The idea of midgets on the shoulders of giants goes back at least to medieval times. In a monograph by R. Dr. E. Kanarfogel [RDEK] on Progress and Tradition in Medieval Ashkenaz, this topic came up several times.
I want to focus on a Ri Migash. The Ri Migash is quoted as recommending that rabbis are better served by using Gaonic works [iow secondary sources] than by going back to 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 master of the entire Talmud, it is better to use secondary sources. Secondary sources have already pre-digested the entire corpus and can provide a more holistic point of view on any issue.
As such, 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. In my humble opinion, the Rosh simply over-estimated the gravitas of the average or mediocre rabbi. Few of them are 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. That is because 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 has the RIGHT to go back to the Talmud does not mean he should exercise that right. Why? He is opening up a Pandora’s box for other rabbis. Hachamim hizaharu b’divreichem or in this case be careful of what techniques you use lest you send others on a problematic path.
Now I can think of two caveats where going back to 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.
And in fact most Poskim do factor in Rishonim and Acharonim even when they do go back to the Talmud. It is always a good idea.
The Aruch Hashulchan limits himself in p’sak. Re: the issue of al nekiyyus Yadyayim 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. But he submits himself to the rulings of the Rosh and Tur. This might be due to his down-to-earth humility. Or perhaps he sees precedent as binding in a way analogous to that of Common Law. This is the technique favored by Ashkenazim for through the period of Rema.
Shach YD 1:1 ratifies this. Lo Ra’inu IS a Raya in the realm of Minhag. Introducing new practices problematic 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 it would be a break with common Law Precedent and a repeal of settled case law “to do so.”
If you were to ask why did Ashkenazim refrain from permitting women to slaughter? Was this due to some misogynist agenda? The answer is according the Levush - it is due to women being subject to fainting. This kind of G’zeria is common to the Talmud. Something goes wrong, the Hazal see it as a potential problem in the future and they make a g’zeira not to do it in the future [e.g. see Hullin re: omitting Mayyim aharonim might lead to eating hazir]. Primary sources would have ignored this g’zeira. So did Bet Yosef - probably because they did not have this as a precedent in Sephardic communities.
Rabbi Richard Wolpoe
3 comments:
On the other hand, Rabbi Yom Tov Schwarz's Eyes to See, chapter 35, "How the Great Sages of the Past Guarded Against Halachic Publications That Did Not Meet the Highest Standards" points out a pitfall of relying on secondary sources.
He quotes the Yam Shel Shlomo to Bava Kamma 8:72 and Shu"t Maharit Tzahalon 148 about a certain authority (whose name R' Schwarz has deliberately withheld, out of concern for his honor) who severely erred by ruling on the Mordechai and Agudah without seeing the Gemara. This also seems to have been the problem with ruling directly from the mishnah, and ruling directly from the Shulchan Aruch (before the commentaries were written).
Regarding female shohetim: however, Rabbi Henkin, regarding women reading the Torah, says that mere absence of a practice does not constitute a minhag. We have to know that this option was known to have existed, and was deliberately not availed of. If, however, previous generations thought this given halachic possibility did not exist; or if they knew it was legitimate, but they just happened to not utilize it, this does not constitute a minhag. In our case, perhaps previous generations just stam did not have female shohetim for some other reason (like the woman who cut the ends off the meat because her grandmother's pan was too small); who says it is a minhag?
There is a further precedent for cases like prohibiting women schochtim. Somewhere in one of the Bavas there is a story of three tannaim who go to a location where humrot are practised but they personally don't hold by these humrot and practise their leniencies in public.
The locals then protest and when the tannaim claim that their leniencies are perfectly fine, they are told "L'Olam Lo Rayinu Zeh". "We done never seen that." This itself would seem to serve as a basis for not permitting women shochtim.
Dr. Mike,
Without having seen the sugya, the fact that the locale specifically practiced humrot which these tannai'im flouted, means there really was a minhag they were violating.
By contrast, we may ask whether a minhag really existed not to have female shochetot, as per my citation of Rabbi Henkin. The absence of a practice does not necessarily constitute a minhag to avoid that practice. In the Gemara you cite, there was apparently a minhag of avoidance, but this not always the case.
A parallel: Ashkenazim have a minhag to avoid kitniot on Pesah, since they deliberately do this. But the fact that Ashkenazim did not regularly eat lamb with garlic and leeks was not a minhag; they simply didn't live in the Mediterranean!
To paraphrase the famous aphorism, absence of practice is not practice of absence.
Post a Comment