Originally published 6/5/07, 6:10 PM, Eastern Daylight Time
Does a Poseik have to adhere to any objective standards?
Related questions:
- How subjective may a Poseik be?
- What are the parameters of making P'sak?
- Are there any hard and fast rules to P'sak?
- Is the only real limitation to P'sak some kind of "Peer Review" or "Rabbinical Consensus?"
- What is the role of binding precedent? I.E. is there such a "settled law?"
- Does every P'sak need to conform to the Talmud Bavli?
- And if so, how so?
- When can a minority opinion trump a majority opinion?
- When may a Poseik Trump any/every Acharon?
- Rishon?
- Gaon?
- Talmud?
- Shulchan Aruch
- Assuming there are objective rulse, what is the recourse to a P'sak that is "out-of-bounds"?
- When Did the Talmud Bavli feel bound by precedent? When did it feel it had the authority to over-rule precedent?
- Outside of the Bavli - What texts -if any - are deemed authoritative?
- How does the decision of one community impact another community?
- I.E. Is North America now subservient to "G'dolim" in Israel?
- Is a local rabbi subservient to G'dolim?
- When is one obligated to follow one's own rabbi and when is one permitted to go "outside the box?
- E.G. Congregant MB always follows the Mishnah Brurah as a matter of personal policy - must he follow his local rabbi in the confines of his own home?
- A Sephardic congregant joins an Ashkenazic Shul: When must he conform to local custom and when is he allowed to conform to "Minhag Avoth" or family custom?
10 comments:
I just want to add one item for discussion and that is the issue of l'chatchila and b'di'eved.
There is a legal norm that needs to be set. This is the realm of l'chatchila. And then there is the determination of the law in a given circumstance where there may be further considerations pushing for a specific ruling, such as the case of aguna. This is the realm of b'di'eved. This distinction is found throughout the halachic realm. The question is the underlying policy nature of this distinction in the methodology of psak. Of the questions that Rabbi Wolpoe poses, are there different answers for the l'chatchila psak and for the b'di'eved psak? Do we make a distinction in process when we are establishing the norm and when we are resposnding to a situation.
As I discussed this issue with Nishma's Senior Scholar, Rabbi Turin, we phrased this distinction in terms of (a) wishing to create a certain halachic perspective or (b) responding to a need. What we considered was that the difference between various halachic trends may not be in the absolute consideration of acceptable halachic methodology but rather in whether certain methodologies can be applied for l'chatchila halachic determinations - i.e creating a norm -- or whether they are only to be applied for b'di'eved halachic determinations -- responding to a great need.
RBH
I just want it known that it wasn't my comment that was mercilessly deleted.
Okay, in order:
1) No, a Posek doesn't haven't to adhere to any standards.
2) A Posek may be as subjective as he wants.
3) The only hard and fast rule to the Psak is that if you agree with the Rav issuing it, you have to follow it.
4) There is no Peer Review or Rabbinical Consensus in issuing Psak. What, the GRuMP asked for feedback on his Igros?
5) Binding precendents only matter when the Posek agrees with them
6) A P'sak needs to conform to the Bavli when the Yerushalmi doesn't have a stricter opinion. Otherwise, as long as someone somewhere said it, it can be used. Minority opinions can always trump majority opinions when they're the stricter of the two.
7) A Posek may trump ANYONE, even the BGU himself, when his opinion results in additional stringecies? How else to explain that the Gemara in Shabbos explicitly says there's no cooking in a secondary utensil, yet the Shemirath Shabbath says there is.
8) Assuming there are objective rules, the recourse to a Psak that is "out-of-bounds" is for the Posek to quit the group he's currently in and start a new one (after denouncing all his old comrades as lenient heretics).
9) The Talmud Bavli always felt bound by precedents. These are inevitably analyzed to see if they're relevant to the case at hand and only rejected if they're not.
10) Outside of the Bavli, any texts the Posek agrees with are deemed relevant.
11) The decision of one community impacts on another when it leads to a greater stringency being adopted. Then the second community is put under pressure to adopt it too or be considered "less frum". (Consider the growing tide against eating strawberries that started in England and has now spread across the Atlantic)
12) North America is now subservient to the G'dolim in Israel. There are no North American rabbinical organizations that are prepared to stand up and be counted against them or try to wield the level of authority that the G'dolim in Israel claim to.
13) No one cares what the local rabbi thinks anymore. They all look up what Rav Eliashiv said in that recent three volume set of his and go with that.
14)One is obligated to follow one's own rabbi when the rabbi doesn't contradict a ruling of the aforementioned G'dolim. In the first example, MB always follows the Mishnah Berurah because his Rosh Yeshivah told him to and his Rosh Yeshivah told him to because the Gadol he serves... I mean, holds by told him to. Who's this local rabbi to go against the Gadol? Is he an apikores or something?
