Avodah Mailing List

Volume 05 : Number 083

Friday, July 14 2000

• Re: Nusach
• Re: More on Kol Kallah
• Re: Dominant cultural values
• Re: Hefker and Kiddushin
• Re: Dominant cultural values
• Re: nusach of tefillah belachash
• Re: Hefker and Kiddushin
• kiddushin -lechatkhila
• Re: Hefker and Kiddushin
• Re: More on Kol Kallah
• Re: Dominant cultural values
• Re: Dominant cultural values
• Re: Nusach
• Re: Mesader Kidushin
• Re: Nusach
• Re: Custom - Origins of
• Re: kiddushin -lechatkhila
• Re: nusach of tefillah belachash
• Re: nusach of tefillah belachash
• Re: Custom - Origins of
• Re: Minhag and halacha
• Re: nusach of tefillah belachash

RYBS said at his Moriah shiur and it is on tape no U, berachos 36 I believe.
The Gemara deals with the Brocho on rice and he went into 2 kinds of Mesorah,
he said everyone should follow their mesorah as regard to Tefilah with the
exception of davening for the amud.RYBS related that when he went to the
previous Lubavitcher Rebbe in the year of Avilus for his father he asked
the Rebbe if he can daven for the amud to which the Rebbe responded you
must daven Nusach Chabad, RYBS responded that he already knows that from the
GRA. He then related to the Rebbe that when the GRA sent his talmidim to EY
they asked him what to do when they daven for the amud in a Sefard shul and
he told them daven sefard.

(For a letter by the previous Lubavitcher Rebbe praising RYBS see
http://www.geocities.com/Paris/Musee/3756/ click on Gedolei Yisroel {you need
hebrew fonts in your browser} The Rebbe also mentions there how his son in
law the next Lubavitcher Rebbe had told him many great things about RYBS.)

I thank Rabbi Berman for enhancing Avodah's mission as a forum for advanced 
Talmud Torah.

Nevertheless, I think we are still not getting to the point of the 
hesitancy here. (I am willing to take the blame for this :-)  ). The 
question raised by the Kallah's active participation in the kinyan that 
potentially contravenes the Ran is in the innovation itself (linked to the 
ambiguity of "mekkabbeles") - if the innovation is meaningless, of course 
it is meaningless - and then should be avoided, if for no other reasons 
than to satisfy the Ba'al Ha'Tanya's Kabbalistic objection and to maintain 
Minhag Yisroel, and one wonders what is the point.

But, doubtless, the intent of the innovation is, as someone either on 
Avodah or Areivim ( I think R' Noach Witty, anyway I am cc'ing Areivim if 
someone there is not on Avodah) noted, "la'asos nachas ru'ach l'nashim" 
(like semichas korbonos) - to give a bride who bridles at being silent an 
*active* role in the ceremony. Thus, this is not merely acquiescence to the 
Ma'aseh Kiddushin - which, obviously, would not be problematic at all - but 
a very significant problem in the da'as that may be created in the mind of 
the Kallah (and the Chosson as well).

And, even if, Rabbi Berman you explain to all Kallos for whom you are 
Mesader Kiddushin in this manner, that there statement is not be construed 
as an active role, so as not to contravene "Ki Yikach" by creating "Ki 
tikach" or "Ki See'lokach" - who is to say that the rabbis that emulate 
your procedure, of lesser knowledge than yourself, will not, innocently or 
purposefully, misconstrue the exchnged statements in exactly a manner that 
does contradict the Ran (or, come to think about it, worse!).

