The Torah forbids encroaching on other people’s ancestral lands in Israel, a prohibition known as Hasagat Gevul. While the Talmud does not explicitly extend this to all cases of harming other’s business by opening a competing business (there are such prohibitions in the Talmud, they are just not linked to this possuk), the trend in pesak has been to use the concept of Hasagat Gevul to include this issue as well (See Shut Maharshal 89, below). Conceptually, I understand how this expansion makes sense, though it is not an absolute parallel. As classic Hasagat Gevul also violates theft, any monetary crimes are at least on the same plane. However, the Sifrei expands this possuk to forbidding several other things, including misquoting the Halachic positions of Rabbis. Any ideas as to what the conceptual link is? It is just an asmachta? Continue reading Hasagat Gevul in Pesak
A few weeks ago (here), I raised some questions about the applicability of the principle of acharei rabim lehatot – does it apply outside of Beit Din contexts, outside of halachic issues altogether (our previous example being medical issues), does it apply when there is no formal vote, does it apply when opposed to the rov is a small set of experts, etc? A few sources I found weigh in on these issues, though with some combinations I had not seen before.
The Rosh was asked whether a minority segment of the community can opt out of certain decisions the community made by majority vote. He answers that they cannot because “in all issues where the community agrees, we follow the majority.” Continue reading More on the Parameters of Rov
In the past (here and here) we have discussed the machloket between the Shach and Bach (both in the Kelalei Psak of the Shach- Yoreh Deah 242) whether the rule acharei rabim lehatot applies only to cases of Beit Din or to all cases of pesak. The Shach argues that anything that has been ruled on by a majority of poskim throughout the generations becomes binding pesak and cannot even be invoked in a shaat hadechak. The Bach disagrees, arguing that only in Sanhedrin, where there was a formal vote, can we invoke rules of rov.
Both R. Yaakov Emden and R. Yonatan Eibshitz notes that practically the Shach is impossible to implement, as we have no way of knowing how many sefarim have been lost, how poskim have rules orally, etc, making it impossible to reach a rov. Continue reading Does Majority Rule Apply Outside of Halachic Issues?
It’s been a while since I summarized my psak shiur, but I’ll try to catch up. In the previous post on this topic, we began dealing with the issue of poskaning for one’s self – when is one qualified, are there different standards for ruling for one’s self than there are for others, etc. The second question is whether even an unquestionably qualified posek should or must refrain from ruling for himself due to bias. In the past, when dealing with the benefits of having a Rebbe (here), we noted that practically it is often good to have an outsiders perspective, both to ensure that you are not too lenient and to ensure you are not to stringent on yourself. Is that a Halachic requirement? Continue reading Are You Too Biased to Poskan for Yourself?
Can you poskan for yourself? Does making decisions for yourself have the same limitations of general psak? I dealt with this issue in two parts. The first shiur is available: here, and summary below. For now, I will ignore the questions of bias, and return to that in my next summary (the shiur is available: here).
In general, when ruling on a question, there are three factors that must be taken into account (we have discussed this previously: here):
- Are you qualified?
- Are there external reasons (such as Kavod HaRav) that prevent you from answering?
- Is what you are saying considered psak?
In an attempt to synthesize the issues I dealt with in the last few weeks, I examined a few attempts at grounding the Halachic authority of the Rabbanut HaRashit, showing how the issues raised about Aseh Lecha Rav, the authority of Mara D’Atra, and the binding nature of psak all play out. The shiur is available: here.
The first attempt I dealt with was R. Yisraeli. In Amud HaYemini 6, assumes that psak is binding because the process of psak creates a metaphysical status. He thinks this is based on assuming that there are multiple potential truths. Thus, psak determines which truth one must follow. He goes further and argues that the authority of poskim to create this status is derived from the people asking the questions. By asking, they transform the posek into their personal Rebbe. With this, one can easily understand where the authority of a Mara D’Atra comes from – he is the defacto posek of the area, and thus his psak automatically become binding Continue reading Why Would the Psak of the Chief Rabbinate be Binding?
Why is psak binding? This question is central in our exploration of the role of the laity in the Halachic system. The idea of binding psak highlights the limits of autonomy and the power of authority. Where does the idea come from and what is its nature? For a full treatment, see the shiur and sources (here). Below are the central points.
The Gemara rules that if one Chacham forbade something, another Chacham is not allowed to permit it. In another place, the Gemara forbids one who asked a shayla from asking another posek. While Tosafot seems to think there is only one prohibition, on the Chacham, the simple understanding of the Gemara is that these are two prohibitions. Why is it forbidden? Continue reading Why is Psak Binding?
As we discussed in our shiur on Aseh Lecha Rav, one of the central roles of a Rav is to provide a posek that people are both obligated and permitted to rely on. On the one hand, having a posek limits what opinions one can rely on; on the other, one can rely on the kullot of his posek even when it may not reflect the consensus psak. We explored the authority and definition of a Mara D’Atra. The shiur is available here.
The Gemara downright celebrates the freedom that comes from having a local posek. While the majority opinion claimed that while brit milah can be done on Shabbat, all preparatory actions must be done before Shabbat, with no reservations it declares that in the place of R. Elazar, who permitted doing these action on Shabbat, that his position was followed. Similarly, the Gemara does not hesitate when it says that in the Galil, where R. Yosi was the posek, the people ate chicken and meat together. The Ritva notes that having a Mara D’Atra, a local posek, a master of the region, provides people with their own source of authority – to whom lo tasur applies.
However, the Rashba extends this idea beyond a local living posek. Continue reading Mara D’Atra in a Globalized World
Last year I devoted my series on the methodology of psak to the issues that poskim deal with when making decisions. This year, I want to explore the role of the “baal habatim” in psak – the balance between authority and autonomy, how one picks poskim, why one is bound to psak, when one can poskan for himself, and other related issues. Anyone who has ideas, please leave them in the comments.
To begin with (here), I outlined five models of psak which highlight the balance of power between poskim and the laity, using mostly teshuvot that I have dealt with in previous shiurim: Continue reading What is the Role of “Baal Habatim” in Psak?
The Talmud, while primarily comprised of legal sections, also devotes a significant percentage of its text to aggada. While these have moral and theological, their status legally is difficult to ascertain. Thus, I devoted a shiur to exploring this topic: source and shiur here.
Before I deal with aggada proper, I should note that there is a related category which clearly has legal value which is maaseh rav. When stories are brought to specifically support or reject a legal principle, recording how a reliable authority did or did not act in accordance with a specific position, they clearly have normative value. Sometimes the specific conclusion to be drawn is unclear, as in the case of drinking on Purim (discussed here), but in principle these are clearly legal texts. The stories I refer to here are those that are less explicitly legal.
Here, there is a range of possible positions that could be taken. Continue reading The Role of Aggada in Psak