גדר מנהג רע/מנהג טעות/מנהג שטות

Introduction

Some people suggested that the reason why those who tried to reinstate daily ברכת כהנים were stopped or punished from Heaven is because they dared to change a מנהג, meaning, they tried to upend the status quo; the assumption being that whatever people do has the status of a מנהג that is wrong to change.

We will present, here, a number of place in the halachic and מוסר literature where פוסקים and בעלי מוסר refer to a given practice as a bad מנהג, the purpose of which is to show that not always is what people do necessarily proper, and sometimes what people do needs to change, according to the opinion of הלכה and מוסר.

1

There were people who would soak a cloth in water and use that cloth to wash their hands with on יו"כ - this is a mistake, because נטילת ידים is a מצוה and can done in the ordinary way (almost - one washes until the knuckles). [1]

2

There were people who would not mourn for the passing of their oldest son ר"ל. This is a mistake. [2]

3

There was a community where ניקור was, for whatever reason, not ordinarily done on the thigh of a wild animal. The רדבז was asked [3] if this מנהג has anything to rely on. His answer was a categorical no. Rather, he declared this מנהג to be a מנהג טעות which was against הלכה.

4

The נודע ביהודה [4] prohibits a certain kind of butter for a particular community that had a חומרא not to eat it and was considering doing away with said חומרא. In the שקלא וטריא he reckons with the possibility of this חומרא constituting a מנהג טעות (which he ultimately decides it is not, but in the meantime he feels the need to address the possibility. If there was no possibility of such a concept as מנהג טעות, there would be nothing to address).

5

In France it was common that where people had disagreements they would put each other in חרם. The ראש  [5] refers to this practice as a מנהג גרוע.

6

There is a practice in many congregations to make a מי שברך on behalf of each person who received (or purchased) an עליה. The יעבץ [6] refers to this practice as a מנהג גרוע that should be stopped if possible, both because מי שברך constitutes making a personal request on שבת (a topic that is beyond the scope of this discussion but this is what he held), as well as טורח הציבור [7].

7

There was a community in Bohemia where there was a מנהג to ask the כהנים to leave the shul at the beginning of קריאת התורה, so that the first עליה could be auctioned off for a large sum. תשובה מאהבה [8] criticizes this מנהג as a ביטול of all תורת כהונה, and says it should be stopped.

8

Some people play ball on יו"ט. The מהרשל [9] says for children this is fine, (though not necessarily commendable,) because playing ball is an age-appropriate יו"ט activity for children; for adults, however, playing ball on יו"ט is a bad, childish מנהג.

9

There are some who say סליחות at night before חצות. This is a bad מנהג because יג מדות should be said during an עת רצון [10].

10

Some רע-בנים used to charge for giving קבלה-certification to שוחטים. This is a bad מנהג that leads to corruption and dishonesty, in that unscrupulous rabbis can be tempted to offer קבלה even to the unqualified [11].

11

There was a place in which people would betroth a woman and then live together in the same home without first conducting a חופה. The ראש writes in a תשובה [12] that this a is a bad מנהג that must be stopped by the religious authorities, who are themselves at fault if they don't.

12

Some individuals seem to have difficulty appreciating the sanctity of שבת such that they don't feel שבת to be deserving of special clothing more than a regular weekday. This is a bad מנהג [13].

13

It used to be common for women to swear by their husband's life, even on petty foolishnesses. שבט מוסר [14] calls this a bad מנהג.

14

There was a certain rabbi who allowed children to carry on שבת in a place that did not have an ערוב. The חת"ס [15] refers to this as a bad מנהג.

15

There were some communities where כהנים and בכורים were buried in an ארון, without their body directly touching the ground, as is supposed to be done. חוכמת אדם [16] refers to this as a bad מנהג.

16

There was a place where wine sellers would write how much wine specific individuals ordered before שבת and then on שבת the wine seller would examine the paper on which that order was written, measure the precise amount that was ordered, and fill the order.

The ראש [17] refers to this as a bad מנהג for two reasons: firstly, examining business documents is not allowed on שבת; secondly, making precise measurements is also not allowed on שבת.

Conclusion

We have many instances where our religious authorities refer to a given מנהג as bad, wrong, mistaken or the like. This goes to show that there is indeed such a concept in the world of הלכה and הנהגה ישרה, and that a פוסק or מנהיג has a right to decide whether a given מנהג is good or bad.

While a specific definition is difficult to pinpoint, the general sense is that some מנהגים do more harm than good or run against established halachic principles, such that they should be stopped or changed.

That being the case, there is nothing wrong with deciding that ברכת כהנים daily is the way it is supposed to be, and to indeed institute such practice where possible. The fact that the מנהג is different is of limited consequence, as the מנהג is incorrect.

[1] ספר המנוחה על הרמבם שביתת עשור ג:ה ד"ה ולמחר

[2] שו"ע יו"ד שעד:יא. וע"ע שו"ת הריבש צה

[3] תשובות הרדבז חלק ב ב'קיח

[4] תניינא יו"ד סה

[5] שו"ת, מג:ח:ד

[6] שאילת יעבץ חלק א סד:ה. This is indeed the מנהג that I recall from my youth visiting Yeshivah of Paterson (presumably Beth Hatalmud has the same מנהג as well, as the מנהגים of Yeshivah of Paterson are based on the מנהגים of Beth Hatalmud).

