[Avodah] Arukh haShulchan and Halachic Process

[Chana Luntz]

RMB writes:
<<Beqitzur:

I see Chana Luntz as saying:
    Minhag chashuv = local pesaq
    Minhag garua = common religious practice>>

Not quite.  Minhag chashuv is what arises when a community follows local
psak. It is the putting of that psak into action, not merely as theoretical,
but as the active base of performance.  Minhag garua is when a community
follows a community generated common religious practice that a Talmud
Chacham understands to have validity in terms of being rooted in the Torah
or a fence around prohibited matters and the like.  Or rather I believe that
this is the understanding of the Tosfos and the Rosh (sometimes minhag garua
is called minhag sheino chashuv or just minhag), with the Meiri adding a
third category, that of minhag taus. I believe this is the understanding of
the Shach as well.

<<I am saying:
    Local pesaq is only called minhag in a non-technical sense of the word
    Minag chashuv = common religious practice, blessed by rabbinic approval
    Minhag garua = any other practice, religious or even a non-religious
norm
       that has halachic impact>>

<<Whereas I am hearing the Rosh as talking about a rabbinically endorsed
common practice.>>

Even though the language is "al pi Talmud chacham" - I would argue that when
you do something al pi Talmud Chacham, that means you are doing it in
accordance with the psak of that Talmud Chacham.

<<Like the Rama on milchigs on Shavuos.>>

In that context I believe the Rema is bringing the minhag garua, the minhag
that arose amongst the people, but which is rabbinically supported as having
a root or reason in Torah.  Note that as practical difference is the
question as to whether, if someone Ashkenazi failed to have milchigs on
Shavuos, they would be in breach of the halacha.  If you say it is a minhag
chasuv, then you are obligated to follow it, even privately, if you say it
is a minhag garua, then one is just required not to denigrate it publically,
but privately one does not need to make sure one eats milchigs.

<<A problem with your read is that this is a poor way of saying "general
pesaq not just for one situation". After all, a pesaq for kohanim by a
non-kohein could be a general pesaq, or one about some food the poseiq is
allergic too.
Why not say "lekhol hatzibbur" or something that actually says what he means
-- and in fewer words.>>

Because the key here is local following.  Take for example the classic.
Rabbi Yossi held that there was no issur at all on eating chicken with milk.
That is a psak.  It is a general psak which according to Rabbi Yossi should
apply to you and me and everybody.  His colleagues held differently, that
there was a rabbinic ban on eating chicken with milk.  That is a (different)
psak, and according to them, it should apply to you and me and everybody.
If we are discussing the theory of eating chicken with milk, we would
discuss the one psak versus the other, and say we go according to the
majority.

But .. In the locale in which Rabbi Yossi was the rabbi, the minhag was to
eat chicken and milk together, because Rabbi Yossi was their local Talmud
Chacham, and they acted in accordance with his psak.  In the locale of the
other Tannaim, the populace followed their local rabbonim, and did not eat
chicken with milk.  The minhag for the town of Rabbi Yossi to eat chicken
and milk was a minhag chashuv. It was al pi a Talmud Chacham (Rabbi Yossi).
The minhag chashuv of the other towns was al pi their respective mora d'asa.
Because of the minhag chashuv, the people of the town of Rabbi Yossi did not
have to follow the majority of the rabbis, who prohibited chicken and milk.
So long as Rabbi Yossi was their Rav, they could continue to eat it.  The
same scenario occurred regarding Rabbi Eliezer and cutting down trees to
make the knife to do the bris (all on shabbas), where we are talking about
d'orisas.  And yet in the towns under the guidance of Rabbi Eliezer, this
was all permitted.  This was not the populace analysing the respective
sugyas and deciding, each and every one of them in his town, that Rabbi
Eiezer was right.  It was about following Rabbi Eliezer's psak.  But the way
it is described is that it was the minhag in the town of Rabbi Eliezer that
people cut down trees etc  Because the common people had accepted Rabbi
Eliezer as their Rav, and his psak went, and this was part and parcel of
this. 

