[Avodah] Sephardi-ism: some food for thought

[Chana Luntz]

RMB writes:

> IOW, the Sepharadim are complaining that the typical Ashk
> methodology is different than theirs. More development of one 
> idea and its justifications than of the list of shitos.

Well it is more than that, because, stepping back from the
Askenazi/Sephardi divide, the question really becomes - to what extent
is it appropriate to ignore what has previously been said.  The argument
for those who list shitos is that we stand on the shoulders of giants,
so how can we not take what they say into account - and so even if you
want to disagree based on lomdus, it is important to grapple with those
of your forebears and contemporaries who appear to say differently (or
to find comfort from those that disagree).

Hence as you can see the two do not need to be mutually exclusive - you
could easily do both, a survey of what has previously been said and the
lomdus.  BUT, and here is where the question really bites, if in fact
doing a survey of what has been said would inhibit the lomdus, what does
that say about the lomdus?  And if certain poskim do not feel the need
to cite what various achronim have said can we concluded that that is
because they feel that they are on the same level and free to disagree -
so it doesn't really matter what these achronim have said?  Whereas
others more willing to cite have a greater respect/deference for those
who may be achronim, but are still from earlier generations or
recognised as great in Torah.

I also, as I keep repeating, am not convinced, I confess, about the
Sephardi/Ashkenazi divide on this.  A number of Ashkenazi poskim cite
extensively.  You might perhaps want to argue that somebody like Rav
Henkin in Bnei Banim, who also cites quite a bit, while being Ashkenazi,
perhaps has been influenced by living in Israel and ROY.  And perhaps
similarly, although from a previous generation,  read the Tzitz Eliezer,
- I am thinking for example of his psak on abortion, - he cites very
extensively, numbers of achronim, Sephardim as well as Ashkenazim, in
total contrast to Rav Moshe, who cites the Rambam and Rashi and that is
about it.  So unless you want to say that he too was influenced by the
mileu, I don't think you can generalise like that (and I have already
said that the Ben Ish Hai strikes me as more sevara and less citation
based). 

In some way the contrasting abortion teshuvos are good ones to look at
for the purpose of this discussion.  Rav Moshe is convinced that
abortion is murder, and appears to see no reason to even cite, much less
discuss, the weight of achronic opinion which appears to hold
differently.  The Tzitz Eliezer in contrast bases his psak very much on
the weight of achronic opinion on the subject, and hence does indeed
cite extensively.  But while you can argue that, at least on this point,
the Tzitz Eliezer is in many ways a survey, that is because there is so
much lomdus cited in the many achronim he cites, that he does not feel
the need to add.  When faced with a much newer shiala (such as whether a
woman can go ahead with a pregnancy even if it threatens her life) there
is more lomdus - I presume because there is less precedent.

> : Not quite sure how you get to a sfek sfeka, but that
> usually leads to
> : greater leniency, not greater strictness.
> 
> I also await RSZ's explanation, he went faster than I followed.
> 
> However, the second part of your sentence isn't necessarily true.
> 
> Say you have a din derabbanan. Safeiq derabbanan lehaqeil. If
> you have a second safeiq breaking the tzad heter on the first 
> one, you would have a sefeiq sefeiqa lechumera.
> 
> Until RSZ fills me in, I don't know if my example applies to
> what he's describing.

I don't think this is usually what is meant by a sfek sfeka (although I
do agree that even a classic sfek sfeka can lead to a greater
strictness, which is why I carefully used the word *usually*).

