[Avodah] Trends in Psak

[Micha Berger]

As should be known to the chevrah by now, my take on pesaq is like this:

1- First the poseiq explores the issues, using the texts. Hard rules
   define his options.

2- Of the options remaining, he is left weighing pros-and-cons of the
   alternatives. This includes:
       a- textual concerns
	   i- the number and authority of who said it
	   ii- the appeal of their logic
       b- existing practice
       c- hashkafic desidarata -- what will allow for the most kavanah
          on the part of the sho'eil, what conforms to natural morality,
	  etc...
   There will be machloqesin in the relative weights of all three
   factors as well as the weights within a category. One may feel a
   rishon is significantly more authoritative than an acharon. Another
   not -- Ravina veRav Ashi sof hora'ah. Another might consider the
   Rambam the end-all of rishonim, another may look to the Maharil,
   etc...

3- If the previous step fails, the halakhah is left in safeiq, and the
   rules of safeiq are applied.

Given that background, here's what I make of the dialog between Ishim
veShitos and Avakesh.

Ishim veShitos:
: Among some Posekim[1], there is an attitude of "yiqov hadin es
: hahar"...
: At the opposite extreme, lies those posekim who feel it necessary to cite
: and discuss every possible precedent on the issue[3]...

A machloqes on the relative weights of 2a(i) vs 2a(ii), respectively.

: [1] The best example of this school of thought is R' Yaakov Emden who
: was fiercly independant in his pesakim...

But if you go too far, like the Rogotchover, you end up in an area no
one else is willing to follow. Everyone quotes the Rogotchover, but when
was the last time you heard someone pasqen linke him?

...
: [3] The most important posek from this school of thought is the Mishna
: Berurah who cites every Acharon possible and considers them all obligatory
...
: 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....

I think the MB is just loathe to weight options, and therefore often
ends up in step 3, applying the rules of safeiq. That is different than
ROY who then follows rov.

I heard ROY critiqued in that he doesn't always know who he is counting.
An essay by some RCA member LOR in haDarom and a teshuvah in the IM are
both counted as though equals.

Avakesh makes the issue a machloqes in halakhah kebasro'i. I don't
agree.

He writes:
: 1. The latest PUBLISHED posek is the basroi and we follow him (the
: currently accepted approach)...
: 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...

I don't see how this can be halakhah kebasra'i. Who is getting the
instruction to hold like the later authority? The poseiq! Would he be
told "hold like the later authority" or "hold like the more compelling
argument"? It just seems implausible.

: 3.Among Sephardim, all authorities are important, because halacha k'basroi
: is a principle that applied to Amoraim and not in contemporary psak.

Prof Ta-Shema dates the Ashkenazi acceptance of this as a general rule
as part of the Maimonidian Controversy, and unsurprisingly therefore,
it never reached the Sepharadim.

And yet, ROY polls contemporary shitos, not rishonim... I don't get it.

The Maharam miRutenburg (shu"t YD #60) limits it to where the later rav
backs up his position with proof, showing that he deals with the earlier
authority. A matter of the basra'i being able to review all earlier
workd. He is on their giant shoulders.

We also see this in SA CM 25:20, where the Rama has to add HkB to the
SA's kelal. (Since it's not a Sepharadi thing.) He limits it to cases
where the earlier works are well known, like "shelifa'amim haposeqim
choleqim al hage'onim".


To be complete, discussing the end should also make mention of where the
rule begins. The full kelal as written in Seider haDoros, is "halakhah
kebasra'i miAbayei veEilakh". The Rosh on R' Eliezer deMilah (I don't
know where in the pereq) asks on the Rif. (His version "... miAbeyei
verava va'eilakh. Aval bedoros shelifaneihem, ein halakhah ketalmid
bemaqom harav.") The Rosh asks: how can the Rif write that the halakhah
is like Raba over Rav because Raba is basra'i, if both preceed the rule?

My guess is that when semichah was more solid, nisqatnu hadoros was a
greater factor. At some point it declined in importance in relation to
being able to review the earlier generations' thoughts and compare.

:-)BBii!
-Micha

-- 
Micha Berger             Despair is the worst of ailments. No worries
micha at aishdas.org        are justified except: "Why am I so worried?"
http://www.aishdas.org                         - Rav Yisrael Salanter
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