[Avodah] im lo nevi'im, bnei nevi'im

[Jay F. Shachter]

> 
> 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 [] 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....
>

I do not know the sense in which you, or R' Hutner, intent to apply
that quote.  I do know that whenever I hear that quote, I never hear
it used to justify practices that merely seem to have no basis in
halakha; it is used only to justify widespread practices that clearly
violate undisputed halakhoth, such as learning Mishnayyoth in a house
of mourning (with the mourner present), or wearing your wedding ring
outdoors on Shabbath, or allowing people who mispronounce the `ayin to
recite the priestly blessing (an interesting halakhah, since there is
no `ayin in the priestly blessing, but an undisputed halakha
nevertheless).  Hillel, however, only used those words when he did not
know the halakha; he never used those words when he knew the halakha.
If you want to justify widespread practices that clearly violate
undisputed halakhoth, gei gezinteheit, but I hope that you will not
misapply Hillel's words when you do.

                        Jay F. ("Yaakov") Shachter
                        6424 North Whipple Street
                        Chicago IL  60645-4111
                                (1-773)7613784   landline
                                (1-410)9964737   GoogleVoice
                                jay at m5.chicago.il.us
                                http://m5.chicago.il.us

                        "Quidquid latine dictum sit, altum videtur"