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

[Chana Luntz]

RMB writes:

> 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.

...
 
> 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.

I don't think I disagree with your analysis that part of psak is
heuristic with factors having to be weighed.  The point is that you
cannot weigh factors if you don't start with the case and then look at
what applies (ie factors).  If you start where RAF seemed to want to
start - with philosophical principles that you formulate in the abstract
as a consistent guide to life and upon which you believe you now need to
act, you are almost certainly going to miss many factors, (and often and
most likely the human cost factor as the human cost is borne by the
shoel or by society, not so much by the posek) in your analysis.

So I think I am discussing a step before yours.  Before you can get to
the point of being able to weigh factors, you need to have all the
factors that can possibly be weighed in contemplation.  If one can point
out the Shmuel was capable of missing an important human factor, it
seems to me that rather demonstrates is that even getting to all the
factors that could be weighed is very very hard.  

Earlier you wrote:

> 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.

Actually though, do not those teshuvos often read as though they are
trying to get to a result that they know is correct, and finding the
tools to do so (prove it is a d'rabbanan, find a snif lehakel or a safek
or a sfek sfeka)?  Sometimes one does get a very strong sense that the
posek feels a certain position is correct (one might call it daas torah,
or underlying morality or whatever - I guess depending on where you
think it is coming from).  The teshuva of Rav Moshe on abortion
certainly reads like this.  He is convinced abortion is murder, and has
to argue quite hard and wrestle with the texts to get them to say that.
Sometimes on the other hand one gets the opposite sense, that the posek
sat down with the texts and the result is what came out of them, almost
to his surprise - or at least it just flows automatically if you read
them simply and plainly, using ordinary analysis.  I confess I get that
sense from the Tzitz Eliezer's psak on abortion - I don't think that is
necessarily where he would otherwise gone, but that the texts seemed
compelling.   On the other hand, where I felt the Tzitz Eliezer had to
struggle with the texts to get to the result he felt had to come out,
was in the opposite case - where a woman wanted to continue to bear a
child, even though the doctors stated emphatically that it would shorten
her life, and she said she didn't care, so long as she would have
children to survive her, and the question was, was she allowed *not* to
have an abortion.  And there seems to me to be the same sense of
wrestling with the texts to allow her to do what she wanted to do.

And then there are the "leap of genius" type teshuvos - ie where
somebody reinterprets or brings a gemora (or the Torah) or a line of
rishonim that is desperately compelling, but unheard of before.  The
example that springs to my mind on this is Rav Moshe on allowing
somebody not frum to be counted in a minyan.  Now I do think a bit that
he did feel he needed to find this result - because that is what klal
yisroel were doing and in a way it was a necessary psak in the context
of the America in which he was living, in order to allow many many ad
hoc and not so ad hoc minyanim to survive, and he needed to defend the
practice - and one wonders if he would have ever linked the gemoros
together the way he did and understood the gemora in Arachin the way he
did if there hadn't been that kind of social need.  But the result is so
mindblowingly a chiddush that simultaneously seems to make so much sense
and be so obvious that you end up sitting back and saying "wow".  Ie
there is no sense of struggling with the texts, but rather the texts
just seem to fall into line like dominos.  Somehow to me it is this last
set that feels like the truest mapping, to use your terminology -
somehow the siyata deshmaya seems (at least to me) to be the most
visible.  And yet these seem to me to be the ones that are *most*
difficult to put into any rule based formulation, as they have a semi
miraculous feel about them.  And yet they feel very situational - this
particular scenario sparked this particular reaction (including the
assistance from above - ie was the particular help *needed* here?).  It
is not guaranteed reproducable, even when the same person writes other
teshuvos (so what changes?).  If anything it feels closer to a master
golfer (or other sportsman) getting his swing just right.  Did the
golfer weigh the factors (the weight of the ball, the wind etc)? -
perhaps unconsciously, but you can see the same golfer on a not so good
day struggle to hit the ball with anything like the skill.  
 
> 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.

Agreed.  But, when they do not follow the classic rules, is when you
sometimes have this sense of wrestling with the texts (and sometimes
this sense of a "knights move").  Ie if you look at the cases where ROY
comes out against Maran).  The cases where he doesn't are relatively
easy and straightforward, the interesting ones are where he does.  I
agree, what the klal is doing and has been doing has an effect - think
of the psak allowing a Sephardi to eat in a hotel where the bishul akum
problems are resolved the Ashkenazi way.  Or the non glatt meat teshuva.
Some of these the weighing element is clearer than others - in the case
of the non glatt meat teshuva, there were issues of kovod habrios and
darkei shalom and eiva and these were clearly articulated and you could
see how they were being weighed.  In the case of the eating at an
Ashkenazi hotel, I think there were underlying factors being weighed,
including what has been done historically by the klal and great Sephardi
rabonim and what is being done today, but they are much less clearly
articulated.  And sometimes the "knights move" aspect seems in the
linkage itself or the appeal to factors generally unthought of  (if in
fact you were to hold like X, the consequence would be that you would
have to hold like Y is case Z and clearly that is untenable - which of
course it clearly is, but nobody has thought of that).  But again, and
maybe this is my bias, I tend to feel that the existance of the knights
move or this sense of almost divine intervention kind of proves the
correctness of where the teshuva went retrospectively.  But if you are
not taking the situation seriously, and are looking to impose
preformulated rules too hard, then the knight's move aspect can't
happen, there is no opening.


> 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.

Yes but poetry is by definition situational, is it not - you have to
know when and how to take licence, and the wrong place and the wrong
time does not work.  And the poet does not sit there and weight his
words in the way you described adding in this factor and that.  He
weaves a pattern with words, which is dependent on the individual
situation.  I think I like this formulation the best of all.

> SheTir'u baTov!
> -micha

Regards

Chana