[Avodah] Existing practice driving halacha

Micha Berger micha at aishdas.org
Sun Jan 3 10:04:47 PST 2021

On Tue, Dec 15, 2020 at 07:34:51AM +0000, Ben Bradley via Avodah wrote:
> 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...

Isn't this a different topic?

Taqanos and gezeiros are dinim derabbanan. And the source of our obligation
here would be the source for considering a new halakhah as binding:
> the beis din concerned and the extent to which Klal Yisrael accepts and
> keeps the takana. Each works independently.

But pesaq is an interpretation of existing din. The AhS, noted for
his support of minhag Yisrael (as I recently noted yet again on another
thread), doesn't pasqen that married women don't have to cover their hair.
Instead, he talks about how sad it is that this is the norm, and dicusses
the impact of that norm on hilkhos qeri'as Shema. (Seeing a married woman
with uncovered hair isn't a distraction when the site is commonplace,
and therefore saying Shema in that situation is permitted.)

Speaking of the AhS...

I have been watching through this round of AhS Yomi, and I don't have a
clear picture of his position yet. Sometimes it seems that RYME supports
minhag Yisrael for "im lo nevi'im heim" or "she'eiris Yisrael lo yaaseh
avlah" type reasons. Collectively, we have siyata diShmaya.

At other times it seems RYME is resting on the authority of the centuries
of posqim who allowed the practice to flourish. Not directly on the
masses, but using common practice as evidence of a silent majority of
formal sources.

> 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...


The masses are the keepers of mimetic tradition. The second we think about
it and plan, it's textual / formal tradition, and requires the expertise
of rabbanim.

Tir'u baTov!

Micha Berger                 A sick person never rejects a healing procedure
http://www.aishdas.org/asp   as "unbefitting." Why, then, do we care what
Author: Widen Your Tent      other people think when dealing with spiritual
- https://amzn.to/2JRxnDF    matters?              - Rav Yisrael Salanter

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