Avodah Mailing List

Volume 06 : Number 092

Wednesday, January 3 2001

• RE: Compilation of the Mishnah - Re: Dor Revi'i and TSBP
• RE: T'filin
• Re: Compilation of the Mishnah - Re: Dor Revi'i and TSBP
• Re: mishnah
• Re: Rambam, Hilchos Mamrim 2:1 - Re: Dor Revi'i and TSBP
• RE: T'filin
• Some Thoughts on Limud Zechut
• Re: Women Davening
• Re: Women Davening
• Re: Women Davening
• Re: Women Davening
• Re: Women Davening
• Re: Women Davening

David Glasner
>> The MC says that the process that resulted in the Mishnah was like a
>> gathering of a sanhedrin and a stam Mishnah is like the ruling of this
>> sanhedrin. No one can disagree with a stam Mishnah...

> I still don't understand. How does one Sanhedrin control a later one?
> How does the MC read Mamrim 2:1? Forget Mamrim 2:1, how does he read the
> p'sukim in Shoftim? Besides the halakhah p'sukah does not always accord
> with a stam Mishnah.

Hyptothesis:
There WERE no more Sanhedrins after the Churban. Since Rebbe was using
pre-churban sources and digests of pre-churban sources, therefore he
made a final, definitive, normative digest of the "torah" of the last
Sanhedrin. This was the last and final loophole to make Sanhedrin
level psak.

IOW, therefore the Mishna IS binding until a new Sanhedrin comes about.

Shalom
Rich Wolpoe

RSBA:
>> Those  who do  put on tfillin during Chol Hamoed, what are the reasons
>> given why a person should put on tfillin during Chol HaMoed?

> Because that's what it says in SA...
>                 . The question is not on those of us who put on Tefillin,
> but to those who don't.

Mechy Frankel
> RSBA is correct, at least for ashqenazim. The burden does fall a little
> more heavily on those (of us) who do not put on t'filin on chol hamo'eid
> since the remoh posqened one should -- while the shulchon oruch explicitly
> posqened one should not. However, I don't think anyone has mentioned
> the zohar...

I Saw that R. Hamburgers' Shroshei Minhag Ashkenaz deals with this Zoharic
influence and states that Ashkenazim as a rule do NOT use the Zohar to
over-ride their minhag, AND this minhag has a basis in a Yershalmi iirc.

This Zoharic influence on Minhag Ashkenaz is davka one of the breaks
with Mesorah which I have questioned.

I also heard - but I cannot confirm - that the Gra held that the TB and
the Zohar could not be in conflict and therefore dealt with percevied
stiros in such a way as to be mekayime shneihem. And of course the Gra
is the cheif source amongss Ashkenazim to revise this minhag

Shalom
Rich Wolpoe

David Glasner wrote:
> I still don't understand. How does one Sanhedrin control a later one? How does
> the MC read Mamrim 2:1? Forget Mamrim 2:1, how does he read the p'sukim in
> Shoftim? Besides the halakhah p'sukah does not always accord with a stam
> Mishnah.

The MC claims that there are some times when a Sanhedrin's decision is final.  I
like the fact that his approach is lomdish and traditional.  However, on this
point I fail to see a strong basis in the texts so I find it difficult to
defend.

Your question regarding a stam Mishnah can be answered, but you probably won't
be satisfied.  Whenever the halachah is not like the stam Mishnah, we can deduce
that the Mishnah was not a product of acharei rabim lehatos.

Gil Student

Eli Turkel wrote:
> Chazon Ish argues and says that the Amoraim took on themselves not to
> argue with Tannaim because they recognized the greater level of the
> Tannaim. His main proof is that Amoraim don't argue with Beraitot or
> other statements of Tannaim that are not Mishnaic.

Interesting.  I heard from R. Hershel Schachter a different explanation in the
name of the Chazon Ish in hilchos treifos (needle in haystack).  The way RHS
explained the CI is that the gemara (Sanhedrin 97a) says that the world will
consist of 2000 years of tohu, 2000 of Torah, and 2000 of mashiach.  The CI
explains that it is during the 2000 years following matan Torah that Torah was
established and cannot be changed.  That is why chazakos were determined in that
period.  Interestingly, using "frum" chronology (which has been debated here),
the 2000 years of Torah ended a little after Rebbi's time.  That, according to
RHS in the name of the CI, is why amoraim cannot disagree with tannaim.  Tannaim
lived during the time in which Torah was established and later people cannot
dispute what was established during the 2000 years of Torah.

