[Avodah] Trends in Psak

[Micha Berger]

 From the blog Ishim veShitos
<http://ishimshitos.blogspot.com/2008/09/two-trends-in-psak-autonomy-of-posek-vs.html>
(a/k/a <http://tinyurl.com/43uap9>) and a response by Avakesh
<http://www.avakesh.com/2008/09/the-three-ways-of-psak.html> (a/k/a
<http://tinyurl.com/4s2nf9>). I don't know who writes IvS, but Avakesh
is by one of the chevrah.

The topic is perpetual here, so I thought is was worth reposting in
full.

:-)BBii!
-Micha

PS: A question for Areivim: why are the authors of 2 blogs that are
entirely Torah writing anonymously?

--- Ishim veShitos (transliterations mine) ---

Friday, September 5, 2008
Two trends in P'sak:
Autonomy of the posek vs. the importance of precedent

[Very rough draft - I really think the matter deserves a complete analysis
- which I am not qualified to write]

In my study of Halachic literature, I have often noticed that there are
two different schools of thought among posekim.

Among some Posekim[1], there is an attitude of "yiqov hadin es hahar". The
posek analyses the sources and rules based on his own understanding of
them. Even if his predecessors ruled differently or understood the sources
differently - ein ladayin els mah she'einav ro'os and halakhah kebasra'i
as explained by the Rema [2] (CM 25). This school considers the autonomy
of the Posek to be central whereas precedent is only important insofar as
it helps the Posek clarify the sources but carries no weight on its own.

At the opposite extreme, lies those posekim who feel it necessary to cite
and discuss every possible precedent on the issue[3]. These will rarely
dismiss the earlier poskim based on their own reading of the sources but
instead will insist that one must try to follow all opinions. According
to this school, the fact that an eminent authority cites an opinion is
itself of Halachic weight (perhaps of even greater Halachic weight then
his own reading of the sources) and the autonomy of the Posek is limited.

There are of course a variety of positions between the two extremes. I
believe it might be instructive before examining any posek to first
identify to which school of pesak he belongs to analyse his pesak
accordingly.

[1] The best example of this school of thought is R' Yaakov Emden who
was fiercly independant in his pesakim (See for example this post in
which the Yaavetz cites his father that - "Any dayan who is not willing
to erase a seif in SA is not worthy of ruling. Mor U' Ketziah is simply
full of examples in which the Yaavetz does just that.), then one might
point to the Rogatchover who felt himself obligated to the Rambam only
(note his correspondence with the SE that Marc Shapiro discusses in his
book), and the final and most influential authority in this group is the
Aruch Ha-Shulkhan who similarly is not afraid to argue against any of his
predecessors if his own reading of the sources leads to a different ruling
(See for example his ruling concerning one who skips p'sukei d'zimra if
he need complete it after davening). R' Moshe Sternbuch in his Teshuvot
V'Hanhagot is also roughly part of this group as he rarely cites Acahronim
(but see his Hakdamah) but has his own highly original method of Pesak
(see Tradition, R' Moshe Sternbuch's Halachic Novellae).

[2] Y. Ta Shema has an article on the principle of Halacha K'Basrai that
is somewhat relevant here.

[3] The most important posek from this school of thought is the Mishna
Berurah who cites every Acharon possible and considers them all obligatory
(to some degree at least - cf. B. Brown's article in Contemporary Halacha
on Soft-Stringency in the Mishna Berurah). A comparison - seif by seif of
the Mishna Berurah and the Arukh HaShulkhan's stance to various issues
would be most instructive (the new AS's with the MB on the bottom can
give you some idea of the differences between them).

I do not know if Chacham Ovadiah belongs in this category. True he is
careful to cite alll the Acharonim on any issue but I don't know to
what extent he considers them obligatory. Perhaps he is simply trying
to gather all the arguments relating to the subject together. The same
applies to R' Yosef Zechariah Stern. (Benny Brown's article on "Hachmarah"
should also be relevant.)

--- Avakesh ---

September 15, 2008
The three ways of Psak

Ishim V'Shitot has an interesting post on trends in psak. 

Here is my comment:

Halachah k'basroi (the law is according to the latter authority) is
very relevant here. In fact, it is pivotal. As Prof. Ta Shma (whom
you referenced in your article and who goes through the sources; my
application of his points is my own) points out, the Sephardic and
Ashkenazic understanding of this principle differ greatly.


Among Ashkenazim there are two views.

1. The latest PUBLISHED posek is the basroi and we follow him (the
currently accepted approach). The basis for this understanding is that
although we are dwarfs, we stand on the shoulders of giants and see
farther than they. A vriant of this is the idea of "Posek Acharon",
which is quite recent and novel and is applied mostly to R. Elyashiv.

2. The posek who is NOW considering the question is the basroi and has
the right to follow his own judgment even against previous poskim.R.
Moshe Feinstein was such a posek. He often posed a question and gave a
novel answer and then based a leniency on his own answer. This truly
took courage but was not an unncommon approach among Litvishe poskim
in the past. Not having many seforim and little access to acharonim
except the commentareis to Shulchan Aruch due to poverty has, I think,
a lot to do with it. Aruch Hashulchan is a mild proponent of this view
as well, having no compunctions about relying on his own judgment,
a very Litvish approach.


3.Among Sephardim, all authorities are important, because halacha k'basroi
is a principle that applied to Amoraim and not in contemporary psak.
So one collects all of them and follows the majority, which is the
approach of R. Ovadiah.This is, of course, beyond the capacity of mere
mortals, especially in these days of many new published manuscripts,
but the Mishna Berura in Biur Halacha sometimes attempts to use this
approach as well. In his hands, it tends toward ruling strictly, so as
to take into account substantial minority opinions.

