[Avodah] Da'as Torah

[Micha Berger]

On Wed, Jun 26, 2013 at 12:05:31AM +0000, Kenneth Miller wrote:
:> Anyway, pesaq *makes* an opinion the law -- lo sosiru mikol
:> asher yagidu lekha. The poseiq's ruling, assuming he actually
:> followed the rules of pesaq and didn't make a mistake that
:> goes beyond eilu va'eilu, is what makes it the law. ...

: But in the real world, it can and does sometimes happen that the posek
: DOES make a mistake that goes beyond eilu va'eilu.

Well, I do acknowledge the case as an exception to my rule. I am
assuming it's rare. Still, the source of rabbinic authority (when there
is no error) comes from the creative nature of a legal process. Hashem
gave us a process for deciding law, not laws. When the process is indeed
followed, what the poseiq says is law because his statement constitutes
law, not explains something preexisting.

My point in that paragraph was that this is unlike questions of daas
Torah. There we aren't asking for a ruling, or even an approach to life
problems, but for a truth. Is it safe to stay in Europe? Does protesting
for Soviet Jewry help or harm? Should we apply political pressure to
obtain Moshe Rubashkin's freedom?

: I would therefore modify RMB's statement: Their proclamations
: do not define what is right, but their proclamations do define our
: obligations. Indeed, Halakhah *IS* a legal process, and if legal authority
: rests in our rabbanim, then we're obligated to follow them. But in the
: abstract, this does not prove them to be correct.

As you may have picked up from the discussion RMRabi and I had for the
first half of 5773, I think there are three scenarios involving rabbinic
authority and pesaq:

1- The poseiq comes up with a decision that is within eilu va'eil,
but I prefer a different tzad.

I think in this case we're expected to submit to authority. (Pace RMR:
preferably not blindly, you should learn what his sevara is.) And if
this happens very often and you have a choice of posqim (e.g. there
isn't a single literal morah de'asra), maybe find a new poseiq to form
a relationship with before the next she'eilah come up!

2- The poseiq comes up with a decision that involves hora'ah, but I
think he violated halachic process.

Here it's gray area. How sure can I be that my poseiq messed up, rather
than my 2nd-guessing did? If I do not have a heter hora'ah, I believe
you're obligated to follow your rav, and any culpability is his shogeig.
Then we get to the far end of this area...

3- The poseiq errs in a zil q'ri bei rav well established and settled
halakhah. (E.g. the Chayei Adam, Qitzur, Ben Ish Hai, AhS, MB and la'az
popularizations all agree.)

Then I think one is not supposed to follow the rav, and to do so would
be the sho'el's (presumably beshogeg) error.

When the halachic process is followed, it does define what is law,
what's right. Not "merely" our obligation.

When it is not followed, it may or may not define our obligations,
depending on where the case is in the spectrum (mixed metaphor, before
it was a "gray area") between #2 and #3.

Tir'u baTov!
-Micha

-- 
Micha Berger             Take time,
micha at aishdas.org        be exact,
http://www.aishdas.org   unclutter the mind.
Fax: (270) 514-1507            - Rabbi Simcha Zissel Ziv, Alter of Kelm