When Minhag Trumps Halacha

Dy I was thinking about it and the truth is the m”a you cited how’s there IS such a thing as “minhag over halacha” granted it doesn’t apply to ANY act that a person describes as a minhag. However the concept is real and while there are individual rabbonim who would reject it’s application in some examples brought above, we COLLECTIVELY would apply it in every single example brought.

Even the sukkah example WE don’t equate not eatingeating in sukkah on shemini atzeres with not making a seder on the second day pesach (the most analogous example I could think of that involved a mitzvah aseh). Even if a rav paskened that they were the same, obviously we collectively don’t view them the same, rather we allow and even respect (I believe you used that word) the fellow who eats indoors for following his minhag even though it is against halacha, since it is in compliance with the m”a.

I can’t think of any example of a (actual) minhag that wouldn’t meet the m”a criteria.

Another example that came to mind was not wearing techeiles. We come up with all sorts of tenuous reasons to justify our minhag, as we should! It doesn’t matter what halacha says we follow our me sora which sadly was lost. Of course we need some justification to be in compliance with the m”a’so criteria so we come up with a justification.

The bottom line is: the m”a shows clearly there is a concept of minhag trumping halacha. Though with an important caveat that (almost be definition) doesn’t exclude any actual minhag

NC

I’m sorry I dont follow. The M”A says beferish, (and he is quoting earlier sources) “Minhag Oker halacha” That seems to be a pretty good proof that minhag overrides halacha. Granted minhag doesnt mean any act under the sun it has to have SOME halachic basis but if it does the halachic consensus (i.e. the normal way halacha is decided) can be ignored. In other words the concept “Minhag oker halacha” clearly exists!

furthermore although some seem to be arguing that it doesnt exist, nobody has provided an example of a minhag that DOES NOT trump halacha. Even the isolated examples brought where some say “No minhag doesnt trump halacha” (nusach sefard, sukkah on shemini atzeres) we still dont “write off” those who “ignore” halacha and follow thir minhag.

To sum up:

1) it is a Magen Avraham “Minhag oker halacha”

2) In practice nobody has provided a minhag that is not oker halacha, so by default it is (broadly speaking, again there are excellent examples where isolated Rabbanim say to ignore minhag in place of halacha however none of us view those who eat indorrs on Shemini atzeres as those who dont eat matzah on second day Pesach or those who daven sefard as not having davned today! (as an aside when I was in yeshiva my mashgiach gave a lengthy vaad on why kesav beis yosef was the real kesav and kesav ari shouldnt be used. I asked him afterwards my tefilin are kesav ari what should i do? He looked at his watch and said it is 15 minutes to shekiya go borrow mine you still have some time))

So for example techeiles you say its impossible, ut at the very least there is a chance that its a mitzvah? 1%? 0.1%? There is no harm in having a blue string. However it isnt our mesora for whatever reason Hashem wanted it lost. so we really on the Rema (O.C. 9:5) that the minhag is to have davka white strings. Even if their is a chance (however remote) that we are missing out on an aseh.

If youd like a more controversial example. One of my Rabeeim in E”Y starts his Purim seuda shortly before shkiya on Purim (tes-vav since he lives in Yerushalyim). When asked why he said it is a beferish Remah 695:2 “shenohagin lehaschil samuch la’erev veikar haseudah hi leil tes vav” (Interestingly same Yeshiva as my other story above!)

however have a look at the 5 words preceding the above

http://beta.hebrewbooks.org/tursa.aspx?a=oc_x3075

http://www.theyeshivaworld.com/coffeeroom/topic/when-minhag-trumps-halacha#post-608590

yekke2

“This ‘weak justification’ comes from Rishonim” Yes I know, thats why I didnt wear a talis until marriage

“so it doesn’t matter if you understand it or not.”

True, though I fully understand it! Minhag Yisroel should be justified. Puk chazi I rely on the maharil no matter how weak the justification. Even the M”B who clearly isnt thrilled with this justification calls it a “davar t’muah” but doesnt actually call for abandoning the minhag! (End of siman 17)

“Again, this isn’t Minhag v. Halachah,”

The M”B seems to disagree. (Though again, he doesnt actually call for the minhag to be abandoned)

” it is Halachah v. Your Question.”

i’m not sure what you mean, what is “my question”? I dont have a question here. The bottom line is There are cases where minhag trumps halacha within. We have no less an authority than the Maharil on whom to justify our minhag. I do not have any question

“and I too never understand the rationale behind not wearing.”

Wonder no more! The rationale for not wearing is becasue that is the minhag! (As to how the minhag devolped that is a historical question, the theory I’ve heard is that it was too expensive to give every 13 year old a talis, as for tefilin, they could be passed on generation to generation so at bar mitzvah a boy could use his Grandfather’s while the Talis either: a. was too worn out to be used and/or b. The deceased was burried with it. but this just a theory (not my own))

“The Hekesh, if anything, would apply to Tzitzis as well.”

