<br><div><span class="gmail_quote">On 10/26/07, <b class="gmail_sendername">Chana Luntz</b> <<a href="mailto:chana@kolsassoon.org.uk">chana@kolsassoon.org.uk</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;">
<br>On another topic RRW writes:<br><br>> I have a bitter fed with a colleague of mine - let's call him<br>> Rabbi ABC. <br>> let's recap:<br>> He claims that the Bavli trumps all and THAT is a rule of pesak:
<br>><br>> 1. is that a fact? is the Bavli the final arbiter of pesak?<br>> 2. Or is the the decisiveness of the Bavli a matter of debate?<br>> 3. are there sources to prove one side or the other?<br>
> [believe me I am<br>> looking at this ll the time?<br>><br>> Toby claims that R&C rabbis decide the issue first and find<br>> support in texts that suits their agenda. But Rabbi ABC<br>> posits that Behag, Toafos and many Orthodox rabbis do this
<br>> frequently, too. That a decision is mad on some agenda and<br>> sources are mustered to make the argument plausible, or<br>> cogent post facto. First comes a minhag afterwards come the<br>> rationale.<br>
><br>> How can I answer Rabbi ABC? As a jew in need I request YOUR help!<br>><br>> Disclaimer: I do not consider Rabbi ABC an honest broker of<br>> the facts of how Halachah works. But in the interest of da
<br>> mah lehashiv, I need something that can be "makheh es shinav".<br><br>The irony of this discussion is that if you were only analysing the<br>halachic aspect of this (and leaving out the cries of misogyny) this Rav
<br>sounds like a Sephardi. </blockquote><div><br>Rabbi ABC has a strong pro-Sehapridc tilt. [I think he studies with R. Mordchai Eliyahu.But he claims that Bet Yosef follows the peshat of th Talmud as his basic rule. Well, re: 3 matzos that ain't so because the passage in the Talmud as codified by Rif and Rambam and as supported by GRA clearly favors the 2 matzo rule. The Bet Yosef himself says the world follows Rosh and Tosafot and therefore he follows consensus over text. [in this case GRA is more Sphardic than Mechabeir] A careful read of the hakdamot of R. Karo to both Bet Yosef and to SA will reveal that he makes NOT attempt to get the best original read of the sources but rather is about looking at the Talmud through the prism of Rishonim only, and then getting the best Bet Din of Rishonim together. Rema essentially does the same but simply has a different Beis Din
<br><br>While the Rambam certainly could repeal Gaonic literature via Talmudic citations, BY made noe such effort and rather looked to an amdau v'gamru from Rishonim to decide pesak - with a few exceptions.<br><br>Also Rambam himself uses Yerushalmi and Tosefta to override Bavli.
E.G.: Lannochri Tashich he rules as per Sifrei over Bavli [Shm Ase 198]<br> <br></div><br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<br><br>Of course the Sephardi halachic analysis is precisely this - the Bavli<br>trumps the Tosephta, and we don't follow Tosphos and the Rema. And<br>while highly I doubt misogyny would be something that would be raised,
<br>one of the Sephardi criticisms of a lot of Ashkenazi psak is precisely<br>about using what seem to be external sources and dubious minhagim to<br>trump the Bavli (and some of it might be argued to be not that polite -
<br>I think I have read some pretty strong things about not sitting in the<br>sukkah on shmini atzeres).<br><br>Now of course, if you want to talk about women making brochos on mitzvos<br>aseh shehazman grama ...</blockquote>
<div><br>Actually a Sepharidc young lady made a passioante anti-Ashkneazic argument during Sukkos 2006 agaisnt Ashkenazim and their brachot on Sukkah for Women etc. I then whipped out the BY who goes throug hboth sides. The Ashkenazic position is artualted by guess who? It is the RAN! Now how can Sephardim attack this halachah as an Ashknezic deviation when it is th Ran himself who articulates it and the BY gives it credibilty before deciding the other way?!
<br><br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">And where does minhag end and halacha begin and<br>end in such a case? What about taking positions in a community?
</blockquote><div><br>Our esteemed moderator recently took me to taskk by conflating minhag, pesak and legislation. Anyone reading any major book on Halacha after the Rambam will find these conflations to be par for the course.
<br> </div><br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">I can<br>think of two cases here - one is that one of the Rabbis at Aish here is
<br>Sephardi in origin (Syrian from the US, son of a Rav there), and very<br>steeped in the Sephardi tradition. But he is working with, on the main,<br>Ashkenazi not yet frum, and within an Ashkenazi organisation. He has in
<br>general chosen to put on a united front - including, for example,<br>dancing and clapping on shabbas - to raise my earlier topic - where all<br>the sources on which he has to rely are Ashkenazi. </blockquote><div><br>
True that Tosafos allows this, but Rema does so ONLY reluctantly. Ayein Rema on 339 where his first opinion really is closer to the mechabeir. What is fair to say is that some Ashkneazim not only ignore the Talmud or the Shulchan Aruch to follwo a minhag - they wil ignore the Rema, too. And conider that single men do not ewear a Tallis as having been decried by the Mishna Brura, we see that Minhag trumps MB, too!
<br> </div><br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">Is he picking and choosing? </blockquote><div><br>Rabbi ABC is claiming that modern Poskim are playing games with Halachah by not following the Talmud. I am not a "TAlmudic-Karaite" but I do concede that few poskim feal that they serve a particualr set of rules. Bet Yosef limited himself to an objective Bet Din for the most part. Few Ashknazic poskim follow a unifrom shita nad feel free to pick and chosoe as they please. At least with yekkes, there are sourcs that usually trump others.
E.G. in liturgy and Masoretic Stuff Heidenheim is the main authority. For Minhag there are seforim that are consulted, Maharil being a major source. <br> </div><br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
. The whole thing boggles my mind. Having read now quite a lot of<br>ROY teshuvos, I would be really surprised if you would get a psak from<br>him where the Mechaber would be trumped by a Tosphos. Does it matter?<br>Does the quality of the gadol matter more than their derech even when it
<br>is so far away from what one might expect their tradition to produce?<br>Can one pick and choose if one has (like this case of megilla) the<br>Sephardi tradition on which to rely - especially if one really believes<br>
that that is the "right" answer.<br><br><br>Shabbat Shalom<br><br>Chana<br></blockquote></div><br>The question remains. Are poskim bound by any set of rules or are the entitled to make them up as they go along?
<br><br>What Rabbi ABC and other Sephardim mis-understand re: Tosafos is that actaully Tosafos was notquite so innovative re: Halachah, and usually Tos. was more about conserving traditional practices [mimetics over text] It would be unfair to say that Tosafos was unbound, aderabba, he was quite bound b certain rules, just DIFFERENT rules.
<br><br>Aruch Hashulchan rarely repeals practice based upon original reads. Mostly, he accepts precedent, tradition, and Minhag.<br><br><br>-- <br>Kol Tuv / Best Regards,<br><a href="mailto:RabbiRichWolpoe@Gmail.com">RabbiRichWolpoe@Gmail.com
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