Gil Student

David Glasner wrote:
> I don't necessarily disagree with this, but I hope you can see why I don't
> think that you have established that under the terms of Mamrim 2:1, there is
> any clear limitation on what a Sanhedrin could do in the way of changing
> halakhot based on new or alternative drashot to those that are in the Talmud.

> We seem to have arrived at some degree of consensus here, but somehow I think
> that there are still disagreements between us lurking beneath the surface.
> But that's not necessarily a bad thing.

I think the disagreement regards what Mamrim 2:1 allows to be changed by a later
Sanhedrin.  I am saying that it only applies to NEW halachos derived through the
13 midos.  You are saying that it applies to any decision of a Sanhedrin.
Theoretically, that has great ramifications.  Practically, there won't be any
Sanhedrins until Eliyahu comes to clarify this issue.

Gil Student

Rich Wolpoe wrote:
> I also heard - but I cannot confirm - that the Gra held that the TB and the
> Zohar could not be in conflict and therefore dealt with percevied stiros in
> such a way as to be mekayime shneihem. And of course the Gra is the cheif
> source amongss Ashkenazim to revise this minhag

Yes.  It is in one of the Ma'aseh Rav-type books that are published in the back
of the Sidur HaGra.  I think the only machlokes (or one of only two) is whether
you can walk behind someone davening shemoneh esreih, the TB being meikel and
the Zohar being machmir.

Gil Student

I had agreed to undertake to write about limud zechut as a concept, and
how it applied to all that I had written on this topic. This has turned
into a more complex posting that I intended and I apologize for that.

Let me start by noting the obvious. The vast overwhelming majority of
contemporary poskim who address the issue of hair covering rule the
obligation to cover to be a torah violation; see Yechavah Daat 5:62,
Tzitz Eliezer 7:48:3, Iggrot Moshe EH 1:53, Seredai Aish 3:30. Indeed,
one is hard pressed to even find someone whose reputation we are familiar
with who disagrees with that. Either one has to have an exceptionally
clear minhag ha-Avos or be pretty foolish to defy the consensus.

A limud zichus is a plausible path not taken by the poskim. Let me
elaborate. Sometime sources are unclear in the talmud (or rishonim, or
achronim), and debate follows. Sometimes one posek advances a view which
is plausible in the sources, but does not disprove other plausible views.
In those circumstances, since analytical proof does not work, as neither
side can logically prove the other wrong, we really on second level rules
as to what we should do. Sometime, indeed, views that are analytically
plausible are not taken by any halachic authorities and one should not
follow a practice not endorsed by poskim even if it is analytically
plausible within the sources. When someone notes that this particular
practice can be defended if one heads down the path not taken by the
poskim (or by a minority of poskim), and no one can prove this path
wrong -- i.e., inconsistent with the sources -- that is a limud zechut.
A limud zechut is not a das yachid, which is not a chiddish. It is,
at some level, less than all of them (but more than pilpula belama).

In my view of the halacha as a system, people who are interested in
the halachic system not only put forward ideas, but are continuously
asked to rate their ideas. A person who answers shayloas ranks the
truthfulness of his idea (meaning how truthful do they think the idea --
and not how truthful others think the idea) by how one they word ideas.
'Pilpul' as a term was used to identify an idea that the person putting
the idea forward uses to note that this idea has no halacha lemase value,
and it is merely a concept -- indeed, sometimes an incorrect idea --
that is useful to explain other ideas, or elaborate on other concepts.
Like some of the ika de'amrais in the gemera, they are speculation or
even merely straw men at best.

In the context of hair covering, there is quite a bit of pilpul where
commentators advance rationales for the prohibition of married women
not covering their hair which indicate that married woman need not
cover their hair if religious women generally do not. By categorizing
the prohibition to uncover in the manner they do, these poskim seem to
indicate that the prohibition is time (or place) bound. For example Sefer
Aleh HaMitzvot (of Rav Chagiz) Mitzvah 262 classifies the prohibition to
cover as part of chukat hagoy; something similar is done by Rav Perlow
in Sefer Hamitzvot Shel Rav Sadia Gaon, 1:650.

