[Avodah] derech psak

[Micha Berger]

(Replying to 3 posts in one email. If one answer bores you, scroll
down.)

				       I

On Thu, Mar 07, 2019 at 07:24:38AM +0000, Rich, Joel wrote:
:> RARR opined that this is because lomdus makes it hard to pasqen. (And
:> his theory seems to make a lot of sense to me.) In lomdus the focus of
:> your learning is to see how both sides make sense. The better you are
: > at it, the harder it is going to be to pick sides. Brisker chumeros,
: > being machmir to be chosheish for all shitos, is a natural consequence.
: > But pasqening requires picking a favorite. And it requires giving some
: > level of credance to precedent, not only to how compelling one finds

: Yes I've heard him say that many times and it is the heart of my issue,
: I don't see why being able to see the 70 sides should be an issue
: in psak...

As I noted, we see this in practice in Brisker Chumeros. Eiruvin (among
Ashkenazim, where 60 ribo dates back to Rashi), tzitzis on a tallis
qatan birshus harabbim on Shabbos, etc... There are many such cases where
everyone else says the law is closed and lequlah, and they're busy being
chosheish for some rejected shitas harishonim.

So to me, the "why" is really the only question. Not the "what" --
choosing a pesaq is a problem for Briskers. They lent their name to a
whole category of chumeros because of it.

(In fact, R Chaim famously spoke about some of his pesaqim not being
qulos in Shabbos or Yom Kippur, but chumeros in piquach nefesh. Again,
all about the chumeros, not about finding one side the more compelling
sevara.)

So, here is my suggested "why" after more thought:

1- It is only an issue in a style of lomdus that makes it difficult
to choose sides. Not that one can SEE both sides, but that one finds them
equally compelling.

2- Something specific to Brisk... I think they inherited from the Gra
a disbelief that questions posed after "Ravina veR' Ashi sof hora'ah"
are really ever fully closed.

To quote a translation I found on chabad.org of R' SY Zevin's Ishim
veShitot, pg 33 in the 2007 edition:

    Why were the rishonim called rishonim ("the initiators")? Because
    they were the formers and creators. They quarried the depths,
    pierced the mountain, penetrated to the very foundations [of the
    Talmudic discussion]. The rishonim did not become tangled with
    far fetched argumentation, rather they gave us "it itself," the
    plain truth. R. Chaim leaped backwards through the generations
    and returned to the rishonim, albeit with a different expression
    and parlance, yet treading the same path, in the same fashion. With
    his clarity of explanation and strength of logic, he penetrated to
    the essence and root of the entire Talmudic corpus, transforming it
    into sifted flour. The point of truth, the pure truth-this was his
    portion, this he sought and located persistently ...To separate and
    to join together, this was the strength and merit of R. Chaim. To
    dissect something with the sharp chisel of logic and to investigate
    it thoroughly. To break it down to its elemental components and
    thereby to erect it in its clearest purity upon the point of truest
    truth, without any extraneous mixtures. This was the way paved by
    R. Chaim. In this way he shone as a giant tower of light upon the
    entire great sea of the Talmud and its many commentaries...

3- I more than once expounded the model that there are 3-sheheim-4
categories of concerns that a poseiq needs to consider.

    1- textual strength
       a- compilling sevara
       b- source authority (acharei rabim lehatos or halakhah keR
	  Aqiva meichaveiro, or the "obvious" difference between the
	  shitah of the Rambam and some baal Tosafos we only hear
	  from once)

   2- mimetic strength -- what are people doing? How broad of a
      swath of the qehillah?

   3- hashkafic argument - only as a fall back, but what best fits
      the sho'el's or poseiq's worldview. When halakhah allows two
      options, this could / should be a tiebreaker. Such as the Zohar
      saying that wearing tefillin on ch"m is qotzeitz bintiyos.
      For those whose hashlafah spends a lot of time looking at the
      Zohar, that's reason to pasqen against wearing them. For Litvaks
      and Yekkes, not so much.

But lomdus doesn't take #2 into account. And #3.... Brisk is pretty
much a hashkafah of not having a hashkafah! (With RYBS's existential
exploration in post-facto "halachic hermeneutics" -- as he puts it --
lessons we can take from the din, not really an exception. Because they
are just that, post facto lessons, not claims of possible reality a
pesaq should accomodate.)


				       II

On Thu, Mar 07, 2019 at 07:47:54AM +0000, Ben Bradley via Avodah wrote:
: In more general terms I've never heard or seen anyone accept a posek
: or otherwise on the basis of his shita in learning. It seems to be more
: a question of overall breadth and depth of learning plus aptitude for
: halacha l'maaseh in the eyes of contemporaries.

I think your last clause has much to do with that 4 way balance I listed
above. Turning divrei Elokim Chaim into halakhah lemaaseh isn't only
about sevara.

It might also explain why derekh halimmud isn't given that much weight.

But really, I drifted away from my original point (in a prior email).
Lomdus of any flavor is a different kind of animal than the learning
Tur-Beis Yoseif-SA -- Rambam vs Rosh -- one finds more of in posqim
(or the AhS).

I think lomdus is more in the style of Tosafos, focusing on how we
understand the gemara, with "only" implications about practice. Rather
than focusing on getting to a lemaaseh. It's just a different subject.


				      III

On Thu, Mar 07, 2019 at 03:12:32PM +0000, Rich, Joel via Avodah wrote:
: I understand that's the case, I just don't understand why. For example
: if you lived back in the day and your tanna was doreish klal prat uklal to
: derive Halacha , how could you be accepting rulings from someone who did
: not but rather used ribui umiyut ? Wouldn't that likely lead to tartei
: dsatrei...

In practice, no. Around the end of the zugos, few dinim were established
by derashah. For R Yishmael and R Aqiva, derashah was a post-facto way of
proving a din. Which is why the gemara can ask "but according to Beish
Shammai where do /they/ learn..." -- because the pesaqim are already givens.

For that matter, so is lomdus a system for explanation of already known
shitos. But derashah is less impactful than lomdus. Derashos don't have
nearly as many implications about how to apply known din to new cases.

Besides, don't take the "compeating" lists of derashos too seriously. We
find R' Aqiva using rules of kelal uperat (eg R' Aqivah on Y-mi Eiruvin
18b or Bavli Pasachim 36a) and (less often) R' Yishma'el using ribui
umi'ut.

Tir'u baTov!
-Micha

-- 
Micha Berger             The same boiling water
micha at aishdas.org        that softens the potato, hardens the egg.
http://www.aishdas.org   It's not about the circumstance,
Fax: (270) 514-1507      but rather what you are made of.