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Sunday, July 13, 2008

Pinchas, Bamidbar 28:15. Se’ir izim echad le’chatas lashem. Flexibility in Psak and Eilu Ve'eilu

Rashi from Chulin 60– Hashem asks that we bring a korbon to be mechaper for Him for His having diminished the Moon during the Ma’aseh Breishis.

Reb Moshe in Kol Rom III and other places: this is a mussar haskeil that when deciding between two sides, a decision for one does not necessarily mean that the other is without merit and truth. There are times when a decision has to be made, and the decision accepts the primacy of one side over the other, but this does not invalidate the truth of the other. Dayanim have to remember this when presiding over a case involving a dispute either in civil law or halachah.

In the Teshuvos, EH IV 34, Reb Moshe he talks about hysterectomies. Of course, male castration is an issur de’oraysa, under the rule of Be’artzechem Lo Sa’asu. The question is what the halacha is in the case of hysterectomy. The Gaon, based on his understanding of a Sifri, holds that this, too, is an issur lahv de’orayso. The Gaon is a daas yochid. But in other teshuvos, he Reb Moshe writes that he paskens like the Gaon, and assers hysterectomies. But then in this teshuva, Reb Moshe brings that the Shach in YD 242, in Hanhagos Horo’oh, brings a Bach that even in an issur de’orayso, you can be someich on a daas yochid against a rabbim in cases of tzaar godol or hefsed meruboh. The Shach disagrees with the Bach, and holds that’s only true in cases of an issur de’rabbonon. However, the Taz holds like the Bach even in issurim de’orayso. Therefore, Reb Moshe is mattir hysterectomies in cases of Tza’ar Gadol where there is no alternative. (Obviously, one would need shimush talmidei chachamim to know what constitutes tza’ar gadol.)

I find this to be amazing. What does psak halochoh mean? Everyone that has given shiurim to not yeshivishe baalei batim knows that as soon as you tell them that there is a machlokes about something, you have someone saying "He holds like this, and he holds like that, you can do 'vat ever you want.' This, of course, is wrong. There is such a thing as a psak halacha: the poseik decides what the halacha is, and the majority of poskim decide what the halacha is, and precedent decides what the halacha is. But if you can be mattir when there is hefsed meruboh, what does it mean when you pasken issur under normal circumstances? How does tza’ar or hefsed affect the decision? If you’re paskening it’s assur, then it’s assur, isn’t it? Apparently not, according to the Bach and Taz. If there’s a daas yochid to be meikil, the fact that you generally pasken like the rabbim, or you generally pasken le’chumroh by de'oraysas, is a din in how to pasken when you have two shittos that are both emes on some level. But where there’s a hefsed meruboh or tzaar godol, then you can be someich on the daas yochid, because that is also true. Here's an example. The shittah of the Tosfos Rid in Kiddushin 14, and brought in the Avnei Milu'im, is that if a woman tells her husband "Put my Get over there on the fire hydrant that's twenty feet away from me," and he puts it there, she is divorced. Nobody except the Tosfos Rid holds like that. So, what if some guy says, I know nobody paskens like the Tosfos Rid; but I don’t care, I’m going to be meikil like the Tosfos Rid and be mattir a woman on the basis of tein get ahl gabei sela. Is she divorced or not? Would her next husband be oveir on an issur de’orayso? The children would be mamzeirim, of course, because that is a decision that we make, not him. But as for the issur questio, maybe he would not be oveir an issur de'oraysa. It seems that he was just oveir on the procedural rules of psak halacha. Or, it could be that there comes a point when a da'as yachid is totally delegitimized, like "Beis Shamai be'makom Beis Hillel eino mishnah."

Maybe the pshat is that the din of psak is to preserve the Torah. In other words, psak is not necessarily a guarantee of truth: when you seek a psak, or you study a question and pasken, your true obligation, your true quest, is to sincerely seek the answer to your question in the Torah, to develop a coherent approach that is based on a valid understanding of the Torah. What you come out with doesn’t really matter. The main thing is to seek to live your life ahl pi dinei Torah.

In fact, in the case of par he’elam dovor shel tzibbur, the Gemara in Horyos says that Beis Din brings the korban only when the psak was shown to be false, not where the balance of votes moved from heter to issur on a question of logic or precedent. If, however, there are individual dayanim on the court who maintain the previous psak, it would seem that, again, it is a procedural determination, not a finding of truth.

11 comments:

Chaim B. said...