Yet other pilpulistic analysis focus on the linguistic ambiguity in the
hebrew word "per'iah" which is the word used in Numbers 5:18, the verse
that is the basis for the prohibition. These authorities ponder whether
a torah prohibition is violated when women go uncovered, and appear
to limit the torah prohibition to disheveled, which they claim is what
the word per'iah means, rather than uncovered; Peni Moshe, commenting
on Even Haezer 21:2 (in Mareh Hapanim #2); Rabbi A. Hoffer, "Which
Disheveling [Uncovering] of Hair for Women is Biblically Prohibited?,"
Hatzofeh Lechachmat Yisrael 12:330 (1928); and perhaps Rav M. Kasher,
Devri Menachem, Orach Chaim 5:2:3.

Other ideas are plausible, and can be defended, and are put forward to
explain why people engage in the conduct that they do, but not with
the direction that any one should adopt the lower standard -- but
merely to note that the lower standard has halachic basis. Consider a
different women's issue. Magen Avraham (OC 106:2) when he puts forward
his tentative understanding of why woman maybe do not have to pray the
standard full prayer on a daily basis, he is not advocating that women
stop their daily prayers, but he is explaining why women not saying the
full prayers daily is a plausible result, and why the conduct of the
women is thus obviously and patently inconsistent with the dictates of
the halacha. He is not advocating the correctness of his view, but he
does comfortably note it as reasonable and plausible. That limud zechus
(which was defending what was already the common practice in the time of
the Magen Avraham) found a great deal of favor in the eyes of many and
was widely repeated -- even though one is hard-pressed to find anyone who
says that one should conduct oneself in that way lechatchela -- but the
minhag yisrael in many many communities is to follow this limud zechut
(even as the Magen Avraham never quite says that a woman may in fact not
pray the full twice daily prayers, but words the penultimate phrase as
'efshar' which is far from an endorsement.)

Consider the words of the Ben Ish Chai (in Sefer Chukai Hanashim Chapter
17) written as, I suspect, some sort of a limud zechut on the conduct
of Jews in Eastern Europe with regard to hair covering. He writes
	"It is prohibited for a women to reveal any part of her body,
	only her face, neck and hands may be revealed. . . . However,
	the women of Europe have commenced . . . to uncover their faces,
	neck, hands and heads [hair]. It is true, they uncover their hair
	-- according to our law it is prohibited -- but yet they have
	a justification, because they say that the tradition has become
	accepted, both among the Jews and other nations where they live,
	to accept uncovering of hair, like the uncovering of the face
	and hands, as not causing provocative thoughts . . ."

This type of limud zechut is not the same as a das yachid, which is
the view of a single (or small group) of poskim. In my view, minority
opinions (particularly of achronim) are only really of value when they
are counter to ones inclination, but yet not provable wrong. Let me give
you an example of that from Iggrot Moshe (and this method of reasoning was
quite unusual for Rav Moshe). In Igrot Moshe EH 1:70, Rav Moshe writes in
a particular be'deeved situation, that one can rely on the view of Rav
Chaim Ozer Grodzinski, even though in Rabbi Feinstein's opinion "it is
not logical at all." But yet, because Rabbi Feinstein could not disprove
this idea, he could not dismiss it. That type of analysis is (I think)
better than a typical limud zechut in that this type analysis notes that
someone thinks this conduct is actually mutar lechatchela, and the second
posek merely is relying on the first one bede'eved. In the context of hair
covering, the most eminent example of a das yachid Rabbi Yehoshua Babad
(the father of Rabbi Joseph Babad, the author of the Minchat Chinuch), in
Responsa Sefer Yehoshua, #89.  He states:
	If the tradition had been that married women went with their
	hair uncovered and single women with their hair covered,
	then it would be prohibited for single women to go uncovered,
	and married women could walk around uncovered . . . . All is
	dependent on the tradition (minhag) of the women.

Similar such sentiments are taken by Rabbi Yosef Masas in Mayim Chaim
2:110 (and Otzar Michtavim #1884), and by Rabbi Moshe Malka (Vehashiv
moshe 34). This rationale appears to have been accepted, at least in
theory, by the Machatzitz Hashekel (commenting on Even Haezer 21:5)
when he states that the reason single women do not cover their hair
is because the standards of observant women in society determine the
permissibility of uncovering. He states this is so even according to
those authorities who consider it a biblical obligation for single women
to uncover their hair.

