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The Shulchan Aruch (607:6) writes that on erev Yom Kipur, everyone gets whipped 39 lashes. However, I have not seen this done in practice. Is there any source who justifies the practice not to do this? (The Be'er Heitev notes that the Arizal would lash only four times, but I still haven't seen anyone do this either.)

josh waxman
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b a
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    The Torah Lishma contains a responsum regarding someone with this custom; if he accidentally missed out on performing it, he should do so after Yom Kippur (Siman 150). The context of the responsum suggests that this applies to someone who has the custom, but that the custom is by no means universal. This shu"t is Sefaradi. From my personal observations, this custom does not appear to be universal in the broader Ashkenazi community, though it does seem to be nearly universal in some communities, including Chabad. – Fred Sep 25 '12 at 18:30
  • why assume, just because a custom was encoded in a text, that the absence of the practice (or practice of absence) also needs to be encoded in another text to be "justified"? – josh waxman Sep 25 '12 at 19:59
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    @joshwaxman Because that text is the Shulchan Aruch, and he doesn't just say that "some" have this practice. Do you eat kitniyos on Pesach? – b a Sep 25 '12 at 20:59
  • no, but if I was Askenazi from a subcommunity that did not, I would not; there is also a difference between prohibition (something our ancestors were noheg issur) and active practice (something our ancestors were noheg to do). – josh waxman Sep 27 '12 at 02:24
  • @Fred, I understand many chasidim do lashes erev Y"K, not just Chabad. – msh210 Sep 27 '12 at 03:18
  • I've never heard of this custom before. Thank you. Great question! @josh, I think the point that it seems to be taken as normative by the Mehaber (and the RaM"A) is indicative that, before falling out of common practice (at least among my community/ies) it was standard practice, so it's reasonable to assume that this change is at least attested to, if not justified, somewhere. – Seth J Sep 27 '12 at 04:28
  • @SethJ That makes the question a historical one, not a halachik one (which is fine, I'm just observing.) – Double AA Sep 27 '12 at 06:56
  • @double aa I think a bit of both. – Seth J Sep 27 '12 at 08:27

2 Answers2

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Nitey Gavriel (Yom Kippur Perek 20 Sif 19) writes that many have the custom not to whip on Erev Yom Kippur. He cites as a source Kaf HaChaim (O.C. 607:40) who claims that Erev Yom Kippur is considered a Yom Tov and we do not give lashes on Yom Tov. The Nitey Gavriel notes that this is the prevelant custom in Zitshov, Tshernobil, Gur and Amshinov.

Michoel
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I upvoted Michoel's answer. Still, there is a separate answer.

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We practice minhagim because they are our minhagim, practices our community is accustomed to perform. Even if a halachic text happens to record details of a minhag, that does not promote that minhag to the status of halacha. It remains a minhag, and the reason for it is minhag, rather than halacha, and rather than that it was written in that halachic text.

Shulchan Aruch is a mix of Biblical law, Rabbinic law, and custom. It would be nice if these were each color coded, so that we could more readily distinguish between them, but they are not.

The Shulchan Aruch (and Rema) records this particular minhag, as it was practiced that slice of time and place. It is recorded in the Tur as the Minhag Ashkenaz and based on Beis Yosef there, is mentioned first by the Rosh. Presumably, it was a fairly prevalent custom, for it to be recorded so straightforwardly. But still, it has the status of minhag.

Either parallel to this, or subsequent to this, the practice in some communities was not to whip. You can ask, perhaps, whether this initial lack of practice was justified, or was a deviation from an initial practice. But regardless, the minhag developed not to whip. Minhagim often develop organically, as folk practice is wont to do, or for valid halachic reasons. This minhag then stands in its place in opposition to the minhag which happened to be recorded in Shulchan Aruch.

If so, we don't need a textual justification for a minhag, even if that minhag is the opposite of a minhag recorded in Shulchan Aruch.

Can we compare this to kitniyot? Sure. There is a prevalent custom not to eat kitniyot. If someone who was an Ashkenazi wanted to go against that custom, there might be a problem that אינו כדאי והגון לזה שיתיר דבר שאבותינו ואבות אבותינו נהגו איסור. And there are such precedents in the gemara. But nullifying a customary prohibition is different from nullifying an action, and keeping one's community's established nullification of said action is even more different.

