[Avodah] Sephardi-ism: some food for thought

[Chana Luntz]

RZS writes:

> No, this is not bari veshema.  It's not a personal financial 
> dispute between R Reuven and R Shimon.  R Reuven has paskened 
> that what you want to do is forbidden; but you speculate that 
> perhaps he did so because he wasn't sure.  Even if your 
> speculation is correct, he was presumably aware of R Shimon's 
> reasons for permitting, and nonetheless decided not to.  So 
> if you have a rule to follow his psakim then you must be 
> machmir. 

If you have a rule to follow the psakim of the machmir, ie he is your
Rav, then you are in completely different territory and I agree you need
to be machmir.  

The impact of this interpretation is if you don't.  

Let us say, for example, that I have no tradition to follow any of the
late American gedolim (and/or neither does my Rav).  And on a matter I
find a psak from Rav Moshe and a psak from Rav Henkin.  One is machmir
and one is mekil.  I am certainly not going to put my head between the
mountains and decide whom of the two is greater. And nor does one each
way constitute a majority. Your understanding of the Rashi would
(should) therefore mean that I should cleave towards the makil and away
from the machmir.  Because while it is certainly likely that the machmir
was aware of the other's reason for permitting and nevertheless decided
not to, I am not privy to the full extent of his reasoning.  There could
have been all sorts of extraneous considerations or issues of safek not
alluded in the teshuva.  

On the other hand, the mekil also was presumably aware of the reasons
for the machmir's forbidding, and nevertheless decided to permit.
According to your reading of Rashi's explanation of Koach d'heter adif
then (unless presumably after reading both teshuvos I or my rav are
convinced of the correctness of the machmir position or the
incorrectness of the mekil position), I ought to be following the mekil
position.

> At most, what you have is not a safek but a sfek sfeka.

Not quite sure how you get to a sfek sfeka, but that usually leads to
greater leniency, not greater strictness.
 
> Where kocha dehetera adif *does* come in to substantive 
> halacha is if you have a new case, and you want to apply R 
> Reuven's underlying shita from the first case and deduce how 
> he would pasken here.  In that case you have to be careful, 
> because you can't be sure that he really holds that shita.  
> Particularly if his shita there leads to a kula here, you 
> can't be sure that he really would be mekil.  Or if the case 
> in which he paskened was d'oraita, and you now have a 
> d'rabanan, then you can't be confident that he'd be machmir 
> here too; if he was sure of his shita then he would, but if 
> he wasn't then maybe he would be mekil here.

All this is true, but as indicated from the case above, only the half of
it. You can just as well, excluding the situation where it is your Rav
or the person you tend to follow's psak (or for that matter the majority
psak) which is in question, apply the rule in a situation where the
cases appear identical to a previously given psak.

And it becomes applicable in even more than a case where I happen to
know that on the question there is a machlokus between Rav Moshe and Rav
Henkin, or any comparable gedolim.  If faced with a machmir psak *from
any gadol whom I would not regard as my Rav or automatically follow*,
surely I am obligated to seek out and determine whether indeed there are
any comparable gedolim who have ruled l'heter.  Because I don't know
that the Rav in question really held l'chumra, maybe he was only holding
so l'safek.  So my job, in the absence of a particular tradition to
follow that Rav, is to "case the joint" and make sure that none of his
equivalents have ruled l'heter.  On the other hand, the reverse is not
true.  If I find a Rav of stature (which would seem to include anybody
whose stature is greater than mine), despite not being my Rav, who holds
l'heter, then unless my particular Rav rules l'chumra (assuming he has
the stature to do so, or perhaps unless I myself have problems with the
Rav's reasoning, depending on the weight one gives to ones own
understanding), I can feel pretty confident relying on that Rav's
position l'heter as being OK, because he would not have poskened l'heter
if he was not sure, ie it is a bari. And I do not need to look any
further.

So on all matters on which we do not have a clear line of tradition from
our personal Rabbaim, then, according to this understanding of Rashi, we
ought to be putting effort into both finding and following piskei
halacha l'heter.  However, this is not usually included as one of the
rule of ho'raah, which is one of the reasons I don't believe this is
indeed what Rashi is saying.

> -- 
> Zev Sero               Something has gone seriously awry with 

Regards

Chana