This note is exactly the same usage as when we say, the minhag of the
Sephardim is to follow Maran, or the minhag of the Ashkenazim is to follow
the Rema.  We have now separated it from locale, but other than that it is
the same idea.  It is not that the Shulchan Aruch endorsed what the
Sephardim do as a rabbinically endorsed common practice (your language).
The Shulchan Aruch poskens (based on his three pillars, or however he
poskens), and the minhag chashuv of the Sephardim is to follow that psak
(except in a few rare cases, I think Rav Ovadiah has something like three,
where they don't, ie the minhag chashuv of the Sephardim is NOT to follow
the psak of the Shulchan Aruch in those three cases).  

> 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.

<<Not sure why.

Any different then a story in which Reb Shmuel moves from Hungary to
Lithuania and starts eading non-glatt meat?>>

No difference, that is also about a minhag chashuv.

<<Where in either of those gemaros do we see that not eating bow-fat was an
issur gamur (like the way Sepharadim treet non-chalaq) rather than a
commonly practiced hanhagah tovah (glatt)?>>

I think it is pretty clear from the Rav Zeira case on Chullin 18b.  We are
discussing what kind of shechita is kosher, and what is treif.  The mishna
on 18a is discussing where the cut has to be made for it to be kosher, and
Rav and Shmuel qualify the statement of Rabbi Yossi bar Rabbi Yehuda who
says a certain cut is kosher by saying that he is only saying this if the
cut is made in the taba'as hagadola, but if the cut is made in the other
rings of the neck, No (Lo).  That is, Rav and Shmuel are saying that if you
make a cut in the other rings of the neck, then the meat is treif.  And the
text goes on to say (after a bit of toing and froing abut which part of
Rabbi Yossi bar Rabbi Yehuda's psak Rav and Shmuel agree with, and which
bits they don't) - "This is what Rav and Shmuel are saying - the halacha is
like him [ie Rabbi Yossi bar Rabbi Yehuda] b'taba'as hagadola, v'ain halacha
k'moso regarding the remaining rings.

And then the story of Rabbi Zeira immediately follows - saying that when
Rabbi Zeira went from Bavel to Eretz Yisrael, he ate from meat that had a
slanted cut not in accordance with Rav and Shmuel.  Given that Rav and
Shmuel clearly use the word "halacha", I don't see how anybody could
interpret this as merely a hanhaga tova.  And yet the challenge went to
Rabbi Zeira "are you not from the place of Rav and Shmuel"?  and then "Does
not Rav Zeira accept the mishna [from Pesachim] that we impose on him the
chumras of the place he left, and the place he is going to".  And then that
is ultimately explained as legitimate because Rabbi Zeira had left
permanently, and so was allowed to switch away from the halacha ie psak of
Rav and Shmuel, because he had switched locales, now adopting the minhagim
of the place he was now living.

<<The truth is that when a Sepharadi moved to Ashkenaz, before mixed
communities became a norm, he did change actual pesaq. I just don't see any
indication which scnario is being spoken about here.>>

Yes, exactly.

<<Nor any mention of the word "minhag" in either, so even it were a change
in pesaq, it wouldn't show whether "minhag chashuv" refers to such things or
not. It's just about "chumerei hamaqom".>>

Not in the small section of the mishna quoted in Chullin 18b there isn't.
But if you go and read the mishna in Pesachim 50b from which this small
section is drawn, it starts by saying - makom shenahagu [to perform work on
erev Pesach before midday] and the last part that is quoted on Chullin 18b
finishes up - if one goes from a place where they do not do work, to a place
where they do work we impose on him the stringencies of the place from which
he has gone, and the stringencies of the place to which he has arrived.

Note that I agree that, at first read, the mishna in Pesachim does seem to
be talking about classic minhag, (what I am calling minhag garua or minhag
lo chashuv, and which you want to call minhag chasuv).  Communities who had
taken on the practice, as a fence around the Torah, of not working erev
pesach before midday.  And I can understand why one would read it this way,
as there is no suggestion of any psak of a local Rav involved.

But then you get Rav Zeira and the challenge from this mishna.  If you are
right, then why is this a challenge to Rav Zeira?  Rav Zeira is dealing with
a psak of Rav and Shmuel, and surely he has to deal with it on that level.
Whereas the mishna has nothing to do with this, as it is dealing with a
minhag.

That, I think, is what bothered the Meiri.  And the resolution seems to be,
that it is a question of minhag, because where you have a famous talmid
chacham who leads a city, and who prohibits something l'halacha, because
that is what he genuinely holds.  Even though his colleagues do not agree
with him,  they consider what he says to be the minhag of the city that he
leads, and they will not violate what he says in that city, if they visit
(like Rav Avahu in the place of Rabbi Yochanan would not move a candle when
lit, even though he held it was permitted).  

