In the tension between minhag and halakhah lies one of the fundamental distinctions between orthodox and liberal halakhic writing. In today’s orthodox world, this tension has spent its creative force. Minhag has long ceased to be a separate source of law in potential competition with halakhah. Both are administered and interpreted by the same elite rabbinic authority, which disallows the innovation of new custom and resists any attempt to critique established minhagim, even on the basis of solid halakhic argumentation. The experience of the early Reformers who argued on Talmudic grounds against piyutim and Kol Nidrei and in favor of prayer in the vernacular is instructive in this regard. In our liberal tradition, we have taken a more positive view of the continuing creative power of minhag. Liberal halakhic scholarship, accordingly, has concentrated heavily upon the"naturalization" of the many practices which exist in our communities and which deviate from the accepted norms of halakhah. An outstanding example of this work is R. Solomon B. Freehofs Reform Jewish Practice, whose introduction expresses a theory of minhag as a living source of Jewish observance. While"the chief purpose(of the book) is to describe present-day Reform Jewish practice and the traditional rabbinic laws from which they are derived," its major focus is upon the justification--bedi’avad--of existing practices even when they are not derived from rabbinic law.” Reminiscent of the rishonim Freehof seeks to address the apparently"alien" nature of Reform practice and to"naturalize" it, bringing it under the canopy of the theory of rabbinic law. Many Reform responsa, as well, are marked by this same intellectual process. Ironically, it is the literature of the most"non-halakhic," of todays Jewish groupings which continues the drama, debate, and creative conversation between halakhah and minhag that fill the most interesting passages of the halakhic commentaries, codes, and responsa.
This conversation is alive and well in our congregations.
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