[Avodah] Specific to general vs general to specific (was: Minhag Yisroel...)

[Chana Luntz]

RSM writes:

> I believe that there are very few cases in the Mishna, the 
> obvious yesod of TSBP, in which a halachic principle is 
> *derived* from a specific individual case, as in the case in 
> Yevamot RCL cited (there's a very similar example in Ktuvot 
> perek 2). The Mishna very often formulates the law it is 
> stating in the form of a case, not a principle, but it seems 
> to me that this is for the most part a stylistic or 
> pedagogical form, not an essential difference in approach. 
> Let's look at a few examples. Let's compare Kiddushin 1:1 
> with 3:1; the former a formal statement of principles, the 
> latter specifying the law in a specific case. Is the latter 
> an example of Chazal's "tendency to work upwards from a 
> specific case"? It seems to me more of a different way to 
> present the halacha than a fundamentally different  approach. 
> BM 2:1 states legal principles; 3:1 states what the law is in 
> a case. It seems to me that the mishna in the latter is 
> applying principles it knows to the case in hand (indeed, 
> citing one explicitly) rather than deriving legal principles 
> from the case. 

My first response to this was - well what do you expect?  I give you a
case where we see Chazal in action, ie the way they function when faced
with a new case and you cite me examples of halacha Moshe miSinai - ie
the essence of TSBP.  If there was anything that was more likely to be
"top down" I would have thought it would be halacha Moshe miSinai.

But then I thought - well is that really true?  Is it so easy to dismiss
the fact that the mishna also brings a lot of case law as merely
"stylistic or pegagogical"?   It strikes me that the mishna is far more
case oriented than say, the European law codes (I don't know about legal
codes of a similar era, eg Roman or Greek codes - or how about the Code
of Hammurabi)?  If one is formulating a code, rather than setting up a
case law system like the common law legal system which really does move
dvar mitoch dvar - surely one would expect just principle, just as one
does within statute law in common law jurisdictions.

It is also in many ways surprising, when you think about it, the way the
Torah itself often gives specific examples rather than general
principles.  For example, the discussion about negligent manslaughter
whose punishment is galus is all about a man who chops wood in a forest
and some of the wood flies off and kills somebody.  And then the mishna
in Makos discusses which things are included within the punishment on
the basis that they are similar to the case of the woodchopper or not.  

Because in English (and hence Australian) law, criminal law is statute,
rather than case law, based, the contrast to the way we learnt criminal
law at law school, and particularly murder/manslaughter is marked.  We
started with concepts such as mens rea and actus reas (evil intent and
evil act) and worked from there, only later getting into the case law.
This is in contrast to much of civil law under the common law system,
such as contract and torts, where because it is mostly case law based,
we started with Carlisle v Carbolic Smoke Ball (the advertisment that
said that if you bought a Smoke Ball, you were guaranteed never to catch
a cold), and Donahue v Stevenson (the snail in the bottom of the bottle
case).  However European legal systems are generally code based, not
case law based, and hence my impression is that they would be learnt in
manner which is more similar to our criminal law. 

So it seems that there are (at least) two alternate ways of formulating
a legal system, and the Torah (really surprisingly, would you not have
expected it to be codelike?), the Mishna (at least to the extent that it
is not bringing halacha Moshe miSinai), and Chazal often seem to me to
prefer something closer to the English common law system than the Code
system, which I then described as being a tendency to work upwards from
a specific case to general principle, rather from general principle
downwards to a specific case.  RRW's language dvar mitoch dvar might
have been better,  because of course once you have formulated the
principle from the case, you then bring it to bear on subsequent cases,
but the key thing is, that because you have the original case in the
back of your mind, you are always looking also at why the current case
might be distinguishable or why the original case is generalisable in a
way it seems to me that you do less if you are working from a Code.

> I will readily concede that in the gemara, deriving halachic 
> principles from a given case is much more common, but I still 
> think that to say broadly that the fundamental approach of 
> Chazal is from the specific to the general is not accurate. 
> On the contrary, I think that for the most part Chazal tend 
> to determine the halacha in specific cases from well-known 
> and accepted general principles. 


> Saul Mashbaum 

Shavuah Tov

Chana