KT,
YGB


At 02:09 AM 7/13/00 -0400, SaulBerman@aol.com wrote:

>     8. It should be clear then that the Ran does not at all take issue with
>the general legal requirements of consent by the bride in action (II.A.), and
>in words (II.B.). His concern is the legal meaning of the behaviors, not
>modification of the universally accepted standards. Indeed this understanding
>of the Ran is only confirmed by his discussion of the primary passage in
>Kiddushin 5a. In his commentary to the Rif at 1b, s.v. Tanu Rabbanan, he
>echoes precisely the positions of  the majority of Rishonim that Natan hu
>(I.A.), veAmra Hi (II.B.) can create valid Kiddushin if the context manifests
>the grooms intent to make an offer of marriage.
>     9. Indeed, the Ran goes on to suggest that in this latter case the
>groom's silence is equivalent to verbal affirmation, just as in the more
>usual case of Natan Hu (I.A.) veAmar Hu (I.B.), where the bride's acceptance
>(II.A.) in silence is equivalent to her verbal consent ("shtikah didah
>kehoda'ah".)  In neither of these passages does Ran suggest any hesitancy
>whatsoever about a bride adding her verbal consent (II.B.) to her action of
>acceptance (II.A.)!
>
>     10. One further point. None of the Rishonim or Acharonim who address 
> this
>issue suggest that the bride's verbal consent is only acceptable bediavad,
>post facto. On the contrary, the underlying principles make it perfectly
>clear that this practise is perfectly permissible lechitchila, ab initio.
>That is, when the usual performance of a marriage is taking place, involving
>Natan Hu (I.A.), veAmar Hu (I.B.), and Kiblah Hi (II.A.), then the addition
>of her verbalized consent, Amrah Hi (II.B.) is unequivocally permissible.
>
>     11. A final point in this communication. Jordan Hirsch is quite correct
>in suggesting an analogy between the bride's consent and the Daas Makneh in a
>contract of sale which can also manifest the will of the party through action
>alone or through action accompanied by verbal expression. However, like all
>analogies, this one is somewhat imperfect since marriage is not a contract
>between a  purhasor and a vendor. This issue is addressed by Rabbi Kalman
>Kahana in his superb book, "Jewish Marriage."
>
>Kol Tuv,
>Rabbi Saul J. Berman

> It also bothers me that when activities are generated by individual "needs"
> which are heavily influenced by non- Torah or even subtley disguised
> anti-Torah values of the dominant culture.

If I understand Rabbi Berman's analysis correctly, he is suggesting the
following:
      -  halacha always conceived of and approved of a women voicing
         acceptance (IIB)
      -  the observable minhag that women are silent does not appear to have
         halachic basis
therefore
      -  the fact that women are silent today came from some other source
         than halacha

While "minhag" is one possible answer, it is also possible (especially in
light of a lack of halachic basis for this minhag) that the silence was
"heavily influenced by non-Torah...values of the dominant culture" -
specifically the surrounding culture's treatment of women in ways that were
never Torah values.

Seen in that light, having a woman's verbal acceptance would restore to her
the role that halacha discusses in the sources brought by Rabbi Berman and
remove the stigma of "individual needs" (i.e. the needs of the men in those
dominant cultures) from our wedding ceremonies.

Food for thought.
Ellen Krischer

At 09:05 AM 7/13/00 +0100, Chana/Heather Luntz wrote:
> I haven't had time to try and find the Ran (bli neder over this shabbas)
> but I don't see, from that piece you have quoted here how this helps
> your case.  This is distinguishing between kiddushin and general sale -
> where is the reference to hefker and passivity?

When you see the Ran you will agree with me :-) .

>> I think that our ma'asei kiddushin, according to the Ran, may rely on
>> devarim she'b'lev einam devarim.

> I don't see how this is possible at all.  I thought about it, but cannot
> think of a case where devarim she'b'lev einam devarim is applicable in a
> case where the person has demonstrated by action immediately beforehand
> contrary to the supposition that is being derived from the lack of
> words.

> In our case, we have a woman dressing herself up in a fancy white dress
> (not my normal apparel) and walking down (under her own steam - yes my
> parents were there, but I was hardly carried) towards a chuppah that had
> previously been acquired by my now husband for the purpose of kiddushin
> (that makom, of course, not having been his a few moments before) and
> under which he was standing. A tallis on four poles is not your normal
> average building, and I could see him standing there and could not have
> been under any illusion as to who was standing there, and whose property
> it was. I therefore willingly entered into his reshus for what was
> obviously the purpose of kiddushin (as signalled by the dress, not to
> mention the chazan in the background singing about boi kala), and walked
> around him seven times to make it absolutely clear that i recognised "my
> man".

