Minhag (Halachic Methodology 13)

Minhag is one of the most complicated issues in Halacha and I did by no stretch of the imagination cover every issue that comes up.  I tried to outline some basic issues, but for the details, you’ll have to look at the sources inside.  Shiur and source available here.

For the other side of the coin, the next shiur was on לא תתגודדו – which binds people to minhag so as not to create divisions within klal yisrael.  I will try to summarize soon.

  1. Types of Minhagim
    1. Source:

i.      Minhag HaMakom

  1. This is the one binding from the perspective of the Gemara (Pesachim Perek Makom Shenahagu)

ii.      Minhag Avot

  1. While the Gemara phrases some minhagim as minhag avot, they seem to really be minhag hamakom. 
  2. Chavos Yair notes that these are not really binding in the same way.  This is cited in Pischei Teshuva.
  3. Some poskim challenge this notion, such as R. Ovadiah, who claims all Sfardim are bound by the psak of the Beit Yosef.
  4. See Teshvua of Siach Yitzchak who examines some other possible sources in Gemara.
  5. Type:

i.      Extra- Halachic

  1. These can be fences around Halachot, attempt to capture Torah values in a real way (see R. Feldman’s article in Tradition about the Minhag to fast before one’s wedding and to fast when a sefer Torah falls.)
  2. These can also just be customs.

ii.      Minhag Psak

  1. This is more binding in many ways.
  2. It can act either to force one to poskan in a certain way or to as a factor in helping one decide how to poksan.
  3. Different poskim take this with different degrees of gravity.

iii.      Minhag Klal Yisrael

  1. Can exist on either of the above levels, but it obviously much more powerful.
  2. Questions that arise
    1. Can minhag hamakom continue after people have left a place?

i.      R. Moshe assumes they can if the community actually picks up and relocates.

ii.      R. Ovadiah assumes this in making his claim about sfardi psak (above).

iii.      Note the reality is that people move to communities of mixed minhagim which strongly weakens claims of minhag hamakom.

  1. What happens when there are many minhagim in a place?
  2. Spouses?
  3. Why are minhagim important?
    1. In the case of syagim, Rambam includes them in לא תסור.
    2. In the case of customs, they may reflect Torah concepts.
    3. Once you do something – neder (see Shulchan Aruch Yoreh Deah 214).
    4. One can assume that there is a type of hashgacha/nevuah that guides Klal Yisroel (poskim based on Eruvin
    5. The Rav in one place talks about history deciding, which is seemingly related to the previous formulation.
    6. What if they contradict Halacha? [See article by R. Efrati]
      1. R. Hai Gaon – minhag could win because Gemara is really binding because of minhag.
      2. Rosh – no power.
      3. Middle positions – perhaps minhag allows you to rely on a minority position (Rama)
      4. Maharik is unclear.

 

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