Ah, but that isnt the minhag!

DY

Agree with most of the post you linked. However while misleading. the concept “Minhag Oker halacha” DOES exist.

“In other words, a minhag without any halachic support is a minhag shtus or minhag taus. A minhag with halachic support, however, can override the normal klalei horaah and the halacha would follow the minhag.”

I outright said the second clause throught this thread. As for the first clause, While true I cant think, nor has anyone provided an actual example of a minhag without halachic support. (A few decent examples were provided, however even the providers of those examples didnt actual view those following their minhagim in those cases as acting “without halachic support” I.e. those who daven sefard, eat indoors on shemini atzeres are still frum Jews even if some (most?) poskim would pasken they do otherwise)

Ubiquitin,

The reason no one can come up with an example of a widespread practice of a minhag ta’os/shtus is because those that poskim universally condemned were discontinued. I can give many examples of things that I think are a minhag shtus but there is likely going to be someone out there that disagrees, or else they probably wouldn’t still be done. The only minhagei shtus that you will find today that satisfy your criteria are those that are only done by a small group of (uninformed) people. For example, it is the practice of some Jews to eat in non-kosher vegetarian restaurants. This is certainly forbidden because of bishul akum. That this is the practice of an entire community doesn’t make it mutar; their minhag cannot be oker the halacha.

beningnunman.

that is exactly what i have been saying. Though I gave example of “minhag” to bow down to Avoda zara. Obviously “minhag oker halacha” doesnt apply. However the concept is real within a certain framework as laid out by the magen avraham cited earlier.

(and wonderfully explained by you in this post http://www.theyeshivaworld.com/coffeeroom/topic/when-minhag-trumps-halacha#post-608590)

The only thing I was adding is that (by definition) if something is a “minhag yisroel” then it must have SOME rabbinic backing in which case it will trump halacha.

Nobody has provided an example that shows that statement wrong. (though admittedly, the argument is a bit circular and is probably impossible to prove wrong, which is partially my point)

N.C.

Did you look up the Mishna Berura I cited? I transliterated it above. If you dont like my transliteration here is the original:

http://www.hebrewbooks.org/pdfpager.aspx?req=14170&st=&pgnum=56

17:10 The M”B calls us who avoid talis gadol until marriage “yoshev ubatil mimitzvas tzitzis” (Though I freely admit, I dont understand why he sat=ys that I wouldve said like you and in fact mentioned that in my first post, however he does say it is being mivatel a mitzvah, sorry) Nevertheless, we do delay it based on minhag.

(Nor do we add techeles even though there is a tiny chance it is a mitzva based on minhag).

And I’m not sure what you mean, are you saying some hold the HALACHA is a 14 year old shouldnt wear a tallis gadol!?!?

BTW NC

In addition to there clearly not being a halacha that 13 year olds shouldn’t wear a talis. The very minhag that prompted this thread namely Gebrokts is also not “how you and your group hold in the halachah.” To the best of my knowledge nobody holds “in the halacha” that Gebrokts is assur, (nor kitniyos for that matter, though perhaps since it is such an old minhag the minhag status is somewhat elevated, but nobody holds that if you go through Pesukim, Shas etc you come to the conclusion that kitniyos is assur on PEsach)Nor does anybody hold l’halacha to have a proper kapara you need kapparos before Yom Kippur.

There are dozens of minhagim that are not “how you and your group hold in the halachah.”

The issur is based on a minhag, because the minhag is binding.

Minhag oker halachah refers to kula, not chumra, though, so not relevent to this discussion.

Of course minhag trumps halachah, as shown by the numerous examples here. We embarrass ourselves by trying to claim otherwise.

In fact minhag can even trump something that would under normal circumstances be such an aveira that it would put you beyond the pale of Rabbinic Judaism. Just look at all the shuls that recite “Machnise Rachamim” in Selichot in clear violation of the Rambam’s ikkar. (Either that, or most shuls are run by apkorsim, chas v’shalom.)

Ok I think I have a good example:

Birchos Kohanim. There is a mitzvah for Kohanim to duchan they make a beracha and eveything.

Yet among Ashkenazim the minhag in chutz learets is not to (aside from Yom Tov.

I am guessing based on this minhag the Kohanim in your shul didnt fulfill the mitzvah/halacha of birchos Kohanim today.

Is this a good example?

(Yes I know all the (weak – even according to those who give them)justifications for our minhag. that in no way changes my point)

” why the need for halachic justification?”

to explain how the minhag developed.

On second thought, this is the best example so far. here we have a clear mitzvah deoraysa that most of klal yisroel doesnt practice today.

Not based on halachic concerns per se (I.e nobody holds Simcha is literally meakev, or that Mikva is meakev) rather because the minhag is not too

as to why we are noheg not to sure of course we justify the minhag.

