Avodah Mailing List

Volume 08 : Number 077

Wednesday, December 26 2001

• Zoys Khanike
• Re: halacha methodology
• Re: Torah Temimah
• Re: The Torah Temimah
• Re learning on Nitil
• Re: The Torah Temimah
• Re: The Torah Temimah
• Re: Torah Temimah
• Torah Temimah
• Re: Torah Temimah
• Re: Halacha Methodology
• Re: halacha methodology
• Re: halacha methodology
• Re: halacha methodology

From: "Sholem Berger" <sholemberger@hotmail.com>
> Does anyone know the etymology of the term "Zoys Khanike"? I've seen it
> said that the term comes from the leyning for the last day, but this
> explanation is always given without attribution. A friend suggests
> that it might be a folk-etymology for the original phrase "oys Khanike
> [Chanukah's over]".

As I have yet to hear or see it referred to thus in Litvish/Ashkenaz
sources, it seems to be a chasidisheh thing. (What about by the Sefardim?)
There is quite a lot of drush written about it in chasidishe sforim.
The Bnei Yissoschor has a page or so on it (Maamorei Kislev/Teves,
maamar 12).

SBA

On Thu, Dec 20, 2001 at 07:24:44PM +0200, S Goldstein wrote:
: I think you are looking at sif katan 13 regarding "kim li"; see instead
: sif katan 2, especially at the end that "darka shel Torah" is for a
: chacham to CONTRADICT post-Shas precedent.

And yet the SA and Rama assume that someone who contradicted precedent
is a dayan sheta'ah!

What I am raising is a different way of looking at this quote's relevence
to our discussion. The dayan's actions themselves are bedi'eved. Even if
the pesaq stands, it is far from clear that it would be followed for
future situations; IOW, I doubt it sets precedent.

OTOH, we can look at what situations are defined as a "dayan sheta'ah",
and get a list of potential ta'uyos.

-mi

-- 
Micha Berger                     Life is complex.
micha@aishdas.org                    Decisions are complex.
http://www.aishdas.org                   The Torah is complex.
Fax: (413) 403-9905                                    - R' Binyamin Hecht

In a message dated 12/23/01 2:40:59pm EST, Avi Burstein aviburstein@yahoo.com
writes:
> Whenever the book of "My Uncle, the Netziv" comes up in conversation,
> people pull out the, "well, we don't hold of everything the TT says
> anyway" argument. It seems to me to be used in those circles to discredit
> him since the book has so many ideas which they are opposed to (and
> can't disprove, so instead they discredit the source).

I know that this is not politically correct but my rebbe taught me not
to take ANYONE's word as correct w/o investigating it first

IOW the only reason to discredit the TT in the fist place is because of
a presuppositoin that otherwise he would have been treated as infallible.

Once you remove this pre-suppositoin you check into what the TT says
on case by case basis. True the TT may have a lower batting average of
reliability than say another "gadol" but I can garantee you that outside
of HKBH NO ONE bats 1.000.

BEH the Halachah methodoloogy thread will pick up on this.

Look Abbaye bested Rava 6 times and we say Halachah like so and so
EXCEPT...

Even BS bests BH once in a while. Even Aharon and Elazar "corrected"
Moshe on occasion. Sara out-navi'ed Avarham legabei Yishmael.

W/O naming names on list, I'm sure we can think of other respected Sfarim
that have their own fair share of errors.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

In Avodah 8:76, Rabbi Rich Wolpoe wrote <<< The word Zmanim was said
by some to have been a place marker (like an X) for the specific Hag.
So on Pesach it would have been mkadesih Yisrael v'hag HaMatzos, and
printers - in order to save ink - put in hazmanim as a fill in the blank.
that is the theory. I have not clue if it is true. >>>

I have heard this theory many times, but something in it smacks of
Urban Legend.

Let's suppose for a minute that the bracha really was specific to the
chag, and that the printers desired to print it in a more generic fashion
to save ink and/or space on the page.

1) Would they have chosen to use the word "v'hazmanim"? Wouldn't
"chag ploni" have been a much simpler and more natural choice? I admit
that "v'hazmanim" is shorter (7 letters, vs. 7 letters and a space)
but still... (Can anyone get a fix on when the first benchers started
putting "ploni" in Yaaleh V'yavo? If it is only recently, then perhaps
this argument is a weak one.)

