[Avodah] new manuscripts

[Micha Berger]

On Tue, Sep 17, 2013 at 08:11:31PM +0300, Eli Turkel wrote:
: We all know the opposition of CI to new manuscripts including R. Chananel
: as being unreliable...

Was it a lack of reliability, or that (as I understood after previous
iterations of the topic here) they lack authority because the halachic
process went on for years without them? That established halakhah is
based on something else, and it holds the momentum of precedent and
minhag Yisrael.

Interestingly, the Rama (CM 25:2, quoting the Mahariq) limits halakhah
kebasra'i to cases where the later poseiq had access to and must have
addressed the concerns of the earlier. Perhaps consciously deciding
with the earlier source's bar pelugta. This would give an *increased*
authority to newly found rishonim, as one can't say "rov achronim [ie
basra'i] hold otherwise".

See http://www.aishdas.org/avodah/vol31/v31n059.shtml#01 where I argue
that the Rama's kelal would not apply when the Me'iri (in that case, R'
Chananel in ours) is running counter to "an alternative pesaq ratified
by generations of peer review". He speaks of a case where some do hold
like the shitah the lost sefer supports, and thus it weakens the other
side in an existing and viable machloqes.

And then I note the acharonim (including the Shakh) who disagree with
the Rama on a related point and say that halakhah kebasrai is only
among 2 rishonim or 2 acharonim, but the kelal doesn't touch the case
of a rishon (and I would *guess* even R' Chananel or the Me'iri) vs an
acharon.

Tir'u baTov!
-Micha

-- 
Micha Berger             Never must we think that the Jewish element
micha at aishdas.org        in us could exist without the human element
http://www.aishdas.org   or vice versa.
Fax: (270) 514-1507                     - Rabbi Samson Raphael Hirsch