[Avodah] sevara vs. psak

[Micha Berger]

On Thu, Jul 15, 2010 at 12:16:12PM -0400, David Riceman wrote:
>> The problem you raise is the lumping together of one conclusion reached by
>> two different means as a single pool of votes. For this to be a problem,
>> you would have to assume that acharei rabim lehatos means among sevaros,
>> rather than among pesaqim.

> A naive reading of the gemara indicates that it does mean the
> majority of sevaros. See Sanhedrin 34a; the drasha doesn't indicate
> any restriction to dinei nefashos, and see Ramabm H. Sanhedrin 10:5.

I think you meant to say the sevara that received the majority
of dayanim. (As opposed to the pesaq that had the most supporting
sevaros.) To me (after loojing at the Shakh) it looked like a third
possibility...

The pesaq and sevara combined have to get a majority, not either alone.
E.g. Two people who believe X, but one is machmir and the other also
believes in mitigating factor Y and is meiqil would not count together
as two votes for X.

> OTOH Shach HM 25 SK 19 subsection 2 emends the text(!) in order to avoid
> this conclusion.

I noted from the Shakh that the Rambam's shitah may be related to his
believe that pesaq is about finding emes. As he puts it, how can you
count both if one of them is certainly wrong? However, those who take
a more literal approach to eilu va'eilu don't need to assert that one
being right means the other is wrong.

Also, I noticed by looking at the Shakh... I'm not sure "2 miqra'os" is
the same as "2 sevaros". It looks to be more fundamental -- 2 issurim.
The Shakh's example of "miqra achas" is whether or not the nidon is oveir
"lo sirtzach". Perhaps even in an unmodified version of the Rambam,
finding two different understandings of the same issur would count
together.

Last, we're assuming that a rule WRT giving a particlar person a
particular onesh would apply to voting to resolve a machloqes in setting
the law.

On Thu, Jul 15, 2010 at 12:41:50PM -0400, David Riceman wrote:
>> you are discussing the case where rov hold X over Y, but only a
>> mi'ut hold X because of sevara A and only a mi'ut hold X because of
>> sevara B. If the vote were on sevaros, we would say that neither A nor
>> B should become din, and therefore lemaaseh we shoul do Y. However:
>> (1) the vote is on outcomes...                   -- a dayan could hold
>> X because maybe-A and if not, maybe-B ... and all the other complicated
>> ways multiple reasons come together to convince someone. The vote
>> couldn't be about who holds which sevara because that's uncountable.

> (a) You have presented no evidence that voting for sevaros would be
> uncountable...

I meant that as a consequence of the previous line.

People reach conclusions from a multiplicity of reasons. And sometimes it's
80% this and 20% that. For that matter, there are times when the dayan will
consciously think it's primarily one factor, but his emotions were really
swayed by the other. That is why I don't think the counting of who
believes which sevara is really doable.

> (b) It is true that voting is about the outcome of a particular case.
> The problem is precedent: in order for a case to become a precedent we
> need to be able to generalize it, and that requires reasoning by analogy,
> and that requires sevara.

Then you are saying you agree with the Shakh's reading?

> Paradoxes can sometimes result.

As they can from ein adam meisim atzmo rasha and palginan dibura. Just
saying, this isn't a unique feature.

-Micha

-- 
Micha Berger             Zion will be redeemed through justice,
micha at aishdas.org        and her returnees, through righteousness.
http://www.aishdas.org
Fax: (270) 514-1507