> After I stopped he put on his tallis (the new one that was a gift from
> me  but that he was wearing for the first time - that is his minhag and
> made the shecheyiyanu), and we followed with kiddushin.

> And you are suggesting that we can rely on and assumption of passivity
> on the basis of devarim sh'b'lev eneim devarim, ie that we infer from
> the fact that I don't say anything that in fact I am available to all
> when the actions performed completely and flatly contradict that
> assumption?

Again, you are proceeding from your understanding of the Ran's use of 
hefker without having seen the Ran what he means! He obviously never meant 
that you are available to all - he negates that  explicitly! It is 
*k'*davar shel hefker *l'gabei ba'ala*" - this can only mean a passivity 
in the ma'aseh kiddushin (although we can quibble about "vohs haist" passivity.

KT,
YGB

>While "minhag" is one possible answer, it is also possible (especially in
>light of a lack of halachic basis for this minhag) that the silence was
>"heavily influenced by non-Torah...values of the dominant culture" -
>specifically the surrounding culture's treatment of women in ways that were
>never Torah values.

Ha'motzi mei'chaveiro alav ho'ra'ayah. We assume Minhagei Yisroel mekoran 
ba'kodesh unless proven otherwise.

KT,
YGB

R' SZ Auerbach held that so long as it wasn't "nikar," a shliach tzibbur
could daven his own nusach and not that of the tzibbur.  Hence, the shatz
can daven his own nusach during his tefila b'lachash (Halichos Shlomo p.
68).  

RSZA mentions R' Moshe's shita (that the purpose of the tefila b'lachash is
to be mesader the shatz's tefila) but says that this reason does not
necessarily apply when the shatz davens from a siddur.

RSZA also held that if the minhag of the shatz is to omit Baruch Hashem
L'olam...in maariv and the minhag of the shul is to say it, the shatz may
skip it if his omission won't be "nikar."  (I'm not sure how it's possible
for the omission not to be nikar, but....)  R' Moshe, on the other hand,
would say Baruch Hashem L'olam...whenever he was the shatz even though it
was not his minhag.

In addition to the shatz following the nusach of the tzibbur, RSZA held that
the shatz should also use the havarah of the tzibbur (unless 1) the shatz
knows that he's just going to get confused and mix them up or 2) if one is a
shatz in a nusach ashkenaz shul that uses a havara sefardit, one should use
havara ashkenaz).  (Whenever RSZA "officiated" at sefardi ceremonies, he
used havara sefardit.)

Finally, RSZA told one person who davened nusach sefard that, if he was
shatz during a "haicha kedusha" (and therefore saying aloud the first three
brachos) in a nusach ashkenaz shul, the person should use nusach ashkenaz
for those parts said aloud (i.e., say L'dor v'dor instead of atah kadosh)
and then revert to nusach sefard for the remainder of his shemonah esrai.


KT
Aryeh

-----Original Message-----
From: owner-avodah@aishdas.org [mailto:owner-avodah@aishdas.org]
Date: Thu, 13 Jul 2000 00:54:14 EDT
From: JoshHoff@aol.com
Subject: Re: nusach of tefillah belachash

> The Sha'arim Metzuyanim BaHalachah discusses this in the halachos of
shemoneh
> esreh. He says that a shatz should daven his own nusach biychidus and the
> shul's for chazaras hashatz.

Other poskim say the shliach tzibbur should say the same nusach in the 
tefillah belachash as the one he uses in chazaras hashatz. This is because 
the tefillah belacash is said by hi in order to be mesader tefilaso.I think 
the Har Tzevi, among others, says this. 