Allow me to conclude with an observation. I was once participating
in an email discussion about cheating on income taxes in Israel (I was
against it), and one of the corespondents was quoting rationale after
rationale and verbal conversation after verbal conversation with 'poskim'
who permit this (he claimed). I observed that I can find more published
teshuvot permitting married women not to cover their hair than I can find
written teshuvot permitting cheating on Israeli income tax according to
Jewish law! To my surprise, this statement deeply bothered people --
even as I think it a true statement about the published literature --
certain people view the obligation of married women to cover their
hair as a crucial social component of orthodoxy, to which no breaches
in the wall shall be tolerated. That approach is inconsistent with my
understanding of how halacha ought to function.

In sum, even as I think that there is quite a bit of basis to that
which I wrote in my previous posts and in the longer Hebrew article,
it is just a limud zechut, and I would never put it as more than that.

Michael Broyde

Yet another Areivim thread went from cultural (do women formally daven?)
to halachic (should they?) without switching venues. So, without further
ado....
-mi

In message <H00013ad07e27002@MHS>, Gil.Student@citicorp.com writes to Areivim:
>Our case is different.  When the overwhelming minhag is like a limud zechus then
>many poskim would lechatechilah pasken like the minhag.  That is a very common
>method of pesak and probably has just as much historical precedent as the
>alternative - a textual pesak.  Frankly, I feel more comfortable with the
>latter, as you clearly do as well.  However, there are MANY poskim who will
>pasken like the prevalent minhag unless there is no support for it at all.  Even
>then, some will still pasken like the minhag.  Consider the case of "kashering"
>flatware by sticking them in dirt for three days.  There is no textual basis for
>it but it is a very prevalent minhag and I've even heard of rabbonim advising
>people to kasher flatware this way.  The chassidishe poskim sometimes do this as
>well although I can't think of a good example right now.  Perhaps when my cold
>clears up.

Maybe I am a bit too livishe, but I have always been taught that kashering
by means of putting in the earth is a classic example of minhag shtus(even
though, it is possible to be m'kayam both by requiring both sticking
in dirt and then hagala, something not possible with davening and not
davening)

I would, however, be interested in any other examples you can think of.

Perhaps though to recap though where we are, as I suspect we have gotten
to the heart of the matter:

a) the "black letter halacha" is that women should daven.

b) the prevailing minhag (except among what I have called MO serious)
is that women do not daven.

c) there is a limud zchus found by the Magen Avraham based on a reading
of the Rambam for the prevailing minhag.

The way we expect a Rav to posken however, appears to vary.

My perspective is that a Rav will always, if asked a straightforward
question without extenuating circumstances, posken like a). However,
no individual shiala comes without its surrounding circumstances (and
no good Rav ignores these). So that, for example, I can well see a Rav
when asked an individual question taking into account the following:

i) will the woman in question willingly follow the psak, or will she
feel resentful or ignore it, given that her mother and all her friends
are not doing likewise? Is she capable of being "the only one out"? In
addition, is it realistic to ask a woman to take on a whole new burden
at a period in her life when there are substantial other changes (such
as getting married or having children) which is often the point at which
such shialas get asked? Will she be willing to accept that what she has
done up until now is not really in accordance with the halacha? Might
it not shake her whole faith in everything she has been taught and hence
jeopardise everthing? (All of these are particularly difficult to judge
if the woman herself is not the person asking the shiala, but it is
being asked on her behalf by her husband).

ii) Is giving a psak like this likely to cause sholom bayis problems?
If the husband in question is used to his mother dropping everything for
himself, his brothers, sisters and father, might he not feel resentful
if his wife does not do likewise but rather prioritises davening,
especially if all his friend's wives prioritise the way his mother did?
Will he (rightly or wrongly) resent the additional cover he may have to
provide to allow for this to happen? This is a serious halachic concern,
because, for example, kibud av v'am of the mother's parents is waived
for sholom bayis concerns.

That is, the common thread running through these two paragraphs is even
if the husband or the woman herself is capable of knowing intellectually
that she ought to make davening a priority, if he or she is not capable
of internalising that emotionally, then we do not have a l'chatchila
situation, and that emotional state needs to be taken into account.

And, to be honest, I suspect it is rare that a shiala is asked of a rav
where one of i) or ii) or both does not come into play, because if they
did not, it is highly unlikely there ever would have been a shiala.
ie if, at least one of the parties didn't have a level of emotional
resistance or feel a certain psychological pressure the other way, then
it would just be built in and part of the life of the couple without
needing any questions (how can davening to Hashem be bad?).

