[Avodah] Eilu v'eilu

[Zev Sero]

Micha Berger wrote:

> Except I wouldn't include of vechalav. That wasn't a matter of pesaq,
> but of making a takanah. The difference in practice wasn't a machloqes
> about preexisting din, but that there was a delay in it being
> nispasheit through the qehillos of the Galil. (The similarity is that
> this too is about chakhamim constructing, not interpreting, the law.)

Actually it is a machlokes.  Or at least, it's a machlokes whether
there's a machlokes.

Tosfos (Chulin 113a dh "besar behema") says that only R Akiva and
R Yose Haglili hold that it's mutar mid'oraisa.  The Rabbanan hold
that it's assur mid'oraisa, and therefore there's no need for a takana;
and Tosfos holds that the halacha is like them.

According to this Tosfos, R Akiva is the only one who claims there
was a takana d'rabanan against off bechalav; RYhG holds, and paskened
in his area, that there never was any such takana.  So it's not that
the takana didn't spread, it's that RYhG agreed with the majority that
it never existed, but disagreed with the majority that it's assur
mid'oraisa.

Now we don't pasken like this Tosfos; I'm not sure whether that means
we hold that the Tana Kama agrees with R Akiva, or that we just pasken
like R Akiva against the Tana Kama.  But a machlokes definitely exists.


-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas