[Avodah] Halachic Texts: More Background

Sat Jul 26 22:35:59 PDT 2008

On Tue, Jul 22, 2008 at 6:59 AM, Micha Berger <micha at aishdas.org> wrote:

>
> As I said, I'm being descriptive. Given that what we're doing is halachic
> process, what generalizations can we make from what we see done to define
> that process.
>
> This whole thing began with you and Rabbi ABC wondering what the rules
> were. Now, given that we don't know what the rules are, because no one
> ever sat down and articulated them, the only thing left is to see what
> implied rules we see in practice.

But there are some rules and both RY & Rema used self-limitting systems. You
seem perfectly OK with totally subjective psak, which puts the poseik as
superior to Halachic norms instead of subservietn TO THEM.

The lisppery slope here is that is the accusations agaisnt C's Mah nafshach,
you cannto complain that C's set upa desiderate before the p'sak and claim
their methodology is wrong when O's engage in the ssame tactic

For what i's worth, [and I may post on this later] I asked Rabbi kanarfogel
to contrast 2 perisuhim on Halachah [who will go unnamed]

Well A made up his mind and mustered sources
And B reviewed sources and then drwew his conclusiosn.

to me method A is flawed except in extreme cases of eis la'assos [e.g.
Agunah]
the only honest apporach is B [and I think it is clear that BY, Rema, Kaf
Hachayyim, AhS, and ROY  usuually go that way. Even MB often when he cites
"rov acharonim]

It is also a fact that a nubmer of poskim have told me that consensus is the
ikkar. So the idea that there is no objective methodolgy is a bit misleading

>
> : by the way is 180 degrees AGAINST the GRA...
>
> Which means the process must be broad enough that you could take it in
> both directions.

WADR to the GRA, he di NOT advocate this for anyone. Aderabba, he asked
people N OT to devaite fro mnormative practice. So it is absolutely fair to
say that those who ignored normative Halachah AND WENT AGAISNT THE GRA'S OWN
WISHES wer in fact not engagin in eilu v'eilu at all.

It would be tantmount to after R. Yehoshua went to be modeh to Rabban
Gamliel that his talmiddim spitefully followed R. yehoshua anyway! Can't you
see this?

>
>
> Either that, or you need to declare either talmidei haGra or some other
> group to be non-O.

I would not go so far to say non-O. Just WRONG!
Mashal #1:  Talmiddim are learning Mishnah.

Talmiddim: Rebbe can we pasken from the Mishnah?
Rebbe: yes but only after learning the Gmara
Talmiddim: OK

Then the Talmiddim learn the gmara and ignore it and pasken like the Mishna
anyway.
The Rebbe is protesting that is NOT what he meant in the first place. that
after learning the Gmara they should follow the Gmara. While they are
aruging the Rebbe dies and his talmiddim go on to follow their errant ways.
then 100 years later some one explains how the rebbe did not mean them to go
on that derech all along

End of mashal #1

I can give you another one:

Mashal #2:

SA is written by RY Karo.  Ashkenazim ask: May we dfollow it?  Teshuva" yes
but read Rema. Then ashkeanzim would start pasekning like the Mehcabeir
agasint the Rema

End of Mashal #2

IOW, it is not that the talmiddim of the Gra are non-O it is that they are
only paritally following what they were suposed to do in the first place.
I.E. the GRa asked them to followthe Minhag Hamakom in EY...

>
>
> : Then you defend the GRA for attacking a non-normative minhag that goes
> : agianst text. Please take a stance one way or the other!
>
> No. My stance is that halakhah is NONALGORITHMIC. (Sorry for shouting,
> but I've been saying it for over a year now.) My stance is that the
> process defines which issues require consideration, and general
> statements about how much weight to give each issue, but different
> derakhim justify variation in which matter to weigh more.

but I am saying that you are saying that no poseik needs to commit to any
one derech meaning that a poseik can never be called wrong or a to'eh
beidvar mishnah

And we have

   1. Horiyos which teaches us that even a Sanhedrin can be wrong
   2. A principle in Choshen Mishpat 25 that claims there is such asthing as
   toe'h bidvar hamishnah  [TbDM}

Gnranted, we can quibble what thed defintion of TbDM is but a poseik should
be willing to commit to a system that will hold him responsible.

