Thursday, 3 September 2009

Cognitive Dissonance Between Halachah and Talmud Pt. 10 - La'Asuqei Shmaat'ta aliba deHilcheta

Growing up in the Yeshiva World - Talmud was more Theoretical and Halachah had branched off into popular codes EG
Hayyei Adam
Kitzur Shulchan Aruch
Mishnah Brurah.

In fact I finally was gracefully granted to set aside Talmud and learn Halachah at my last 2 weeks @ Ner Israel in Baltimore. I took Shulchan Aruch,
Taz-Magen David, and Magen Avraham and learned hilchot Tisha b'Av [really the entire 3 weeks] b'iyyun - no Mishna Brurah!

But I digress! Those of a philological and/or fundamentalist mindset have an approach to Halachah that requires going to original texts and working forward. And when approaching those texts [Mishna, Talmud, etc.] They usually employ a [Gaonic] techinque - viz. "L'asuqei shmaat'ta aliba dehilcheta"

Here the approach is to learn the sugya b'iyyun and to ferret out the correct Halachah Going Forward. Thus, since Qitniyyot is permitted by Talmud on Passover, there is no Halachah re: Qitniyyot. At most, a minhag.

This is a classic approach to text.

However I finally heard articulated this same phrase to explain the more POPULAR approach to Halachah. This is meaning #2 of
"L'asuqei shmaat'ta aliba dehilcheta", IE.
To start with the Halachah as axiomatic and to FIND its roots in the sugya!

This technique is used by Tosafot and others - and BEH we will post a follow up

In Hermann Strack's Intro to Talmud and Midrash, he states that this is the current technique in vogue; IE to consult the codes and to work BACK to the Sugya! That the Talmud is no longer in the foreground of Halachah but is in the background. Thus the codified Halachah is NOW assumed to be axiomatically correct and the Talmud is re-worked or retrofitted so as to conform. This is pretty much what we do to Mishnah TODAY! The simple read has been set aside at times by the Talmud and this is reflected in Bartenura et al.

What changed?

In the Gaonic era defintion #1 had to prevail. Except for a few rudimentary codes - such as Halachot G'dolot - the Bavli was THE primary text!

Later, Gaonic decisions, the emrgence of Yerushalmi and Gaonic decisions from Eretz Yisrael served to make the Bavli less a hands on Halachic text and more of an encyclopedic resource book. That's why Rif and Rambam move AWAY from Bavli as a pragmatic Halachic source.

Rif created a Mini-Bavli alternative, and Rambam reduced Oral Law back to Mishnaic form, resmebling the redaction of R. Yeudah Hannasi.

See SA Choshen Mishpat 25:1 where "to'eh bidvar Mishnah" has been extended to "Posqim". See nos'ei keilim particularly Sefer Me'iras Eynayim.


L'asuqei shmaat'ta aliba dehilcheta may actually imply two techniques which may be complementary or often in conflict.

#1 The original intent of primary sources - which may be used to revise current practice.

#2 The acceptance of current norms as axiomatic and then applying normative Halachah as a template for re-reading the Talmud. This can be similar to "deconstructive" reading.

Follow up:
We will BEH show several cases of how these cases diverge in real life


2 Vs. 3 Matzot @ the Seder


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