Put another way:

suppose you bumped into the Remah and asked him, I’d like my shul to start duchaning during the week. do you think He’d say:

No that isnt our minhag

or

They cant since the kohanim arent besimcha

?

Actually, you already answered my question when you said “why the need for halachic justification?”

to explain how the minhag developed.

But I have a kashya on you. How did the minhag develop based on the justification? Until the change, there was no minhag to “trump” the halachah!

I would venture to say that as the minhag started it was keneged halacha

You are being ????? ??”? ?? ????????, and at the same time arguing on all of those you mentioned above who do justify it.

The reason the Gr”a tried to reinstitute it was because he disagreed with the reasons mentioned (or held the reason no longer applies), and since minhag does not trump halachah, held we should duchan.

I lost you there.

Im not sure if we are really arguing

You cited athe Magen Avraham earlier that discuses the parameters he of “minhag Oker halacha” he does not say there is no such thing.

As far as Duchaning. Do you understand the Remah, or any other Achronim that there is something halachicly wrong with duchaning? IS there even a daas yachid that holds birchas kohanim (more than any other mitzvah?) requires as n absolute prerequisite to be done besimcha and that according to those shitos, sefardim are making a beracha levatala?

Does anybody hold regarding birchas kohanim, halachos are:

1) need to be a kohein

2) need a minyan

3) needs to be be simcha.

Isnt it obvious that these reasons given are justifying an existing practice? (as to how the practice came about maybe it is one of those reasons, maybe another, that isnt really my point)

My point is there is no deah that actually requires simcha for birchas kohanim, in other words there is no deach that holds HALACHICLY we shouldnt duchan today. nonethless we dont duchan because that is the minhag

“I’m saying the minhag started from poskim deciding that for some legitimate reason”

Who? When? And why didnt they write it?

More to the point though (and this is my point you havent addressed) , what is that legitimate reason. does the Rema hold simcha is an actual halachic requirment for Birchas Kohanim? Is it a requirment for any other mitzvah? Do you know if he has a source for this?

I’m not sure you are trying to make me sound like a bad person.

I never said “lied”, I never said “it doesnt make sense” (dont you get mad when people put words in your mouth why are you doing it to me?)

The “we” you reference is the Aruch Hashulchan among others. I did not call not duchaning a “minhag garua” we arent seeing through anybody. The Aruch Hashlchan, Beis Yosef, the Gra (indirectly) all say there isnt a good reason not to duchan.

yet none of them (including the Gra) say to start duchaning

“You are saying that some am haaratzim decided not to duchan, the rabbonim didn’t stop them, and later generations lied and said there was a reason, but we can see right through them, because we know the reason they give doesn’t make sense..”

Even if that was what I was saying (though Id phrase it differently).

I’m still not sure we are arguing

Bottom line is There is no HALACHIC problem with duchaning today (do you argue on this point?).

Nonetheless, we dont duchan, because in spite of there not being a (good) reason not to duchan. We follow our minhag.

This is my point that a minhag can override halacha (within certain parameters of course) just like in the Magen Avraham YOU cited earlier

You are putting words in my mouth I never added ill intentions to anybody. I never said “lied” or “doesnt make sense”

Here is how I would phrase it:

holy members of klal yisroel stopped duchaning, we do not know exactly when or why, and later generations gave reasons to expalin the existing practice, even if the reasons given are a stretch.

Are you saying the Rema went through the sugya of mitzvos tzrichos simcha. Came to the conclusion that it was meakev (but only for Birchos kohanim) and paskened that therefore we shouldnt duchan in chutz learetz? (Ive asked variations of this question, Im not sure why you are having a hard time responding and instead are attacking me)

I have answered your question, though not spent time on it, as it is only tangentially related to my point.

I’ll elaborate.

The short answer is I don’t know. The longer answer is we don’t know it could be because of mikva it could be because of yichos it could be because of Simcha, it could be something else (the arch hashulchanha, gra and others don’t seem to like any of those). While definitely an interesting question it just can’t be answered with certainty. But more to the point, as long as it can be justified and/or has rabbinic backing,it doesn’t really matter lemaaseh.

Now your turn. Because whether the rema would have come to his severa without the minhag, I’d PRECISLY my point.

The Piskie Tshuvos brings down that the minhag to not duchan in C’L dates back to R’ Yehuda Hachasid and Rabbeinu Gershom Meir Hagolah which means that the minhag is over 1000 years old.

???? ????? says, ??? ?????? ??????? ???? ?????? ???? ????? ???”? ???? ???? ??? ??? ???? ?? ???? ???.

Despite the fact that people did it, there’s no justification, so it’s wrong.

Because minhag doesn’t trump halachah.

I’m not saying it, the Mishnah Berurah is.