[Avodah] Geonim, Rambam and Other Rishonim on Mesorah and Pesak and RMH's essay

[Micha Berger via Avodah]

The Rambam, on when halakhah can be overturned, from Mamrim 2:

2:1- A law made by derashah, ANY later beis din can overturn. "veDan
kefi mah shenir'eh be'einav."

2:2- A gezeirah, zaqanah or minhag requires a beis din hagadol mimnu
bechokhmah uveminyan.

3:2- A siyag cannot be overturned at all.

The contrast betwen halakhah 1 vs 2 & 2 is due to the Rambam's
Accumulative model. Legislation is a matter of legal authority of the BD
that made the new law. But interpretation of existing law is a matter of
correctly understanding the Torah or the legislating BD. So, whatever the
"shofeit asher yihyeh beyamim haheim" thinks is the truth is din.

Which I presume is because he holds like BB 130b-131a.

ROY (intro to Halikhos Olam) cites R' Chaim Volozhiner (shu"t Chut
haMeshulash #9, Ruach haChaim on Avos 4:4) as invoking this gemara to
explain why RCV didn't follow all of the Gra's pesaqim.

This (2:1) stands in contrast to (eg) the Tur and Beis Yoseif CM 25,
who limit even overturning a ga'on's rulingt "ela bequshya mefursemes,
vezehu davar she'enah nimtzah". The Tur (citing the Rosh) considers
overturning pisqei ge'onim to be to'eh bidvar mitzvah.

See also the Mechaber, in Kesef Mishnah on 2:1.

R Chaim Brisker, who holds that later eras are in theory empowered to
overturn earlier pesaqim, but we refuse to excercise that power out
of kavod, would apparently hold like the Rambam. (No surprise, there.)

On Tue, Sep 27, 2016 at 04:26:21PM -0400, H Lampel via Avodah wrote:
: If I understand you correctly, you are saying that it is only Rambam's
: acceptance of an "Accumulative" view, that allowed him to maintain that
: a Beis Din Gadol could second-guess the drash of a former one, but the
: Ramban's and Ran's view does not provide that power.

: But RMH himself wrote,
: 
:     ...it is the court that constitutes this meaning out of the
:     multiplicity of given options. It comes as no surprise, then, that in
:     the Constitutive View generational gaps are in theory not crucial.
:     Indeed, the Ran continues to say:"Permission has been granted to
:     the rabbis of each generation to resolve disputes raised by the
:     Sages as they see fit, even if their predecessors were greater or
:     more numerous. And we have been commanded to accept their decisions,
:     whether they correspond to the truth or to its opposite.

This is not an example of overturning a conclusion, but closing a question
they left open. As he translates the Ran "to resolve disputes raised by
the sages".

Tir'u baTov!
-Micha

-- 
Micha Berger             It's never too late
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