[Avodah] Trends in Psak

[Richard Wolpoe]

On Fri, Sep 19, 2008 at 9:26 AM, Micha Berger <micha at aishdas.org> wrote:

>
> :-)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 ---
>
> See hot the methods Jibee with Chsohen Mioshpat 25 Tur and SA and al lns'ei
Keilim who ALL seem to impose an objective method or set of posqim.  Same
for SA and KSA who built virtuall Batei Dinim.

Alls consider AhS wre: the bracha al nekiyus Yadayim in which he favors
Rashba in rejecting this bracha but says "What can I do since Rosh/Tur
decided? ...."

Or IOW just becuase you don' AGREE with preecedent does not mean that one is
authorizeed to overturn it

Also [breoken record] see the BY on 2 vs 3 matzos and his reasoning. Then
see Karf hachayim and HIS reasoninng. For further reaseh see Rambam, Rosh,
GRA and the srouces THEY cite.

See  Sefer Hasheetos [or any late acaharonim] as to their use of Kayma Lan
Kerabeinu Tam tha Tam K;ikkar is mid'orrasio.

Bottom line, the most popular method of p'saq, except for some very bold
[and prehpas radical excptions] is simply concensus.

So when do you NEED okeir Harim?  Not to over-rule centuries of practice but
to balze new trails in virgin territory.  So calling one twin a rodeif
because it migh kill its sibling is a trail-blazer.

Gloing back in time and revising Halachah is simply revisionism no matter
how you slice it - or in the case of matzah how you crunch it.  You can
justify all kinds of revisionistic soconstructs, but revisions in accepted
practice are just that. and RMF was puzzled how nusach Ashkenaz got revised
into Sepharad, yet the GRA did quite a bit of it as did RYDS.  The
acceptance of Kallir, R. Mehullam of Lucca, Maharam Mirothenburg, Maharil,
Rema and literally Dozens of other precdent setters in Ashkenaz can be
mdismissed by any revisionist Okeir Hrarim who is bent in that direction to
muster contrary sources.  But, einledavar Sof.

OR as I ask rhetorically: if kitniyyos was indeed a minhag Shtus, why didn'
Hassidim and the GRA - who gnerally debunked Nsuach AShkenaz in so many
areas - not overturn THAT minhag, too!  Given it's "shtusy" status it shoudl
have been the FIRST to go!

Like ROY who is restoring Maran BY ot his former glory amongst Sephardim, I
am advocting the same for Asheknaz, simlar to what Rav Hamburger is doing -
altthoug he seems more narrowly focused on  the specific Minhag Frankfort.


But, I must concede that Basrai in Ashekanz allows for more flexiblity than
in Sepharad, so evolution is quicker there.  Think of the Reed vs. the Cedar
metahpor in Midrash.  [Or the Zen equivalnet of the bamboo vs. the Oak]  You
need SOME flexilibity and canno be overly subservient ot precedent.  But I
think that qihle questioning the past is OK, revising it is dubious and
actually supports Liberalism [slipery slope argument.].
-- 
Kesiva vaChasima Tova
Best Wishes for the New Year 5769
RabbiRichWolpoe at Gmail.com
see: http://nishmablog.blogspot.com/
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