[Avodah] Existing practice driving halacha

[Ben Bradley]

There's a recurring discussion on the list about the mechanism for existing Jewish practice being a source for ongoing psak halacha. In view of which I thought it useful to share an essay by R Hutner in Pachad Yitzchak on Chanuka, maamar 14. He posits that there are two distinct drivers of the obligation to maintain any given takana - the status of the beis din concerned and the extent to which Klal Yisrael accepts and keeps the takana. Each works independently.
However there's an important distinction in the mechanism by which each works. The beis din's takana works through da'as, ie the conscious decision to enact a practice. In contradistinction, acceptance of any given practice by klal yisrael works specifically without da'as, meaning that there has to be no conscious decision to change or institute a practice. Only when a practice is becomes widespread without any conscious decision by the community do we invoke 'im lo nevi'im, bnei nevi'im heim' to say the practice in question has obligatory force as a minhag. A conscious decision to implement a practice would remove that force.
There is of course much to add about the dynamics of this, after all this is R Hutner, see the essay for details. But I thought the above would add to previous discussions.

Ben



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