But, because these decisions are tailored to the individual circumstances,
and because the Rav is still holding that in the ideal world, the psak
would be otherwise (and if asked to generalise, he would refuse), I still
consider him to be holding, l'chatchila, by the black letter halacha.

You, by contrast, seem to be saying that where there is a prevailing
minhag, then it is not only fine for the women themselves to continue
doing what they have always done, but that it is a perfectly acceptable
derech for a Rav to posken l'chatchila that way, (ie in the air or in
theory, or if it is clear that none of the considerations in i) and ii)
apply) even if there is *no* textual support at all, and certainly if
there is tenuous textual support.

This, however, it seems to me, forces us right back to RMJB and the
uncovering of hair.

Because, while among many of the communities from which many of you
hail, it is not the prevailing minhag, historically uncovering hair
was indeed the minhag among significant communities, not only among the
original shomer mitzvos communities in America, but also among various
Litvishe communities (I am *not* talking about Hungarians, who knew
from Hungarians!). In fact, the links are often closer than you think.
In my observation, a significant number of those women (whom I have dubbed
MO serious) who have taken on davening even though their mothers do not
and neither do the women in the community they grew up in, have *also*
taken on hair covering, even though their mothers do not and neither do
the women of the community they grew up in. This, of course, makes sense,
they have abandoned mimetics where directly contradicted by the text,
and both of these positions are mandated by the text.

But, it would seem, according to you, that a Rav from such a community
should/may posken l'chatchila that a woman may uncover her hair, *even*
if there is no textual support whatsoever, and certainly if there is
tenuous textual support, even if the logic seems somewhat shaky at times.
While according to me, such a Rav would never posken l'chatchila that
this is OK, but may well tolerate or hold by it b'dieved, taking into
account the kinds of considerations to be found in paragraphs i) and ii).

And yet, we have had stated emphatically on this list, that it is
impossible that RYBS (or a whole host of Lithuanian gedolim) could
possibly have acted either as you have suggested or as I have suggested
vis a vis hair covering. That is, I would conclude, significant numbers
on this list disagree with both you and me on how a Rav should or may act,
and would hold that a Rav must posken, in all circumstances (minhag or no
minhag, tenuous textual support or no) like the clear textual position.
It seems to me that those holding such a position must also hold that
all women must daven at least twice a day, without exception, and, in
the words of the Mishna Brura, women should be admonished should they
not do so.

Regards
Chana

In message , Gil Student <gil_student@yahoo.com> writes
>I don't see that the Magen Avraham is so shver.  Why
>is it crazy to say that when chazal instituted the
>nusach ha'tefillah they only instituted it for men...

Can you think of any other case where:

a) we started out with a mitzva d'orisa;

b) chazal instituted the method why which that mitzva d'orisa is to be
carried out.

c) they did not require women to follow they method they instituted even
though they were obligated under the original mitzva d'orisa.

Examples of a) and b) occurring are:

i) kiddush on shabbas;

ii) various mitzvos (four cups etc) by the seder;

iii) possibly shiurim (eg how much one has to eat on yom kippur to be
over the issur d'orisa).

However, I do not believe there is or know of a case where a), b) and c)
is suggested to have occurred - except for the Magen Avraham's *efshar*.

The other problem, as I pointed out, with poskening like the Magen
Avraham, is that it means you have to hold like the Rambam against
Tosphos et al that davening is originally a mitva d'orisa.  That has
wider consequences than just women's davening, it has a whole lot of
consequences for various shialas in men's davening.  As the majority of
poskim, as brought by the Mishna Brura, do not agree with this position,
you have to look at a whole range of new issues that are therefore not
discussed and hold against a whole range of people on a whole range of
other issues.

Or, as I suspect is often the case if somebody has not thought the
matter through, that they posken inconsistently - holding that davening
d'orisa for women but not for men!

Regards
Chana

Chana Luntz wrote:
> Can you think of any other case where:
> a) we started out with a mitzva d'orisa;
> b) chazal instituted the method why which that mitzva d'orisa is to be
> carried out.
> c) they did not require women to follow they method they instituted even
> though they were obligated under the original mitzva d'orisa.

No, but you limited the cases too narrowly.  How about looking for a case where
the minhag seems to be against the texts and the poskim of the time - whether
rishonim or acharonim - did everything they could to justify the minhag, even
resorting to a little inconsistency?  I think that there are plenty of those.

