[Avodah] paskening from old/new information

[Micha Berger]

On Sun, Jul 01, 2012 at 04:34:32PM +0300, Ezra Chwat wrote:
:> which would open up the door to findinng a set of dead sea set of
:> scrolls/egypt geniza set of sefarim, which would contain heretofore,
:> unknown sets of literature/commentary??"

: The door is wide open: On revision of psak based on newly-found
: sources, unavailable to previous poskim: RMA, HM 25:2, (no reason to
: believe Maran Hamhaber disagrees).

: On revision based on newly found nusach of known sources: RMM Kasher,
: Noam 16 (1973) p. 165-.

First, I'm not sure the assumption is correct. Saying the Tosefta or
Y-mi have a voice where shas does not (or some less extreme rule like
giving priority to named opinions in the Y-mi over the stam of the Bavli)
give a definitive answer does not imply that we have the power to revise
pesaq on the basis of newly found or newly corrected sources.

In one direction: The amoraim in the Bavli had access to the
Tosefta. Ruling differently than it may imply a rejection of the
Tosefta's ruling. Similarly rishonim who hold like one amora over
another. A newly found opinion that the rishonim aren't likely to have
seen wasn't actively rejected.

In the other direction: There is power to pishut; we often go with
textually weaker rulings because those happen to be the ones that caught
on and became centuries of practical precedent.

When Ashkenazim have some practice more justifiable from the Tosefta or
Y-mi than from the Bavli, it could well be because immigrants from EY
to Italy to Ashkenaz brought the Israeli practices with them, and those
ended up dominating the final pisqa or minhag of Ashkenaz as the various
immigrant communties conbined into one.

The threshold then shifts for ruling like the Bavli from a simple halakhah
kebasra'ei to needing enough justification to overturn existing pesaq.

All of the above was formulated over long conversations here with RRW,
not reflecting the Rama. So now I opened the Rama, after I have already
developed a pet theory.... With that caveat, it really looks to me that
the Rama limits his comments to a textual context. He is saying, IIUC,
that halakhah kebasra'ei is only when basra'ei could have considered the
earlier arguments. But the subject of what to do when the question isn't
a new one, as in REC's "revision of pesaq" where there is an established
common practice, is not raised in CM 25:2.

Tir'u baTov!
-Micha

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