Chag Kasher ve’Sameach to all.
Thanks to Rabbi Yoni Sherizen for prompting me to blog on this topic.
On a continuing theme in this blog it is fascinating to see the Talmud not only confirms that Jewish law is decided my human beings and not Hashem, but that such decisions can be made, not by the leading Rabbis of the time but rather by the actions of the people.
אמר ליה רבא בר רב חנן לאביי; הילכתא מאי? – אמר ליה: פוק חזי מאי עמא דבר
Rava bar Rav Hanan said to Abaye: What is the [accepted] halakha [with regard to the width of a side post?] He said to him: Go out [and observe] what the people are doing.
This is not the only time that we come across this concept. It may be argued that the Talmud is suggesting that the people are behaving correctly and the Rabbis can learn from their traditions.
However, perhaps the Rabbis have used this concept in another way. In the early 20th Century Rabbi Tobias Geffen realised that many Jews were drinking Coca Cola but he wasn’t sure if it was Kosher. As the practice was so prevalent Rabbi Geffen wanted to ‘make sure’ that the product was Kosher. See here for a fascinating history of Rabbi Geffen’s search for the Kashrut of Coca Cola.
There are also many instances in the Aruch Hashulchan and Mishna Berura where the authors suggest that whilst the practices of the people may be in breach of the law we cannot berate them as the practice has become so widespread.
This is not to suggest that people should behave as they wish but rather that on occasions the Rabbis realised that the law, for better or worse, was in fact decided by the people!