[Avodah] Legal Theory and Halakhah

[Micha Berger via Avodah]

I wrote on Areivim something about Justice Scalia and how the media and
Senate discuss the approaches of various Supreme Court candidates. In
his case, the way they pay more attention to his personal politics than
to the fact that procedurally Scalia was a textualist and originalist.

I wrote that part of the reason why this bugged me so much was that it:
:> Stinks of historical school, and claims that the rabbis were
:> socilogically driven and just played the legal game

So it feeds on pre-existing and more deeply held annoyances.

On Tue, Feb 16, 2016 at 10:32:43PM +0200, Eli Turkel replied there:
: Just read an article in the last hakirah by Alan Jotkowitz on the Tzitz
: Eliezer. He also admits that no posek is exclusive however he claims that
: there are methodolies. Some like Rav Elyashiv are very formalistic. They
: follow what they see as the psak irrespective of the consequences. He
: claims that Rabin Haim David Halevi and Rav Uziel took vert seriously
: meta-halkhic values in their decision making. Other claim that RSZA also
: took into account the consequences of his decisions. He feels that R
: Waldenberg fits into neither category.

This is kind of like the spectrum between textualists, originalists,
pragmaticists, intentionalist, narutal law theorists, and any other
schools of US Consisutional Law that I never stumbled on.

Which is different than assuming any of the acharonim named were ends
driven. (Aside from particular rare mitzvos where chazal tell us to:
eruv, aveilus, agunah derabbanan, and any cases I am unaware of. I have
asked for help compiling a list in the long past, but it didn't
happen.)

Yes, the range of possible valid answers may depend on methodology, or
more accurately, tendency to use given methodology, and so a poseiq who
tends toward method X may end up being meiqil more often than poseiq
Y. And a poseiq who has many valid answers but a baal nefesh yachmir
approach to resolving them may end up being more machmir. But it's not
about qulah or chumerah shaopping, it's about opinions as to how the
law works.

I would even make that a "no true Scottsman" issue and question whether
a rabbi who does hunt for a result is a "true poseiq".

Tir'u baTov!
-Micha

-- 
Micha Berger             Education is not the filling of a bucket,
micha at aishdas.org        but the lighting of a fire.
http://www.aishdas.org                - W.B. Yeats
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