[Avodah] Deriving halachah for new situations

[H Lampel via Avodah]

On 12/6/2015 4:43 PM, Micha Berger wrote:
> R. Micha Berger:
>:> And what about cases where the intent isn't specific enough to cover one
>:> understanding over the other? How we apply a gemara about nitzotzos or
>:> gacheles shel mateches to electrical appliances is unlikely to depend on
>:> a detail of Shemu'el's intent -- he likely had nothing in minde relevant.

> Zvi Lampel:
>: No? Don't the poskim decide the law by analyzing what the Talmud's gedarim
>: are, and equating to it the essential properties of the modern situation?
>: Do you hold that all such discussions by the poskim, and the Amoraim's
>: discussions about new situations, in which they are claiming to be
>: learning from their predecessors' statements going back to the aerliest
>: ones and avoiding kushyas from them, are disingenuous?

> Yes, they are deriving implications from established halakhah. But that
> doesn't mean that the amora (eg) had our case or something just like it
> in mind, that he would have made the same implication if he had been
> introduce to the possibility.

It's true that the amora (for example) did not necessarily have the case
in mind, especially if it involved a new invention he probably did not
anticipate. But nevertheless he did have in mind an essential property
(my Rebbi referred to this as the "gedder") that determined his p'sak in
the case he dealt with, which would also determine the p'sak in the case
he was not aware of. Being medameh milsa l'milsa is not looking at the
external similarities of the scenarios, but at their abstract, essential
properties. When the Torah speaks of what damages must be paid by the
owner of an ox that gored another ox, the baalei mesorah do not restrict
the halacha to oxen or things that look like oxen. They determine what
the essential property of the case of the ox is, and apply the Torah's
p'esak to any other entity that possesses that essential property. Then
we say with certitude that this is the din d'oraissa, meaning this is
what the Torah paskens for this situation. It is clear from the Gemara's
discussions that the baalei mesorah, in determining the p'sak for new
situations, are intent in knowing what their predecessors held was the
essential property that determined the halacha in the scenarios they
had addressed. The assumption is that the predecessors were working with
principals that determined the halacha, not reacting to a situation in an
ad hoc and superficial manner. Another assumption is that the predecessors
were not fuzzy in their minds about the specifics of those principals.

The point is that each sincerely held that this is what the predecessor
would have said in such a situation, based upon (each one's understanding
of) his principals. The approach is always to cite the earlier
authorities to apply their principals to the new situation. And the
earlier authorities invoke those before them, back to Moshe Rabbeynu. This
is what makes TSBP a mesorah.

> There are often many ways to extrapolate from the known situation to
> decide new ones.

> To illustrate:
> If the amora [Tanna?--ZL]
>              said A is okay and B is assur, and never pictured that
> there might be a situation with both A & B, or that neither apply.

If a food item has in it something that is okay and something that is
assur, then there is no issue. It is assur. Perhaps a better example
would be where the posek said A is obligatory and B is assur, and a
situation arrives in which they coexist and conflict. But here too,
it would just be a matter of determining whether that authority held in
principle that an issur overides a chiyuv or vice versa.

Always, the aim to is find out what the predecessor would have said the
halacha is.

> A tanna [An Amora?--ZL]
>         who considers A to be the definitive criterion will reach a
> different conclusion than someone who bleieves B is, or for that matter,
> one who decides that both A and the absence of B both contribute to
> permissability.

But their "belief" is that this is what the predecessor would have held
was the definitive criterion, based upon his known opinions. Even if
they have no way to know what his principals were, they are convinced
their reasoning is so sound that the predecessor must have shared it.
But always, the intent is to determine what the predecessor would have
said the halacha is.

> Or what if there are middle states that are somewhere between the two
> that a rishon would need to decide where the line goes when a case
> arises that sits in that range? Different rishonim could analyze the
> same statement and extend it to the new situation differently.

Analyze it based upon what criteria? Based upon the criteria they held
was that of the predecessors.

Zvi  Lampel