How Do We Decide?
The Role of Mesorah and Consensus in Psak Halacha
Rav Hershel Schachter May 12, 2013 45 minute talk
Since Safek DeOraysa Lechumra, and DeRabanan LeKula, we dont need a Rov, every Safek is simply resolved; just go Lechumra or LeKulah [Reb Ch Voloshiner, RuAch ChaYim, Aseh LeCha Rav]
An Ish Pashut ceased seeking his rabbis advice on Kashrus matters but eventually returned. He explained to the Rov that the Torah says, LaKelev TashLichun, so he used the dog to Pasken; if the dog ate it it was Tereif and if not then it was Kosher. So why did he come back to the Rov? The dog became a Groisa Machmir and began to make everything Tereif.
Halacha does not follow precedent
As we see in the Shut throughout history.
Reb Moshe would show his Teshuvos to the Yeshivah Mashgiach, who would point out that various Poskim disagreed, so Reb Moshe would add a paragraph writing that even though so and so disagrees, I maintain the Halacha is different to their opinion.
And yet Reb Moshe was very humble and was distressed when a critic accused him of being arrogant. Reb Moshe said, he know they are greater than he, but that does not preclude him from learning and understanding the Halacha in his own way, besides others insist in hearing his opinion.
Greater BeChochma UBeminyan does not apply to determining Halacha but only Gezeiros Takanos and Minhagim, See RaMBaM
Even in the times of the BaAley Tosafos there were those who were not competent but nevertheless published Piskey Halacha - they thought they were Gd’s gift to the world;
And it’s certainly true today. Not everyone with Semicha is competent to write a Sefer of Halacha.
Reb Soloveitchik often said; written in Chut HeMeshulash; Chassam Sofer said that the Posek has an intuitive feel for what is correct in Halacha.
His son would not post those Teshuvos that his father had instructed him to post, if he thought they might require further work. When the ChSofer would see them they would discuss.
On one occassion the son was surprised that the ChSofer issued a Pesak without offering to comment on any of the strong arguments put by the ShoEl who was a TChacham, and the son thought it disrespectful to both the ShoEl and his father that an answer should not address the substantial arguments put by the ShoEl. The ChSofer said I know it in my heart.
But to be at that position one must be a Chacham SheHiGia LeHoRoAh.
Rashi TeTazaveh, the Ephod - LiBi Omer Li
Ch Ish would often respond to those asking how he knew the Halacha - he pointed to his heart
All of Torah is relevant to every other part of Torah, one cannot be an expert in any field unless one is familiar [expert] in the entire Torah
Its all interconnected
RaMBaM: Semicha for particular areas only when one is familiar with the entire torah
R Yosi HaGellili, Paskened Muttar to cook chicken with milk, and this continued even after his Petirah in spite of this not being the accepted Halacha.
Rebbi Eliezer: Beris Milah is Docheh Shabbos and also the preparations for the Beris are Docheh. The community continued this even following his demise, in spite of this not being the accepted Halacha. In fact they so honoured the Mitzvah of Beris that they were spared the decree made by the Romans banning Beris
So we see that these opinions are binding Halacha in spite of their being contrary to common opinion.
The local Rov in his Kehillah will Pasken and not be compelled to consult the BD HaGadol.
The BD HaGadol did not Pasken and is not supposed to Pasken EVERY Sheila. Every village had its Rav
Halachic opinions must be evaluated, not just counted, some are worth more than others.
Rama ChM, Siman 25, discusses if BD needs to pay financial compensation for their mistake, if one has proofs against the Gaonim, then if he discusses this with his colleagues who agree with him, then one can argue with the GaOnim.
Bava Metzia; 86 Ravina and Rav Ashi are the final opinions on HoRaAh ........
So we cant argue with the Gemara, even if we have a better answer and our colleagues agree with us.
But we can disagree with the GeOnim
KMishnah, so why must the AmaRoIm agree with the TaNaIm?
Even though they CAN- they chose not to, a convention
Reb Chaim says; Milchemes at the end of BK
A student and a son, must disagree with their teacher and father,
[in fact Reb Chaim VaLoshiner in RuAch Chayim, HaVey MisAbeik BeAfar RagLeiHem, that it is Assur for a Talmid to accept his Rebbes Pesak if he has Kashes on that Halachic ruling]
About Likuttim: R YitElchanan regretted giving a Haskomo to the DTeshuvah since it presents all opinions without differentiating between their weight
Not all printed published opinions are equal
Then bags *********** for equating the MiLeMelech to other opinions
Even the ShAruch never intended his Sefer to be used for Pesak
YaGaAta MaTzaASa does not work for Pesak Halacha, which requires Siyata DishMaya
Cannot make Diyukim in Lashon of Igros Moshe
First Perek Eruvin Machlokes BSh and BH, we Pasken bcs they were more humble,
Humility is critical for Halacha