[Avodah] Takanos, Minhagim Gezeiros and Seyagim (Was: Amora Differing with Tanna)

[Micha Berger]

R Yonasan Sacks (now RY of Lander College, then of YU; then and now of
the Agudah of Passaic) once gave a shiur which gave a taxonomy of kinds
of derabbanan.

I took notes, and blogged it shortly after at
<https://aspaqlaria.aishdas.org/2006/02/07/types-of-halachic-rulings>.
Since we're going back around 20 years, I will just quote my notes (which
is still a few years later an embellished with things I learned when
sharing with Avodah.)

RZL and RMR were discussing the definitions of minhag, taqamah, gezeira
and siyag. Here's my notes:

   The following taxonomy of kinds of halachic ruling was culled from the
   Rambam, Hilkhos Mamrim ch. 2, and includes thoughts learned at a shi'ur
   given by R' Yonasan Sachs...

    1. Minhag. Custom. Custom, although not really part of halakhah, can
       change. Minhag is any act that the masses, on their own, accept.
       According to the Rambam, to qualify as a minhag the practice must
       then ratified by the rabbinate. Any minhag that is against actual
       halakhah, is called a minhag ta'os, a mistaken minhag. Any that is
       based on a misunderstanding is a minhag shetus, a foolish custom.
       These two subtypes should not be followed. Any nearly universal
       minhag is called a minhag Yisrael, and has most of the stringencies
       of law. Yarmulka and ma'ariv services are two examples of a minhag
       Yisrael.

Notice that it's anything the masses accept to do. Which would include,
I would think, Yom Tov sheini shel goliyos when qiddush was al pi re'iyah
and they had pragmatic necessity to keep both days.

But also, we get into a homonymity. There is capital-M minhag, which is
a category of mandatory practice, and then there is lower-m minhag, which
has lots of meanings. Like when a qehillah accepts the pesaq of Rav X,
we may say there minhag is to do Y, but really it's halakhah, not Minhag.
Or a hanhagah tovah that wasn't ratified by the rabbinate, we would still
say "minhag avoseihem" even though it's not a Minhag in that sense, yet.

And I think that's what Abayei wrote the people of Bavel about YT Sheini.
Your ancestors for practical reasons had a lower-case-m minhag, and I am
now turning it into a capital-M, binding, Minhag, applicable even when
the reason doesn't.

    2. Din deRabanan. A rabbinic law. These are set up by the rabbinate,
       instead of the masses, in order to preserve the spirit of the law.
       For example, Purim and Chanukah. There are 7 new commandments that
       are entirely rabbinic. According to the Rambam, who only counts
       biblical mitzvos amongst the 613, this means there are actually 620
       mitzvos altogether.

    3. Gezeira deRabanan. A rabbinic "fence". These are enacted to prevent
       a common cause for breaking the act of the law. For example, one
       may not place food directly on a fire before Shabbos in order to
       keep it heated during Shabbos. This is a fence around the law
       against cooking on Shabbos. To prevent the gezeira from being
       violated, a metal cover, called a "blech" in Yiddish, is placed on
       the stove top before Shabbos with the flame (turned to a low
       setting) under one section and the pot with food placed on the
       blech. This blech serves as a fence, allowing heating of the food
       without any danger of violating the law. Note that a "gezeira
       dirabanan" becomes binding only if the community accepts
       it.According to the Rambam, a gezeira cannot be overturned.

       However, a gezeirah where the law's purpose is included in the
       legislation is implicitly conditional on the purpose. The problem
       is in knowing when the purpose is given in the quoted gezeirah, and
       when the gemara provides a motivation on its own, after quoting the
       gezeirah. For example, meat must be salted within three days of
       slaughter, or the prohibited blood will be too soaked into the meat
       to be retrieved. What about the contemporary situation, where meat
       is generally frozen solid? Some rule that since the reason is given
       in the legislation, and the reason doesn't apply, neither does the
       time limit. Others rule stringently, presumably because they do not
       believe the reasoning about the blood being soaked into the meat
       was part of the legislation as initially codified.

       According to the Tif'eres Yisrael (Ediyos 1), there are actually
       two sub-categories:
         1. Siyag. Fence (Hebrew; "gezeirah" is Aramaic). Something that
            will lead to a future violation to do an error in
            understanding the law. Such as the ban on mixing poultry and
            milk, lest people become lenient in mixing meat and milk.
         2. Cheshash. Concern. Cases where the threat of violation is in
            the current situation, because one is in a circumstance where
            habit taking over or other accident is likely.

       The Tif'eres Yisrael says that a cheshash can be deemed
       inapplicable if the norms change such that the threat no longer
       exists. It does not require a beis din that is greater in number or
       wisdom as the law is not lifted, just that the current situation is
       deemed to be outside the limits the law addressed.
    4. Asmachta. Mnemonic. The Raavad (on Mamrim 2) considers laws backed
       by a mnemonic in the Torah are in a different category than other
       rabbinic laws....