2) Why is "v'hazmanim" in the plural? Granted that "matzos", "shavuos"
and "sukkos" are plural, but it still seems like a really odd way to say
"insert name of chag here".

3) Current practice in siddurim is that the text of the tefilos have
nekudos, but the instructions do not. If someone can find an old siddur
which has "m'kadesh Yisrael" with nekudos, but "v'hazmanim" without
nekudos, that would be a very strong piece of evidence to the above
theory. But failing that, my first two questions seem very strong.

Akiva Miller

Take a look at Minhagei Yisrael ( Sperber, Mossad HaRavKook, Vol. 3 ,
pp93-95 and footnotes ) re leaening on night of 12/24. See , especially
the comments of the Chasam Sofer, who sees no makor for the minhag,
except the posibility of pogroms and who suggests that we learn on that
night both before and after chatzos. Why is the night called Nital-the
day he was crucified ( "al shem sofo). I recently saw a small sefer on
the origins and minhagim of Nital, but i don't remember it at present.

    Steve Brizel
    Zeliglaw@aol.com

On 24 Dec 2001 at 14:50, kennethgmiller@juno.com wrote:
> 2) Why is "v'hazmanim" in the plural? Granted that "matzos", "shavuos"
> and "sukkos" are plural, but it still seems like a really odd way to say
> "insert name of chag here".

I understood that v'ha'zmanim referred not to the chag itself but to
Beis Din's power to be mekadesh the chodesh (thereby determining when
the chag would fall out) and that's why the bracha had to have Yisrael
in the chasima before ha'zmanim. That would (obviously) contradict the
theory that v'ha'zmanim was a place marker.

-- Carl

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

In a message dated 12/24/01 9:51:27am EST, kennethgmiller@juno.com writes:
> In Avodah 8:76, Rabbi Rich Wolpoe wrote <<< The word Zmanim was said by 
> some to have been a place marker (like an X) for the specific Hag.  So on 
> Pesach it would have been mkadesih Yisrael v'hag HaMatzos, and printers - 
> in order to save ink - put in hazmanim as a fill in the blank.  that is the 
> theory. I have not clue if it is true. >>>

> I have heard this theory many times, but something in it smacks of Urban 
> Legend.

Yep As i said "it was said." I agree that AFAIK it is jsut one of those 
ideas. I have no firm knowledge of this being said by any authoritative 
voice. To me it is but speculatoin at this point.  

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

Larry Teitelman wrote:
>(2) I have a copy of the Meshivas Nafesh (Nefesh?) written by a Rabbi 
>Feldman (not the one you cite, but perhaps related)
>- with a haskama from the Mehaber TT himself - which is a set
>of mareh mekomos as well as a *lot* of corrections.

The author's grandson is R. Daniel Z. Feldman of YU. No relation to
the Feldmans of Atlanta/Ner Israel. The book is called Meshivat Nefesh,
as per the title page and short English introduction in the back.

I think YU put out a similar but shorter (and paperback) book with
indeces and corrections to the Torah Temimah by Isidor Margolis.

>(4) I recall seeing some criticism of TT in Rav Kasher's Torah Shelema. 
>While I don't remember the places, this should not be surprising 
>considering that their goals were similar in nature, but the products are 
>seemingly vastly different, both qualitatively and quantitaively.

In Torah Shelemah vol. 26, addenda ch. 10 Rav Menachem Kasher wrote about
25 pages of hasagos to the Torah Temimah on Vayikra chapter 1 alone.
In a footnote, he tells how he met the Torah Temimah when he was young.
He was editting a Torah journal and the TT came to him personally to
submit an article. He did not want to include it because he thought it
was all wrong but since he was young and the TT was older and famous he
included it. RMMK reproduced the entire (short article) in the footnote
along with his explanation of why it is totally incorrect.

RMMK goes so far as to suggest that printers put on each page of TT the
disclaimer that these quotations are note exactly the words of Chazal.

I heard a few times from R. Hershel Schachter that RYBS had met the TT
and was not impressed with his chiddushim.

