[Avodah] FW: Arukh haShulchan and Halachic Process

Chana Luntz Chana at kolsassoon.org.uk
Thu Jul 2 07:13:40 PDT 2020

> RMB wrote:
>> 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.

And I wrote:
> So how under your thesis do you explain the gemora in Eruvin 62b:

> Amar Rav Yehuda amar Shmuel:  Halacha k'Rabbi Eliezer ben Ya'akov, 
> v'Rav Huna amar: minhag k'Rabbi Eliezer ben Ya'akov.  R' Rabbi Yochanan
> Nahagu ha'am k'Rabbi Yehuda ben Ya'akov?

<<People practice like REbY. Why?
R Yehudah amar Shemu'el: that's what we pasqen -- parallel to my example
    of BY chalaq>>

Hold on, but it is only what "we" pasken if "we" are Sephardim.  It is not
what "we" pasken if "we" are Ashkenazim.  If you were having a shiur about
the halacha of meat, it would be remiss of you to mention the one, and not
the other.  And if you were giving a shiur to both Ashkenazim and Sephardim,
I hope you would say - CYLOR [the L of course standing for "local"], rather
than saying "we pasken" one way or the other.

Whereas my understanding of R' Yehuda amar Shemuel is that this is what we
pasken, full stop.  If you came out of a shiur with R' Yehuda amar Shemuel,
you would  be left in no doubt that you ought to follow R' Eliezer ben
Ya'akov (or Rabbi Meir) or whoever the halacha is like.   There are other
opinions, and they might have been brought, but the end of the shiur would
say - follow R' Eliezer ben Ya'akov, whereas I would hope that would not be
what you would say regarding BY chalaq.

<<R Huna: that's the minhag (chashuv), but not iqar haddin -- like glatt>> 

But didn't you say Previously that  << Minag chashuv = common religious
practice, blessed by rabbinic approval>>.  Glatt is a tricky one, because of
the reality that half the world paskens it as related to ikar hadin.  And
the question then comes down to, why is it that someone keeps glatt, is it
because he wants to be machmir for those who think it is really following
the BY's iqur hadin, or is it because that is what his community does.   If
he is just doing it because he lives with other Hungarians so does it, but
he really thinks the Rema is right, and it is a chumra that the people came
up with (which you can argue it is, particularly because glatt is not the
same as BY chalak) then it is a minhag garua.  But if the community does it
because they are really holding like the BY (at least to an extent), despite
the Rema, I would say it is a minhag chashuv.  I thought the  better example
of what you were saying is milchigs on Shavuos, which has no Rav psak behind
it, but which has Rabbinic approval in the form of the Rema.  That shows the
distinction between what I thought you were arguing and what I am much more
clearly.  Ie that according to you minhag chashuv has no Rabbinic psak
source, it is something the people came up with, but it is a religious
practice that the Rabbis then approved, whereas I am saying that for a
minhag chashuv to be a minhag chashuv, there needs to be a rabbinic psak
that the people are relying on, even if other communities hold differently.

And yet here, R' Huna is a case where the origin of the idea came completely
and totally from a psak of a Rav - namely R' Eliezer ben Ya'akov or Rabbi
Meir, and the community then followed.  It is not some religious idea, like
milchigs on Shavuos, that the community came up with independently and then
was approved.  If R' Eliezer or Rabbi Meir had never paskened the way they
did, then the minhag would never have arisen.

That, I thought, was the fundamental distinction between what I am saying
and you are saying.  That I was saying to be a minhag chashuv, it has to be
originally Rav psak derived, that people then followed.  Whereas I
understood you as saying that a psak is a psak, and different from a minhag
chashuv, which had to be people derived, ie bottom up, albeit with Rav
approval post fact.

And yet here are you not agreeing with me that the original idea, as
expressed by R Huna, is derived from a Rav - in these cases either R'
Eliezer ben Ya'akov or Rabbi Meir, it is not a bottom up generated scenario,
and yet it has the definition of minhag?

<<R Yochanan: it's but a common hanhagah tovah>>

But I thought if it was a <<hanhaga tova>> - according to you it was a
minhag chasuv - since it is blessed by rabbinic approval as being a good
thing.  Especially as we discussing what are needed for an eruv (a halachic
device), or whether the kohanim should duchan during Mincha and nei'ila of
Yom Kippur.  These aren't things like going around with baskets on your
head, or squeezing fruit.  They are religious acts.

<<I presume you would say something like:
R Yehudah amar Shemu'el: it'r universal pesaq>>


<< R Huna: that's the minhag (chashuv), i.e. a local pesaq>>

Yes, although I prefer to phrase it the psak that the people as a community
[I prefer that to the term "local" as it sounds limited, while communities
can be large or small] have adopted following Rabbi Eliezer ben Ya'akov, or
Rabbi Meir [out of the options available], making it the minhag chashuv.  

