"Arguments about eating in the sukkah on Shemini Atzeret outside of Israel have a long and somewhat baffling history.[1] While not the only example of practice in opposition to the Shulchan Aruch, it appears to be among the most argued. The gemara, Rambam, the Tur and the Shulchan Aruch, written in many locales, all seem to be as unambiguous as possible in requiring one to eat in the sukkah. The Gaon, incensed by the spreading Chassidic custom to eat outside the sukkah, perhaps lemigdar miltah, went so far as to mandate sleeping in the sukkah on the night of shemini atzeret, in opposition to the Maharil, the Magen Avraham and normative custom."
the Seforim blog: The sukkah on Shemini Atzeret controversy
http://seforim.blogspot.com/2011/10/sukkah-on-shemini-atzeret-controversy.html
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"The question is why it's not put to rest by the gemara's conclusion: 'Vehilkhisa: yesuvei yasvinan, berukhi lo mevarkhinan'".
Here is a simple approach is that there are really 2 different ways [at least] to parse the conclusion
A "The Halachah is that we MUST sit, but w/o a brachah" - this is the normative interpretation of the Poskim
B "The Halachah is we MAY sit, but w/o a brachah" - meaning that despite the ch'shash of bal tosif we are allowed to sit - so long as we say no brachah.
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As opposed to the GRA and the Kitzur SA [who EG require even sleeping in the Sukkah ] - the Derech Hachaim and others insist on using the sukkah ONLY when the absence of the Brachah is clearly manifested.
Thus, those who do NOT sit might indeed be flouting the normative Poskim, nevertheless they CAN be harmonized with this "hilchesa" - which is probably Saboraic anyway.
There are other factors involved here "v'ein kan m'komo."
Shalom,
RRW
9 comments:
3- The Minchas Eluzar assumes lashon bitmiyah: How can the halakhah be that we sit, given that we can't make a bearakhah?
I think it's also interesting to note that the gemara actually records the machloqes, and it is a complicated knot of tannaim and amoraim. The notion of not sitting in the Sukkah on Shemini Atzeres, though, well predates shas. The question isn't "Where did this new idea come from?" because it's not new. Rather, it's "Why didn't this 'vehilkhisa' stick?"
There is no controversy.
But this is a very good example of how achronim love to pervert the meaning of the Gemara to come up with laws that they want. This is common for lawyers to do nowadays but the study of Talmud is supposed to be to find the meaning of the Talmud not to twist it into what you want it to mean.
Adam,
The alternative to assuming that everyone else is gaming the system is to wonder if perhaps one doesn't really understand how the system works.
Perhaps halakhah isn't supposed to always conform to the gemara's conclusion. Perhaps this kind of evolution is how things are supposed to work. After all, halakhah is a legal process, not a collection of facts. Then the question becomes the one RRW titled his post with. To rephrase: How is halakhah supposed to evolve, and how is this instance a valid example?
Micha. My concept of halachah is based on the Rambam in the beginning of Mishna Torah. To him Halacha is not an evolving process.
But I am aware that besides the Rambam there are two other opinions in the rishonim about the halacha process. but none that I remember say that it is an evolving process.
But I have heard this opinion before and it seems to me to be simply a way of ignoring halacha when it suits one and to make up halachas when it suits one. To be fair i saw this mostly in Israel where the idea of evolving halacha is used by rabbis all the time to usurp authority from the Gemara and assume it themselves. It is a sneaky process used to delegitimize the Gemara. when i was at the Mir i never heard of such foreign ideas. There the idea of halacha was simple--determine honestly what the Gemara says. period.
Unfortunately, though, the Rambam's position has a fatal flaw.
He writes that the Talmud Bavli (as R' Ashi and Ravina compiled it, without any subsequent insertions) is the end of hora'ah because all of Israel accepted it. This consensus, he writes, is as authoritative as Sanhedrin. And in the Rambam's day, it was the last Sanhedrin-approved decision out there.
However, time moved on. And by the Rambam's understanding of how halakhah works, we would be forced to ignore his own rules, and follow the system behind the Tur and SA. The SA with the Rama's Mapa has a greater level of acceptance among observant Jews today than shas had at any point between its writing and the Rambam's day! (Not as many Ashkenazim come from Bavel; many came from EY either directly or via Italy. And thus, many still considered the Bavli and Yerushalmi more equal in authority than we do.)
The consensus behind the SA is at least as sound as that behind the gemara, and thus at least as binding.
How can one follow a set of rules that imply the conclusion that one may not follow that set of rules?
Besides this when people say they accept Shulchan Aruch they never mean the actual Shulchan Aruch. For any particular decision they might mean Reb Moshe, for another they might mean the Chazon Ish and for another Reb Yoseph Karo and for another the Rama and for another Reb Joseph Karo in the Beit Yoseph etc and for another their local orthodox rabbi. It is a weasel word used to hid the real agenda-- "Don't ask questions. Conform and fit in and we will take care of all your needs. But if you ask too many question we will spit you out."
What is on any bechinah for semichah? Mes' Chullin and Yoreh Dei'ah in which book?
The acceptance of the SA is very real, and formalized.
Right--you win.
I don't think it is halachically permissible for non-Teimanim to accept the Rambam as their poseiq acharon. Rolling back the clock in this way is not how halakhah works.
But that said, my intent wasn't to "win" you to my position. Just to get you to accept that eilu va'eilu -- the Rambam's position isn't more right than anyone else's, and you can't use such aggressive language as "his is a very good example of how achronim love to pervert the meaning of the Gemara to come up with laws that they want."
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