[Avodah] Arukh haShulchan and Halachic Process

[Micha Berger]

On Mon, Jun 15, 2020 at 11:43:22PM +0100, Chana Luntz via Avodah 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).  

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

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".

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?

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.

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

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.

>          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.

> 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???

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.

>> 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..

Yes, but I am not sure how that introduces uncertainty to the definition
of the word "minhag".

The AhS is talking about a regionally accepted halachic position. Yes,
he tends to assume that any practice that withstood the test of time
must be textually valid, and that drives him to invest effort looking
for that textual validity.

It could be because "im lo nevi'im heim benei nevi'im heim", or "she'eiris
Yisrael lo ya'asu avla" or some other quote about siyata diShamaya giving
authority to mimeticism directly.

Or it could be because he trusts the peer review of rabbanim not
complaining about the practice, and it's the implicit formal / "textual"
pesaq of those rabbanim he is leaning on.

Or, something else... I don't want to create false dichotomies just
because I can only think of those two options.

So, if the AhS were to support the BY's ruling about chalaq, he would
figure out a reason why, and when he supported the Rama's, he also
figured out a textual support. All of which is about din. Without demoting
anything to whatever you want to call the practice of only eating "glatt".

Tir'u baTov!
-Micha

-- 
Micha Berger                 You will never "find" time for anything.
http://www.aishdas.org/asp   If you want time, you must make it.
Author: Widen Your Tent                        - Charles Buxton
- https://amzn.to/2JRxnDF