Q&A: Custom
Custom
Question
If most of the Jewish people conduct themselves contrary to Jewish law (for example, listening to music nowadays even without any leniencies, and the like), does that establish a halakhic permission?
Is a custom that was established not by the leading sages of Israel / halakhic decisors still called a “custom”?
When do we say that “custom overrides Jewish law”?
Are there halakhic / historical references for this?
Answer
Yes. A rabbinic law that did not become accepted by the public at large is nullified.
A custom that the public accepted upon itself is a custom in every respect. Maimonides himself distinguishes between a court custom and an ordinary custom. Of course, if it is a foolish custom, it should be abolished.
As for custom overriding Jewish law, there is a lot of material you can find online. See for example here: https://www.etzion.org.il/he/philosophy/great-thinkers/rambam/%D7%9E%D7%A0%D7%94%D7%92-%D7%9E%D7%91%D7%98%D7%9C-%D7%94%D7%9C%D7%9B%D7%94
Discussion on Answer
Who told you that in the past it really did become accepted? But even if so, see Kesef Mishneh on Rebels 2:7.
If it had not become accepted, it would not have survived until the time of Maimonides and he would not have ruled that way. As for the Kesef Mishneh comment, it is indeed interesting.
That is not necessary at all. Even today decisors will tell you the same thing, and today it is certainly not accepted. It is possible that Maimonides ruled this way because there was not yet a clear indication whether it had become accepted or not (how many need to disregard it for it to be considered not accepted?).
The plain meaning of the ruling of Maimonides and the Kesef Mishneh is directed to a court that would revoke a decree, etc. But why assume that it is nullified on its own?
Reason suggests that when there is no religious court, and the revocation of the decree has spread among most of the Jewish people, it is nullified.
There is a Jewish law not to clap on the Sabbath, and this is a decree that the sages enacted lest one repair a musical instrument. The Talmud says:
Rava bar Rav Hanin said to Abaye: We learned, “One may not clap, nor slap one’s thighs, nor dance,” yet nowadays we see that people do these things, and we do not say anything to them?… Rather, leave the Jewish people alone: it is better that they be inadvertent sinners than deliberate sinners.
That is, here we have a decree that the public did not observe, and the sages do not say that it is nullified, but rather that it is preferable not to tell the public that such a decree exists, so that they remain merely inadvertent and not deliberate.
Why, then, was the decree not nullified??
That takes us back to the discussion above about whether it became accepted and then was later nullified.
Regarding music, why say that it never became accepted? It did become accepted, and at some stage the public stopped observing it. In such a case too, is it nullified?