after p’lag haminhah). The difficulty of this position does not escape the Tosafists, who argue that one ought to follow either the view of R. Yehudah or of the stam mishnah but not the leniencies of each. In addition, those tana’im are disputing the time of tefilah, which was set according to the time at which sacrifices were offered in the Temple. The evening Shema, by contrast, is to be said"when you lie down," a time which cannot be fixed before sundown. No proof, in other words, can be brought for Shema from minhah.*” Rather, says R. Yitzhaq of Dampierre, we recite the evening Shema early because we hold that the halakhah is according to R. Eliezer and R. Meir , who teach in beraitot that the Shema may be recited from the time that people begin to observe Shabbat eve; i.e., before sundown. Thus, although the accepted view was that the halakhah followed M. Berakhot 1.1, that the time for the evening Shema begins at sundown, the existence of the established minhag indicated to R. Yitzhaq that this understanding was incorrect. The law must follow those sages whose positions accord with our custom.
There is one problem with this analysis: it contradicts some basic rules of halakhic decision. In the afore-mentioned beraitot R. Eliezer is in dispute with R. Yehoshua and R. Meir with R. Yehudah. According to accepted Talmudic tradition, the law follows the latter authority in both of these cases, and in both, R. Yehoshua and R. Yehudah argue that sundown begins the time of the evening Shema.* It is clearly for this reason that R. Yehudah Hanasi declares their position as the anonymous(=authoritative, undisputed) view in the first Mishnah . R. Yitzhaq’s theory, then, is beset with serious halakhic weakness.
We should note that virtually all authorities outside of Ashkenaz reject this custom;"whoever recites the evening Shema before the appearance of the stars is saying a berakhah I'vatalah."° This does not mean that they abolished the custom; indeed, like Rav Hai Gaon, several of them concede that the community practice is
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