As for the second example, if a Sepharidic congregant joins an Ashkenazic shul, I wouldn't worry too much about local custom. Us white Eurofolk love it when the Sephardim show up and lain in their own trop. It adds colour to the proceedings.
Boy are you cynical.
In truth, it depends which Posek you look at, the era in which they lived, and the position of importance they hold in the pantheon of halachists.
For example, the Rambam wrote his Mishnah Torah pretty much relying on his understanding of the Gemara, and without footnotes! The Mechaber had a beis din composed of the Rosh, Rif and Rambam to decide which way the halachah should go.
In later times, we see certain acharonim disagreeing with either the Mechaber or the Rema depending on the number of other important Rishonim they can marshall to their side.
I don't believe there is one universal method of developing p'sak. Otherwise, anyone could do it once they know the basic rules and buy a Bar Ilan CD.
I do think, however, that most p'sak today is ideologically biased. The answer is picked and then the sources are marshalled. But maybe that's just my impression.
Above DrMike said:
"4 There is no Peer Review or Rabbinical Consensus in issuing Psak. What, the GRuMP asked for feedback on his Igros?"
I didn't mean peer review as referring to permission to publish! I intended peer review with regard to accepting a p'sak as authoritative!
Illustrations and comments:
2 GruMPhs
1. Shabbos Clocks RMF said ONLY for lights not for a/C's etc. The public rejected this humra. Even RMF is said to have backed off...
2. Shabbos Soap. RMF said EVEN liquid soap neds to be dilluted. Others felt that this humra was deluded and reqire ONLY avoiding bar soap and permit ANY liquid soap as is.
NB: No one is taking away RMF's right to his opinion. The point I was trying to make was: when are we BOUND by an opinion? I suspect that peer review is a big factor.
E.G. A kula that has been rejected by halachic Society: Consider Microphones on Shabbos. There were legitimate Tehsuvos permitting them but GRuMPh and others put their proverbial feet down and it is not de reguer in ortho circles any more.
I think of Poskim as like Speaker of the House and the peer Review Like a legislative Assembly. E.G. Takkanos of Ezra re: Tevillah etc.
And in some cases the debate rages on like re: Eruv in NYC, etc. There are still poskim and communities on both sides of the issue, sometimes even 1 the same neighborhood such as Washington heights!
-RRW
So to use the above examples of how time changes everything: I've met a few people in Toronto who dilute their liquid soap for water because even though other legitimate authorities say you don't have to, it's so much easier to fulfill everyone's words by doing it.
In other words, it would be interesting to research how many "chumros" were initially rejected but have slowly become "the gold standard" since then as people want to look "more frum".
In terms of peer review, that all comes down to politics. The microphones example is a good one for that. You could prove without a doubt that a solid state electric microphone is perfectly persmissible on Shabbos and for meta-halachic reasons (we don't want to look like Reform) it will be rejected.
But, the bigger question lingers. How can one reject 800 years of commentary and go back and give a revisionist spin on a classic text?
Easy, it happened and does happen quite regularly, particularly when not related to pesak halacha. But even when halacha is involved, it has happened. How otherwise was Heter Iskah or selling of Chametz ever allowed when those who rendered the pesak halacha ignored previous legal precedent?
I think there are many sides to the issues presented. The very question if there are rules to psak demands further clarification.
It would seem that there are two realms to the process of psak. One is the investigation of the sources and the determination of what one thinks is the directive of God. The other is the investigation of views over the years and the determination of the consensus on what was the directive of God. Now of course in our world today both processes co-exist and any posek works within the two realms but there are clearly differences between poskim based upon the weight they give to both realms. Rav Moshe Feinstein, for example, stressed the first process and, as such, was willing to take on precedence even based on only a sevara brura if he felt it was necessary. Rav Ovadiah Yosef would seem to be someone who favours the second process relying upon his encyclopedic knowledge of the literature of the poskim.
So the questions have to be further defined. If one follows the first process, how much leeway does this person have in developing his own view? If one follows the second process, by what methodology is one to apply in considering historical precedent? Do you follow the majority when the minority contains individuals with greater status, for example?
The problem is that there are not only variant decisions but variant decision making systems. I would think that a poseik has to abide by a system that meets some rules of objectivity. There are objective standards -- but there are many objective standards, i.e. methodologies of psak.
And which one rules the day often can change based upon the stature of the individual applying a specific methodology.
RBH
Precedence, ideally, would be based on previous precedents, as contradictory as that sounds. In other words, if there is a precedent to the nature of the precendent being considered, that too would be a relevant factor. Things like social conditions, the overall level of community religiosity, outside persecutions, etc. A heter from the Crusades might have been relevant in an entirely different area of halachah during the Chielmnitsky pogroms, for example.
In that case, there is little difference between the Rav Ovadiah Yosef and the Grumph. It's just that the Grumph used precedents as a basis for his precendents while the Rav Ovadiah Yosef preferred more clear cut cases to rely on.
Post a Comment