[Avodah] Psak she'ein hatzibbur yecholin laamod bo

[Micha Berger]

On Wed, May 30, 2012 at 09:54:12PM +0300, Liron Kopinsky wrote:
: Everyone has been talking about whether a "psak" was given that bans the
: internet.

: Is there any significance to the fact that it is called a "psak" and not a
: "gezerah"? If a gezerah is made that the tzibbur just can't keep, my
: understanding is that the gezerah does not end up taking effect...

I take it from your invocation of "she'ein hatzibur yachol laamod bah"
that you mean taqanah or gezeirah in the strict technical sense, a narrow
definition of the terms.

I don't think a real taqanah or gezeirah is possible without a Sanhedrin.
The Rambam seems to say so in Mamrim 2:2, when he asks how you can
have a beis din that is gedolah beminyan, since every BD has 71 --
"zeh minyan chakhmei hador". So his disacussion of taganos is THE beis
din of the 71 top gedolim of the generation. Not just stam a poseiq,
or even "stam" a collection of gedolimn. The Sanhedrin.

I've suggested in the past that this is why Rabbainu Gershom accomplished
his "taqanos" (in the loose, colloquial, sense of the word) through a
different mechanism -- the cheirem.

I also agree it's hard to pasqen that existing issurim of yichud or
directly lehistaqel banashim apply. But mine is a pretty uninformed
opinion.

But (as I wrote more than once on the original Areivim thread) I think
we're discussing a "pesaq", not an actual pesaq in the narrow technical
legal-process sense.

I think there has a been a good deal of linguistic slipperiness in public
pronouncements. Guzma rather than legal categories that (eg) anyone
could apply lomdus to. Another case I would assume is an example is the
labeling a wrong belief "apiqursus" while also believing apiqursus,
kefirah and minus are defined by the Rambam's 13 and yet the belief
doesn't touch the 13. One of the three lines on that triangle doesn't
fit -- and I'm assuming it's the literality of the label "apiqursus".

Back to our case... I recently batted around with RMSS about whether a
daas Torah proclamation could qualify as a pesaq.
http://www.aishdas.org/avodah/getindex.cgi?section=D#DAAS%20TORAH%20REREREREDUX%20PESACHIM%20112A
(or http://tinyurl.com/72ug5fb)
In v30n39 I wrote that this isn't something I think can be argued,
it's built into the meaning of the idiom:
> It's not an assertion, it's a definition. The concept of "daas Torah"
> is defined as turning to rabbanim for advice even when the question is
> not halachic, and not even about aggadita (eg weighing two conflicting
> Torah values). As R' Bernard Weinberger put it in the 2nd issue of JO
> (Oct 1963):
>    a lot more than Torah weltanschauung or a Torah saturated
>    perspective. It assumes a special endowment or capacity to penetrate
>    objective reality, recognize the facts as they 'really' are, and apply
>    pertinent Halachic principles. It is a form of 'Ruach HaKodesh,' as
>    it were, which borders if not remotely on the periphery of prophecy.

> Another formulation involves noting how Torah study enhances the shape
> of all their thoughts.

(But I think I said it too firmly, since he simply let me have the last
word just when I thought I was finally understood. And then RAM, Lisa,
Zev and I batted around my translation of the Rashi.)

RMSS didn't see the line I was drawing between a pesaq halakhah and a
daas Torah informed "pesaq" then, and I think his perspective is needed
to balance mine now.

Tir'u baTov!
-Micha

-- 
Micha Berger             Friendship is like stone. A stone has no value,
micha at aishdas.org        but by rubbing one stone against another,
http://www.aishdas.org   sparks of fire emerge. 
Fax: (270) 514-1507                  - Rav Mordechai of Lechovitz