I'm not sure I buy the question. If you ask me if I like chocolate or vanilla ice cream, I am going to choose chocolate because I don't like vanilla. But given the choice of vanilla or strawberry, I will choose vanilla. Does it make sense to ask me why I suddenly chose vanilla when a minute ago I said I didn't like it? Did I speak falsely when I said I didn't like vanilla the first time around?
Hefsed and tza'ar are not necessarily just rules of psak as a process. They are rules of the reality of halacha as a contingent set of truths.

Barzilai said...

The Ketzos, in his hakdamah, talks about "lo bashamayim hee" and "emes mei'eretz titzmach," and things like that, but after all is said and done, even he agrees that the poseik makes his decision on the basis of what he believes to be true. Now, if it's true, it's true, and all the hefsed in the world doesn't makea a difference.

Barzilai said...

By the way, Mr. Divrei Chaim, this is not a criticism, because I also don't always bring exact mer'ei makom, but it would be nice if you could tell us exactly where Reb Elchonon says that thing you brought about the primacy of limud hatorah over asiyas mitzvos, and the indifference of the yetzer hara to asiyas mitzvos.

Chaim B. said...

The R' Elchanan is in vol 1 of the Koveitz Ma'amarim (in the black 2 vol edition) in the essay (or section) devoted to Agudas Yisrael.

>>>if it's true, it's true, and all the hefsed in the world doesn't makea a difference.

You've just restated the same thing as a fact, but that doesn't explain why. Just like the truth that I don't like vanilla ice cream is true only in the context of comparing chocolate to vanilla, what the posek declares halachically true may be so only in a context absent hefsed. You need to prove that halacha is a necessary and not contingent truth, and I'm not sure that is easy to do.

Chaim B. said...

I want to do a post on this same topic - please give me a shout if you have any objections. Thanx

Barzilai said...

Go ahead. Yagdil Torah ve'ya'adir.

My rosh yeshiva, zatzal, always used to tell us that there is no masig gevul in torah organizations.

Until his grandson's yeshiva was threatened by another guy who wanted to open up nearby.

I guess that story is on topic, actually. There is halacha, and there is halacha ve'ein morin kein, and there is halacha for the shiur klali that is different then the real world. Reb Moshe and Reb Yakov both used to say that when they paskened without hachra'ah, and they had to chose between the MB and the Aruch Hash, they always went with the AH, because he was a Rov of a town, not a Rosh Yeshiva.

micha said...

Well, I hear R' Zvi Lampel will be coming up with a new edition of the Dynamics of Dispute. In the meantime, you might want to see my blog entries on the subject, giving R' Moshe Halbertal and R' Michel Rosensweig's takes on the subject and my own two cents.

In any case, the Maharal (Be'er haGolah, near the beginning) writes that pesaq is the art of mapping Divrei E-lokim Chaim to the limitations of mapping that into the real world. Each captures part of a truth too complex for the human mind. Sort of like a 2D shadow of a 3D object.

-micha

Barzilai said...

Micha, thank you for your comment. I don't know whether we are addressing the same thing. You are dealing with eilu ve'eilu. I am talking about what "Psak Halacha" means, and whether a person who is someich on some obscure daas yachid is doing wrong; What would you say about someone that relies on the shittah that machshirei milah are docheh shabbas? Or that there isn't even a derabanan requirement to shecht birds? Or that doesn't say hallel on Rosh Chodesh? Or any of the myriad daas yachids that nobody paskens like any more? Is he in trouble or not? If he could do these things in a case of hefsed/tzaar, then he is just being oveir on not doing what orthodox jews do, but he wasn't oveir on any other issur. So Torah is almost hefker! If you find some shittah that is mattir, or if you yourself look through the sugya and decide something, then go ahead!

micha said...

If Eilu veEilu means that they're both true, and the difference is only in which aspect of the truth we plan on utilizing, then the implication would be that relying on a da'as yachid as a snif lehaqeil are very real.

-micha

PS: I'm pretty sure it's "Rabbi Divrei Chaim".

micha said...

Linguistically, to "pasqen" is to "end" the viability of the rejected shitah.

Going to my shadow metaphor, it's like trying to superimpose two shadows, made by shining the light at the object from different angles. What you're left with doesn't represent the original. Tarta desasrei.

It's only when we can't pasqen using real rules of pesaq, and instead use rules of doubt and birur, that I could see the validity in adding it as a consideration.

-micha

Barzilai said...

mea maxima culpa.
RABBI Divrei Chaim.