So what does that mean for the mishna in Pesachim.  Well one answer is that
the rule in Pesachim catches both the minhag based on psak, and the minhag
based on what people do (ie not working).  But, then that doesn't work in
terms of the cases that are then brought further on in that gemora in
Pesachim.  Because it becomes clear that while there are valid minhagim in
cities - in many cases a talmid chacham who visits but is not intending to
stay is not required to follow the minhag privately, only publically.  So we
have a contradiction, some minhagim it seems one is required to keep in full
when one visits, until one leaves (the mishna case), and others one can just
do publically (other cases).  And this is where the Ri in the Tosfos steps
in.  He explains that the difference between these two is that one is "al pi
Talmid Chacham" and one is not.  With the mishna (ie the non-work on erev
pesach situation) being al pi talmud chacham, and the other cases being not
al pi Talmud chacham.

Now again, if you were just reading this mishna and gemora, you might well
end up with your assessment.  That the not working erev pesach merely has
rabbinic approval (although al pi Talmud chacham does seem a bit strong),
and the other is just what people do.  But that doesn't quite work either,
because it is not just what people do, it needs some level of rabbinic
endorsement, because there is yet a third case - when the minhag was to take
challa from rice. And on this there was a whole discussion about publically
going and refuting this custom.  Because maybe it needed to be publically
refuted.  And when you contrast the third case with this second, you can see
that the second needs at least some level of rabbinic approval, to stop it
falling into the third case.

And, once you factor the Rav Zeira and similar incidents into the  account,
you end up saying - local psak of a Rabbi has the same rules as custom with
strong rabbinic approval (al pi Talmud chacham), and appears to be treated
the same.  Second type of custom has weak rabbinic approval, as they are
happy to let it stand, and to conform (albeit maybe only publically), and
the third type is just simply wrong, and may even need challenge.

In which case, why not just understand it as amalgamating the two first
cases, that actually when we say "al pi Talmud Chacham" - you mean,
according to the mouth of the Talmud Chacham, ie his psak - and thus
understand that the cases where the people didn't work until midday was
because actually there was some Talmud Chacham in those locales ruling that
way.

<<The SA is speaking about something they are nohagim on thier own as a
geder usiyag laTorah. Not pesaq.>>

That is the second part of that sentence. The Shulchan Aruch starts out by
saying:

קבלת הרבים חלה עליהם (ד) ועל זרעם; ואפילו בדברים שלא קבלו עליהם בני העיר
בהסכמה 

The acceptance of the multitude falls on them and on their children, and
even for things that the people did not accept on themselves by agreement. 
And then comes the part you quote:

אלא שנוהגין כן מעצמם לעשות גדר וסייג לתורה

but that they are nohagim by themselves as a geder usiyag l'Torah

And then he says וכן הבאים מחוץ לעיר לדור שם, הרי הם כאנשי העיר ז וחייבים
לעשות (ה) כתקנתן, ח] ואף בדברים שהיו אסורים בהם בעירם מפני מנהגם

"and so those who come from outside the city to live there, behold they are
like the people of the city and are obligated to do their enactments
[takanot].

And it is on this part - ie "and they are obligated to do their takanot"
that:

<<The Shakh opens "mihu hainu davqa beminhag chashuv"!

He outright says this extra-legal practice is what minhag chashuv means.>>

That is, Shach does *not* comment on the piece in the Shulchan Aruch that
they are noheg on their own as a geder u'siyag l'Torah".  Rather, he
comments on the piece about someone coming from elsewhere and having to
accept the takanos of the city.  And in explaining what those takanos are,
he says those takanos that they have to accept are only those that are davka
a minhag chashuv, and then adds the words "al pi Talmud Chacham".

Now, one might have thought the discussion in the Shulchan Aruch was about
yet a third category,  namely  takanos hair, which is something where the
legislature of the city get together and pass legislation, with the halacha
being that one need the tuvei hair to approve this, or a Talmud chacham (bit
like the Queen really having to sign legislation into existence), and if the
Rav of the city didn't like these takanos, in theory he could throw them
out, and they are not binding.  There is quite a lot of literature about
takanos hair, although I think they are mostly post gemora. But the Shach
does not refer to those sections, but to the Rosh and Tosfos 

<<And then goes to the Tosafos about minhag she'eino chashuv. >>

Yes.