Gil Student

In message <H00013ad07e0c232@MHS>, Gil.Student@citicorp.com writes
>        you limited the cases too narrowly.  How about looking for a case where
>the minhag seems to be against the texts and the poskim of the time - whether
>rishonim or acharonim - did everything they could to justify the minhag, even
>resorting to a little inconsistency?  I think that there are plenty of those.

I agree with you. But, where it is inconsistent with the way we generally
posken, that is what I would call a limud zchus (as opposed to, say,
some of the cases in tosphos, where they learn from the minhag how
to understand the texts and we go on to posken accordingly, without
inconsistency).

The point about a limud zchus is that "they have on whom to rely" (even
though it may be, at times, rather tenuous). In cases where people have
on whom to rely, then it is not appropriate for someone else to protest
their actions, ie tochacha is not appropriate.

However, that is different from poskening for someone who comes to ask
a shiala l'chatchila - unless the reality of the circumstances for that
person is that it is not really a shiala l'chatchila, but a form of
bidieved, due to their circumstances - eg you judge that if you tell
them to follow the strict letter of the halacha, they may go off the
derech, or will make their life incredibly difficult. Classic cases of
the latter are when dealing with ba'alei teshuva and they come to ask a
shiala what they can do when eating/staying at their parents. As a form
of example of this, when my husband's parents came from Egypt, they had
never run into the glatt/non glatt distinction - as of course Sephardim
posken it is chalak beis yosef or it is treif, so his mother only knew
of kosher and treif. However, in England, most of the kosher meat is
non glatt, and as impoverished refugees, she understandably went for
the cheapest kosher butcher, who of course is non glatt. To this day,
Robert has never been able to either explain the distinction to his
mother or get her to change her butcher. When he asked a shiala about
it his posek held that *at his mother's house* he (Robert) was allowed
to eat non glatt meat on the grounds that, his mother (and he, Robert)
does have on whom to rely (ie the Rema and all these Ashkenazim) and
because of this, and the interplay of kibbud av v'am, he should rely on
this kula of the Rema's in this circumstance only. But that is still a
form of b'dieved psak, in all other circumstances, and as basic halacha,
his posek holds, like all Sephardim, that only glatt is OK.

I can see similar scenarios arising with women's davening (especially
if the person actually asking the shiala is the man, and their is doubt
whether the woman will in fact follow the psak if given). But, just as
it is not fair to say that Robert's posek is *poskening* that non glatt
meat is OK, such a psak is not saying that non davening is OK, just
that there is a limit to how far it is halachically appropriate to push
a person who is not able/capable of making the change in such bidieved
circumstances when they have on whom to rely, even a rejected opinion.

Regards
Chana

--
Chana/Heather Luntz

Chana Luntz wrote:
> I agree with you.  But, where it is inconsistent with the way we
> generally posken, that is what I would call a limud zchus...

Our case is different.  When the overwhelming minhag is like a limud zechus then
many poskim would lechatechilah pasken like the minhag.  That is a very common
method of pesak and probably has just as much historical precedent as the
alternative - a textual pesak.  Frankly, I feel more comfortable with the
latter, as you clearly do as well.  However, there are MANY poskim who will
pasken like the prevalent minhag unless there is no support for it at all.  Even
then, some will still pasken like the minhag.  Consider the case of "kashering"
flatware by sticking them in dirt for three days.  There is no textual basis for
it but it is a very prevalent minhag and I've even heard of rabbonim advising
people to kasher flatware this way.  The chassidishe poskim sometimes do this as
well although I can't think of a good example right now.  Perhaps when my cold
clears up.

Gil Student

In message <H00013ad07e27002@MHS>, Gil.Student@citicorp.com writes
>Our case is different.  When the overwhelming minhag is like a limud zechus then
>many poskim would lechatechilah pasken like the minhag...

Maybe I am a bit too livishe, but I have always been taught that kashering
by means of putting in the earth is a classic example of minhag shtus(even
though, it is possible to be m'kayam both by requiring both sticking
in dirt and then hagala, something not possible with davening and not
davening)

I would, however, be interested in any other examples you can think of.

Perhaps though to recap though where we are, as I suspect we have gotten
to the heart of the matter:

a) the "black letter halacha" is that women should daven.

b) the prevailing minhag (except among what I have called MO serious)
is that women do not daven.

c) there is a limud zchus found by the Magen Avraham based on a reading
of the Rambam for the prevailing minhag.

The way we expect a Rav to posken however, appears to vary.

