[Avodah] Acharaei Rabbim l'Hatos

[Micha Berger]

On Fri, Feb 19, 2010 at 01:03:10PM +0200, Eli Turkel wrote:
: I believe there is a long Maharatz Chajes that strongly disagrees and says that
: rov does not apply outside of bet din. i.e. we dont pasken by taking a majority
: of shitot (which shitot would be included?)

OTOH, I see from the intro to the SA, in contrast to what R' Yoseif
Caro actually does, that acharei rabim lehatos does have some weight in
deciding halakhah. But even the SA doesn't say it is a deciding factor.
Otherwise there wouldn't be so many cases where the SA takes the mi'ut
position among his triumverate.

That's where I came up with the notion that pesaq is a heuristic process
(in the computer science sense of the term); most of the rules are
rules of thumb, and where they produce conflicting priorities, it takes
shiqul hadaas to decide between them. The SA's haqdamah and its rule
about pasqening according to the triumberate is clearly a loose rule,
not a hard algorithm.

See the 2nd shitah in Tosafos, Eiruvin 6b, which deals with the conflict
between the tanur shel achnai story where we apparently ignore the bas
qol, and "eilu va'eilu divrei E-lokim chaim vehalakhah keBH"  -- where
we DO listen to the BQ. Tosados's first answer says that the BQ saying
that R' Eliezer is correct was for the kavor of R' Eliezer. It doesn't
mean it's halakhah. (I think they mean that since R' Eliezer called down
a raayah for Shamayim, likhvodo HQBH showed that his words were "Divrei
E-lokim Chaim". But said nothing about pesaq.)

The second answer says that the whole point of the BQ saying "halakhah
keBeis Hillel" was to affirm the authority of the larger school. And we
listen to the BQ only because we ought to have pasqened that way by
halachic process anyway.

Why did we need confirmation? Perhaps Tosafos are saying that the whole
point of the bas qol was to say that acharei rabim lehatos has authority
even outside of nimnu vegamru.


R' Shimon Shkop, in Shaarei Yosher (sha'ar 3), discusses how we learn the
various forms of rov from acharei rabim lehatos. The pasuq is about BD,
and yet we apply rov for birur and for bitul. RSS says that there are
two kinds of rulings in BD:

When two people come with a question in Choshein Mishpat, one person
owes the other money whether or not BD reaches a conclusion. There role
is to determine the metzi'us. In the case, the rov dayanim create a
kol deparish meiruba parish -- and we assume the metzi'us follows the
conclusion of the rov.

However, WRT oneshim, the BD creates the chiyuv. In that case, the mi'ut
is bateil to the rov, as the BD as a whole creates the chiyuv despite
containing dayanim who disagreed.

Benidon didan, I would like to add...
It would seem that we can only learn deruba deleisa leqaman from acharei
rabim lehatos only IFF there were cases of hora'ah that involved a rov
that couldn't stood up and be counted.

:-)BBii!
-Micha

-- 
Micha Berger             For a mitzvah is a lamp,
micha at aishdas.org        And the Torah, its light.
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