So if BY states X against his own methodlogy we can hold him to it. That is
because he outlines his methods in his hakdamos

or we can do the Tur thingand give a range of options instead of a
defeintive p'sak
Or we can follow ROY & karf Hachayyim which give you a full rnage of options
with a decision and then say, you are not TbDM but we can argue shikkul
hada'as based upon your OWN CITATIONS.
.

>
>
> The person who supports textual conclusion over mimetic precedent AND
> the person who supports the mimetic precedent as the greater of the two
> are both working within the process.

I am asking people to be more-or-less consistetn beshita

>
>
> As per above -- it has to be a system flexible enough to include both
> talmidei haGra and Breuers'.

and not C's. But where do you draw THAT line?

>
> But all-in-all, the last step in pesaq is often (at least in the more
> interesting problems) weighing halachic pros vs halachic cons, and thus
> differences in pesaq will emerge.

but indivdualposkim should commit to a method and be subjected to that
objectivemehdo and not Subjective to their own "egos".

Like Geral Weinberg's ego-less programming *[see the Psychology of Computer
Programming*], similarly I am advocating a simlar apporach even though 2
poskim will conclude slightly differently

For example, MB could have have set up a hierarchy of Elya Rabb, Gra, Chayei
Adam etc. and stuck to it and made excpetoins e.g. when the "olam" differs.

>
>
>
>
> But there is no text in RER's case!
>

I'm not so sure about that.

He says the conclusion is paramount - be matri Agunos. There are many
statemtns sayin how this is important.
then he takes a text that says "Kol demekaeish ada'ata derabban medkadeisih'
then he says biyameinu, we see that woman do NOT tolearte abuse as they did
in the time of Shas and so tav lemisav does not outway a woman's need for
dignity. Presto.  You have mikach ta'us because what womean would have
KNOWINGLY entered an arrangement that would have let her be abused

Lemashal:

Had I know that I would be abused I would not make that neder
Simlarly:
Had I know that htis husband was s sociopath I would not have accepted
kiddsuhin.
Presto! afkin'u based upon mikach ta'us

Now you will say the means are radical. But since the ends justify the means
why not?
many poskim you accecpt - themselves accept "sniffim" to fit sources to fit
their conclusions when they see fit!  AISI it is RER all over again - Deja
vu indeed!.

>
> : The scheme of going back to text is slippery-slope dangerous. it is THE
> : major support for Golinkin and the Masorti, and actaully could justify
> RER
> : regardless of thowbackisms.
>
> TuM and TiDE are dangerous. Trying to pre-filter the world, which can
> never be perfectly done, carries its dangers. Trying to flee dangers is
> dangerous -- you'll turn the Torah into fundamentalism! Since when does
> dangerous mean wrong?

Ein hachi name. If it be dangerous so be it, but at least be consistent.
And you don't have to publicise every misgiving over every normative
halachah.
When ma'aserh Rav [not WRITTEN BY THE GRA] lists 303 items, there is a
problem here.
would you stay in your shulo if you had 303 ta'anos about the way they do
business?
l'havdil Martin Luther started a new religion with a lot fewer theses!

>
>
>
>
> I deny that any of it is radical. You can follow a nusach haGra siddur.
> Pre-Gra variation in siddurim, eg Edot haMizrach, is broader in difference
> -- and they're similar enough that I can follow in one of them, too.

And this Rambam fellow in my community has a self jerry-rigged Siddur
Harambam he uses and did nto say kaddish for his mother when an aveil
because it was not his shita. I would not throwi him out of shul, but don't
you consider this odd? And what if he were to be  an educator and role
model?

>
>
>
> And so, a year later, you're still at "if it ain't an algorithm, there
> is nothing".  And a thermostat which uses fuzzy logic, might turn on
> the heater when the temperature outside goes up. Because if there is no
> hard-n-fast rule, it's a free for all. Right?

You said it not I!  use your fuzzy logic to find a TbDM and I will be more
accepting.

>
>
>
>
>
> No. I'm saying
> SINCE we accept the Gra but not RER
> and SINCE we go with the flow,
>
> what can we deduce about the as-yet-unknown laws in the flow?
>
> Tir'u baTov!
> -Micha

yes you are syaing it is popular to accept the GRA over RER but you have no
OBJECTIVE criteria that backs this up.  This is highly Shechterian "Catholic
Israel' sytle  based upon popular wil over hard facts.

Now if you were to  say that Rov Poskim accept X and reject Y, that
dovetails much better with BY, Rema, Ahs, ROY,  MB etc.
-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
see: http://nishmablog.blogspot.com/
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