[Avodah] Rules of Psak

[Richard Wolpoe]

On 10/31/07, Jonathan Baker <jjbaker at panix.com> wrote:
>
> RRW:
>
> What you're looking for is a real response to R' Joel Roth's "The Halakhic
> Process: A Systemic Analysis".


Exactly. I think attacks on JRs' methodology need to be specific.


 I read an Orthodox review that said that
> Roth concluded that while there are lots of rules of psak, it's left
> entirely
> to the individual posek to decide which rule applies where.  In other
> words,
> there are no rules that govern the application of the rules, so there are
> in
> effect no actual rules that would lead inexorably from S {set of
> circumstances}
> to P a singular psak.
>
> This, then, is an argument for anarchy in psak, allowing the Conservative
> poskim to go where they will.
>
> You argue that there are meta-rules such as "adherence to minhag" etc.
> that govern where a psak goes, but that's still not a rule, that's an
> excuse to generate a conclusion, and then Tosfos or the Rosh or whoever
> are free to apply the rules as necessary to reach the conclusion.  Puk
> chazi rules.  Not that that's a bad thing, when you're looking at a
> community that is 90% observant, but it doesn't help much when, as today,
> 90% of Jews are non-observant.
>
> There needs to be some kind of new overarching principle to guide psak,
> like the old "minhag rules" or "the Bavli rules".  Unfortunately, in this
> post "Rupture and Reconstruction" world, the rule may be becoming "lomdish
> chumra rules", which can drive more people away from Torah.
>
> It seems to me that part of the original purpose of AishDas was to create,
> on at least an individual level, a consciousness choice of meta-rules that
> would describe and drive one's own path in Torah & mitzvah observance.  If
>
> it's so difficult to even define the scope of a meta-rule, that goal was
> probably doomed from the start.  It was part of the reasoning behind the
> MMGH learning program - to learn enough about different derachim so as to
> choose intelligently among meta-rules.  But learning enough about a derech
> to even formulate a meta-rule is very difficult: philosphism, Chasidism
> (various strains), Lurianism, Yeshivishim, Modernism - all have different
> ways of approaching the rules.--
>         - jon baker


Well put!
The problem is that poskim themselves do not seem to posit a rule and to
stick to it!

I can come up with more than ONE valid model of meta-Halachah. However,
shich poskim stick to ANY meta-rules?

Bet Yosef set up a Bet Din
Kitzur SA supposedly had one, too [viz. chayei Adam SA harav and Derech
hayyim]
Shulchan Aruch Harav USUALlY follows Magen Avraham
Kaf hachayyim brings as many sources as possible. I am not sure how he
selects the winner but I
ROY aiui is about restoring the authority of Maran Bet Yosef amongst
Sephardim.

But many poskim are SO eclectic it is really hard to discern any methodology
or any authority that can trump their pesak.  And that would mean that:

   1.  Choshen Mishpat 25 is obviated wrt to'eh dbidvar hasmishne and
   2. unlike a Sanhedrin the scnario of horayos could not happen
   3. therefore making modern poskim less accountable than the Beis Din
   Hagadolo in the BhM!

I think this was one  the main objectiosn to the Rambam's Mishne Torah. OTOH
Tosafos nearly always justifies its positions [or attempts to anyway]


Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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