beis Shammai we have the bas
kol, for Rabbi Akiva versus his contemporaries we have the rules in Eruvin
etc), and regarding some of the Amoraim we have rules (Rav versus Shmuel,
Abaye and Rava).  The more general overarching rule seems to me that where
the various authorities had their own locales, and you lived in them, the
minhag chashuv dominated.

Closer to your minhag garua:
> The minhag [garua] is the one we are discussing here - one that 
> appears in a certain place, or spreads from it and various scholars 
> give it more or less weight.

Again my minhag garua (or just plain minhag) seems to me to match the Rosh,
as  brought by RMB:

<<Whereas the Rosh says a "minhag garua" is one "shenagahu me'atzmam davar
echad".>>

As it is ordinary people driven, not rabbinically driven.

<<Sounds more like a minhag chashuv is being describes as being rabbinically
endorsed and followed, and a minhag garua as just a practice the masses
do.>>

I think it is more than that.  A minhag garua is something that the rabbis
will follow in public, and will not challenge (although it appears that
privately, if they genuinely think the halacha is otherwise, they can
practice as they believe the halacha to be).  In that sense it is
rabbinically endorsed.  The relevant rabbi will not sit on the public bench
on Shabbas, they will not wear slip on sandals, they will not bathe two
brothers together in the locale in which the minhag is [all cases from
Pesachim 50-51]  as opposed to a minhag shtus, where they feel there is some
other important value at stake (such as taking chala from rice which is also
brought there) , or that the minhag is stupid, where they will challenge and
try and change it.

>          For example the Shach in Yoreh Deah hilchot Nedarim siman 214 
> Si'if
> 2 is quite dismissive, saying a minhag garua is just people are 
> behaving this way (with the distinction that a scholar not from the 
> locale does not need to follow such a minhag except publically).

(This is at s"q 7.)

>>And the AhS OC 320:12 cites the same Tosafos Shabbos 92b (d"h ve'im timzeh
lomar anshei) as distinguishing between minhag chashuv and minhag she'eino
chashuv. His case of a minhag she'eino chashuv is whether the fruit is
commonly squeezed in their specific locale. The application changes practice
-- whether or not sechiatah is allowed there, or whether it's shelo
kedarkam.<<

It is an fascinating reference, but I confess I don't think the AhS here is
using the terminology in the same way as the Shach or the Rosh does.  For a
start, the AhS is actually not quoting the same Tosfos. The AhS is quoting
the Tosfos in Shabbas 92b, as you say, but the Shach is quoting the Tosfos
on Pesachim 51a (d"h ei ata rashay).  It is in the latter Tosfos that they
distinguish between a minhag chashuv and a minhag that is not chashuv.   In
the Tosfos the AhS quotes, they don't use the term minhag chosuv and minhag
sheino chashuv - the only thing they say is the use the term דהתם חשוב מנהג
ערביא  "that there the minhag of Arabia was chashuv" and goes on to say
that the custom of Arabia was chashuv because if everybody else in the world
had camels, they would have done like the people of Arabia.  Note that in
this case, Tosfos (and the gemora) are referring to customs of what seem
most likely to be non-Jewish people (the people in Arabia who keep camels).

But I agree, the AhS jumps off this reference in Tosfos in Shabbas 92b,
appears to elide it with the terminology of the Tosfos on Pesachim 51a, and
tries to use this to explain that there is no machlokus between the Beis
Yosef and the Rema, and that both are right. It would be interesting to keep
a watch out and see whether the AhS more generally has a different
definition of minhag chashuv - which seems to include non-Jewish minhagim,
or whether this is a bit of a once off. He needed to discuss what the
general world does in terms of behaviour, and used the term minhag and
chashuv in a more general manner, without meaning it to impact on the
concept of halachic minhag in the way we are discussing.  Perhaps minhag
with a small m, rather than minhag with a capital M.

 
> Note the reference "conducted themselves to do as a fence and a 
> boundary for the Torah" - which I suspect is reflecting the idea that 
> something that has to have a certain kind of Torah look and feel to be 
> a valid minhag, even if it is a minhag garua, to distinguish from a minhag
chashuv.

<<Like whether or not a given fruit is normally squeezed where you live???>>

By non Jews!

<<To me it would seem that:
- halakhah, even a regionally accepted pesaq is one thing (eg BY chalaq);
- a minhag chashuv is what I was calling the technical use of the word
  "minhag" (eg glatt); and
- a minhag garua is something like: whether the local practice is to
  squeeze pomegranates or not -- with, or to eat raw onions or not --
  with the effect of whether to require a ha'adamah or a shehakol if
  you were to eat one.>>

Whereas I don't see the last as being a halachic custom, about which there
could be any question of hetaras nedarim.  If you go from a place whether
the locals do not squeeze pomegranates, to a place where they do, you do not
need hetaras nedarim to squeeze pomegranates during the week.  Even though
you might use the language of minhag.   I don't think you would even need
hetaras nedarim to change your bracha, although it might feel weird.  It is
like saying that if you go from a place where it is physically possible to
construct an eruv, to a place where it is impossible (for whatever reason),
that you have been mevatel the minhag of eruv.  The custom in the local non
Jewish community or the physical layout of the place you have moved to can
at times determine what your practices on shabbas are (or during the week in
terms of brachos).   It is like the reality that surrounds your practice.
And I think the use of the word minhag in this context is merely about
behaviour.

-Micha

Shabbat Shalom

Chana