Monday, September 15, 2008

On autonomy and precedent in Pesak - Continued

[At this stage of writing I am only gathering raw material that relate to the subject. I hope to give this a more coherent form at some later time. Comments (additonal sources, directions for future research, etc.) are especially welcome. Many thanks to all those who commented on the first post.]

In my earlier post, I argued thata posek must often choose between the two often conflicting values of precedent and personal autonomy. I will now attempt to prove this argument by citing from the works of three major posekim who discuss the place of these two values within the Halachic process.

I will begin with a very revealing citation from Igrot Moshe[1], Yoreh Deah 1, No. 101:

R' Moshe is argues very strongly in favour of the autonomy of the posek. However he places some important restrictions in favour of precedent. First, although he permits argument with "most Achronim" he only allows disagreement with "some" Rishonim (Which?). He also insists on the canonized status of the "Posekim Me'fursomim Baalei HaShulkhan Arukh" (Who is in this category?). He cites an interesting justification for the second point in this that they were already "niskabel" (accepted) in all of our countries. I am not entirely certain but I think the imprtant source here is the Mishna in Eduyot 1:5 [2]. In relation to this Mishna, we learn (in regards to the permission of oil of a gentile - see Kesubot 2b) that there is an important distinction between a Halacha that was already "nispashet - spread out" among all Israel and one that was never generally accepted [3]. If I understand correctly, R' Moshe is comparing the Shulkhan Arukh to a Halakah that was "nispashet"[4]. Note also that R' Moshe restricts the autonomy of a posek to "places where there is great need" and overall stresses the need for caution.

We will next cite some important passages from the seforim ofR' Yaakov Emden. In his first sefer Igeret Bikoret pg. 9, the Yaavetz would seem to accept the authority of the Shulkhan Arukh:

but I believe that in his later works (particularly Mor U' Ketziah- see the citations here) he takes an increasingly independant stance (See his comments on the Mishna in Eduyot I cited earlier in Lechem Shamayim, Maaser Sheni Ch. 5). The following citation from Shmuel Dotan, "R' Yaakov Emden U' Bnei Doro" is also relevant:

The last posek I will discuss is R' Kook. Since I am not quite certain where to find the original article (Ittur Soferim 2 pgs. 35 ff.), I will cite fromY. Mirsky's work (op. cit. pgs. 96-97):

He then proceeds to ask if an halakhist must survey every opinion and precedent before arriving at a decision and concludes that one can rely on an individual respected decisor if need be; he reaches this by an ingenious understanding of the well-settled halakhic principle of rov, or majority rule, viz. we can presume that a solid majority of any given decisor’s opinions are more or less correct, and that enables us to follow his views.183 This unconventional reading seems to tell us something about his sense of himself as he stakes out a place for the lone authority.

183 - The principle of majority rule generally refers to the majority of opinions by a group of decisors centered on one specific matter, and is not a presumption as to the reliability of any one decisor deriving from the majority of opinions within his own corpus, dealing with a range of matters; see Encyclopedia Talmudit, vol. 9, s.v. Halakhah, § 7-8.
[1] On R' Moshe's unique style of Responsa see - Norma Joseph - Separate spheres: women in the responsa of Rabbi Moses Feinstein.Concordia University. A more recent dissertation comparing R' Moshe's Igrot Moshe to his Dibrot Moshe must also be very valuable but I son't as of yet have a copy (Hat-tip). I was lead to this source by Y. Mirsky's fantastic dissertation on R' Kook.

[3] See the lenghty discussion in E. Berkovitz, Ha-Halacha Kocha U' Tafkido Ch. Kochan Shel Chachomim.

[4] There are many articles on the canonicity of the Shulkhan Arukh including the Semikha the Beit Yosef recieved from Mahari Bei Rav. See especially I Twersky, The Shulkhan Arukh (I haven't been able to get a copy yet).

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