There are many models on this. Best resource books is Menachem Elon's "Mishpat ho'Ivri" As best I understand Professor Agus's approach; post hurban halacha is analogous to "Common Law" iow based upon legal or judicial precedent. Therefore any decision without providing reasoning behind it carries little weight AS PRECEDEMT. My experience is that most posqim subscribe to this Agus Common Law Model - some to a greater degree than others. My favorite posqim - viz. Beth Yosef, Rema, kaf haChayyim and Aruch haShulchan predominantly use this method.
But of course this is more complex because sources include Talmud etc. Which is not exactly Common Law. There is also "minhag" which has a big impact in certain areas of Hoshen Mishpat.
When I was @ Ner Israel in Baltimore some talmiddim of Rav Ruderman ZTL stated that his beqius in Teshuvos was advantageous in Psaq based upon his ability to cite precedent; - as opposed to other posqim who relied upon their interpretations of Talmud which often may be speculative or debatable. And FWIW - many codes are laden with Shu"T. The Sha'arei Tehuva, Pischei Teshuva, Darchei Teshuva and Bar Ilan CD are all products of this methodology.
But of course this is more complex because sources include Talmud etc. Which is not exactly Common Law. There is also "minhag" which has a big impact in certain areas of Hoshen Mishpat.
When I was @ Ner Israel in Baltimore some talmiddim of Rav Ruderman ZTL stated that his beqius in Teshuvos was advantageous in Psaq based upon his ability to cite precedent; - as opposed to other posqim who relied upon their interpretations of Talmud which often may be speculative or debatable. And FWIW - many codes are laden with Shu"T. The Sha'arei Tehuva, Pischei Teshuva, Darchei Teshuva and Bar Ilan CD are all products of this methodology.
Zissen Pesach,
RRW
1 comment:
This being the case, why then does so much "minhag" end up being touted as "halakha"?
Chag Sameach.
--AA
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