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Halacha Notes: The Yarmulke Fallacy and Berachoth Falling into Disuse

July 24, 2014

The Yarmulke Fallacy.

Earlier, I mentioned the halachic idea that I would now like to dub The Yarmulke Fallacy, namely, that once a (meritorious) practice is adopted by the Jewish community, like men wearing a head covering 24/7, then it becomes eternally binding. As mentioned before elsewhere, this fallacy, although used often in modern discourse, was not subscribed to by Maimonides or the Vilna Gaon.

Similarly, and this in answer to a friend’s question, you do not have to do everything the Ari did, or the way scholars of the Zohar advocate. There is nothing wrong in doing things like the Ari did or that are based on teachings of the Zohar, like purposely taking the lulav while standing in the sukka or reciting the oft-misunderstood prayer of brich shmeh as the Torah is taken out of the ark, but it is wrong to demand that anyone, whether individuals or communities, should have to do like the Ari or the Zohar because a certain-yet-unknown critical mass of people have been doing like the Ari or the Zohar for a certain-yet-unknown amount of time, and the Ari himself would agree to this. That is why the Maaseh Rav is full of examples where the Vilna Gaon specifically did not follow the practice of the Ari. More so, the Vilna Gaon did not subscribe to every minor rule in the Shulhan Aruch either, because, and contrary to the conventional wisdom, many practices, especially in Orah Hayim, are not the letter of the law, but rather acts of stricture or elective piety that the Beth Yosef preferred. However, they were never required, nor would they become required even if everyone started following them.


Berachoth Falling into Disuse.

I was privileged to speak to Rabbi Nachum Rabinovitch recently, and he has yet to evaluate Rabbi Bar Hayim’s beth din’s claim that Hazal never ordained a blessing to be said on the sun once every 28 years, and that the talmudic reference to such is actually an insertion from heretical circles. He doubts Maimonides would have ruled against Saadya Gaon, who indeed believed the Talmud ordained a blessing be said annually on the solstice. Maimonides was thoroughly familiar with his teachings, so it seems unlikely that Maimonides would not have at least considered our text of the Talmud to be questionable. But Rabbi Rabinovitch is not necessarily opposed to considering more evidence.

Concerning my suggestion that even if the Talmud really did mean that there is a blessing to be said on the sun every 28 years, yet one could still say a blessing on the awesome visual phenomena that accompany the solstice, he told me that being that there is (or at least was until Rabbi Bar Hayim’s people started doing it) no extant practice to recite the blessing on those phenomena, then it may not be resurrected, even if it were to be proved with certainty that Hazal intended for that blessing to be recited. It must be stated that although the blessing itself, oseh (maaseh) b’reishith is recited in a number of circumstances, what becomes extinct is the specific circumstance. Yes, the blessing is still recited under some circumstances, but because it is not in practice recited in this circumstance, it can not return to practice.

I must admit that although I have heard this argument before, I have not been shown a source for this rule, nor do I understand the logic, and I have reason to believe that Maimonides and the Vilna Gaon actually did not subscribe to such a rule. On the contrary, there are examples of blessings that fell out of disuse that the Vilna Gaon reinstated:

1. As immigrants who have fathered sons in Israel have seen, the practice, as advocated by the Vilna Gaon, is for the father to recite the blessing shehecheyanu at his son’s circumcision, despite the fact that this was not the practice for centuries among any communities the Vilna Gaon had ever encountered.

2. Further, the Vilna Gaon also advocated reading the scrolls of Ruth, Ecclesiastes, and Song of Songs on the festivals from actual, hand-written, parchment scrolls, and not from printed Bibles, as was the practice for centuries, and that when read from a kosher scroll, two blessings, al miqra megilla and shehecheyanu,    should be recited by the reader. Before he instituted this, such was not done by any Jewish community.

Thus we have two clear examples of circumstances where the practice did not involve a blessing, but the Vilna Gaon reinstituted their recitation based on review of the primary halachic sources in opposition to the standard, universal practice.

As for Maimonides, in the same section that governs the laws of birkath hahamma, he rules that there are certain blessings that hazal ordained to be recited once every few thousand years. If the opportunities to recite a particular blessing or blessings only occur with that frequency, such that wide swaths of the Jewish world, and especially the Rabbinate, are completely unaware that such are to be recited, then there is certainly no extant practice to recite them, yet that is how Maimonides rules! Thus, we see that Maimonides, like the Vilna Gaon, did not subscribe to some sort of principle of benedictional disuse.

My gut tells me that Rabbi Rabinovitch’s rule is based on the policy of maintaining the status quo, and is more political than halachic, which is sometimes a stronger factor. I am still unconvinced though, because after all, if a blessing should be recited under certain circumstances, should centuries of neglect be a reason for us to continue avoiding doing what our sages enacted for us to do?


From → halacha, logic, original

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