[Avodah] im lo nevi'im, bnei nevi'im
Jay F. Shachter
jay at m5.chicago.il.us
Sun Dec 20 09:12:59 PST 2020
>
> 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
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jay at m5.chicago.il.us
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"Quidquid latine dictum sit, altum videtur"
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