[Avodah] FW: Arukh haShulchan and Halachic Process

[Chana Luntz]

RMB writes:

<<My thesis so far has been that a regional pesaq isn't a minhag, and that
the only real minhag is a minhag chashuv. A minhag garua / minhag she'eino
chashuv is just a way of referring what's commonly done.>>

So how under your thesis do you explain the gemora in Eruvin 62b:

Amar Rav Yehuda amar Shmuel:  Halacha k'Rabbi Eliezer ben Ya'akov, v'Rav
Huna amar: minhag k'Rabbi Eliezer ben Ya'akov.  R' Rabbi Yochanan Amar:
Nahagu ha'am k'Rabbi Yehuda ben Ya'akov?

And the same dialogue in Eruvin 72a (except with Rabbi Meir substituted for
Rabbi Eliezer ben Ya'akov)?  What meaning can you give to the words above
"minhag k..." that fits your definition?

>>My reason for this is:

1- The Rosh's deipction of someting done "al pi talmid chakham veTC nahag
imahem" fits things like the Rama's defense of milchigs on Shavuos. <<

On this, we will just have to agree to disagree, because to me the
straightforward reading is that of a psak of a Talmud Chacham, that he
himself follows, and hence doesn't fit the Rema's defence of milchigs at
all.  And given we disagree on what the words mean, it seem to me that we
have to look at where the Rosh says this.  So where does he say it?  He says
it in his commentary on the gemora in Pesachim.  And it seems to me that you
cannot divorce what he says from the gemora and the rishonim (ie Tosfos)
that were in front of him.  He did not have the Rema's case in front of him
and was not commenting on it.  He did have a whole collection of cases in
front of him, specifically those set out in the gemora and he is referring
to those.  To me, you just keep asserting that your understanding of the
Rosh is what he means, because you like that to be what he means, whereas I
keep trying to bring the surrounding sources (since we cannot agree on the
meaning of the basic wording), to show that it is difficult to say that the
Rosh means this in the context in which he says it.  The Rosh is
fundamentally not poskening here, he is explaining the gemora.  A specific
gemora, the one in Pesachim.  If (the one thing we do agree on) the Rosh is
defining two different scenarios, one al pi Talmud Chacham, and one without,
you have to explain which of the cases in the gemora in front of the Rosh,
ie Pesachim, he puts into the one case, and which into the other.  And then
what the consequences are for those cases - ie what as a consequence can one
do or not do. That is what I have been trying to do.

<<2- And then the AhS is simply following the Rosh and the Shakh. No reason
to force the AhS to be a chiddush rather than your guide to how to read
those who came before him.>>

Here I feel you are not reading what I am saying at all.  I don't know why.
So let me try and ask you this question.  According to the Aruch HaShulchan
what are the two cases of minhag that he is discussing? What is the minhag
chasuv he is discussing, and what is the minhag lo chashuv that he is
discussing?  I mean the specific case (and in particular I want you to focus
on what the Aruch HaShulchan considers to be the minhag chasuv in that
Tosfos, because I think we agree on what he considers to be the minhag
shaino chashuv).

<<3- Bet Yosef Chalaq and Glatt cannot both be minhagim chashuvim, because
Sepharadim treat chalaq as din -- with all the seriousness of any other
tereifah, whereas Hungarians are meiqil in questionable cases because it is
"only" minhag. With an awareness that mei'iqar hadin they hold like the
Rama.>>

Ok fair enough. I wasn't aware enough of the Hungarian view that glatt is
just a chumra, I assumed they also held that it was din. But that just means
that in my view the minhag chashuv was with the Sephardim, and the
Hungarians just had a minhag to go l'chumra, ie a minhag garua.

