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

[Micha Berger]

I am a little frustrated that the conversation is still about whether
there are rules, or whether some exception disproves the rule. I
proposed a third alternative, and I don't even see people trying to
dismiss it before returning to this dichotomy.

Let's say pesaq is not an algorithm, with yes-or-no rules, but a
heuristic in which various factors are weighed.

Many teshuvos in EhE and YD have the following structure. First the
meishiv proves it's derabbanan, then he adds snif lehaqeil after snif
lehaqeil until the pesaq lequlah is found. This seems to me a very
clear expression of the distinction I'm trying to draw. Not rule vs
rule, but adding up weights.

Thus one can't make an absolute statement like Sepharadim pick Shas
over Tosefta, but rather that they weight Shas far more than Tosefta
-- but might use the Tosefta if other factors come into play.

==

This notion that halachic process is a heuristic also fits well with
another idea I fell in love with, something from R' Moshe Koppel's
"Metahalakhah".

There are two ways to learn a language: The native speaker doesn't learn
rules of grammar before using them, he just knows what "sounds right".
An immigrant builds his sentences by using such formalized rules. RNK
notes that the rules never perfectly capture the full right vs wrong.
A poet has to know when one can take license.

He argues that halakhah is best transmitted by creating "native
speakers". It's only due to loss of our progressive loss of the Sinai
culture that we need to rely on transmitting codified rules. RMK notes
in a footnote the connection between this idea and some ideas in
"Rupture and Reconstruction". Earlier cited cases are the loss of
culture that occured with Moshe Rabbeinu's death, such that halakhah
needed to be reestablished by Osniel ben Kenaz -- chazar veyasdum, and
similarly the reestablishment of numerous dinim by Anshei Keneses
haGedolah -- shakhechum vechazar veyasdum. Leyaseid, he suggests, is
this codification.

The notion then that a conflict in halachic values is resolved by
heuristic rather than rigid rules of what trumps what is consistent
with this notion. We are trying to capture something inherently
non-algorithmic.

==

Looking at an example we are discussing on Areivim, zimun for women.
(For a good survey, see RAZZ's
<http://www.ou.org/publications/ja/5760fall/legal-ease.pdf>.) Your
choices are: don't, may, and must -- all three of which have support.

The minhag avos oriented poseiq would have to explain why the answer
is "don't", or at most "rarely".

The aggadic value oriented poseiq would be looking at the sho'eles to
see whether her goal is AYH or some kind of adulteration of Torah
values, or ..., or.... And then, depending on whether his aggadic
orientation is deveiqus or toward the discipline necessary for
sheleimus, or .... he would have to come up with a pesaq.

The formalist's answer would depend on whether he emphasizes Shas
(must) or BY (may) or MB (ought not).

Interestingly, though, the non-American Briskers (trying to exclude
RYBS, RAS, RAL and the YU community) are NOT true to form on this. By
their normal stress on their usual sources, the Brisker Rav and his
talmidim should have *required* zimun for women, for the same reason
the Gra does. His fealty to minhag avos and aggadic values are not
non-zero, and for him they lead to not quite loyally following the
usual meqoros. Even lequlah.


RnCL introduced the notion of bottom-up pesaq and the story of
Shemuel.

AIUI, bottom-up here is used to refer to two elements:

1- Taking the human cost into account.

This is not bottom up, IMHO. It's on factor that needs to be weighed.
Shemuel isn't taken to task for applying strict ideals without
accommodating the human reality as much as ignoring a whole subsection
of those ideals.

2- Building a pesaq based on case law, rather than starting from
Divrei E-lokim Chaim and applying to the case.

Here I would say it is "bottom up", but it's not instead of top-down.
If we accept the Maharal's notion that pesaq is the art of mapping DEC
to a finite reality, then we will map things differently as our
reality, knowledge of reality, and attitude toward reality change.

When the woman's report that her husband was killed by a snake was
proven to be true, Chazal realized they until then had a gap in their
knowledge of how women behave, and whether the report would in general
be reliable. The pesaq lekulah wasn't a breach of applying DEC
downward as much as a shift in what that downward was understood to be.

So, I still think halakhah is more like Platonic Idealism than
Aristotilian Realism. Truth becomes a set of instances, rather than
one collects instances, finds a pattern, and constructs a truth. What
changed is how one does the "becomes" as one knows more, not the
direction of application.

I'm not sure what we could assess from mishnah phrasing. This is a
style of composition that values rememberability over everything, even
precision (chesurei mechasra vehakhi ketani; or bameh devarim amurim,
without the "meh' written in; etc...) Why would we think that it
reflects the actual process used to reach the conclusion?

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