Gil Student

The recent negative remarks about the value of the sefer, "Torah Temimah",
by R' Baruch Ha'levi Epstein that was published a hundred years ago
must be balanced by the great compliment paid this work by the author
of the "Aruch Hashulchan", Harav Yechiel Michel Epstein, who is also
the father of R' Baruch. Read the approbation of that genuine gaon and
posek that is appended to R' Baruch's introduction. The father does not
merely commend this work, but remarks that such an achievement was not
possible without divine assistance. Unless you are prepared to believe
that fatherly pride blinded that gaon to alleged serious flaws in the
"Torah Temimah", you need not take the reported criticisms at face value.
I find some of the cited criticisms to be unjust or exaggerated. Its main
virtue, it seems to me, is the citation of various passages throughout
torah she'be'al peh that are keyed to words and phrases of the Torah.
The commentary is also valuable - even if one does not always agree
with the author. What commentary is free of such points of contention?
Only those with an aura of great authority are venerated to the point
of rationalizing all the problematic areas.

I, personally, found the "Torah Temimah" commentary to be invaluable
in understanding the basis of the Chadash controversy. In a few lines,
R' Baruch Epstein illuminates the viewpoint of those who consider the
prohibition of Chadash to be irrelevant to grain grown far from Israel.
He cites the Yerushalmi at the end of Orlah which states that the stam
Mishneh in Orlah that Chadash is prohibited biblically everywhere
is according to Rabbi Eliezer. However, the Yerushalmi continues,
the Rabbanan disagree and state that only grain grown in Israel is
prohibited everywhere until the Omer is brought (not grain grown abroad).
This citation completely explains the relevant verses in the Torah
- particularly the concluding verse that gives Chadash a universal
flavor. These verses refer exclusively to Israeli grain. The Ashkenazy
custom of disregarding Chadash is then traceable to the Yerushalmi
(my understanding) - even if the last generation of Amoraim in Bavel
disagreed (the strong conclusion of the GRA who is cited by R' Baruch).

I wonder if this sefer would arouse the same criticism if it were written
by a Rabbinic figure rather than a banker (R' Epstein's profession).

Yitzchok Zlochower

Rich Wolpoe wrote:
>1) FWIW ONE of my hypotheses re: Rashi's TSBP oriented peirsuh on
>the Torah was to show how the text of Chumash sugested various
>Midrashim as a counter Karaite technique.

Did the Karaites have a stronghold in France that caused Rashi to have
to counter them?

Gil Student

I wrote:
...
>>  As suggested by me previously, I again suggest that the best >>starting 
>point for this subject is SA:CM 25: 1,2, Hilchot Dayan She->>Taah. ...
>>  A distinction is made between Devar Mishna(a decision found in the 
>>> Gemarahand Shikul Ha-Daat (where the matter has been left open in the 
>>> Gemarah and therefore subject to the discretion of the Dayan/Posek >>but 
>which discretion must be exercised to make a decision based upon >>a 
>careful consideration of the Halachic sources). In the case of the >>former 
>there is no discretion as the case has been decided in the >>Gemorah (it is 
>a "Devar Mishnah) while in the case of latter there is >>discretion 
>allowed(to the Dayan in cases of Dinei Mamanot and to the >>Posek in case 
>of Dineir Issur Ve'Heter) to decide such issues as that >>have been left 
>open by the Gemarah provided that the Dayan/Posek is a >>Chacham Gadol 
>Ha-Yodeh Le-Hachriah and also provided that this is not >>a case were a 
>Sugyah De-Almah (a universal manner of deciding the >>issue) has not 
>developed differently.
...
>>  So... May someone ignore all Shut and return to the Shas? Not if >>there 
>is a consensus that has already developed (Sugyah De'Almah). >>Otherwise, 
>yes, but only if the person who Paskens is a Chacham Gadol >>Ha-yodeah 
>lehachriah (and ofcourse a yerei shamayim). If the Posek is >>unable to 
>arrive at a definitive convincing solution, i.e. he >>cannot "be machriah", 
>or if such a Posek is not available, then >>Sefeka De'Oreita le-chumrah and 
>Sefeka De'Rabanam lekullah etc.
>> 

