I want to focus on a Ri Migash. The Ri Migash is quoted as recommending that rabbis are better served by using Gaonic works [secondary sources] than by going back to examine the Talmud itself. This is a classic "midgets on the shoulders of giants" argument. The problem: The Ri Migash disregarded this rule himself.
Well, as the article goes on to say, such programmatic or formulaic statements are meant to be disregarded at times at the very outset. In other words, no one takes such generalities as absolutes.
What was the Ri Migash REALLY saying?
One explanation is simple. Unless one is a a master of the entire Talmud, it is better to use secondary sources. Secondary sources have already predigested the entire corpus and so can provide a more holistic point of view on any issue.
As such, as I see it, only the GREAT masters of Talmud have the right [maybe the obligation at times] to go back to the Talmud to render Halachah.
The Rosh seems to recommend that approach for everybody. IMHO the Rosh simply over-estimated the gravitas of the average or mediocre rabbi. Few of them are even CAPABLE of using this methodology. Many that do are likely subject to errors of omission or perhaps even hubris.
I would posit that even for masters of Talmud, it is a slippery slope to go back to the Talmud if it overturns precedent. Once a GREAT rabbi uses this method to overturn tradition, it becomes fair game for other rabbis - of admittedly lesser stature - to follow suit. Given that a certain Poseik may have the RIGHT to go back to the Talmud, he should not necessarily exercise that right.
Why? He is opening up a Pandora's box for other rabbis. Hachamim hizaharu b'divreichem. In this case, be careful of what techniques you use lest you send others on a problematic path.
Now I can think of 2 caveats where going back to examine the Talmud is desirable:
- New case law. Issues that have little "common Law" type precedent.
- Urgent issues or Hora'as sho'ah issues. E.G. to help out Agunos.
The Aruch Hashulochan limits himself in p'sak. Regarding the issue of al nekiyyus Yadayim he favors the logic of the Rashba to use the original formula of al netilas Yadayim and not to be meshaneh the matbie'a to al nekiyyus.
However, he submits himself to the rulings of the Rosh and Tur. This might be due to his humility. Or perhaps he sees precedent as binding in a way analogous to that of Common Law. This is the technique favored by Ashkenazim throughout the period of the Rema.
Shach YD 1:1 ratifies this. Lo Ra'inu IS a Raya in the realm of Minhag. Introducing new practices is contra-Tradition. The fact that women Halachically are ABLE to slaughter does not mean we should change the Minhag to allow them to slaughter. Why not? Since it is a time-honored tradition, granting this permission would break with common Law Precedent and act to repeal of 'settled case law "to do so."
If you were to ask why Ashkenazim refrained from permitting women to slaughter, and was this due to some misogynist agenda? The answer is, according to the Levush - it is due to women being subject to fainting. This kind of G'zeria is common to the Talmud. Something goes wrong, and if Hazal see it as a potential problem in the future, they then make a g'zeira not to do it in the future .[ e.g see Hullin regarding: omitting Mayyim aharonim might lead to eating hazir]
Primary sources would have ignored this g'zeira. So did Bet Yosef - probably because Sephardic communities did not have this situation as a precedent in Sephardic communities.
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
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