[Avodah] FW: Arukh haShulchan and Halachic Process

[Chana Luntz]

RMB wrote:
>> <<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. >>

You wrote the words "parallel to my example of BT chalaq"  - see above.  I
responded to *your* example of BY chalaq - because you said that "R' Yehuda
amar Shemuel: that's what we pasken  - is parallel to my example of BY
chalaq"

I totally agree that neither Shemuel's nor  R' Yehuda's "we" are Ashenazim
or Sephardim - but *you* said that R' Yehuda amar Shmuel is parallel to your
example of BY chalaq (which you contrasted to glatt), and BY chalaq versus
glatt is about Ashkenazim and Sephardim.  If you agree that BY chalaq is not
a parallel, then there is no need for this discussion.
 
But because of the parallel that you brought, I couldn't (and can't) see how
you can make the statement below (which you say you agree with):

> 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...

If we agree that R' Yehuda amar Shmuel is *not* parallel to BY chalaq, then
we can agree we understand R'Yehuda amar Shmuel the same.

>> 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.>>

Err, ReBY is actually the lenient one (he says you need two Jews living in a
chatzer to assur it for carrying).  Rabbi Meir is the stringent one (he says
you only need one Jew and the chatzer is assur).  So transposing your
explanation, but with the correct way round, do you agree that, "the actual
halacha is strict, the hamon am are in practice nohagim to be lenient like
REbY, and the rabbis are happy with the leniency.  It is not din, but it is
a common religious practice, blessed by rabbinic approval - a minhag
chasuv"?

Now do you think that if the people did not have ReBY to rely on, but had
just come up with this by themselves, against the halacha of Rabbi Meir, Rav
Huna would be so tolerant?  If yes, then why did he phrase it as minhag
k'RebY? Why didn't he say that if there is only one Jew in the courtyard,
the minhag is to carry (because it doesn't' matter whether ReBY said so or
not)?  But if it *does* matter that ReBY said so, then you need more than
just the people coming up with this idea of only one Jew living on the
chatzer themselves.  You need ReBY, or some other Rav, to have said so,
followed by community acceptance to have it become a minhag.

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

> 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.>>

There were two different piskei halacha out there.  ReBY (the lenient one)
and R' Meir (the stringent one).  R' Yehuda amar Shmuel states emphatically
that ReBY is right, Halachically, and that the halacha is like him.  R' Huna
appears not to agree, otherwise he would have said what R' Yehuda amar
Shemuel said.  Rather, he accepts that the people having made the choice to
go for the lenient position as a valid minhag.  It is partially bottom up in
that the people have made a choice between Psak A and Psak B, and decided to
follow Psak A, in this case the lenient psak, but I do not believe they have
decided to do something extrahalachic independent of there being two piskei
halacha out there.  It is the same scenario as following  R' Yossi for milk
and chicken, or Rabbi Eliezer for cutting the wood to make the knife to do
the bris on shabbas.  Or moving a lit candle on shabbas.  Or working or not
working erev pesach morning.  Each case is the same underlying scenario:
there were a range of piskei halacha out there.  And certain communities, or
sometimes the whole people, decided to follow one psak over another (even
though in pure halachic terms that isn't necessarily the halacha).  That is
what makes it a minhag chasuv, as articulated by the Ri and the Rosh, ie
that it is al pi Talmud chacham, and not just something the people came up
with on their own, even where the people can provide religious
justification.

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

Chana:
> 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?>>

*Hanhaga tova* is *your* language, not mine.  I assume you mean R'  Yochanan
here, not R' Huna, because you are the one who applied the words hanhaga
tova to R' Yochanan in a previous post.  I don't at all think that R'
Yochanan is describing what he thinks of as a "hanhaga tova".  I think (and
I believe Rashi and Tosfos agree with me) that in this context if you have
to use the term hanhaga, then he believes he is describing a hanhaga ra.

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

No idea what you mean here.

>> 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.>>

He could, but in the context, where he is dealing with a situation where
there is a lenient psak and a stringent psak, and where the people are going
according to the lenient psak, he is clearly not saying that.  He is saying
it wrong what the people are doing, but if you come across somebody who has
done it, they either don't have to reverse what they have done, or you don't
need to create a fuss (as they have what he considers a da'as yachid to rely
on).  Depending on which Rashi you follow (and presumably Rashi/Tosfos in
Eruvin had a different girsa in Ta'anis, given that they don't quote "not
reversing", but "not protesting").