On Dec 20, 2001, RabbiRichWolpoe@aol.com, wrote:
>Q1:  What does the Rema mean when he says:
>Vchain nohagin vien leshanos?  Why not be meshaneh?
>
>Q2: The Aruch haShulchan in Orach Chaim 4:19 says The Rosh and Tur paskened
>explicitly - how can we override them? Why not?
>
>Q3: The SA set up a Hypothetical Beis Din of 3 poskim - Rif, Rambam, >and 
>Rosh. Why didn't he just go back to the Gmara hismelf and deicde >on THAT 
>basis?
>
>Q4: in Arvei Pesachim RSBG is kovai'a Halachah keRabbi Yosi against R.
>Yehudah. In the next line, R. Yehudah (amora) amar Shmuel says the >Halacha 
>is niehter like R. Yosi nor like R. Yehudah (tanna). How can >that amora be 
>okeir a din that was kavua by Tannaim.
>
>Comment: I'm not 100% convinced that this SA/Rema is applicable >outside of 
>Choshen Mishpat in the areas of issur veheter.

Reply:

1. As to the SA/REMA in CM25 applying outside of the area of CM and thus to 
Issur Ve-Heter: the SA/REMA make several references to Issur Ve-Heter 
situations.


2. As to the general concept of deferrng to earlier generations, especially 
Amoraim deferring to Tannaim:

See the article 'Ha-Chatimah Ha-Sifrutit' Ke-Yesod Be-Chalukah Le-Tekufot 
Be-Halachah in Mechkarim Be-Sifrut Ha-Talmudit..., Ha-Academia Ha-Leumit 
Ha-Yisraelit Le-Madaim (Yerusalayim:5783)
The author discusses mainly Halachic closure after creation of the Mishna
and then after the creation of the Talmud Bavli.
The author, IIUI, discusses several explanations commonly given as to how
that phenomenon works: 1. A Formal Conclave of Chachamim (Rav Elchanan
Wasserman, Z"L) and 2. A realization by Chachmai Yisrael that a major
change has occurred in the quality of our Torah knowledge - Nitkatnu
Ha-Dorot and 3. A wide-spread acceptance among Chachmei Yisrael (which
may take place over an extended period) of a Halachic work.

IIUI, he favours the third explanation.

He also adds that the fact that Chachamim of a later era will not override
those of an earlier era is a generalized gross phenonmenon i.e. those of
a later era as a general group do not override those of an earlier era,
but in specific cases a Chacham may override a decision of a Chacham of
an earlier era after much research and consideration (see especially at
p. 182: ...rak achar eyun u-bedikah mefuleshet...)

See also Rav Moshe in YD (I am using a photocopy without the volume
number noted) EGM V.? Siman 100:
"...Vadai she-reshayim af anu lachlok al ha-acharonim ve-gam lifamim
al eize rishonim KE-SHE-YEIS RAAYOT NECHONOT VE-HA-IKKAR GAM BE-TAMIM
NECHUNIM ve-al ke-yotzei be-zei amru ein le-dayan ele mah se-einav root
ke-mefurash be-Baba Batra daf 131 eyein sham be-Rashbam. Kevan she-einu
neged ha-poskim ha-mefursamim baalei ha-Shulchan Aruch SHE-NITKABLU
be-chol medinoteinu... Ach ein le-hiyot gas be-horaah... Aval BE-MAKOM
TZORECH GADOL ve-kol she-kein be-makom eigun ke-uvda zu vadai mechuyavim
anu le-horot... [emphasis mine]

There is a general deference to the Chachamim of an earlier era but a
discretion left to those of a later era to differ but only after much
research and in a situation of Tzorech Gadol.

Obviously this area of Halachic Procedure is much more complicated,
but the above is my general understanding. As I have written previously,
I welcome correction if I have misunderstood the sources.

[A 2nd email. -mi]

I made another typo:
>See the article 'Ha-Chatimah Ha-Sifrutit' Ke-Yesod Be-Chalukah Le-Tekufot 
>Be-Halachah in Mechkarim Be-Sifrut Ha-Talmudit..., Ha-Academia Ha-Leumit 
>Ha-Yisraelit Le-Madaim (Yerusalayim:5783)

The date should, ofcourse be 5743.
By-the-way this was the Shaul Lieberman Festscrift volume.