> Is there any chance that the Ran could be read differently from the way
> RYGB - ie that what she supposed to be doing is freeing herself from "other"
> past attachments... On the other hand, such a reading would mean there is
> no inherent contradiction between the state required to be created and a
> statement of ani mekabellet

The debate on the Ran is seperate from the issue of whether on a practical
level one chooses to implement R' Berman's idea. I am commenting on the
lomdus alone:

In avodah #77 and #78 I presented another reading based on R' Shimon Shkop
and a few reasons why the Ran cannot be taken the way YGB is presenting it.
1) Kiddushin requires active 'ratzon' on the part of a woman (Kid 44, Rashi,
also implicit on 9b). Your chametz doesn't need ratzon to become hefker
before Pesach. 2) Chazal also sanctioned cases where the woman takes a very
active role - her doing nesina and amira is kiddushei vaday in cases of adam
chashuv or asukim b'oso inyan (Kid 5b,7).

I argued that the Ran bars a woman from independently creating a chalos
kiddushin without the man's consent - it is a din in da'as makneh and koneh,
not a criteria of what a man or woman may say or do during the kiddushin
process. See Sharei Yosher 7:12 as well.

YGB answered that >>Nasan hu v'amra he b'asukin b'oso inyan may work if her
amirah does not change the nature of the ma'aseh kiddushin,<<< (avodah #77)
which hareini mekabelet (in his opinion does) does.

I don't see why 'hareini mekabelet'is worse than 'hreini mekudeshet lecha'
(in assukim b'oso inyan), where Chazal showed no concern for the possibility
that the woman might have in the back of her mind that she is creating the
chalos kiddushin. I don't see how you would explain the cases of amra hi
which are valid, if you insist that a woman say and do nothing at kiddushin.

The Ran is Nedarim 30; R' Berman provided mekoros in Kiddushin in his response
- 5b and 7, also end of E.H. 27. As YGB wrote - this advances avodah's
role as a vehicle for high level T"T - no matter which approach you take,
you will gain from seeing the Ran inside.

Kol tuv,
-CB

The basic reasoning behind RYGB is that we try and do everything according
to all the shitot for kiddushin.

For my edification is this stated anywhere. I would assume that it is for
gittin in which the bet din would try and accomodate all shitot.

Some examples:
Some mesader kiddushin announce that the witnesses are to the exclusion of
all others some do not announce it.

The issue of a nidah kallah is more complex. We certainly try lechatchila
to arrange that it does not happen. The question is what do we mean by
lechatchila.

Thus, if a week before the wedding the kallah becomes a niddah do we postpone
the wedding or do we say that postponing it is already bidieved.

kol tuv,
Eli Turkel

Total side issue - why is the Ran on the daf in nedarim and no tosfot?

Kol Tuv,
Joel Rich

In a message dated 7/13/00 7:49:25 AM US Central Standard Time, 
sbechhof@casbah.acns.nwu.edu writes:
> And, even if, Rabbi Berman you explain to all Kallos for whom you are 
> Mesader Kiddushin in this manner, that there statement is not be construed 
> as an active role, so as not to contravene "Ki Yikach" by creating "Ki 
> tikach" or "Ki See'lokach" - who is to say that the rabbis that emulate 
> your procedure, of lesser knowledge than yourself, will not, innocently or 
> purposefully, misconstrue the exchnged statements in exactly a manner that 
> does contradict the Ran (or, come to think about it, worse!).

As a very willing but rather incompetent student of RYGB, I am reluctant to
disagree with him on subjects like this. So I won't. But I note there recurs
in RYGB's thinking on a number of subjects a fear that smart rabbis who
learn too much (or learn too correctly) might, by explaining their learning,
accidentally mislead the rest of the community into making naive mistakes.
It's the old slippery slope.

To turn this into a question: If, like Rabbi Berman, one poskens on the
basis of what one learns, and if one's learning is good, are there still
countervailing (halacha, mesorah, or purely communitarian concerns) to hide
the learning and rely on the existing minhag? Does the minhag trump the
learning for the reasons RYGB has focused upon? Where do we draw the line?

