[Avodah] Halacha as a System and Deriving halachah for new situations (two subjects for the price of one!)

[David Riceman via Avodah]

One final post on RJR's implicit question.

Halachists think in rubrics but vote in case law.  I cited the din that 
each member of the court must have a unique source to convict someone of 
a capital crime.

What has this to do with precedent? The precedents we have are described 
as case law.  When I was in yeshiva it bothered me that Sha'arei Tshuva 
often summarizes responsa without even mentioning their reasoning.  Now 
I think that was deliberate.

Now there are certainly a lot of opinions about how binding precedent 
is.  But even someone who finds it strongly binding has lots of wiggle 
room for two reasons: (1) any one physical behavior may have many 
halachic descriptions, and (2) the precedents are open to many halachic 
descriptions.

Here's one example.  RMF, in the introduction to IM, says that he hopes 
the book will be studied for its reasoning rather than for its 
conclusions.  Yet that doesn't seem to be what happened.  His ruling on 
mehitza is based on the claim that one may not have mixed groups of men 
and women in public.  But my town has street fairs several times a 
year.  We have lots of people here more haredi than me, but I've never 
heard anyone try to make the case that we need a mehitza for a street 
fair, or try to avoid the fair.  RMF's ruling is taken as a precedent in 
case law, not a precedent in reasoning.

One of the recurring themes in Tosafos is that minority opinions in 
Hazal are never discarded.  The rubrics are always viable.  The question 
is whether there's another way to construe any particular precedent so 
it doesn't contradict the current case.

So the dual system - - think in rubrics, rule on cases - - is a feature, 
not a bug.  It enables a complex mix of precedent and hidush.

David Riceman