<br><br><div><span class="gmail_quote">On 10/30/07, <b class="gmail_sendername">saul mashbaum</b> <<a href="mailto:smash52@netvision.net.il">smash52@netvision.net.il</a>> wrote:</span><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<div><p>RCL</p><br><p>But on a deeper level what this case illustrates (and I could have<br>brought you many other examples) is that Chazal tended not to work from<br>the platonic ideal and apply downwards, but tended to work from
<br>individual cases and work upwards.</p>
<p>===================================</p>I will readily concede that in the gemara, deriving halachic principles from a given case is much more common, but I still think that to say broadly that the fundamental approach of Chazal is from the specific to the general is not accurate. On the contrary, I think that for the most part Chazal tend to determine the halacha in specific cases from well-known and accepted general principles.
<p>Saul Mashbaum</p></div></blockquote><div><br>I don't know what hard and fast rules you can make from the various examples.<br><br>Let's say the following:<br>The style of the Mishna and Tosefta is gnerally more about case law as opposed to general principles. [Midrash halacha might be different]
<br><br>Where did this case law come from? Probably from decisions rendered in real cases.<br>[In the hierarchy of p'sak the Gaonim establihsed the primacy of "ma'seh rav" that a real live precedent trumps a Tannaic statment or a Meimra.]
<br><br>But - and this is a BIG but, it dos not mean that law is extrapolated from INDIVIDUAL cases. I would suggest a more broadly defined base from deriving law fro mthe Mishna - by indicutively oncroporating the mass of TSBP and using "davar mitcoh davar" to arrfie at principles
<br><br>AISI the process works more like this:<br><ol><li>
One or sevearl cases are brought to bear.</li><li>
Ta Shma's will be brought on either side of the proposed hypothesis</li><li>
The hypothesis is then established by summarizing a combination of
cases and is ferreted out by the Talmud, and it is rarely self-understood pre-eminent principle</li></ol><br>Thus I reject both of the above opinions viz.:<br><ol><li>Mishnaic decisions don't flow fro msome great well-known principle. Rather, it is usualyl ferreted out and is therefore not so obivous.
<br></li><li>Extrapolating from a single case DOES happen but is relatively rare. Usually a dialetic accompanies it.</li></ol>If the case ruled upon was the collective decision of a bona fide pre-Hurban Sanhedrin, it is treated as Halchah/Maosroah and is a solid precedent -
i.e. it is fixed. Later case law is not quite as fixed.<br><br><br></div></div> <br clear="all"><br>-- <br>Kol Tuv / Best Regards,<br><a href="mailto:RabbiRichWolpoe@Gmail.com">RabbiRichWolpoe@Gmail.com</a><br>Please Visit:
<br><a href="http://nishmablog.blogspot.com/">http://nishmablog.blogspot.com/</a>