   The distinction between the second and third categories is subtle. In
   order to be a din (or issur, or melakhah) deRabanan, the prohibited
   action is one that is similar in purpose to the permitted one.

   In contrast, a gezeira does not even require an action. In the example
   I gave, it was inaction, leaving the pot where it is, that is
   prohibited. Second, the category includes things that are similar in
   means to the prohibited act, and will therefore cause confusion about
   what is and what isn't okay; and things which will allow people to be
   caught up in habit, and forget about the prohibition. Only a gezeira
   may defy an actual Divine law (although a pesaq will often define one),
   and even so only under specific circumstances. All of the following
   must be satisfied:
     * The law being protected is more stringent than the one being
       violated. This determination isn't easy.
     * The law is being violated only through inaction. No one is being
       told to actively violate G-d's commandment.
     * According to the Ta"z, the law being violated will still be
       applicable in most situations. It still must exist in some form.
       (Not every acharon agrees with this requirement.)

   In another way, a gezeira is less powerful than a normal rabbinic law
   in that it cannot be compounded. One may not make a "fence" for the
   express purpose of protecting another "fence".

   A law is considered accepted if it becomes common practice. Any din or
   gezeira that does not get accepted by the masses in the short run, does
   not become binding in the long run. Similarly, there are rules for
   pesaq, but they are violated if the masses choose to follows some other
   rabbinic body's pesaq. Notice, however, that this need for acceptance
   is only in the short run, to enact the law. Once a law is accepted, it
   may only be overruled by pesaq. It does not cease to exist just because
   it faded out of practice.


On Fri, Oct 20, 2023 at 10:13:05AM -0400, Zvi Lampel via Avodah wrote:
> [Email #1, sent Date: Thu, 19 Oct 2023 8:53pm EDT. -micha]
> 
> From: "Rabbi Meir G. Rabi" <meirabi at gmail.com>
> > ...
> > Gezeiros, Takanos and Minhagim (can someone explain how they differ from
> > one another?)
> 
>  A Gezeira or Seyag, in contrast to a Takana or Minhag is a decree
> initiated by Bes Din that /prohibits/ acts as a means of caution against
> transgressing actual Torah prohibitions.
> 
> I  don't understand what difference in definition the Rambam holds between
> a Gezeira and a Seyag. The commentaries on the Rambam (on his Mishneh
> commentary on Eidyus 1:6) are also perplexed. Rashash attempts an answer of
> sorts.
> 
> The difference between Takanah and Minhag seems clear (and Rav Kapich in
> his Hebrew translation of the Rambam's hakdama to the Mishnah cites Rav
> Sheilat on the same, saying this):
> 
> A Takana is a decree initiated by Bes Din to perform an act  that improves
> the situation of society or the observance of mitzvos.
> 
> A Minhag is a practice that did not originate with the Bes Din, but with
> the people, which Bes Din then approved of and made official.
> 
> (The description of Yom Tov Sheyni as a Minhag, may seem to contradict
> this, since it was originally instituted by Bes Din. But the explanation
> may be that the original institution was only for a time when we did not
> rely on calculations to establish Rosh Chodesh. Yet the populace
> voluntarily continued to keep a second day. Thus, the practice was begun by
> the people, making it a Minhag.)
> 
> 
> 
> [Email #2, sent the next morning Fri, 20 Oct 2023 10:13am EDT. It opens by
> referring to email #1.
> -micha]
> 
> On Thu, Oct 19, 2023 I wrote:
> > ... A Minhag is a practice that did not originate with the Bes Din, but
> > with the people, which Bes Din then approved of and made official.
> 
> > (The description of Yom Tov Sheyni as a Minhag, may seem to contradict
> > this, since it was originally instituted by Bes Din. But the explanation
> > may be that the original institution was only for a time when we did not
> > rely on calculations to establish Rosh Chodesh. Yet the populace
> > voluntarily continued to keep a second day. Thus, the practice was begun by
> > the people, making it a Minhag.)
> 
> > Mishneh Torah, Hilchos Shevisas Yom Tov, 6:14
> 
> All these things [regarding the second day of Yom Tov] we have said were
> [so] during the time that the Bes Din of Eretz Yisrael sanctified [a day
> as the beginning of the new month] based upon the sighting [by witnesses
> of the new moon], and the people of the diaspora would make two days
> [of Yom Tov] in order to deal with the doubt of not knowing what day the
> people of Eretz Yisrael sanctified [as the beginning of the new month].
> 
> But nowadays, that the people of Eretz Yisrael rely on calculation and
> sanctify [a day as the beginning of a new month] based upon that, the
> purpose of Yom Tov Sheyni is not to deal with any doubt, but is solely
> a Minhag.

Tir'u baTov!
-Micha

-- 
Micha Berger                 Be happy not because everything is good,
http://www.aishdas.org/asp   but because you can see the good side
Author: Widen Your Tent      of everything.
- https://amzn.to/2JRxnDF