[Avodah] Just what ARE the rules of p'sak anyway?

[Micha Berger]

On Mon, November 5, 2007 4:14 pm, JRich at Sibson.com wrote:
: Is heuristic result reproduceable?  If so, imho it's a semantic
: difference between saying it's heuristic versus algorthmic.  If not,
: then you still haven't solved the indivudual 'random' issue.

Heuristics do include Monte Carlo methodologies that would include a
random factor. But I didn't suggest that here.

So, they are reproducible. Two poseqim who assess the realia about
which and the halachic issues impacted equally would reach the same
result. There is individuality, since so much is assessment rather
than rules. But it's not random.

And there are limits. One can't pretend eishes ish or mamzeirus issues
aren't weighty ones. Or give weight to a "halachic issue" which one
invented out of whole cloth. Those limits, particularly the first one,
will have fuzzy edges; weighting systems that some judge okay, and
others would not -- but that too would be a difference in pesaq (in a
nice self-referential way).

For example, the problem nearly everyone has with hafkaas qedushin.
There is no textual basis for extending "kol demeqadeish adaas
derabbanan meqadeish" in an era where there is no institution one can
point to as being the locus of "daas derabbanan". Today, one would
have to ask, which rabbanan? (Looking at the rishonim, the machloqes
seems to be whether geonim had such authority. Hakol modim they
didn't.) There is no minhag avos support for such things, no historic
community which anulled qidushin - and the possibility for a
halachically married couple not being legally married has existed
since slightly before the Emancipation! At some point the weights are
beyond acceptability -- but that too becomes an eilu va'eilu.

Let's put it back in the Maharal's terms.

Someone who changes the weights to find a desired result is no longer
simplifying an Infinite Truth to fit it into this universe. Different
shadows of the same object are each valid. But if you trace the shadow
while changing the direction of the lighting mid-stream, you are left
with a picture something that isn't a shadow of the original. The
weighting can't simply be to justify the result; and in that sense
even including human cost is different than ends-driven decision
making.

The weighting system, the angle of the light, is the a priori -- and
must itself be a product of the halakhos of making halakhah.

SheTir'u baTov!
-micha

-- 
Micha Berger             One who kills his inclination is as though he
micha at aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv