Talmud: Exploring the authority of Minhag - Sheet 4

Sugya 3

In this brief sugya the Talmud raises the issue of how minhagim of previous generations can obligate later generations. The people of Beishan had a custom of refraining from traveling from Tzur to Zidon on Fridays, even though there was a lucrative market there. Presumably they took on this custom as a safeguard against possible Sabbath violation. They come to R. Yochanon, the leading sage of Eretz Israel and a student of Rabbi Yehuda HaNassi to ask him permission to discontinue this practice on the grounds that they are not as prosperous as the earlier generation and cannot afford to miss the economic opportunity of the Friday market in Zidon. R. Yochanon denied them their request on the basis that what was accepted by an earlier generation cannot be undone, and quotes the verse from Mishlei 1:8 “Listen my son to the instruction of your father, and do not abandon the Torah of your mother.”

The sugya raises some geographical questions. The city of Beit Shean is too far from the coast and not far enough North to be relevant. Ginzburg suggested that the people of Beit Shean actually moved to a city close to Tzur but retained their identity as people from Beit Shean. Many scholars refer to the Yerushalmi (below) that has a similar version of the story but identifies them as people from Misha or Mishan. Some scholars suggest that Misha or Mishan is a city closer to Tzur and thus makes the account more understandable. Others suggest that Misha is a city in Babylonia, and these people have returned to the Land of Israel and are asking Rebbi to release them from the stringency of their forefathers now that they are in a new situation.

The Yerushalmi (Pesachim 4:1):

The Yerushalmi is different from the Bavli in many respects. First, the story speaks about sailing on the ocean as opposed to just travel. Second, the Rabbinic figure in question is R. Yehuda HaNassi (Rebbi) and not R. Yochanon. Third, R. Chananya’s understanding of the story takes R. Yehuda HaNassi’s ruling to not be related to custom at all. He explains that R. Yehuda held that ocean travel was prohibited in any event. R. Shaul Lieberman suggests that R. Yehuda followed the stringency of Beit Shammai that prohibited sea travel on Friday because it could lead to Shabbat violation. This understanding suggests that the story in the Yerushalmi, like the Bavli, was referring to travel on Friday, not sea travel generally. Nevertheless, such a conclusion takes the story outside the context of minhag. R. Yehuda Hanassi prohibited them from travel because of a formal prohibition, not adherence to received custom.

Our sugya in the Bavli, however, keeps the allegiance to received minhag at the center of the discussion. R. Yochanon’s refusal to be lenient becomes a central articulation of the authority and strength of custom, particularly inherited custom. In spite of changed economic circumstances and perhaps even hardships, R. Yochanon declares the minhag to be a “teaching of the father and Torah of the mother” and thus binding on the next generation. In many ways this short sugya is the Talmud’s justification for the Mishna; a local practice has real authority, and violating that practice creates tension and conflict. Minhag is not only personal practice, it is a communal norm which binds the local population.

What is the legal argument behind R. Yochanon’s claim? Why should children be bound by the customs instituted by their parents or grandparents? How can a community create new prohibited practices that obligate their descendants?

The Gemara in Nedarim is discussing the possibility of a Rabbinic form of the Biblical prohibition of violating a vow. The example given is that permitting the violation of a minhag is prohibited. The implication is that once a minhag has been accepted it takes on the form of a vow. The model is compelling because vows have the power to transform a permitted item or behavior from permitted to prohibited on a Biblical level. A minhag, whether communal or personal, is thus understood as having binding halakhic force. It is interesting to note that communal minhag, unlike vows, are inherited and do not appear to require active consent or affirmation. The choice to attach oneself to a particular community or identify as a member is apparently the halakhic equivalent of taking on a vow. (The question of whether the obligation of minhagim may be released in the same manner as private vows are released is debated by the Rishonim and will be discussed below.)