KT
Eliyahu

In a message dated 12/24/01 2:39:27pm EST, acgerstl@hotmail.com writes:
> He also adds that the fact that Chachamim of a later era will not override 
> those of an earlier era is a generalized gross phenonmenon i.e. those of a 
> later era as a general group do not override those of an earlier era, but in 
> specific cases a Chacham may override a decision of a Chacham of an earlier 
> era after much research and consideration (see especially at p. 182: ...rak 
> achar eyun u-bedikah mefuleshet...)

In my preliminary research this seems to be the case:
1) A Chacham can ARUGE with a precedent
BUT
2) he may not IGNORE it

AISI, you CAN go back to Shas and overrule poskim but ONLY if you are
aware of those POskim and then you make the effor to refute them.

But going back to Shas and coming up with original pshat and paskening
based upon that while ignoring Gaonim/Rishonim is insufficient. In a
sense the posei khas not done their homework It may fall under either
the rubric of Toe bidvar mishna or toeh beshikul hada'as...

More Later BEH on this Halachah.

Then the question becomes what about Post Talmudic Minhag (e.g
Kitniyyos? or perhaps Ma'ariv as a reshus instead of as a chov?)

[Email #2. -mi]

In a message dated 12/24/01 9:00:49am EST, kennethgmiller@juno.com writes:
> That's virtually the same as my definition. I said a binding psak
> obligates me how to act, he says a binding psak obligates how to pasken.
> Same thing.

Not quite.

I am bound by my poseik - and If my poseik is toeih THEN what?


Futhermore let's say I am bound by the SA's precdent. But that does not
mean in paskening I cannot re-open the case and overturn a precdent. Psak
includes jsut suc h re-visting. As an individual I don't re-open what
my poseik tells me. As a Poseik I can go back and releanr al the sugos
and come up with a better pshat and psak - or not!

Please don't presume that X=Y .They do not.

[Email #3. -mi]

In a message dated 12/24/01 9:00:49am EST, Akiva Miller
kennethgmiller@juno.com writes:
> I think you are describing the need to determine which halachos are of the
> "we can't change it even if curcumstances have changed" type, and which
> are of the "it was only set up for specific circumstances me'ikara"
> type. Beats me. Sounds similar to trying to figure out when teva can
> change and when it can't. Dontcha wish Chazal had been a little more
> specific when they said stuff?

I agree. I am clueless at this point to determine any consistent worldview
that makes a clear set of circumstances that allow for change and those
that don't.

Here are just a FEW cases that can be revistited:
Women aliyos and kavod hatzibbur
Women wearing Tfillin due to lack of shmiras haguf
YT Sheini bichlal (except for RH perhaps)
Burying on YT
Medicine on Shabbos - Shchikas Sammamanim (who grinds their herbs today?)
Clei Shir -  except maybe for guitars, who tunes their instruments?

Now one clear reason to revisit Halachah is a hora'as Sha'ah. If there
is a real hardship on the klal, then it may be a time for action.

It is clear to me that in several cases Chazal had a "hidden agenda".
Medicine on Shabbas seems to be one.

[Email #4. -mi]

In a message dated 12/24/01 2:03:32am EST, kennethgmiller@juno.com writes:
> Granted that this is very weird. But I think one can draw a line between
> offering the rationale for what has been done, vs. actually sanctioning
> it. The first is a limud zchus at most; the second shows that he original
> halacha was an error and it does involve overturning. Gotta be careful of
> the lashon you use.

well I don't get this distinction

What is the big difference in ratoinalizing a minhag based in error as
opposed to a psak based in error?

Unless you want to say that a minhag ipso facto cannot be erroneous but
a psak can.

To me, a minhag is essentially a reflection of a psak that never made it
into a text. This parallels Chezkas habattim the shtar is missing but
we assume a chazakka is at work instead of a document UNLESS thiere is
a macha'a

Simlarly, Minhag to me is a Chazaka that there was a psak albeit the
"shut" etc. was not published or lost

What makes minhag harder to overturn then a written psak is that there
is usualy no acompaying rationale, so to undo it requires a leap of
faith that we have guessed correctly as to the underlying rationale.

EG: the Ba'ale batim in my shul know to use a towel etc. for kor'im
and not to bend down on a naked floor. But they THINK it is a matter of
neatness! {yes they are Yekkes! --smile--}

That is the nature of mimetics, the WHAT's get preserved and the WHY's
get lost.