<<4- Similarly, the case in maqom shanahagu... Is anyone saying here that
someone pasqened for the community that it is actually *assur* to do
melakhah on erev Pesach before sheqi'ah or qabbalas YT? No, the minhag
chashuv here is closer to glatt -- a common practice to go beyond the letter
of the law, that rabbanim gave an endorsement to.>>

I believe that is exactly what Rabbi Yehuda poskens on daf 2b (and 55a).
[Actually, everybody says it is assur after midday when you have a korban
pesach (although the definition of doing melacha is somewhat different than
you are thinking of), and possibly d'orisa, the question under discussion is
solely about doing melacha *from sunrise to midday*, not to shkeia or
qabbalas YT]. Rabbi Yehuda says it is assur to do work before midday, the
term used is assura on 55a.  The Rosh of course knew these gemoras, and in
my view was thinking of them when he referred to the people acting al pi
Talmud Chacham, the Talmud Chacham in question being Rabbi Yehuda.  And that
it is a question of issur the Ri says explicitly on daf 2b (d"h meaimatai
yud daled asur b'asiyat melacha), arguing with Rashi.  And then it is the Ri
who originally brought the language of minhag chasuv al pi talmid chacham
(in the Tosfos I refer to on daf 51a below) that the Rosh then follows,
merely adding the words veTC nahag imahem to the Ri's original distinction.

<<5- The Tosafos the AhS is citing for a minhag garua refers to local
non-halachic practices. Whether or not people in an area normally carry
things on their head. Whether or not they normally squeeze this particular
fruit for its juice. Both questions have halachic implications, but the
"minhag garua" refers to the metzius that causes that pesaq. As for the rest
of the world, anyone who squeezes this fruit despite the norms of the region
-- "batlah daatam eitzel kol adam".>>

I agree that the Tosfos the AhS is citing for a minhag lo chashuv refers to
certain local non-halachic practices, including carrying things on their
head, or squeezing a particular fruit.  That is not the dispute.  However I
pointed out that that *Tosfos* does not use the term minhag lo chashuv, or
minhag garua for any of these, only the AhS does.  But more importantly the
question I keep trying to ask you is what, according to the AhS, is Tosfos's
minhag chasuv in this case?  What is the case that  the AhS says is Tosfos's
contrast to the case of the carrying the things on the head, or squeezing
the particular fruit?  The Tosfos does use the term d'hatam chasuv minhag,
and assuming that the AhS is getting his minhag chasuv from here,  what is
this referring to?  And how can you feed what the *AhS* calls a minhag
chasuv into your understanding of the Rosh?  Please explain to me how the
case that the AhS identifies as Tosfos' minhag chasuv fits into your
definition of minhag chasuv.  What is the "common religious practice,
blessed by rabbinic approval" in this case?

 I wrote:
> No. The Shach, as I mentioned last time, does *not* refer to a Tosfos 
> discussing a case where the minhag in q<<uestion is whether or not one 
> normally carries things on their head.  He refers to *this* Tosfos:
...
> And so writes the Tosfos and the Rosh *in perek makom shenahagu*...
> makom shenahagu is in Pesachim, starting on daf 50a, and the Tosfos he 
> is referring to is found on 51a d"h "I ata rashay l'hetirin bfinehen"
> - you are not allowed to rule as permitted in front of them...

And RMB replied:

<<No, to permit in front of them, the word "rule" is your assersion. In
fact, they cite Rabbeinu Nissim that we are dealing with "devarim hamutarim,
ve'acheirim nahagu bahen issur". Lehalakhah mutar, but others have a
*minhag* to prohibit. So it's a question about a new rav coming to town and
changing minhagim that are lifnim mishuras hadin.>>

I am not quite sure what the disagreement is here. I was just translating
the dibbur hamatchil of the Tosfos when I said " you are not allowed to rule
as permitted in front of them".  I totally agree that this dibbur hamatchil
is about a Rav coming to town and changing minhagim (which is how I
understand ruling that they should do differently).  The fact that the full
content of the Tosfos is not encapsulated in the dibbur hamatchil should not
surprise anybody, and I believe the usual practice is to identify a Tosfos
by the dibbur hamatchil so that people can then find it.  But I am very
puzzled by your objection to my translation of the dibbur hamatchil.  As it
is, as always, a quote from the gemora I have just checked how Artscroll
translate it, and they translate "I ata rashay l'hetirin bfinehen" as "you
are not allowed to rule them permitted before [such people]", which I think
is pretty close to my translation, so it sounds like your objection,
whatever it is, needs to be against Artscroll as well.  Clearly they
understand rashay l'heterin to mean "rule" as well.

The substance of my argument was not regarding the translation of the dibbur
hamatchil, but the content of the Tosfos identified by it, specifically the
Ri, which is where the Shach and the Rosh obtained their distinctions
between a minhag chashuv and a minhag sheino chashuv.

-Micha

Regards

Chana