According to the Rivash, the authority of minhag is identical with community authority in general. The same way civic leadership can determine taxes, public spending, set price controls and wages etc., they can also legislate religious norms and behavior. Minhag is a manifestation of the power of the kehillah. The identity of the kehillah, like any other corporate identity, continues even while some members leave and others (including minors) join. The obligation falls on the collective, and all members are obligated. Consistent with the Mishna, this model suggests that if someone leaves the community on a permanent basis, they are no longer bound by its authority. If they just happen to be elsewhere, as in the example of our Mishna, their identity as members of their community brings with it a continued obligation to follow the custom of their place of residence.

This issue of a community’s choice to change their custom is debated by the Rishonim. The Ramban (Milchamot Hashem on Pesachim 17a) held that descendants could not “annul their vow” and change from the minhag that they inherited. The Raavad (Hasagot on Pesachim 17a) argued that while minhagim unrelated to prohibitions or stringency may be annulled, those customs adopted by one’s predecessors related to stringency around a prohibition (the people of Beishan refraining from travel on Friday is an excellent example) may not be annulled. Rabbenu Asher (Rosh on Pesachim 4:1) ruled that, like other vows, minhagim may be annulled if one expresses regret in front of a Talmid hacham or beit din. The Shulchan Aruch (Yore Deah 214:2) appears not to rule on the matter.

With the ingathering from the diaspora over the last 75 years, the question of minhag has emerged as an important issue. Should we aspire to one shared practice in modern Israel, or should each community, Sephardi, Ashkenazi, Yemenite etc. maintain their traditional customs. Rav Kook argued in favor of each community maintaining their practices. He believed that each custom brought a different light that enriched the Jewish people. The Sephardic Chief Rabbi R. Meir Uziel disagreed and believed that we should aspire to develop a shared practice and custom so that we could build shared synagogues, kashrut standards, and other common religious norms. Leading halakhic authorities in the Religious Zionist world, such as R. Nachum Rabinovitch z”l, R. Yaakov Ariel, R. Eliezer Melamed, among many others have all weighed in on this issue. As more and more “mixed” couples build communal life together, the question of maintaining family custom will become more challenging.

Many have a hard time with authoritative minhag. First, as just noted, it can be divisive. Difference in liturgy, kitniyot on Pesach, certain kashrut requirements, and other customs can prevent Jews from different sub-groups from building shared religious life together. Also, many people do not want the choices and decisions of earlier generations, made in different settings and perhaps in response to different needs, to limit their freedom to determine their own religious practices. Why should the fact that my family has its roots in Poland prevent me from using Yemenite liturgy, even if I find it more inspiring?

I would like to suggest that, while not contradicting the challenges mentioned above, minhag holds a genuine power that can inspire us. Let us return to the verse applied by R. Yochanon as a justification for his refusal to release the people of Beishan from their minhag. “Listen my son to the instruction of your father, and do not abandon the Torah of your mother.” I would like to call attention to two derashot of this passage that may shed an interesting light on why R. Yochanon chose this verse as his prooftext. In Tractate Sanhedrin 102b the term “father” is interpreted as God, while “mother” is referring to the Knesset Yisrael, the Jewish people. In Midrash Mishle 1:8 “father” refers to the Written Torah, while “mother” refers to the Oral Law. From this perspective, R. Yochanon’s use of this verse is more than just a way to say respect the previous generations. Oral Torah, unlike Written Torah, comes from the people. It is the wisdom of Knesset Yisrael, applying or building on the Written Law for lives in the real world for the people. Minhag is the result of the religious and social intuition of the Jewish community. Our faith in this wisdom reflects our belief that the practices generated by our predecessors are a form of Oral Torah, they reveal the Divine Will for a particular community. To disconnect from that wisdom, even in the face of economic challenge, is to disconnect from profound insights that are part of our spiritual inheritance. Minhag embodies a precious wisdom that develops outside the formal structures of legal reasoning and application.