[Avodah] Arukh haShulchan and Halachic Process

Micha Berger micha at aishdas.org
Sun Jun 28 14:34:33 PDT 2020

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.

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. To my
mind more smoothly than taking "al pi TC" to mean a pesaq, and "veTC nahag
imahem" to mean that the pesaq is general, not just for the sho'el. After
all "pasaq TC leqahillaso" would be both clearer and shorter. (And wouldn't
the Rosh refer to a poseiq as "rav", not "talmid chakham"?)

I see the Rosh's word here as talking about cases like the Rama and
similar defenses elevated a common practice (mihag garua) into a true
minhag (minhag chashuv). It's the endorsement -- al pi talmud chakham
-- that elevates a minhag in chashivus.

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.

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.

So, in practice we distinguish between regional pesaqim and minhagim

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.

5- Chana brings in lots of examples of regional pesaq. No one denies
they exist! But that doesn't make them minhagim!

Such as Chullin 18b and whether one must shecht at this particular
ring of the trachea. Or R Yosi haGelili allowing poulty and milk.
In none of these cases is their mention of the word "minhag", because
they aren't, they are local pesaqim that weren't nispashtim to other

(And the case of R Yossi haGelili is not even so much a regional pesaq;
although it is closer to that than anything else we discussed. It's less
that he had a different ruling than RYhG didn't want a gezeirah to
be nispasheit. Not a situation we would find outselves in nowadays.)

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".

So now we get to something I feel is actually in reply to what I wrote,
rather than a reiteration of Chana's position:

> 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:
> 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...

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.

Tir'u baTov!

Micha Berger                 None of us will leave this place alive.
http://www.aishdas.org/asp   All that is left to us is
Author: Widen Your Tent      to be as human as possible while we are here.
- https://amzn.to/2JRxnDF          - Anonymous MD, while a Nazi prisoner

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