[Avodah] Pesak Paradox

[Zvi Lampel]

>
> From: Micha Berger
>
> Ediyos 1:5-6 is interestingly self-referential.
>
> Mishnah 5 opens:
>     And why do they record the opinion of a single person among the many,
>     when the halakhah must be according to the opinion of the many? So
>     that if a court prefers the opinion of the single person it may
>     depend on him. ...
>
> And mishnah 6:
>     Rabbi Yehudah said: "If so, why do they record the opinion of a
>     single person among the many to set it aside? So that if a man shall
>     say, 'Thus have I received the tradition', it may be said to him,
>     'According to Ploni's [refuted] opinion did you hear it.'"
>
> So, the rabbim say that the purpose of recording shitas hayachid is so
> that someday a beis din can hold like it.
>
> Whereas the yachid says that the purpose is so that we know that the
> earlier ruling was based on explicitly rejecting that opinion -- so that
> a beis din won't hold like it.
>
> So, R Yehudah would say we should make a point of not holding like R
> Yehudah, but the Chakhamim would be fine if a court would choose to
> do so?!


According to Rambam's understanding, which he explains in his fascinating
Letter to Rav Pinchas HaDayan, the two mishnas are speaking of different
cases, the key phrase in the second mishna being ''to set it aside.''

Both mishnas are speaking of situations in which both sides of the
machlokes have a significant number of followers. The first mishna is
speaking of where the Reebi Yehudah HaNasi held that the halacha was not
yet officially resolved by vote, despite the fact that one side currently
enjoyed the majority opinion (and he himself did not lean towards either
side.) There, 'we," Rebbi Yehuda HaNasi  [and his Bes Din?], "[still]
mention the minority opinion, because the majority of Bes Din may
ultimately be persuaded by the minority's arguments.

Rebbi Yehudah (ben Elai) adds: What about mishnas whose (halachos WERE put
to vote, and the) minority opinion was mentioned only to be nullified, "to
be put aside [[levatlan]]?  So that if a man shall say, 'Thus have I
received the tradition', it may be said to him, 'According to Ploni's
[refuted] opinion did you hear it.' " (Again, we are speaking of cases
where a significant number of [people had been following the minority
opinion.)

Zvi Lampel
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