[Avodah] Halachic Texts: More Background

[Micha Berger]

On Tue, Jul 08, 2008 at 12:02:04AM -0400, Richard Wolpoe wrote:
: The raya brura for this is that one of our earliest post Talmudic sources -
: the BEHAG - claims that the Sder should have 2 matzso except Friday night.
: This is a very strong indication that in his day:
:    1. There was no ISSUR of having 3 matzos re: lechem oni
:    2. There was not NEED to have lechem Mishna on YT
:    3. There WAS a need to have lechem Mishna on Shabbos

: Tosafos/Rosh take it for a davar pashut that lechem mishna is need on YT,
: too - hence the 3 matzos.

: Gra Attacks Rosh as not reading the Gmara properly, but it is clear that the
: sugya was not aliba dehilchesa [for the Rosh on this point]. Either the Rosh
: held:

:    1. Once the Ga'onim required lechem mishan the sugya had to be
:    retrofitted to match noramtive Halacha AS PRACTICED  OR
:    2. The Rosh [and others} might have realized that the Talmud never
:    EXPLICITLY required lechem Mishan on YT, but it was always assumed to be
:    there -  albeit IMPLICITLY. This Sugya must have not held it to be
:    noramtive, and Behag would have concurred.  But the sense of Shab as awhole
:    might have beeen otherwise

I want to draw attention to the words RRW capitalized in possibility #1.

There are two kinds of precedent: mimetic and textual. IOW,
    1- the weight of halakhah as it has been practiced by centuries vs
    2- the weight of halakhah as sefarim have described it for centuries.
The latter would usually / always? intersect with a third issue:
    3- an informal azlinan basar ruba -- the long history of pesaq
    means that a poseiq-counter is bound to find that the majority hold
    that way.

(In previous posts I tried to use the term "minhag avos" for mimetic
precedent, since I hate the academic sound of the polysyllabic English.
But since that caused confusion that I meant actual minhagim, English
it is.)

When dealing with the question of throwbacks, we need to speak of all 3.

1- The Gra only violated mimetic precedent when he believed it to
be provably wrong. I earlier stated "wrong" on the halachic level, ie
assur, but as my examples showed, it also included other kinds of wrong.
Such as the paradox of pasqening on lekhem mishneh at the seider such
that the concept of lekhem oni means MORE loaves than a Shabbos meal.

It would seem he holds that mimetic precedent really only has enough
weight to stick with existing practice even if the practice seems valid,
but weaker than the one you would otherwise choose.

2- If it's possible for someone to be assessed at being at a rishon's
level, then the textual precedent issue is null. Moreso, it's entirely
reversed -- he would be like a later rishon, and halakhah kebasrai.

3- There isn't really a rule of rov poseqim when no one enters the room
for nimnu vegameru. Some poseqim chose to follow one, such as whatever
weight the SA gave his triumverate of codifiers. But one can't say that
every poseiq must give the concept all that much consideration.


On Mon, Jul 07, 2008 at 11:33:11PM -0400, Richard Wolpoe wrote:
: The GRA did not jsut rule against minhag he ruled against widely accepted
: P'sak. This is tantamount to What R. Eliezer Hagaodl did with his rayos. I
: fail to see any hilluk in how the GRA rejected the consensus of Posqim and
: Rabbi Eliezer rejecting the consensus of his peers.

R' Eliezer's raayos weren't formal process vs precedent, it was miracle
vs formal process. The tanur shel achnai story speaks to the inviobility
of process -- even HQBH doesn't trump the rules. Not the relative importance
of two elements of that process.

...
:> One could attribute this to today's poseiq not being a throwback. Thus,
:> he has neither lesser wisdom nor precedent to confine him.

: So who syas WHO is a throwback.  I s RAmbam a Trhowaback? Tosafos? Tosafos
: essentially jsut did waht the Talmud did, except in France. They
: dialectically threw texts together ina eiseive and urminhu style.  Soes
: folowing Amoraic Style give Tosafos Amoraic power?  some say yes!  That is
: how Tsoafos can be mevateil mayyim acharonim and the issur of clapping on
: Shabbos

We don't refrain from mayim acharonim because of Tosafos. Tosafos
post-date and try to justify the practice as being derived from some
(unknown) pesaq, by showing it isn't necessarily a minhag ta'us

Consensus tells us who is a throwback. The same concept of consensus
you're worried about protecting on a practice-by-practice level.

...
:>: Nah.  Gra dies 1797, Napoleon invades Russian Emptire in  1812 The ghettoes
:>: only BEGAN collapsing 15 years after Gra's passing.

:>: Gra knew his pesakkim were private.  He never even tried to popularize
:>: them.  Those who reached back to the GRA to create a new Halachic norm
:>: really wer quite radical to abandon Minhag Avos.

:> These two paragraphs largely cancel

: How?

: #1 GRA stil had a ghetto
: #2 Gra never pushed his minhaggim or psaqim

Because you're still maintaining that the Gra's practices became
halakhah after the fall of the ghetto. So, your #1 fails to argue
against the fall of the ghetto as a cause because your #2 moves
the halachic change until later, after the ghetto.

I think we're being overly precise. The fall of ghetto life started well
before the actual fall of the ghetto. which was the motivation for the
birth of Chassidus. Similarly, the shift to Gra-style or Besh"t-style
pesaq etc... also took a span of time. Overlapping and slightly behind
the span in which the culture shifted.


:> That's not the question. The question is whether what the Gra said still
:> within the eilu va'eilu of halakhah.

: Wlle whose eilu v'eilu do you accept?

My rebbe's. Like any other matter of pesaq.

: Rabbi Backman's hafka'as Qiddushin?  Arguably not as radical as you would
: think.

Sidenote:
Who before RER had a case-by-case hafqa'as qidushin with no maaseh? All
the precedent cases were:
1- taqanos, a general rule "we invalidate any marriage where the chasan
does does XYZ" and
2- involved a maaseh related to qiddushin (that otherwise would be
valid, eg meqadeish bashuq) or gittin (that otherwise wouldn't, such as
if he renegs on the get before the shaliach leholakha gives it)

...

: But you are missing my entire point.  I am not saying the Gra created yesih
: mei'ayin I AM saying he opened a can of worms /p[androa's box/ slipery slope
: etc. ready-made for future abuse against the system.

: Even if every arguemnt is 100% trued ,he destabilized it.

It seems the potential for that seems to also go into the consensus,
That the person in question is so clearly sui generis that they had no
such fear.

And in practice, giving the Gra authority in this way didn't leave us,
300 yrs later, with an unstable system.

In fact C, the "halachic" movement that is outside of normative pesaq,
needed to turn to Historical School, an offshoot of German R, for its
historical underpinnings. It couldn't find anything within O.

...
: But the GRA is a somebody. and by showing that nto dozens but operhaps
: hundreds of minhaggim, psesaqqim and mietmietcs are questionable if not
: wrong is even MORE disturbing.

Dozens. Maaseh Rav isn't that big.

: Maybe in 200 years from now, my proposals wil seem like old hat too!

Of course they will. We will have a beis din gadol mimenu bechokhmah
uveminyan, and all the authority of real nimnu vegamru of a body sitting
on Har haBayis that can make binding taqanos etc... BB"A!

Tir'u baTov!
-Micha

-- 
Micha Berger             The mind is a wonderful organ
micha at aishdas.org        for justifying decisions
http://www.aishdas.org   the heart already reached.
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