[Avodah] FW: Arukh haShulchan and Halachic Process

[Micha Berger]

On Thu, Jul 02, 2020 at 03:13:40PM +0100, Chana Luntz wrote:
>> 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 Amar:
>> 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...

You totally lost me. Neither Shemu'el's nor R Yehudah's "we" are Askenazim
or Separadim.

...
> 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...

We are in agreement.

>> 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>>...

Which is exactly what I have R Huna saying here. The actual halakhah is
lenient, the hamon am in practice are nohagim to be stringent like REbY,
and the rabbis are happy with the stringency. It's not din, but it's
a common religious practice, blessed by rabbinic approval -- a minhag
chashuv.

>                                            Glatt is a tricky one, because of
> the reality that half the world paskens it as related to ikar hadin...

Still, Hungarians are following it as minhag, and are more lenient than
the Sepharadi half of the world BECAUSE it is "just" minhag. To them.

The issue you raise is a distraction from explaining the gemara.

> 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...

> 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?

After the rabbinate said you didn't have to. So in that sense it is "bottom
up". The masses chose to do something extrahalachic.

>> 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....

By "common" hanhagah tovah I meant in contrast to any kind of minhag.
Something many pious people do, not the masses. Like learning all night
on Shavuos in Lithuania circa 1890.

But in principle, even if R Huna meant everyone was doing it: Why would
hanhagah tovah mean that the rabbis endorsed it?

And I think you then agree with this "in princple, when you write:

>> 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.

R Yochanan can say something is a hanhagah tovah and not a pesaq nor
even an actual minhag.

> 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...

Which according to me is what "minhag garua" means.

Whereas you're saying that R Yochanan refers to it as a hanhagah, but is
not calling it a minhag garua. Despite the common shoresh.

So we agree on w to understand this machloqes, we disagree with what to call
each position.

To me, Shemu'el and R Yehudah, by talking about pesaq aren't talking
about minhag chashuv. To you there are.

R Huna is definitely talking about a common practice performed by the
people without a pesaq. Which to me is a minhag chashuv and to you a
minhag garua.

And R Yochanan is talking about a practies that doesn't rise up to that
level. Which to me is a minhag garua and to you not even that much.

It's all just in the labels, but that changes how we read the rishonim.
That is why I ignored all the gemaras you cited that don't use the
/nhg/ shoresh.

The rest of your post argues for something we agree about.

Tir'u baTov!
-Micha

-- 
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