Minhag: Convention vs. Unity

Question: A strange thing was done in Amsterdam and became public there. Someone passed away with no sons, and willed before passing that each day for twelve months, ten shall be paid to study in his house, and after the studies the daughter will recite Kaddish (see Responsa Maharashdam, Orah Hayim 6). The sages of the community and the aldermen did not protest. Although there is no evidence to defeat this thing, for a woman too is commanded to sanctify God’s name, and furthermore, with the presence of a quorum of Jewish males, it is called “the people of Israel.” So even though the story of Rabbi Akiva, which is the source for the recitation of Kaddish by orphans, is about a male child, nevertheless, even for a daughter it stands to reason that there is a purpose and it brings satisfaction to the soul [of the deceased], for she is his offspring. Nevertheless, there is concern that this will weaken the power of Jewish customs, which are also Torah, and everyone will build a private altar based on his own reasoning. The words of the rabbis will seem preposterous, and they will make light of them. The Tosafot state similarly in the chapter “Ein Omdin” [Berakhot 34a], to explain why one who wishes to prostrate himself at the end of each blessing [of the Amida] should be instructed not to do so. And if one wants to contend that the present case is different, for the other case is a rabbinic ordinance mentioned in the Gemara, we may answer that since it is not mentioned in the Gemara but nevertheless derives from midrashic exegesis, and Jewish custom is Torah, then all the more so it requires reinforcement. This is explained in Yevamot 36b and several other places that state that the Sages reinforced their declarations more than they did the Torah’s. Even though there it states that we merely instruct him not to prostrate himself, and it does not state that we protest – indeed, it does not even say that it is disgraceful, as in the case of one who recites the word “shema” twice (and I believe that is why Maimonides does not mention this law) – nevertheless, that case may be different because he was acting on his own. No one will learn from him. They will just consider him arrogant, which, according to Tosafot, is the true reason for this ruling. Therefore, in the present case, where there is a gathering and publicity, a protest should be made. I have written what seems right in my humble opinion. Yair Hayim Bachrach

In the matter of a prohibition “lo titgodedu” (do not cut yourself into factions) does not apply, there is no problem when one group does this and another does that, within one Beit Din. But if there are two Batei Din, if they are of equal value or stature we might think there is no problem, compared to Batei Din of unequal stature. But in fact its the Batei Din that are equal that we must be concerned about because even though they are equal, it looks as though there are two Torot!