<<And that Tosafos is discussing a case where the minhag in question is
whether or not one normally carries things on their head, because that has
implications for hilkhos Shabbos.>>

No. The Shach, as I mentioned last time, does *not* refer to a Tosfos
discussing a case where the minhag in question is whether or not one
normally carries things on their head.  He refers to *this* Tosfos:

כ"כ התוספות והרא"ש פרק מקום שנהגו

And so writes the Tosfos and the  Rosh *in perek makom shenahagu*.  Perek
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, which is grappling with
why in other cases in Chullin certain Rabbonim did permit something in front
of the people who were accustomed to treat it as an issur, and then further
what does it mean you are not allowed to rule it as permitted in front of
them, implying that one can go against the minhag privately, as compared
with the mishna which says one has to have the stringencies of the place one
visits, implying even privately. With the resolution being this distinction
being between a minhag chashuv al pi haTalmud Chacham (which one cannot
violate even privately) and a minhag sheino chashuv (which one can violate
privately).  


>> 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...

> 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...

<<Whereas I am taking him as a ra'ayah for my understanding of the Tosafos,
the Rosh and the Shach!

Why say the AhS has a whole new shitah, when you could instead say that the
other sources should be understood as I explained them?>>

a) Because he is quoting a different Tosfos. 

בעלי התוס' בהמצניע [צ"ב: ד"ה ואת"ל]

Ba'alei Tosfos in [perek] Hamatznea d"h v'im timza lomar  [which is in
gemora Shabbas 92b)  which is NOT the same Tosfos quoted by the Shach.

b) Because the Tosfos that the Aruch HaShulchan quotes does not in fact,
despite what is stated above, use the language of minhag sheino chashuv (yes
the Aruch HaShulchan does, but the Tosfos does not).  The closest that
Tosfos comes, is that it uses the term דהתם חשוב מנהג ערביא  - d'hatam
chasuv minhag aruvia - that there the custom of the Arabians is chasuv.  The
Tosfos was trying to distinguish between the minhag of the people of Arabia
(who had lots of camels), and hence who planted thorns in their fields to
feed the camels, and about whom we do not say batla datam etzel kol adam,
and the people of Hurtzel who carried loads on their head, about whom who do
say batla datam etzel kol adam.  What's the distinction?  The distinction
being that anybody who had lots of camels would do as the people of Arabia
do, whereas the people of Hurtzel are a minority of people, and the fact
that they carry things on their head is considered nullified in the da'as of
the majority of the world.

That is what the Tosfos is discussing, and it does not relate either to the
Tosfos that the Shach is discussing, nor is it in fact a proof text for what
the AhS wants to justify.  The AhS is using this Tosfos to demonstrate that
there are non-Jewish customs in certain places that have a wider impact on
the world in general, and there are other non-Jewish customs in certain
places that are considered as local (that does not even seem to be what the
gemora or the Tosfos says here, because it states flatly that the people of
Hurtzel's actions are  nullified in the da'as of kol adam, but the AhS seems
to think you can learn out from this that locally you should follow that
custom).  It is a bit stretch from the Tosfos as it stands, and he is using
terminology not used by Tosfos in this context, and which does not fit with
the Tosfos where they do use this terminology.  And:

c) it doesn't help you either, because as you say at the beginning:

  <<  Minag chashuv = common religious practice, blessed by rabbinic
approval
    Minhag garua = any other practice, religious or even a non-religious
norm
       that has halachic impact>>

Whereas *both* the customs of the people of Arabia with lots of camels, and
the customs of the people of Hurtzel would fall into *your* definition of
Minhag garua (so your definition of minhag garua and minhag chasuv does not
in fact match the Aruch HaShulchan either).  What the people of Arabia do is
not something that has rabbinic approval, it is just a matter of fact that
if you have a lot of camels, you are going to want to plant thorns in your
vineyard to help feed those camels, and you won't (like the majority of
people worldwide without camels) regard those thorns as a darn nuisance and
something you really don't want in your vineyard (with the halachic
consequences similar to a dvar sheino miskaven,and  shelo niche lei).  But
the AhS uses the terminology of minhag chasuv for that planting of thorns by
the camel owning people of Arabia.


-Micha

Shavuah Tov

Chana