Another EG:
Ashkenazim change the siyyum of the last bracha in the amida during the
10 days of Repentance to B"A"H oseh Hahsalom

Presumption: This was transposed from the siyyum Oseh Hashalom Bimromav
and really is NOT the correct siyyum habrach and because of matbeia
shekav'u it is wrong.

Well, old manuscripts turned up showing Oseh Hashalom as a valid
alternative for all year. The presumptoin that this was knegged the
matbeia is faulty. But UNTIL the manuscripts saved the day, revisionists
had thought they got the story right.

So when you have a nusach - like a minhag - you cannot be sure how it
got there and to overturn it based upon Speculative Svara is "iffy".

OTOH psak usually has a rationale attached to it.

Problem: Shas - according to many - does not give an exhaustive list of
its rationales - making the process of finding obsolete principles tricky.
This relates to my post on "hidden agenda".

One poseik wants to say that due to kavod Hameis we bury on YT BUT now
we have refrigeration so we should NOT bury on YT anymore.

But the imperative to bury may include other issues such as lo salin
nivlaso etc. IOW who says that decomposition is the ONLY salient factor
for rushing to bury on YT?

[Email #5. -mi]

In a message dated 12/3/01 12:51:32pm EST, hmaryles@yahoo.com writes:
> Perhaps, but Dr. Berkovitz obviously felt that this was precisely the
> problem. Tradition had been so codified and evolved to become infallable
> which he believed was the antithesis of Torah SheBal Beh.

There are 2 models of TSBP
With Sanhedrin
Without Sanehedrin.

AIUI, w/o Sanhedrin Halachah evolves on precdent a lot like Common law -
because there is NO legistlative body

BUT

I am a liberal constructionist re: Talmud as a text. In the world of
Toasafos - Minhag was sacrcosanct BUT the Talmud was more fluid, less
fixed and more a methodology than a rigid body of legislation

This model then says: All psak counts, but it is always evolving and
being re-applied, albeit not radically

The alternate model I see so far is that the Talmud alone is fixed and
all post Talmudic psak is subject to revisoin but anything before Ravina
and Rav Ashi is fixed.

This method gives poskim more power, they can ignore precdent, but it
also fixes Halachic paradigms into a mold of 5th Century Bavel and its
presuppositons, etc.

AISI now, this is how RYBS was willing to revise based upon TB, but was
unwilling to consider revising Tav Lemseisav even a little bit

Perhaps REB was concerned that some are machmir like both models, IOW TB
is fixed PLUS all post TB spak is binding unless overturned carefully.
But I suspect that REB was simply being a bit impatient. He wanted
Halachah to be more responsive, IOW quicker. in my model of the Halachic
Universe quick changes are the province of a Sanhedrin or perhaps a dire
"eis la'asos." Otherwise change is slow, gentle subtle and evolutionary
NOT Revolutionary


Remeber what appears to be significant changes between TB and Tosafos
took about 700-900 years and about 3,500 miles. Not to mention a different
point of origin.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

I wrote <<< But I think one can draw a line between offering the rationale
for what has been done, vs. actually sanctioning it. The first is a limud
zchus at most; the second shows that he original halacha was an error and
it does involve overturning. Gotta be careful of the lashon you use. >>>

Rabbi Rich Wolpoe asks <<< well I don't get this distinction. What is
the big difference in ratoinalizing a minhag based in error as opposed
to a psak based in error? >>>

What I meant was this: A posek will investigate a minhag which seems to
go against what the seforim say to do, and give reasons why the people
act this way. Then he will either say that the reasons are unacceptable
and the minhag must stop, or that the reasons *are* acceptable and the
minhag can continue. For example, a posek can give a dozen reasons why
people eat in the house on Shmini Atzeres, but then he will still say
to go to the Sukkah.

Rabbi Wolpoe also posted <<< To me, a minhag is essentially a reflection
of a psak that never made it into a text. >>>

I always thought the exact opposite: A d'rabanan is something which
the rabbis thought up, and became binding when the people ratified
it by majority action. (Examples of d'rabanans which failed to get
ratified include Tevilas Ezra and Pas Palter.) In contrast, a minhagim
generally start with the people, and become binding when all (most?) of
the community accepts it, unless the rabbis knock it as a Minhag Shtuss
or some such other protest.