David Finch

In a message dated 7/13/00 8:09:22 AM US Central Standard Time, 
sbechhof@casbah.acns.nwu.edu writes:
> Ha'motzi mei'chaveiro alav ho'ra'ayah. We assume Minhagei Yisroel mekoran 
> ba'kodesh unless proven otherwise.

How can anyone ever "prove" otherwise, unless, say, someone of stature has 
traced the minhag to a heretical event? 

If minhagim are holy until proven otherwise, and if as a practical matter no 
such proof (or no halachically acceptable mode of developing such proof) 
exists, then the line between halacha and minhag blurs to the point of 
abstraction. This creates a problem for thinkers like Rabbi Berman, who, by 
learning halacha for its own sake, raise legitimate questions about the pure 
logical correctness of certain minhagim. It's a mistake, I think, to 
mischaracterize the possibility of such illogic as a matter of "dominant 
cultural values," which is a buzz phrase for Conservative laxity.

David Finch

At 03:06 PM 7/13/00 -0400, you wrote:
>In a message dated 7/13/00 8:09:22 AM US Central Standard Time,
>sbechhof@casbah.acns.nwu.edu writes:
> > Ha'motzi mei'chaveiro alav ho'ra'ayah. We assume Minhagei Yisroel mekoran
> > ba'kodesh unless proven otherwise.
>
>How can anyone ever "prove" otherwise, unless, say, someone of stature has
>traced the minhag to a heretical event?


Good question.

You can trace it to ignormuses too, and that would suffice.

Short of that, I do not know.

I should note, however, that as REED writes in the MME, "Minhag Yisroel 
Torah" - but only Toras Minhag. Halachic inquiry can overturn minhag 
(despite the misquoted Talmudic statement: "Minhag okker Halacha") - but 
that is only if the minhag is wrong!

KT,
YGB

>The Aruch HaShulchan in his introduction to Choshen Mishpat says that it is 
>not derech eretz to daven a different nusach (presumably biychidus) than the 
>shul's (although he points out that it doesn't really matter).  The Pe'as 
>HaShulchan (in the beginning where he discusses general issues) says that it 
>is biblically forbidden to daven a different nusach.  The Sha'arim Metzuyanim 
>BaHalachah discusses this in the halachos of shemoneh esreh.  He says that a 
>shatz should daven his own nusach biychidus and the shul's for chazaras 
>hashatz.  R. Menashe Klein comes to the same conclusion in his Halachos 
>Ketanos.  My rav concurred.
     
I saw this morning that the Netziv (Meishiv Davar 1:17) says that to daven 
anything out loud (including kedushah) in a different nusach than the shul is a 
violation of lo sisgodedu according to some rishonim.  Quiet davening, he says, 
should be according to one's own nusach.

Gil Student

On Mon, Jul 10, 2000 at 06:17:06PM +0200, Carl M. Sherer wrote:
: With respect to your other question, IIRC all of the brachos require a minyan
: with one exception (which of course I now forget, but I think the relevant
: s'if in Shulchan Aruch is EH 62:4), so that would likely preclude women from
: saying them anyway.

Ein danin es ha'efshar mishe'i efshar. So, they couldn't do 7 berachos, B"H they
were able to be makayeim hilchos ishus to whatever extent they could while
under the Nazis y"sh. IOW, given the situation, why would we care about whether
the berachos are kosher, as long as the kiddushin is? Mitzvos chamuros, such
as kashrus and Shabbos weren't shayach, I don't understand why we're kleren
shailos about sheva b'rachos.

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 12-Jul-00: Revi'i, Chukas-Balak
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Yuma 35b
For a mitzvah is a lamp, and the Torah its light.         Yeshaiah 13

On Mon, Jul 10, 2000 at 11:24:50AM -0400, Noah Witty wrote:
: I recall seeing that the purpose of the quiet shmoneh esrei for the Shatz is
: to afford him an opportunity to review the words before saying them aloud.

