[Avodah] Halachic Texts: More Background

[Micha Berger]

On Fri, Jul 11, 2008 at 12:14:57AM -0400, Richard Wolpoe wrote:
: > 1- The Gra only violated mimetic precedent when he believed it to
: > be provably wrong.

: Is this a fact?  have you surveyed all of the GRA's objections to status
: quo? ...

It's the product of a perusal of Maaseh Rav. However, if you're convinced
that the Gra poses a problem to normative halachic process, despite the
large acceptance of his ruling as a valid eilu va'eilu (if not accepted
by too many as /their/ "eilu"), the burden of making a survey would fall
on you.

I'm trying to defend the normal stance, by defining halakhah
descriptively. You're defining halakhah prescriptively and then compaining
that people don't fit that prescription. I have been arguing for over
a year now that this is simply proof that your presceiption is wrong.

Descriptively, we see teshuvos that work in senifim lehakeil (in some
domains, eg much of EhE, nearly all teshuvos qualify). We find poseqim
who usually follow mimetic precedent except in this case or that. The
SA follows the rov of his triumverate of codes, except when he doesn't.
These say to me that there are very few algorithmic rules of pesaq, and
far more matters that heuristically give weight to this shitah or that.

:> 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.

: I don't get this. Posqim have uniformly required tallis gadol for all
: inlcuding Rema and Mishna Brura. how come this status quo is not subject to
: revision as a minahg Ta'us?

You're arguing that something doesn't fit halachic process by appealing
to halachic process. You instead need to appeal to the virtues of the
artgument itself -- not who held it.

IS not wearing a tallis gadol during shema arguably wrong? Certainly --
midevar sheqer tirchaq. But if you're wearing a tallis qatan, is it
definitely wrong, well, is it so simple that he's not practicing what
he's preaching when he says the third pereq?

: > 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.

: This has nothing to do with a Rishon's level. It has to do with settled
: law.  Rabbeinu Tam is on a Rishon's level, too  is that mean I may make a
: bracha on his Tefillin INSTEAD of Rashi's? if not why not?

A shitah that can be shown to be internally flawed isn't settled law.
You're just reinvoking what I tried to dismiss in #1.

: Alternatively may I eat hametz after hatzos on erev pesach beusase the ba'al
: hama'or paskens it's a valid form bf bi'ur/? If not why not?

Let's invoke the same three criteria:
1- How is the pesaq not to internally flawed?
2- Are you textually equal to a rishon?
3- 3 you actually have -- there was no formal nimnu vegamru. Which reduces
the rov who do not allow you to do so to a factor that may be outweighed
by another. Not a rule that removes the option from the table. (See below)

: > 3- There isn't really a rule of rov poseqim when no one enters the room
: > for nimnu vegameru.

: Who says?

I should have been more clear. When I said "isn't really a rule",
I should have better emphasized the word "rule". It's still a factor
on the poseiq's pro-vs-con sheet. What I meant was that it's not an
algorithmic rule, making it impossible for other factors to bring it back
into discussion. When there is a formal head count, such as in Chananya
ben Chizkiya ben Guryon's attic, azlinan basar ruba is an actual rule
(given all the details and caveats to the rule in Mes Horios) not a
factor to consider among others.

:    1. The Beis Yosef in YD 101 says there IS and tha's how he rejects the
:    Rif

And yet the SA violated his own rule of nimnu vegamru in numerous
places.

:    2. MB uses Rov acharhoim in MANY places as HIS sources in Sha'ar
:    Hatziyyun such as BE'tzitzis

And he also violates it in many places. Such as the tzeirei in
"Yisgadeil".

Because saying that it carried the day in one din or antoher doesn't
mean it's the factor that will always carry the day.

: GRA deviates from settled law and status quo - let's say about 200 times...
: BUT he keeps it to himsef and WARNS people NOT fo follow his p'sak [witenss
: chayei Adam]
: But his talmiddim take HALF of wat he says and uncacnels it. Maybe the GRA
: would have bee nalaremed if he knew Maa'seh Rav would be published  Read
: on!

In which case, when did they turn iut into common practice. As the ghetto
walls were falling and people no longer could rely on the mimetic lifestle
of the past now that they were more mobile.

You held me to the date the emancipation actually hitthe ghetto, as
opposed to the general air of openness that forced the need for Chassidus.
Then you delay the actual acceptance of this change in din to the next
generation. Thereby moving the actual halachic change to after the
walls fell.

But that's tangential. If there was enough openness in the Gra's day
that the Besh"T needed to inspire the masses, there was already enough
decay of mimeticism to warrant a greater interest in texts.

: Have yo uasked your rebbe if he considers' the GRa's positions as being -
: say a little bit agaisnt status quo? And does your rebbe use 2 matzos or 3
: at the Seder. And why2  Does he pasken like Gmara over posqim?

My current poseiq humors my own desire to stick to minhagim I can be
explained. So he will pasqen for me differently than he would for himself.
I have the advantage of coming from a very mobile heritage, and have no
multigenerational minhagim. Which is untrue of my rav.

...
: Good point. But if you throwback and forget precedent why NOT re-interpret
: fro mscracth! That;s the whole point! You either accept settled law as
: normative or you allow Rabbanim/Posqim to read into Autoritative texts as
: they deem fit.

... or you listen to the past year of debate, and stop asking me to
accept an either-or.

1- The argument that RER is a throwback can't be supported. Just because
there is no objective metric doesn't mae the claim any less obviously
absurd.

2- When we speak of weighing factors, the factors have to be real. You
can't invent a koach chakhamim. No one ever in the history of halakhah
granted Sanhedrin, never mind a contemporary "musmach", the power to do
hafkaos on a case-by-case basis nor without the husband doing any
ma'aseh.

One can only select among eilu va'eilu, not invent ideas of whole cloth.

...
: My point is that if the GRA lived today, you would find him to be far more
: distrubing to status quo than Wolpoe.

Quite likely. But it would still be obvious he had broite pleitzes.

: But The GRA and I have something in common,
:    1. The GRA wants to throw out some.much of Ashkenaic Rishonic practice in
:    favor of a More Talmudic practice
:    2. I want to throw out some of Ashekanzic Acharonic practice in favor of
:    a more Ashkenazic Rishonic practice. {KAJ has bee naccused of davening
:    "minhag Rishonim]

I have nothing against your #2. I have something against your saying that
this is the only way to go, when you shift from arguing in favor of the
Maharil's perspective on precedent to arguing against the correctness
of other weighting schemes.

Tir'u baTov!
-Micha

-- 
Micha Berger             A wise man is careful during the Purim banquet
micha at aishdas.org        about things most people don't watch even on
http://www.aishdas.org   Yom Kippur.
Fax: (270) 514-1507                       - Rabbi Israel Salanter