[Avodah] sevara vs. psak

[Micha Berger]

On Tue, Jul 27, 2010 at 03:58:58PM -0400, David Riceman wrote:
> On 7/27/2010 2:04 PM, Micha Berger wrote:
>> If this is so, then Chazal are talking about separate issurim.

> It seems to me that you need to understand this gemara in the context of  
> the sugya in Eiruvin (13b) about being metaher a sheretz in 48 different  
> ways, and in the context of H. Mamrim 2:1 which says that a Sanhedrin  
> can freely overrule a prior Sanhedrin's deductions from the 13 middos.   

Yes, but here the issue is different pesuqim VS different ta'amim.
If you say the matter is pesuqim, then it's not a new derashah of the
same pasuq.

Eiruvin 13b discusses the erudition and brilliance of R' Meir in being
able to find multiple -- and even conflicting -- sevaros. Then of
Sumchus, an anonymous talmid chakham from Yavneh and of Ravina.

There is no discussion of actually presenting these conflicting
sevaros in order to reach a conclusion.

You started with the sugyah on Sanhedrin 33b-34a, about finding reasons
for zekhus, and then of a dayan who changes his mind. Rav is quite clear
that the actual vote is zekhus vs chayav.

Then R' Yochanan says that two who vote zakai because of different
pesuqim -- only one is counted. Not because two sevaros can't both be
valid (as you write, look at Eruvin 13b), but because each ruled out
a different issur. One must be wrong IF we are assuming he is only
standing trial for one of the two issurim -- wrong in the sense of
addressing the wrong topic.

The sevara for recording why someone is mechayev is entirely different
-- determining if we need another halanas hadin. The reason we apply
for mezakim wouldn't apply (not that we need it anyway) because one
reason lechayeiv is sufficient to find someone punishable, while a
mezakeh needs to eliminate every grounds for punishment.

I'm arguing that the Rambam's take is different from the above because
he believes in Aristotilian logic, and the Greek notion of searching
for truth, rather than seeing halakhah as a process of interpretation
and thus amenable to multiple right answers.

Going to what the Rambam actually does say, H' Sanhedrin 10:5. He
is elaborating 10:1, that you can't have a dayan find someone guilty
because his fellow dayan convinced him. (And that's why 10:6 continues
with the din that the greatest dayan can't speak first -- shema yismekhu
hashe'ar al daato.) We aren't counting separate sevaros, because if that
were two then 1 ta'am from different pesuqim would count as separate
sevaros. Rather, we're making sure each dayan reached his conclusion
independently.

> Halacha is much more fluid than you seem to think it is; multiple  
> sources will imply tohorah (or guilt), and one can draw multiple  
> deductions from a single pasuk.

Written like someone who hasn't read my last few blog entries. <g>

As for multiple deductions from one pasuq - yes. But I'm talking about
multiple of the 613 from the same phrase.

...
> I don't think this distinction is real.  In order for sevaros to be  
> different they must have different halachic consequences, in which case  
> they represent different issurim.

I don't know about that. Someone could be oveir on koseiv beshabbos,
while different dayanim have different sevaros about how what he did
qualified.

> <<The Rambam's general mehalekh is that there is one truth, and it's our
>> job to find it. Building proof for this general mehalekh is lengthy.>>

> But there's evidence against this as well; see Hakdamah L'PHM ed. Kafih  
> p. 11 s.v. "hahelek hashlishi", see H. Mamrim 2:1 (cited above), and see  
> MN II:11, to pick three examples from three of his major works.

Actually, I see the cited Yad as further demonstrating the point.

Leshitas haRambam, interpretation of the law requires determining
original intent. The only new intent can be a new original intent --
drift in meaning of existing law isn't an option. Thus, he has far more
new law being constructed which Rashi or the Raavad could understand
as being a new understanding of existing law. Which explains why the
Rambam believes derashos are created by BD.

(I don't see what the Moreh's discussion of the spheres has to do
with it.)

>> I also have a question WRT capital cases.... If the dayanim can't
>> agree which pasuq he violated, what kind of hasra'ah did he get? How
>> could multiple pesuqim count -- only one is punishable?

> See H. Sanhedrin 12:2.

Are you citing the fact that 12:2 doesn't mention stating which avreirah
and which pasuq is being violated? Just that it's an aveirah and what
the onesh is? I was under the impression thatnot knowing which pasuq
he's about to violate is the textbook hasra'as safeiq. Makkos 6a
and Tosafos there explaining why hasra'ah needs to be a gezeiras hakasuv
if the entire point is misvara -- to rule out shogeig before meting out
punishment.

Tir'u baTov!
-Micha

-- 
Micha Berger             I long to accomplish a great and noble task,
micha at aishdas.org        but it is my chief duty to accomplish small
http://www.aishdas.org   tasks as if they were great and noble.
Fax: (270) 514-1507                              - Helen Keller