Talmud: Overview of Minhag - Sheet 1

The first five mishnayot of this chapter deal with the authority of minhag (religious custom). To be more precise, the discussion is about practices which are not technically prohibited by law, but the community decided to refrain from them nevertheless. The opening Mishna deals with the custom of refraining from labor from the morning before Pesach, even though labor is not prohibited by law until midday. The Mishna notes that different locations adopted different practices, and thus a person who travels from a place that practiced one custom to a place that practiced another custom would find themselves in a tension between their original custom and the local custom.

The Mishna assumes that minhag can obligate the individual even when one is not in the place where it is practiced. The exploration of how minhag has authority is explored in the Gemara and we will discuss that question when we come to that sugya.

Another question we might ask is how minhagim begin and what gives them official status. Do minhagim emerge from local practice among a majority group, are they formally legislated by leadership, or are they result of Rabbinic leadership and decision-making?

In addition to the example of the custom to eat or refrain from roasted meats at the seder included in our chapter, the Mishna offers other examples of different places having different customs. These include the timing of when fruits of the Sabbatical year must be removed from the home, the selling of goats and sheep to gentiles, lighting candles before the onset of Yom Kippur, and working on the Ninth of Av. There are many other examples of authoritative minhag in Tannaitic literature spanning different areas of practice. Examples from the Mishna include the minhag to say or not say a blessing over the recitation of the Megilla on Purim (Megilla 4:1), customs governing business transactions (Bava Metzia 4:11 and 5:5), and payment of workers (Bava Metzia 7:1 and 9:1). In addition to examples found in Tosefta Pesachim, which include returning betrothal money after the death of the groom and funeral and mourning practices (3: 11-12), we find many other examples where local practice is deemed to be authoritative. The Tosefta in Rosh Hashana says the text of the Mussaf on Rosh Hashana is determined by local practice (2:11), Tosefta Berachot teaches that the recitation of the mourner’s blessing is based on minhag (3:23), while Tosefta Ketubot says that certain dowry practices and the responsibilities of the wife are based on custom. These are just some examples of the numerous instances in which minhag is seen to be authoritative. From these examples it appears that minhag operates in many different ways. Our Mishna is an example of a minhag of stringency, where a community added on to the legal requirement. The example of reciting a blessing over Megilla reading or mourning rituals appear to be examples of minhag determining which legal opinion to follow. The customs governing commerce and acquisition deal with what people can expect or demand when dealing with transactions or other economic issues.

The Mishna does not define the parameters of a “place” in regards to the authority of minhag. We could be talking about geography, a shared Rabbinic authority for the location, or political authority. In later times some halakhic authorities will speak about regions or countries that share minhagim.

The fact that a legal code like the Mishna recognizes the authority of minhag and the diversity of minhagim reflects a willingness to accept multiple practices as legitimate, as opposed to attempting to legislate a singular approach. In the Yerushalmi on our Mishna, Resh Lakish (R. Shimon ben Lakish) raised this as a problem to R. Yochanan. He asked whether this legitimation of multiple minhagim was in fact a violation of dividing groups according to different practices:

Reish Lakish is asking why the Mishna would endorse multiple practices in violation of a law that would seem to say otherwise. R. Yochanon answers him that this prohibition applies only to practices which violate specific legal norms of authority, leaving diversity of minhag as a protected form of communal difference.

The discussion here highlights how the Mishna’s endorsement of the authority of local practice is in effect an acknowledgment that standards and observance in specific areas of practice will differ between communities, and that communities have a right to legislate specific areas for themselves. While not full-blown pluralism, the concept of “minhag hamakom” (the custom of the place), certainly makes room for a certain degree of local decision-making in the shaping of religious behavior.

This phrase at the end of our Mishna is particularly challenging. The phrase threatens to undermine the Mishna itself. The Mishna established that customs of stringency follow the individual, even when they come to a new place. This suggests that one must observe their minhag of either working or not working even if they come from a place that does the opposite. If they are coming from a place that does not have the stringency, i.e., their practice is to work, they can observe the local stringency of not working at the new place without violating their personal minhag or generating conflict. If their minhag is to not work, and they come to a place where the custom is to work, they will have a conflict. If they keep their stringent minhag of not working they will create conflict. If they work, they will be violating the stringent minhag.

Both the Yerushalmi and the Bavli noted this problem. In the Bavli we find the following debate between Abaye and Rava concerning this problem:

According to Abaye, the tension is resolved if we interpret the clause of “do not deviate” as referring only to the first case of the Mishna; when one who has the custom to work travels to a place that does not work. In this case, the demand to not deviate serves as an explanation for why one must observe the local stringency even if they are not from that place. They are obligated to not work out of respect for the local population and maintain the peace, not because the local stringency has any halakhic claim of authority over them. An implication of Abaye’s view which will emerge in a later sugya is that if one could maintain their practice in private without causing communal tension, they may do so even in violation of the communal stringency. Rava’s view, however, is that the requirement not to deviate refers to both clauses. In the case of our Mishna, a person who has the stringency not to work who arrives to a place that does not have that stringency, can practice their stringency of not working because desisting from labor is not perceived as a religious stringency. Many people are found not working in the marketplace. Observing this stringency in a place where people work would not create friction because it is not noticeable as a deviation from normal practice.

According to the Yerushalmi, R. Yochanon offers another answer:

The Pnei Moshe commentary (R. Moshe Margalit 18th cent.) explains R. Yochanon in line with the Bavli. The Korban HaEda (R. David Frankel 18th cent.), however, explains R. Yochanon as applying the principle of “do not deviate” to a case where one who has a stringency not to work comes to a place where people work, if that person’s behavior would cause people to question their motivation. If others would know either from the person’s profession or personality that the only reason that they were not working was a religious motivation, they would indeed have to perform labor in order to avoid controversy. Chanoch Albeck accepts this interpretation as the pshat (straightforward reading) of the Mishna. (See his notes section in his commentary on the Mishna)

All of these approaches among the Amoraim recognize that observing one’s personal practice when it deviates from communal practice, even in a matter of custom, creates tension. The text does not specify the nature of that tension. In the case of stringency, it could broadcast a negative judgment or “holier than thou” attitude which people might find offensive. In the case of ignoring a stringency, it may be because the local population believes that their stringency is actually a requirement. Deviation from the minhag might then be interpreted as an outright violation of the law by the local population.

In any event, it is clear that communities took their customs and standards quite seriously, and individuals making exceptions for themselves was not appreciated. This phenomenon is in contrast to the pluralism of minhag noted before. Apparently, while difference in custom was supported in different places, people were expected to adhere strictly to the same practices within the community. We witness a similar situation today. Ashkenazi and Sephardic synagogues can stand happily side by side, but no one would dare bring Ashkenazi practice in to the Sephardic synagogue or vice versa.