<<And if that is correct, or not, what do you have R Yochanan saying? He
can't be referring to a minhag garua, since something said by REbY is "al pi
talmid chakham"? Is your take for R Yochanan similar to mine or something
entirely different?>>

I think it could be either a minhag garua or a minhag taus or in fact
something closer to your  "any other practice, religious or even a
non-religious norm  that has halachic impact" (ie like non-Jewish people in
certain places carrying things on their heads, ie things people are
accustomed to do, but are not halachic minhagim).  The point being here, is
that R' Yochanan holds that ReBY (or R' Meir) is actually flat out wrong in
psak.  To the point where their psak is not a valid psak.  The problem
being, according to R' Yochanan is that the people have seized on it and
have used it as the basis for what they do, because this idea was out there.

Regarding R' Yochanan I believe I am following Rashi.  Both Rashi, Tosfos
and the Rosh refer us to Ta'anis 26b where it explains that if it is the
halacha, you teach it "b'pirka" - ie you learn it out in the public halachic
discussions.  If it is minhag, you don't teach it  b'pirka, but if someone
comes to you and asks, you posken that way, and where it says nahagu - one
does not rule this way, just "I avid, avid, v'lo mehadrinan lei".  And Rashi
in Ta'anis, says:

U'man d'amar nahagu [ie Rabbi Yochanan] - mashma: hen nohagu me'alehen, aval
aino ikar.  Uminhag mashmar - Torat minhag yesh b'davar, uminhag kosher hu.

The point being that Rabbi Yochanan doesn't want to dignify this practice
with the term minhag, which would suggest it is a minhag kosher.  That
rather sounds like either it is a minhag taus [which in Yerushalmi speak is
aino minhag, such as not working all motzei shabbas, even though this is
clearly a religious practice] or a norm that has halachic impact.  But it
should not be dignified with the name minhag.

However over in Eruvin Rashi (quoted approvingly there by Tosfos and the
Rosh) uses the language - aval i avide lo machinan byadayhu - ie if they do
it, we don't protest.  That sounds much more like the minhagim that the
Tosfos and the Rosh were discussing in Pesachim as being minhag lo chasuv
(ie tolerated, and not gone against in front of, ie you are not to rule
publically in front of them, but you don't actually have to keep), which is
contrasted to a minhag chasuv.    

Tosfos in Brachos 52b (d"h nahagu ha'am) draws a different distinction
between the situation over in Ta'anis and in Eruvin (and elsewhere, such as
Rosh Hashana) and the situation in Brachos where Rabbi Yochanan again says
nahagu ha'am [like Beis Hillel in accordance with Rabbi Yehuda - the subject
matter being whether we say the blessing over the spices before or after the
blessing over the flame in havdala].  Because we [and I think we all in
fact, as Tosfos says] l'chatchila go according to this R' Yochanan that we
make the blessing over the spices before the flame, and yet it would seem
from Eruvin 62b (as understood by Ta'anis) that l'chatchila one shouldn't
follow  where it says nahagu ha'am, just that where the people are so
accustomed, we don't make them go back if they did it wrong (so in the case
of the havdala, one would think one should really bless the flame first, and
then the spices, just if people did it the other way around, we wouldn't
make them repeat havdala).  And Tosfos'  answer there in Brochos is that
over in Eruvin, the nahagu ha'am is contrasted to someone saying "halacha"
which means "halacha l'chatchila u'morin ken" and therefore when somebody
else says nahagu they are meaning bideved, "aval hacha yachol l'hios d'ain
kan ele nahagu greida".

Note however that in the case in Brachos everybody agrees the halacha is
like Beis Hillel (versus Beis Shammai).  The issue at stake is how to
understand Beis Hillel - like Rabbi Yehuda or like Rabbi Meir.  And while
Rabbi Meir would seem to be the stam mishna, we follow Rabbi Yehuda.  That
feels to me less "al pi Talmud chacham" - it is more how the relevant Talmud
Chacham understood another set of talmudei chachamim.  Whereas the case in
Eruvin 62b is regarding what R' Eliezer ben Yaa'kov himself held (regarding
non-Jews assuring a courtyard for eruv purposes, if there was only one Jew)
versus Rabbi Meir, or in Eruvin 72 (do you need a shituf and an eruv), or
Ta'anis (whether on Yom Kippur the Kohanim should bless at Mincha and
ne'ila) ie is a matter of direct psak versus psak.  With the sense that
according to Rabbi Yochanan the psak in question is plain wrong, and
knowledgeable people should ignore it.

I think you could thus alternatively argue that Brachos is a classic minhag
garua that happened to accord with how Rabbi Yehuda understood Beis Hillel,
which in the absence of a clear psak either way, we follow the order the
people decided upon, for their own reasons, whereas in the other cases, it
is a minhag taus, that the psak is clearly wrong in halachic terms, but
because there is this da'as yachid position out there, the hachamim were not
prepared, in bideved situations, to make people go back and redo.  Or you
can say that actually over in Brachos Rabbi Yochanan, while using the term
nahagu ha'am, given that it was not used in contrast to minhag k', meant
really to say minhag k' - making it a minhag chashuv.  Or maybe in fact we
just ignore Rabbi Yochanan's expression.  And what we are actually following
is the ma'ase shehaya of Rava.

In any event, for me the key fact is the Rav Huna defines minhag explicitly
as going according to a psak, something you, I believe, said couldn't
happen.  How you understand Rabbi Yochanan, who specifically does not use
the term minhag, just nagu ha'am for something which (leaving aside the
situation in Brachos) he disapproves of, is secondary.




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