My perspective is that a Rav will always, if asked a straightforward
question without extenuating circumstances, posken like a). However,
no individual shiala comes without its surrounding circumstances (and
no good Rav ignores these). So that, for example, I can well see a Rav
when asked an individual question taking into account the following:

i) will the woman in question willingly follow the psak, or will she
feel resentful or ignore it, given that her mother and all her friends
are not doing likewise? Is she capable of being "the only one out"? In
addition, is it realistic to ask a woman to take on a whole new burden
at a period in her life when there are substantial other changes (such
as getting married or having children) which is often the point at which
such shialas get asked? Will she be willing to accept that what she has
done up until now is not really in accordance with the halacha? Might
it not shake her whole faith in everything she has been taught and hence
jeopardise everthing? (All of these are particularly difficult to judge
if the woman herself is not the person asking the shiala, but it is
being asked on her behalf by her husband).

ii) Is giving a psak like this likely to cause sholom bayis problems?
If the husband in question is used to his mother dropping everything for
himself, his brothers, sisters and father, might he not feel resentful
if his wife does not do likewise but rather prioritises davening,
especially if all his friend's wives prioritise the way his mother did?
Will he (rightly or wrongly) resent the additional cover he may have to
provide to allow for this to happen? This is a serious halachic concern,
because, for example, kibud av v'am of the mother's parents is waived
for sholom bayis concerns.

That is, the common thread running through these two paragraphs is even
if the husband or the woman herself is capable of knowing intellectually
that she ought to make davening a priority, if he or she is not capable
of internalising that emotionally, then we do not have a l'chatchila
situation, and that emotional state needs to be taken into account.

And, to be honest, I suspect it is rare that a shiala is asked of a rav
where one of i) or ii) or both does not come into play, because if they
did not, it is highly unlikely there ever would have been a shiala.
ie if, at least one of the parties didn't have a level of emotional
resistance or feel a certain psychological pressure the other way, then
it would just be built in and part of the life of the couple without
needing any questions (how can davening to Hashem be bad?).

But, because these decisions are tailored to the individual circumstances,
and because the Rav is still holding that in the ideal world, the psak
would be otherwise (and if asked to generalise, he would refuse), I still
consider him to be holding, l'chatchila, by the black letter halacha.

You, by contrast, seem to be saying that where there is a prevailing
minhag, then it is not only fine for the women themselves to continue
doing what they have always done, but that it is a perfectly acceptable
derech for a Rav to posken l'chatchila that way, (ie in the air or in
theory, or if it is clear that none of the considerations in i) and ii)
apply) even if there is *no* textual support at all, and certainly if
there is tenuous textual support.

This, however, it seems to me, forces us right back to RMJB and the
uncovering of hair.

Because, while among many of the communities from which many of you
hail, it is not the prevailing minhag, historically uncovering hair
was indeed the minhag among significant communities, not only among the
original shomer mitzvos communities in America, but also among various
Litvishe communities (I am *not* talking about Hungarians, who knew
from Hungarians!). In fact, the links are often closer than you think.
In my observation, a significant number of those women (whom I have dubbed
MO serious) who have taken on davening even though their mothers do not
and neither do the women in the community they grew up in, have *also*
taken on hair covering, even though their mothers do not and neither do
the women of the community they grew up in. This, of course, makes sense,
they have abandoned mimetics where directly contradicted by the text,
and both of these positions are mandated by the text.

But, it would seem, according to you, that a Rav from such a community
should/may posken l'chatchila that a woman may uncover her hair, *even*
if there is no textual support whatsoever, and certainly if there is
tenuous textual support, even if the logic seems somewhat shaky at times.
While according to me, such a Rav would never posken l'chatchila that
this is OK, but may well tolerate or hold by it b'dieved, taking into
account the kinds of considerations to be found in paragraphs i) and ii).

And yet, we have had stated emphatically on this list, that it is
impossible that RYBS (or a whole host of Lithuanian gedolim) could
possibly have acted either as you have suggested or as I have suggested
vis a vis hair covering. That is, I would conclude, significant numbers
on this list disagree with both you and me on how a Rav should or may act,
and would hold that a Rav must posken, in all circumstances (minhag or no
minhag, tenuous textual support or no) like the clear textual position.
It seems to me that those holding such a position must also hold that
all women must daven at least twice a day, without exception, and, in
the words of the Mishna Brura, women should be admonished should they
not do so.

Regards
Chana

********************


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