> 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.>>

Hanhaga was, as mentioned, your language, not mine.  I said that one
interpretation of Rabbi Yochanan is a minhag garua - that is if you hold
that it is something that one shouldn't protest.  Just like all the other
cases in Pesachim where the rabbis said not to protest the minhagim.
However if it is something one should protest, just that one doesn't make
people do things again (ie our girsa in Ta'anis), then that appears to be
less than a minhag garua (more like a minhag taus).

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

No, I don't think so.

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

No, I never said that, and I don't think so.  In the case of Shmuel and R
Yehuda we are talking about psak.

<<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.>>

No.  To me what R' Huna is talking about is also minhag chashuv.  I didn't
think you agreed with that, but am fine if you do.  If you agree that this
is a minhag chashuv, then it would seem that what we disagree about is
whether or not Rav Huna is "talking about a common practice performed by the
people without a pesaq".  You say definitely, ie "definitely talking about a
common practice performed by the people without a pesaq".  I don't think
this is right at all.  I believe Rav Huna is talking about a common practice
performed by the people *in light of ReBY's psak*  Which is precisely why he
phrases it as "minhag k'ReBY".  Because the fact that there was a psak from
ReBY is critical to his understanding.  It is what makes it a minhag choshuv
(and not a minhag garua).  Just as the Ri and the Rosh and the Shach say
that the definition of a minhag chasuv is that it is "al pi talmid chacham".
This is "al pi talmid chacham" - the psak of ReBY, which is key to what
drove the people.  No ReBY, no such minhag.  And R' Huna is expressing this
clearly by linking the minhag with the psak of ReBY.

<<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.>>

Not quite.  If we didn't have the girsa we do in Ta'anis, ie we had the
girsa that Rashi and Tosfos in Eruvin seem to have had, I would say this was
a minhag garua.  Problem is, our girsa in Ta'anis doesn't just say, we don't
protest, but we don't make them do over again or go back (given that in
Ta'anis we are talking about kohanim duchaning at nei'lah, presumably that
means we don't have the Shatz resay the non duchaning language, after the
kohanim have ostensibly duchened, or make the kohanim sit down once they
have said the bracha).  That suggests that we do in fact protest if we can
get to them before they get started duchening.  I don't think something that
the chachamim were prepared to protest, even if the view they are protesting
is based on the psak of a Talmud Chacham, can be considered any kind of
minhag, except perhaps a minhag taus. 

<<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.>>

I agree it is all in the labels, but I thought there was something more
fundamental here.  My understanding of your position was that if the people
were following a particular psak (such as the people following the psak of
ReBY or the people following the psak of Rabbi Yehuda not to work on the
morning of erev pesach), that could not be called minhag.  Rathein your view
minhag, including minhag choshuv, had to be something that was generated by
the people themselves, like milchigs on Shavuos, ie completely bottom up.
That is why I could not see how you characterised what R' Huna said, of
minhag k'ReBY as minhag, as it didn't seem to fit.

Whereas my understanding of a minhag chashuv was that it needed to have at
its root a psak of a Rav, with the bottom up aspect of it being the
people's, or a community of people's, decision to take on that particular
psak, even in the face of disagreement from other Rabbonim.   That seems to
fit perfectly with Rav Huna's statement of minhag k'ReBY.

 I thus understand a completely bottom up minhag as falling within the
category of minhag garua (or just minhag)- although even within that
category, there are those that have strong rabbinic approval, and those that
have weak to non-existent rabbinic approval (depending on how garua they
are).  But like your minhag chashuv, my minhag garua does have to relate to
something religious/halachic, even though  at some point one reaches a
situation where the rabbis come out full force against what the people are
doing. The reason I am so vague about the line between minhag garua and
minhag taus, is that this line seems very difficult to define, Ie at what
point does a minhag which is very garua tip into a minhag taus seems hard
for me to pinpoint (I have been looking at two cases of very dodgy minhagim,
namely women in states of tuma'ah - both involving, inter alia, women not
going to shul - one during their periods, and one in the period after giving
birth, and the attitudes towards them couldn't be more different.  The one
is reasonably accepted as something of an acceptable minhag, with some
rabbinic blessing, even though the origins are difficult, and it is clear it
is solely women generated, while the other gets the full minhag taus, must
be stamped out, treatment, at least amongst some.  Even though on first
glance they would seem to be directly parallel).

While you, I thought given that you characterised what I called minhag garua
as being minhag chasuv, understood minhag garua as being something done even
by non-Jews that had halachic impact, which didn't seem to me to be what was
being discussed in the gemora in Pesachim at any point, and hence not the
subject of the Ri and Rosh's distinction there.

-Micha

Regards

Chana