Any other thoughts on the definition of "minhag"?

[Email #2. -mi]

Rabbi Rich Wolpoe wrote: <<< Here are just a FEW cases that can be
revistited: Women aliyos and kavod hatzibbur; Women wearing Tfillin due
to lack of shmiras haguf; YT Sheini bichlal (except for RH perhaps);
Burying on YT; Medicine on Shabbos - Shchikas Sammamanim (who grinds
their herbs today?); Clei Shir - except maybe for guitars, who tunes
their instruments? Now one clear reason to revisit Halachah is a hora'as
Sha'ah. If there is a real hardship on the klal, then it may be a time
for action. It is clear to me that in several cases Chazal had a "hidden
agenda". Medicine on Shabbas seems to be one. >>>

Whoa! Slow down!

At least one item on that list (women avoiding tefillin) is post-gemara
and can be an example for this thread about what psakim are binding.

But most or all of the others -- and at the very least Yom Tov Sheni
-- are from BEFORE the gemara. They were enactments of the Sanhedrin,
which has an entirely different set of rules. This thread is a very
interesting exercise, so long as we keep to discussing the authority
of the Gemara and post-Gemara poskim. But discussing the authority of
the Sanhedrin is a whole 'nother ball game. I can't imagine post-Gemara
individual with the pleitzes to dare such a thing.

I defer to others, to look into what originates with the Gemara, and
what originates with the Sanhedrin, but has details which originate in
the Gemara and therefore might be debatable.

<<< If there is a real hardship on the klal, then it may be a time for
action. >>>

When there is a "real hardship on the klal", then the built-in rules of
Shaas Hadchak kick in, and there is often NO NEED to take any special
action. In fact, medicine on Shabbos is my favorite example of this!
People freak out when they learn that we can take medicine on Shabbos,
because the teachers fail to point out that even a choleh she'ayn bo
sakanah is allowed to take any kind of already-prepared medicine.

The definition of this choleh is pretty liberal. (Shmiras Shabos
K'hilchasa 33:1 includes someone who is sufficiently ill or in pain that
he must stay at home, even if he is not confined to bed.) Except for
*minor* headaches and *minor* sore throats, I cannot remember the last
time someone in my family wanted to take a medicine on Shabbos and I would
not allow it. (If anyone thinks I'm being too meikil, please let me know.)

In a message dated 12/25/01 3:10:49am EST, Akiva Miller
<kennethgmiller@juno.com> writes:
> I always thought the exact opposite: A d'rabanan is something which the
> rabbis thought up, and became binding when the people ratified it by
> majority action. ... In contrast, a minhagim generally start with the
> people, and become binding when all (most?) of the community accepts it,
> unless the rabbis knock it as a Minhag Shtuss or some such other protest.

> Any other thoughts on the definition of "minhag"?

Minhag started by people IMHO do not need to be rationalized. If Tosafos
and ARuch Hashulchan are defending them, I would suppose they pre-suppose
that this was based upon an unwritten psak of some kind

See My discussion re: the nusahc of Oseh Hashalom, Aruch Hashulchan
found a manuscript. Those who adehre to minhaggim would not need external
evidence, they would pr-suppose that there WAS a ratoinale at one time
but it was lost.

If you can show me that a minhag evolved solely from the pepole, and
that that Minhag clashes with Psak, then you probalby have a classic
Minhag Ta'us

AISI, Minhaggim are defended because he pre-sumptoin is that there WAS
a psak of some kind that put the minhag in motion, but the psak itself
was not preserved.

In the case of Sukka On shimin Atzeres the presumptoin of the Aruch
Hashulchan is that the climate was the "lost" rationale, and therefore
Sukkah on Shimni Ateres in warm climates would required the dina digmraa.

The Gmara itself presumes that people sit in the sukkah w/o a mitzva. This
presumption is shaky in cold climates {perhaps bedause we shiver}.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

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


[ Distributed to the Avodah mailing list, digested version.                   ]
[ To post: mail to avodah@aishdas.org                                         ]
[ For back issues: mail "get avodah-digest vXX.nYYY" to majordomo@aishdas.org ]
[ or, the archive can be found at http://www.aishdas.org/avodah/              ]
[ For general requests: mail the word "help" to majordomo@aishdas.org         ]