[Avodah] Kashrus and Shabbas

[Chana Luntz]

I wrote:

> <The irony of your response is that the usual criticism of ROY is that
> he is
> *not* innovative, only encyclopaedic.>
> 
> This is true
> 
> But he has cherry picked sources.  I saw an article on glass on
> passover that mentioned pesachim [76?] And tosafos elsewhere but
> omitted the tosafos on the daf that says that "shain leiv d'shia" as a
> dichuy d'alma!
> I showed this to a big talmid chacham who says ROY will cherry pick [I
> assume I'd there is an agenda] so I found a suspicious article and
> corrobarated my suspcions with a neutral party.  I don't take this
> lightly.

Um, without seeing any of the details of the case I am clearly not able
comment.  What article was this - was it written by ROY or a talmid?  Was it
one of his summaries for the general populace or was it one of his detailed
teshuvos?   

But I do think you need to be a bit careful.  Cherry picking is a very
negative word, and while one can argue that all poskim cherry pick, because
citing everybody can take forever, so every posek uses his judgement to
decide what needs to be included and what does not.   And clearly poskim who
tend to quote relatively few rishonim and achronim, such as Rav Moshe, can
even more easily be accused of cherry picking if you were to use that term.
However a more standard approach to a posek of ROY's stature is to be open
to the possibility that the posek did not consider the particular cite
relevant for some reason, and while it may lead to questions as to why,
rather than using a term such as cherry pick, which has very negative
connotations, I would have expected one to try and understand why such an
approach might have been taken.  And especially for a Tosphos on the daf in
question, where it is impossible to say that ROY did not know it.  Just
because you and whoever you spoke to feels it is relevant and important,
only means you and the person you go to are taking are setting yourselves up
in disagreement to ROY, perhaps on your understanding of the Tosphos,
perhaps in terms of other aspects of psak.

Note that while I can't find it listed in the Klalei Horah at the back of
the first volume of Yachave Daat, I remember reading one of his discussions
on hora'ah in which he takes the view that because Tosphos was written
primarily as a commentary on the Gemorah, and not as a halacha sefer, their
views are less authoritative when they come into conflict with eg the Rambam
or the Tur etc (he certainly takes this view vis a vis Rashi - stating that
Rashi meforash hu v'lo posek See Klalei Poskim HaRishonim aleph at the end
of the first volume of Yachave Daat).  Now this is not necessarily an
approach traditionally taken in Ashkenaz (and clearly where other Rishonim
cite Rashi as paskening, he does too, - after all, we have just seen that
one of the rishonim cited by ROY for yesh bishul achar bishul on a d'var
lach is in fact Rashi).  

But if a rishon is used as a basis by others for a modern psak going the
other way, I would be extremely surprised if ROY does not at least mention
it somewhere, given the extent of his citational ability.  

> EG
> Does ROY mention the rashba and all that hold s'feiq d'oraisso is
> d'oraisso?

Yes of course. The Rashba inter alia gets a mention on this point in the
very first volume of Yabiat Omer (in general terms on page 1 and
specifically by name on page 125 where the topic comes up again), not to
mention numerous times throughout the various volumes.  Indeed in his Klalei
Horai, ROY mentions specifically that it is a machlokus rishonim as to
whether safek d'orisa l'chumra is d'orisa before giving his conclusion that
the ikar halacha is like the Rambam and the Ra'avid.  His point of course is
that while it is a machlokus, the line up of big rishonim is significantly
tilted towards a d'rabbanan conclusion, that is precisely the point of his
list.  You don't (or at least he doesn't) really need to go as far as the
Aruch Hashulchan, although because of the way he does tend to pasken, he
will cite all the achronim on the point as well.

 
> KT
> RRW

Shabbat Shalom


Chana