I heard something similar. However, I'd replace "the purpose" with "a purpose",
given R' Chaim on the purpose of chazaras hashatz, and I'm not sure the ikkar
of the review was the words. I thought it was to allow the chazan to prepare
kavannos.

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 12-Jul-00: Revi'i, Chukas-Balak
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Yuma 35b
For a mitzvah is a lamp, and the Torah its light.         Yeshaiah 13

On Mon, Jul 10, 2000 at 06:48:14PM -0400, richard_wolpoe@ibi.com wrote:
: Especially wrt to Rishonim, they are often REFLECTING existing minhagim as
: opposed to starting them.

...

: Minhagim are often related to mimetics. And very old minhagim reflect oral 
: mesorah's that often {though not always} pre-date the poskim that first
: commit those minhagim to paper.

My understanding of the difference between dinim diRabbanon and takkanos on one
hand, vs mihagim OTOH, is that minhagim come from the people. Textualism is
"mussar avicha", while mimeticism is "toras imechah / toras umashcha". IOW,
instead of "often related to mimetics" I would have said "are by definition
mimetic".

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 12-Jul-00: Revi'i, Chukas-Balak
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Yuma 35b
For a mitzvah is a lamp, and the Torah its light.         Yeshaiah 13

>The basic reasoning behind RYGB is that we try and do everything according
>to all the shitot for kiddushin.

>For my edification is this stated anywhere. I would assume that it is for
>gittin in which the bet din would try and accomodate all shitot.

Sorry, I thought it was axiomatic in Halacha that if we are dealing with a
shittas Rishonim that is not "gevorfeneh", but cited and discussed by a
broad array of major Acharonim, and that the minhag sustains this practice,
that we continue to do so.

That is not the case with the issues you cite below, a Brisker chumra that
originated in the 19th or 20th century, and Chuppas Nidda that involves
hefsed mrubeh and great bizayon.

There probably is some source in the Sdei Chemed or Yad Malachi, but can't
we just agree on the axiom?

KT,
YGB

>RSZA also held that if the minhag of the shatz is to omit Baruch Hashem
>L'olam...in maariv and the minhag of the shul is to say it, the shatz may skip
>it if his omission won't be "nikar."  (I'm not sure how it's possible for the
>omission not to be nikar, but....)

I've seen R. Hershel Schachter do that many times.

>In addition to the shatz following the nusach of the tzibbur, RSZA held that
>the shatz should also use the havarah of the tzibbur (unless 1) the shatz knows
>that he's just going to get confused and mix them up or 2) if one is a shatz in
>a nusach ashkenaz shul that uses a havara sefardit, one should use havara
>ashkenaz).  (Whenever RSZA "officiated" at sefardi ceremonies, he used havara
>sefardit.)

R. Dovid Lifschitz used to insist that the ba'al koreh in the YU beis medrash
lein in ashkenazis.  R. Avi Sarfati, a sefardi, became very good at sounding
ashkenazi.

Gil Student

On 13 Jul 00, at 12:49, Stein, Aryeh E. wrote:

> RSZA also held that if the minhag of the shatz is to omit Baruch Hashem
> L'olam...in maariv and the minhag of the shul is to say it, the shatz may
> skip it if his omission won't be "nikar."  (I'm not sure how it's possible
> for the omission not to be nikar, but....)

Wait for the Tzibur to finish and start straight from Kaddish.
Interesting that RSZA would mention this since I have never seen
Baruch Hashem l'Olam said in Eretz Yisrael.

> Finally, RSZA told one person who davened nusach sefard that, if he was
> shatz during a "haicha kedusha" (and therefore saying aloud the first three
> brachos) in a nusach ashkenaz shul, the person should use nusach ashkenaz
> for those parts said aloud (i.e., say L'dor v'dor instead of atah kadosh)
> and then revert to nusach sefard for the remainder of his shemonah esrai.

What about if you come into shul late and start Shmoneh Esrei
with the Shatz so as to catch Kdusha? Did RSZA hold you should
do the same thing?

