[Avodah] Rules of Psak

[Jonathan Baker]

RRW:

> The question remains. Are poskim bound by any set of rules or are the
> entitled to make them up as they go along?
 
> What Rabbi ABC and other Sephardim mis-understand re: Tosafos is that
> actaully Tosafos was notquite so innovative re: Halachah, and usually Tos.
> was more about conserving traditional practices [mimetics over text]  It
> would be unfair to say that Tosafos was unbound, aderabba, he was quite
> bound  b certain rules, just DIFFERENT rules.
 
> Aruch Hashulchan rarely repeals practice based upon original reads. Mostly,
> he accepts precedent, tradition, and Minhag.

What you're looking for is a real response to R' Joel Roth's "The Halakhic
Process: A Systemic Analysis".  I read an Orthodox review that said that
Roth concluded that while there are lots of rules of psak, it's left entirely
to the individual posek to decide which rule applies where.  In other words,
there are no rules that govern the application of the rules, so there are in
effect no actual rules that would lead inexorably from S {set of circumstances}
to P a singular psak. 

This, then, is an argument for anarchy in psak, allowing the Conservative
poskim to go where they will.

You argue that there are meta-rules such as "adherence to minhag" etc.
that govern where a psak goes, but that's still not a rule, that's an
excuse to generate a conclusion, and then Tosfos or the Rosh or whoever
are free to apply the rules as necessary to reach the conclusion.  Puk
chazi rules.  Not that that's a bad thing, when you're looking at a 
community that is 90% observant, but it doesn't help much when, as today,
90% of Jews are non-observant.

There needs to be some kind of new overarching principle to guide psak,
like the old "minhag rules" or "the Bavli rules".  Unfortunately, in this
post "Rupture and Reconstruction" world, the rule may be becoming "lomdish
chumra rules", which can drive more people away from Torah.

It seems to me that part of the original purpose of AishDas was to create,
on at least an individual level, a consciousness choice of meta-rules that
would describe and drive one's own path in Torah & mitzvah observance.  If
it's so difficult to even define the scope of a meta-rule, that goal was
probably doomed from the start.  It was part of the reasoning behind the
MMGH learning program - to learn enough about different derachim so as to
choose intelligently among meta-rules.  But learning enough about a derech
to even formulate a meta-rule is very difficult: philosphism, Chasidism 
(various strains), Lurianism, Yeshivishim, Modernism - all have different
ways of approaching the rules.

--
        name: jon baker              web: http://www.panix.com/~jjbaker
     address: jjbaker at panix.com     blog: http://thanbook.blogspot.com