[Avodah] Arukh haShulchan and Halachic Process

[Chana Luntz]

RMB writes:

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

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

Look at the gemora in Pesachim 50b-51a.  They give various examples of
customs in particular towns which the various rabbis chose to abide by,
rather than come out against (as well as one where they came out against it
- taking chala from rice), and some of which, when the people involved
wanted to change, they are not allowed to.  It is not a far step to suggest
that if it spread wider, then it would become binding on all.  And see also
the Meseches Sofrim (see below).

> 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?

In contrast look at the Yerushalmi Pesachim perek 4 halacha 1 which has a
whole list of things that people were doing, and it goes through going
"custom" "not a custom", "custom", "not a custom".  For example " Women that
were accustomed not to work all Saturday night is not a custom, until they
finish the order of prayer [on Saturday night] is a custom.  [Not to work]
on Monday and Thursday is not a custom, until they finish the prayers for
the fast is a custom....."  Clearly there were some women not working all
Saturday night, for example, but still this is considered "not a custom".

Then have a look at Sefer Magen Avot l'Meiri inyan 20.  That book was
apparently written in response to an influx of students into Southern France
(where the Meiri lived) after the death of the Ramban, and their challenges
to the local customs, with the Meiri defending the local minhagim.  

It seems to me from that essay and some of the other rishonim that you end
up with a topology of minhagim that is threefold:

a)	A minhag chashuv - an important custom; 

b)	A minhag [garua] - a [lesser] custom; and

c)	A minhag taus - a mistaken custom, which is sometimes called, even
more strongly, a minhag shtus 

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).  

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.  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).

But as one might expect, the Meiri is more positive and holds that it is a
valid custom even if the majority of the world do not hold by it, but only
the people of a certain place, if it appears to have been made with some of
link to the Torah or regulation of a mitzvah, eg from concern that they
should not come to prohibition or where they are adding from chol to kodesh
more than is obligated.  By clear implication, if it does then spread to the
majority of the world, it becomes completely binding.

On the other hand a minhag taus is one where either there is no link to
genuine Torah, or alternatively (and interestingly) it amounts to
excessively piety (eg the custom of women in the Yerushalmi not to work all
Saturday night, which the Meiri explains as being forbidden because it is
overly pious).

And so the Shulchan Aruch writes:
Yoreh Deah hilchot Nedarim siman 214 Si'if 2 is as follows:
The acceptance by the multitude creates an obligation on them and on their
children, and even with matters that the people of the city did not accept
on them by agreement but they [merely]  conducted themselves to do as a
fence and boundary for the Torah, and so one who comes from outside the city
to live there, behold they are like the people of the city, and are
obligated to act in accordance with their enactments, and even with things
that are prohibited in their [original] city because of their customs, and
the custom of the city that he comes to live in is not to prohibit, they are
permitted in them if their intention is not to return.

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.

<<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.>>

I am not so sure.  The question is, if the opposite minhag had spread
amongst the people - ie that the Shatz should say the blessings twice for
those people who didn't know how, then would the Aruch HaShulchan not have
been arguing for the other side, supporting it as a genuine minhag, because
it has a genuine Torah look and feel to it?  I suspect he would have.  So
the first key aspect for him was that in fact, although there were some who
did this, the minhag, being the weight of the people, was on his side. That
is, in the words of Mesechet Sofrim perek 14 halacha 16: ".  And the people
are so accustomed, that the halacha is not established until there is a
custom, and this is what they say that custom nullifies halacha, an ancient
custom, but a custom that does not have a proof from the Torah, this is
nothing but a mistake in the weighing of opinion."

Once he had established that the minhag was the way he thought the halacha
should be, then he could justifiably get stuck into the alternative as
invalid.  But because it had something of a Torah justification, if the
alternative had been the one the people had picked, he would have defended
the alternative view.  Isn't that what he is telling you here?

-Micha

Regards

Chana