[Avodah] psak/feelings

[Zvi Lampel]

From: Joel Rich <joelirarich at gmail.com>
> ... I recently heard R Asher Weiss say a poseik shouldn't have any
> "feeling" about the answer to a question but rather look at sources and see
> where they take him....

From: Micha Berger <micha at aishdas.org>
> ...
>> 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 Yitzchak says similarly.

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


Here is the video of RAW saying this:
<https://torahanytime.com/lectures/283345>

The part referred to is at 18:13. He cites the Sefer Yehoshua by Rav
Yehoshua Heshel Babad, the "Chavatzeles HaSharon," Evven HaEzer siman kuf ches
<https://www.aishdas.org/avodah/faxes/ChavatzelesHaSharonAlDerechPesak.pdf>,
which cites the sefer "Derech haMelech LaRambam," which cites the sefer
"Noda BaShearim" by Rav Dov Ber Ashkenazi
<https://www.aishdas.org/avodah/faxes/NodaBaShearimAlDerechPesak.pdf>.

RAW understandably considers "a terrible mistake" the idea that, in his
words, "When a Rav has a shailah, first he needs to have a feeling what
the pesak should be, and then open the Shulchan Aruch and the Rishonim
and the poskim and see what the maskana should be." "A Rav should have
no pre[concieved notions] of what the pesak should be. Now, we are [only]
human, and it's only natural that usually you do have a certain feeling,
but you need to do your best to totally ignore that feeling and not try
to prove what you think and what your feeling is."

(Ohr Yisrael, pages 44-46 in the edition I saw it, expounds on this idea.)

But after examining the sources RAW cited, IMHO they are not saying what
RAW says they are saying, after all. The step the Chavatzeles HaSharon is
advocating a posek should take before examining the Shulchan Aruch et al is
not "having a feeling what the pesak should be." It's making sure, when
presented with a shaylah of the gravity of an Agunah issue, that one has
the facts of the situation straight, not relying on the
questioner's presentation of them.

Nothing about "having a feeling what the pesak should be."

Using HebrewBooks.org, I could not locate the citation in Rav Babad's Sefer
Yehoshua. However, I was successful in finding the statement in the Sefer
Chavatzeles HaSharon that RAW quotes, and the primary source it cited, the
sefer Noda BeShearim.

Noda BeShearim, hakdama:
"And Hashem knows the truth, that I wrote not a thing without iyun and
shekeyda heteyv to investigate and discover a source to bring forth the din
from the mouths of the rishonim and acharonim. And if, chas v'shalom, I
erred, talin meshugasai, for it is certain that the teacher of halacha
should not come to teach if he will not investigate well before[hand] with
his seichel ad heichan daato daas Torah noteh."

The intent of the last words that I did not translate is perhaps
debateable, but the Sefer Chavatzeles HaSharon paraphrases and expands
upon it:

Sefer Chavatzeles HaSharon, Shu"T EH"E, 570, Siman 28

...concerning the matter of the Agunah...[the grounds that some give for]
permission of this Agunah [to marry] is very weak for many reasons. But
first of all I will tell them what I heard from the mouth of HaRav HaGaon
Moreinu HaRav DovBeresh Rappirport z"l, Av Bes Din kadosh of Ravva, who
received this from the mouth of his Rebbi, the gaon...author of Noda
BeShearim, the Av Bes Din kodesh of Lublin, z"l:

that when any shaylah would come to him, he would first weigh with his
seichel concerning the true nature of the matter as [can be determined],
how it is, following human seichel. And if it seems to him through human
seichel that the thing is true, then he should examine what the halacha
should be according to the Torah's decrees.
And so it is with me, when a shayla of agunah and the like comes before me,
if the thing is clear in my eyes according to the seichel and the daas of
bnei adam, that the thing is true, then I will make myself toil to find
some grounds for heter according to the decrees and laws of the Torah
haKedosha. Not so, however, if the truth of the thing is unclear to me, and
such is the case with this thing, because there is nothing here but
himself, for as it seems, he is among those who are unserious and withheld
evidence for many years...

Clearly, this is talking about verifying the facts before poskening a case
(albeit attempting to find heterim when it comes to agunah cases and the
like), not a general approach towards pesak that when presented with a
shailah, a Rav must have a feeling what the pesak should be, and then
reason his way to it.

I haven't seen the Minchas Yitzchak that RMB referred to, yet.

My hunch is that if I find it, I will see that he as well did not suggest
that a posek, before examining the relevant sources, should make sure to
have an opinion of what the pesak should be.

[Email #2 -micha]

...
Reviewing the Noda BeShearim, hakdama, it seems that [the Chavatzeles
HaSharon] is really making another point altogether, which is actually
the very point that RAW himself endorses:

> "And Hashem knows the truth, that I wrote not a thing without iyun and
> shekeyda heteyv to investigate and discover a source to bring forth the din
> from the mouths of the rishonim and acharonim. And if, chas v'shalom, I
> erred, talin meshugasai, for it is certain that the teacher of halacha
> should not come to teach if he will not investigate well before[hand] with
> his seichel ad heichan daato daas Torah noteh."

In other words, he is saying that he did not posken without [first]
studying the rishonim and acharonim. When he says that "the teacher
of halacha should not come to teach if he will not investigate well
before[hand] with his seichel ad heichan daato daas Torah noteh," he's
not talking about something one must do /before/ studying the rishonim
and acharonim. He's saying that before /poskening/ one must see how his
daas Torah leans /after/ studying the words of the rishonim and acharonim.

> I still haven't seen the Minchas Yitzchak that RMB referred to, yet. I
> don't know where to look.

Zvi Lampel