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I would need to see the Rosh inside, but this idea of punishing oneself in order to obtain kappara seems characteristic of the sorts of tortures the Chassidei Ashkenaz used to inflict upon themselves to atone for various sins. Rolling around naked in the snow, fasting, etcetera. This approach to life, in general, has fallen out of vogue. Do teshuva, regretting what you did and resolving not to repeat it, and Hashem will forgive you. You don't need to also undergo torture. (Of course, as the sources point out, this is not administered by bet din of semuchim, and so it is just a zecher to move someone to teshuva.)

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josh waxman
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  • http://judaism.stackexchange.com/questions/15176/is-there-any-source-for-saying-the-first-possuk-of-shema-quietly#comment29515_15187 – Double AA Sep 27 '12 at 03:19
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    Re. part 2 of the answer: Does anyone have the custom to do this in a manner so painful as to resemble actual malkus? In general, at least, this custom is carried out in manner that is painless or nearly so. – Fred Sep 27 '12 at 03:50
  • I had heard that the minhagim brought in Shulchan Aruch became halachah (I think I remember hearing something about the book Ohr LeTziyon; I didn't have time to read it but it's on Hebrewbooks here) – b a Sep 27 '12 at 05:02
  • @ba How did that happen? Was someone Gozeir/Metakein them? How else could they become Halacha? – Double AA Sep 27 '12 at 06:37
  • @DoubleAA Shulchan Aruch was accepted by all circles of Jews as authoritative – Michoel Sep 27 '12 at 06:40
  • +1 to @Fred's point. The idea of malkus is not the pain, but the reminder that he deserves the lashes and will thus do teshuva, similar to kaporos – Michoel Sep 27 '12 at 06:43
  • @Michoel Right, but Teimanim live in squares. Anyway, I agree it is a completely authoritative account of what the minhagim were then. That doesn't mean the same minhagim should apply now. Halacha is a different story, but you have yet to show how the minhagim became halacha. – Double AA Sep 27 '12 at 06:51
  • @Fred Indeed, I think that is how it is universally practiced nowadays. Yet Tur and later, Bet Yosef (and Shulchan Aruch) don't mention that it is light. Bach (on Tur) and Rema note that it is light. Also, the idea of malkus, even symbolic, may have gone out of vogue, alongside all those practical and very real self-afflictions. – josh waxman Sep 27 '12 at 12:41
  • @Michoel yet your answer demonstrates that indeed, not all minhagim written in Shulchan Aruch are binding. Kaf Hachaim and Nitei Gavriel are much, much later, than Rav Yosef Karo. – josh waxman Sep 27 '12 at 12:44
  • @ba Indeed, I don't find it surprising that some hold that. Some (e.g. Divrei Chaim) hold that Shulchan Aruch is binding because it was written with ruach hakodesh. Some (e.g. Meshaneh Halachos) hold that Mishna Berura is binding for the same reason. Yet, even for halacha (forget minhag) it is not entirely binding, and you will find poskim deviating from what is written in Shulchan Aruch on occasion. – josh waxman Sep 27 '12 at 12:50
  • I wasn't intending to argue one way or the other. @DoubleAA asked what would make them binding, so I suggested that fact that S.A. was accepted as an authoritative book. As far as understand it, there are times when later Achronim will argue with S.A., but in absence of that S.A. is binding. – Michoel Sep 27 '12 at 13:38
  • right. but how can those later acharonim argue on the Shulchan Aruch, if it is binding? how can minhagim exist contrary, if it is binding. what if i am an acharon, who has gone through the sources? it is like saying that it is binding, except where it is not. – josh waxman Sep 27 '12 at 14:12
  • @joshwaxman As I said, that's just what I heard. And I see that you say that there are others who hold that way too. Except you didn't bring someone who says otherwise (though you did bring a proof, and I think the reason why achronim can argue is because they learned the halachah from the gemara and up, in which case someone who only learned Shulchan Aruch can't argue with it) (I'm sure there are people who have your opinion, but I've never found it) – b a Sep 27 '12 at 16:04
  • @ba but explanations for deviating minhagim are often ex-post-facto rationalizations for the practice. as general reading on mimetic tradition vs. textual sources: http://www.lookstein.org/links/orthodoxy.htm – josh waxman Sep 28 '12 at 01:16
  • @Michoel Shuchan Aruch was accepted (for the most part and by most communities) as a collection of authoritative rulings on Halacha (ie. deciding between different interpretations of Halacha). I'm not aware of when, how, or why it would have been accepted as an authoritative collection of what all of our minhagim should be. – Double AA Jan 13 '13 at 16:41