-- Carl

Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

In a message dated 7/13/00 2:55:01 PM US Central Standard Time,
micha@aishdas.org writes:
>: Especially wrt to Rishonim, they are often REFLECTING existing minhagim as
>: opposed to starting them.

 ...

>: Minhagim are often related to mimetics. And very old minhagim reflect oral
>: mesorah's that often {though not always} pre-date the poskim that first
>: commit those minhagim to paper.

> My understanding of the difference between dinim diRabbanon and takkanos on
> one hand, vs mihagim OTOH, is that minhagim come from the people. Textualism
> is "mussar avicha", while mimeticism is "toras imechah / toras umashcha". IOW,
> instead of "often related to mimetics" I would have said "are by definition
> mimetic".

You said a very, very big mouthful.

If I understand you, you're saying that dinim d'rabbonim and takkonos are
not mimetic and are derived by definition by textualism, by which I infer
you mean actual halachic analysis of gemorrah, the codes, the commentaries
and responsa, etc. Paskening, in short. You contrast that with minhagim,
which arise anthropologically from the "people," i.e., Jews trying to act
like Jews by mimicking other Jews within the local Jewish community, with
or without the aid of learned (or not-so-learned) rabbis.

Isn't this too neat of a distinction? Where, for example, does Midrash fit
into the scheme, to the extent it reveals what Jews did or didn't do to try to
actualize halacha in ancient times? Also, various chunks of Ashkenaz Jewish
prayer -- I'm thinking of the mourner's kaddish in particular -- developed
incrementally over long periods of time in different ways and for different
purposes in different parts of Europe. The developmental process was almost
purely mimetic. Once established, however, such minhagim sometimes became
the basis (or at least a component) of newer dinim d'rabbonim, thus further
blurring the distinction you're drawing between mimetics and textualism.

And where do you put Kabbalah? Kabbalistic texts reflect logical processes
that are neither textual nor mimetic. The evolution of kabbalistic learning
is even more obtuse.

A lot of this points to a central problem when observant Jews get too
introspective. Orthodoxy isn't very comfortable with cultural anthropology.
It ends up drawing all sorts of categorical distinctions and legal hierarchies
designed to preserve the (literal) sanctity of halacha d'rabbonim. It ends
up saying things like the rishonim reflected minhagim but didn't "start"
them. But minhagim are evolutionary. Whatever their actual historical
origins, they interact constantly with other forms of legal actualization,
including learned rabbinic exercises in exegesis, textual or not. After a
while, it's almost impossible to sort out what is truly minhag and what is
truly d'rabbonim. If one were to try to do so, he'd have to resort to the
tools of cultural anthropology, which aren't particularly kosher in the
first place. So a lot of this sort of analysis is left to the academics or
Conservatives, whose work is suspect in the first place.

David Finch

> If...one poskens on the basis of what one learns, and if one's learning is
good, are there still countervailing (halacha, mesorah, or purely communitarian
concerns) to hide the learning and rely on the existing minhag?

This issue is raised by the gemara in the beginning of the 4th perek of
Pesachim (Makom SheNahagu) - 'devarim hamutarim v'achreirim nahagu baheim
issur iy atah rashei l'hatir bifneihem' - i.e. technically the halacha may
permit something but one is still bound by prevailing minhag. However,
there are nuances to this rule, see the examples of the gemara and Tos. 51a.

In a message dated Fri, 14 Jul 2000  7:24:51 AM Eastern Daylight Time,
Carl Sherer <sherer@actcom.co.il> writes:
> RSZA also held that if the minhag of the shatz is to omit Baruch Hashem
> L'olam...in maariv and the minhag of the shul is to say it, the shatz may
> skip it if his omission won't be "nikar."  (I'm not sure how it's possible
> for the omission not to be nikar, but....)

Wait for the Tzibur to finish and start straight from Kaddish.

It happens in our shul from time to time, believe me it's nicar.

Kol Tuv,
Joel Rich

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