[7] Indeed, I recall a particular מנין at a particular shul in my neighborhood used to make two מי שברךs after each עליה, one for the עולה and one for his (often very extended) family. Many of the congregants there were in their elder years and had ב"ה many descendants, each of whom would have to be listed by name. This would invariably take a very long time. I am aware that, today, the current practice there is to combine both מי שברךs into one, presumably to avoid said טורח הציבור.

[8] חלק א סי' צא. See there for contrast between this case and the case dealt with by the מהריק in שורש ט.

[9] מ"ב תקיח:ט; טז שם ס"ק ב. See also כף החיים או"ח שח:רנט who stresses the importance of utilizing שבת and יו"ט as extra time for learning. אליה רבה או"ח שח ס"ק פז references a מדרש איכה that pins the destruction of טור שמעון on playing ball on שבת.

[10] כף החיים או"ח תקפא:ב. For a dissenting view, however, see here.

[11] This should be common sense, but see שו"ע הרב יו"ד א:יא

[12] לז:א

[13] פלא יועץ ערך לבישה

[14] יז:ד

[15] ליקטי שו"ת יג:ט

[16] קנח:א

[17] שו"ת כב:ז; see there for specific sources for each prohibition

תשובת המהריק בדיני מנהגים

In a previous post we recounted how there were those who wished to reinstate daily ברכת כהנים and were seemingly punished for attempting to do so. This begs the question that, considering that daily ברכת כהנים is a מצות עשה, why would someone be stopped from doing the 'רצון ה?

There were those who suggested to me (often very forcefully) that this is evidence/proof of an איסור to change any מנהג whatsoever.

In a previous post we detailed a number of examples of פוסקים deciding that a given מנהג should be stopped (in some instances using strong language to express their point).

In this article we will present a תשובה of the מהריק in שורש ח that discusses the rules of מנהגים.

Question: ראובן wanted to bequeath his assets to all his sons equally, without giving more to the בכור, claiming that such was the מנהג in his place, and there is a principle that מנהג מבטל הלכה [1].

Answer: in my opinion (says the מהריק) it seems abundantly obvious that this is baseless, because a מנהג is only מבטל הלכה if and where said מנהג is established by the חכמים of a particular locale. Meaning, a מנהג of pious individuals is מבטל הלכה. But a מנהג that has no proof from the תורה is simply a mistake in halachic judgment, and indeed there are many terrible מנהגים that should not be followed. Certainly such a terrible מנהג that uproots a דין תורה [2], and is מבטל the דין of ירושת בכור, should definitely not be followed חלילה.

[1] ירושלמי ב"מ פרק הפועלים הלכה א

[2] One wonders what the מהריק would say on the topic of daily ברכת כהנים (or lack thereof) had he turned his attention to the matter. (I am not aware of any place where the מהריק addresses the topic. Any leads would be much appreciated.)

תשובת הראש בדיני מנהגים

There are those who claim that the reason why certain גדולים were seemingly punished for trying to reinstate daily ברכת כהנים was because it is אסור to change a מנהג.

There is a series of תשובות written by the ראש in כלל נה regarding the תקנות of the Jewish community in Toledo where he lived.

Specifically, one section of the series (אות י) deals with the rules of מנהגים, namely, which are legitimate and which are not as much, from which we see that there is such a phenomenon in הלכה as מנהגים that have a weak halachic basis and should be changed.

The ראש writes as follows:

All the מנהגים about which the חכמים said to follow the מנהג all are all סייגים, for example:

There is an איסור to do מלאכה on ערב פסח after חצות. Additionally, there is a מנהג not to do מלאכה before חצות either (see פסחים נ-נד for a number of other such מנהגים). 

But if a place has a מנהג that involves an עבירה, one should change the מנהג, even if it was established by גדולים, because one בית דין cannot uproot something from the תורה except בשב ואל תעשה. Even a נביא we don't listen to unless he has already been proven a legitimate נביא, like אליהו who brought קורבנות on הר הכרמל (see מלכים א פרק יח) to strengthen and reinforce שמירת המצוות.

Not only a מנהג that involves an עבירה should be changed, but even a מנהג that was originally instituted as a סייג could end up harming more than helping, in which case one should be מבטל the מנהג.

Now, there is a principle that where the הלכה is רופפת בידך follow the מנהג. However, this only means if and where there is ריפיון to begin with. Meaning that if the פסק הלכה is unclear in a given situation, then follow the מנהג, because then the assumption is that גדולים understood the הלכה this way and they therefore instituted the מנהג based on their understanding of הלכה. But where there is no ריפיון in הלכה to begin with, it is wrong to follow a מנהג that is against הלכה.

This is the דין of מנהגים in the realm of איסור והתר.

The ראש then goes on to discuss מנהגים relating to monetary matters. These are beyond the scope of this discussion.