Perhaps I am too influenced by ROY (although as we know, if he says
something there is always *a lot* to back it up in terms of earlier
citations).  I see somebody on this list referred us to an overview of
the klalei hora'ah by R' Berkovits.  Rav Ovadiah too has a list of kalei
hora'ah in the back of the first volume of Yacheve Daat - and while the
first of these is klalei safeka d'orisa (divided into four sub
principles) the second is klalei sfek sfeka - this time divided into 14
sub-principles (and note this is just by reference to Yacheve Daat).  I
confess that without reading the underlying teshuvos to which the
sub-principles refer, these, to my mind, come across as very cryptic -
but I think it gives a flavour of the extent to which the sfek sfaka
plays an important role in the way that ROY poskens.  In these teshuvos
there is a lot of discussion about what is a true sfek sfeka (do we hold
like a certain tosphos that holds that one can only have a genuine sfek
sfeka if it can be reversed, for example), can you have a sfek sfeka in
relation to a mitzvas aseh, or only a lo ta'aseh?  Do the sfekos need to
be equivalent, or only a kol shehu?  Differences in sfek sfeka in
relation to metzius versus halacha etc etc.

And of course the theme that seems to run throughout his discussions -
is the principle that a safek d'orita l'chumra a principle that is
itself d'rabbanan or is d'orita? (of course if it is d'rabbanan, the
mechanism vis a vis the safek sfeka is pretty straightforward, because
the first safek turns the situation from a d'orisa to a d'rabbanan, and
hence the second safek you follow the principle safek d'rabbanan l'kula
- whereas if safek d'orisa l'chumra is a principle from the Torah, then
this straightforward mechanism does not work).  As you can see from the
flavour of this, however, a safek sfeka is generally about getting to a
kula.

And I confess that it seems to me that most of the piskei halacha of ROY
that I would consider to be inovative involve sfekos and the sfek sfeka.
Ie in my view (and I know we keep getting this charge that he merely
lists opinions for and against and decides accordingly) it is the way he
works with and analyses the various sfekos that gets you to your
inovative psak.  If you start with the principle that if you have two
different forms of safek even in a din d'orita you will end up with the
thing being mutar (as I say, you have to also look at his analysis of
this to see how he gets to that), then the creativity and lomdus comes
in the analysis of what constitutes the sfekos which then allow him to
permit.  The three teshuvos which are at the top of my mind are: a) the
one about permitting someone Sephardi to eat at a typical Israeli hotel
where the food is only not bishul akum to Ashkenazi standards; b) the
one permitting a fellow who was machpid about glatt meat (as ROY holds
he is required to be al pi din as a Sephardi) to eat at the simcha of a
relative who was not so machpid (kovod habrios concerns being
important); and c) the teshuva permitting a pidyon haben to go ahead
despite the fact that the girl had previously had an abortion before she
was frum, so as not to tell the husband about that and perhaps destroy
the shalom bayis.
 
In a number of cases one does almost get the impression that he uses his
encyclopedic knowledge to generate sfakos in order to allow room to be
makil in situations where there are other halachic concerns to
necessitate this.  But it is not that he is not being mevarer the din,
although were the other pressing concerns not there, it is clear that he
would not necessarily be so keen on the shoel relying upon the heter.
Ie he is very explicit about the concerns such as kovod habriyos and
shalom bayis which are pulling the other way and perhaps making it
desirable that there be a safek sfeka in the din so as to make the
action fundamentally mutar.

> One thing about the MB, he tends to jump to laws of safeiq
> rather than trying to be mevareir the din far faster than 
> most other sefarim.

Well this is the odd thing of course.  The MB seems to be being accused
of what is here being described as being "typically Sephardi" - first
just listing shitos, and then going to the laws of safek. And yet it is
hard to think of somebody more Ashkenazi than the MB.  And it seems to
me that one can take the approach (ie ROY's approach) that the correct
way to be mevareir the din is to use the laws of safek.  Is this
specifically Sephardi?  I confess that if you read all of the sources
that ROY cites, one does not get the impression that it is, as he cites
many many others who use these principles, many many of them Ashkenazi.
The question is more when and how, and what are the sfekos identified.

RMB wrote a lot more on other things I have said - maybe I will have a
chance to discuss another time.
> 
> Tir'u baTov!
> -Micha

Regards

Chana