[Avodah] Arukh haShulchan and Halachic Process

Micha Berger micha at aishdas.org
Wed Jun 10 15:06:00 PDT 2020


Two observations were made by members of the AhS Yomi group on Facebook.

1- Ben Waxman noted that OC 6:7 uses the phrase "vekhein haminhag hapashut
ve'ein leshanos" and asked:

> I believe that this is the first time that he wrote this phrase.

> When did this idea (there is a common, widespread custom and no one
> should change it) begin?

> Did anyone ever indicate in a sefer that the opposite (there is a
> common, widespread custom but if people want to change it or do something
> different, that's OK) could be allowed?

I suggested something which no one challenged there. So, I am reposting
here to check my theory:

This isn't about "custom". This is about halakhah. Would repeating
the birkhos hashachar because one is chazan be a berakhah levatalah,
or should it be done? Different use of the word "minhag". This is the
mimetic tradition thing you hear so much about. RYME does this a lot.

As for how far back it goes. The Rambam in his haqdamah to the Yad
talks about being bound by the pesaq that was "nispatheit" -- compare
to the AhS's "hapashut" -- in your community even when the other one
is theoretically okay. I'm sure it's earlier, but that's what my meory
pulled up.

Isn't that what the AhS is doing here?

(And yes, I am also saying that "haminhag hapashut" doesn't mean
"the simple minhag" but rather "the practice that spread out" among
the people.)

2- In the hagah on OC 7:2, RYME writes about the Artzos haChaim's position
that while neither washing after using the facilities nor washing before
Minchah warrant making a berakhah, if one goes to the bathroom before
Minchah, one would make a berakhah on that washing.

Then he says:
	We do not teach others accordingly.
	But if one gadol want to do this himself -- ya'aseh [don't know
	if that's "can" or "should"], but not for hora'ah for others.
	And we have nothing but the words of the SA [which say:
	no berakhah].

At times he relies on accepted practice to be machria between shitos. Here
he invokes the authority of the SA. Not a mimetic argument, and not a
textual argument based on sevara / theory. Rather, a straight Accepted
Authority argument. Which might have a tinge of the "nispatheit" argument
to it, as who decided the SA has special authority if not consensus?

But what I found more interesting was this idea that a shitah is viable
for someone who knows what they're doing to choose NOT conform, but he
doesn't have the authority to make it the new norm.

My question is: When does this apply? Would the AhS agree with talmidei
haGra cataloging their rebbe's personal practices and making them his
norm? Notably, something that didn't happen in the Vilna Gaon's lifetime.
It seems to me the Gra followed the practices in ma'aseh rav as a "rotzeh
la'asos kein be'atzmo", and it's his talmidim who turned it into "lehoros
kein la'acheirim" as a way to stay connected to their late rebbe.

Tir'u baTov!
-Micha

-- 
Micha Berger                 Imagine waking up tomorrow
http://www.aishdas.org/asp   with only the things
Author: Widen Your Tent      we thanked Hashem for today!
- https://amzn.to/2JRxnDF


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