-- Comment on Avakesh --
wolf2191 [author of IvS]
September 16, 2008 at 09:33 PM

    Thanks for your comment! I shall try to respond at greater length in a
    future post. On the Chafetz Chaim, see B. Brwon's article on Soft
    Stringency.. - in Contemporary Jewry. Accoridng to his understanding the
    Chafetz Chaim was not in fact much of a Machmir but he kept all options
    open leaving it to the individual to decided on which level he is.

    I can't agree with your descripton of Chacham Ovadiah as representing
    normative Sephardi Psak, R' Yosef Zechariah Stern has the same
    methodology and he was Ashkenazi.

-- Other comments from IvS --

ADDeRabbi said...
    September 6, 2008 1:51 PM 

    Excellent post.
    As soon as I started reading, I wondered if you were going to address
    Rav Ovadia. He lines up precedent better than anyone, but definitely
    has reaches independent conclusions.
    IMHO, only when a posek makes a decision based on what he believes
    is the truth can be called "psak". is a rav says "we, such and such
    acharonim are machmir", that's not psak.
    The truly great poskim never had a problem expressing an independent
    position (i understand that this might be construed as a "no true
    scotsman"-type statement; so be it).

Anonymous said...
September 7, 2008 4:47 PM 

    My own gut reaction was that this breaks down, at least in modern
    times, between Sephardic and Ashkenazic (esp. Lithuanian)poskim,
    the latter seeming to almost take pride in their ignorance of a large
    part of Jewish halakhic literature. E.g. look at the sources at the
    end of any volume of Iggros Moshe.

Eliyahu said...
September 15, 2008 8:32 PM 

    Let me try to give my understanding. Perhaps someone can then clarify
    whether I correctly understand the sources.

    IIUC the basic accepted rules of pesak are found in SA CM25 (Hilchot
    Dayan She-Taah)The latter siman deals with the situation of a Dayan
    or a Posek who has erred. A posek may only be said to have erred
    in halacha if he has erred as to a Devar Mishnah (ruling against
    the Talmud or perhaps against the Shulchan Aruch) or the Sugya
    de-Almah, a consensus among poskim as to a halacha. Where there is
    no binding Devar Mishnah or Sugya de-Alma, the halacha is subject to
    the halachically limited discretion of the posek to apply his logical
    reasoning to determine the halacha based mainly on an understanding of
    the Gemorah. The posek if he is a "chacham gadol hayodeah lehachriah"
    must attempt to come to a decision if at all possible. He may not
    fall back upon the klallim applicable to safeikot (such as at in
    the Shach at the end of YD 242)unless he can not otherwise reach a
    definitive conclusion.

    I think that this requirement that a posek reach a conclusion is
    also implied in the phrase: "...Ke-shem she assur lehatir et ha-assur
    kachassur leasor et ha-mutar(Talmud Yerushalmi Terumot end of c. 5, p.
    30b (standard editions) and the end of Chaggigah c.1 which is cited
    in SEMAG Assiin 111 and in the Hagaot Maimoniot, Hilchot Mamrim,
    1:5 (The latter references are from Y.Y. Brunstein, Avnei Gazit).

    I would therefore think that posek must make a real effort to
    determine the actual halacha where it is not already determined as
    either a devar mishna or a sugya de-almah.

    I haven't looked at the sources brought in our blog, above
    however perhaps I can speculate that the Sefardic poskim cited
    above are looking to the majority only if the posek can not reach
    a definitive conclusion. As far as the Ashkenazim: Rav Moshe,
    of course, does attempt to reach such a conclusion. I would also
    assume that those who say "halacha ke-batrai" among the Ashkenazim
    and follow the latest contemporary poskim are defining the "sugyah
    de-almah" as being synomous with "halach ke-batray" although I would
    assume that such would still require concensus among those "batrai"
    to then create a "sugyah de-almah". Unless of course Devar Mishnah
    and Sugyah de-almah refers only to the Amoraim and I understand
    that whether the latter is correct or whether we can have the SA
    (or later accepted sefarim) as a Devar Mishnah and poskim as Sugyah
    de-almah is itself a disputed issue.

    I would appreciate any comments as to whether I understand the
    above correctly.

Wolf2191 said...
September 15, 2008 8:46 PM 

    "Ke-shem she assur lehatir et ha-assur kachassur leasor et ha-mutar"

    There is a fascinating Chazon Ish which neutralizes this statement.
    See Benny Browns article on Hachmara.
    Cf. Tosafos in Avodah Zarah 7a - s.v. Ha-Nishal.

Eliyahu said...
September 15, 2008 10:23 PM 

    > See Benny Browns article on Hachmara.

    Thank you. I would appreciate reading the article. However, the link
    took me only to the Union Catalogue. Could you please provide the
    journal name and citation.

    > Cf. Tosafos in Avodah Zarah 7a - s.v. Ha-Nishal.

    But doesn't this Tosfot deal with whether someone can re-ask his
    sheilah to another chacham. My reference, IIUC, was as to whether
    a Rav could declare something assur without sufficient iyun as to
    whether there were in fact grounds to declare it muttar and thus he
    had caused an unnecessary monetary loss.

Wolf2191 said...
September 15, 2008 10:28 PM 

    You are correct about that Tosafos. But he quotes the Yerushlmi you
    mention and dismisses it (if I remember correctly).