[Avodah] klalei psak

[Micha Berger]

On Wed, Feb 21, 2024 at 04:29:47PM +0200, Joel Rich via Avodah wrote:
> Rav Asher Weiss-The Rules of Rendering a Halachic Decision
> https://torahanytime.com/lectures/283345

R Ashar Weiss opens by making a contraast between Sepharadi Rishonim and
Baalei Tosafos. The Maharshal says the latter make shas into a "ball"
and they "rolled it from place to place", referring to how they will
understand one sugya in light of the other. While Sepharadi rishonim
stayed much closer to the geonim.

WADR to RAW, given comments in Teshuvos haRambam, I don't think the Rambam
felt all that compelled to follow the geonim.

Talmud Reclaimed, by R Shmuli Phillips (who is easily reachable on Facebook),
gave a different explanation of the Sepharadi position. They would take the
masqanah from the primary sugya on a topic. And if that means they ruled in
ways the Baalei Tosafos would deem inconsistent, so be it.

RSP feels that this makes the whole Brisker project suspect, as it is
looking for the Rambam's "ball" of Talmud, and the Rambam never tried
to make one.

I disagreed. Compare to physicists -- some are experimentalists,
others are theoreticians. The Rambam's approach to pesaq parallels the
experimentalists. Tosafos -- theoreticians. That doesn't mean that when
all is said and done, there shouldn't be a theory unifying the disparate
"experiments" / pesaqim. Since the Rambam's Derekh is Emes, one of the
Shiv'im Panim, there has to be an explanation for it. Even if the Rambam
himself didn't seek one.

But, it does require being much more strict in chiddushim, in not
reshaping the Rambam's ruling with an uqimta or such in order to make
it fit your theory.

In any case, back to RAW, he holds that this Sepharadi perspective is
found ad hayom hazeh. That a Sepharadi poseiq is more likely to cite
sources than write his own sevara. (R Ovadiah Yosef came to my mind
when he said that.)


Another topic, one RAW spent more time on, he also approached in a way
different than I would have assumed.

The Chavatzeles haSharon quotes a chain of acharonim who hold that a
poseiq generally knows where the pesaq is going to be, and then reasons
his way to it. More recently, the Minchas Yitzcha says similarly.

RAW says he never understood it. Rather, the poseiq should ignore that
feeling and try to find Amito shel Torah without bias.

As I recently commented on the AI discussion, I was under the impression
that the process of pesaq not only includes ideas you can articulate, but
also attitudes and tendencies that can't be put into words. As I said, I
think this is why Chazal requires shimush rabbanim as a pre-requisite for
hora'ah. Because there are things you can only learn by osmosis.

And those go into that immediate feeling of where the pesaq ought to be.

Yes, you have to be honest enough when the logic of the sefarim forces
the poseiq to conclude your feeling comes from somewhere else, that it
just doesn't work. But I thought a major part of being a TC is becoming
the kind of person who has the right hunches.

Lots more, like chumeros vs qulos, etc... But I didn't plan on writing a
summary. Just raising the points that bothered me for further discussion.

:-)BBii!
-Micha

-- 
Micha Berger                 It is harder to eat the day before Yom Kippur
http://www.aishdas.org/asp   with the proper intent than to fast on Yom
Author: Widen Your Tent      Kippur with that intent.
- https://amzn.to/2JRxnDF                     - Rav Yisrael Salanter