Meishram – 2013

It is not clear why the words of the Torah were omitted in his replies (see 2:2 and another parallel?? See also Sagi's book 'These and Those').

And further, see Shacham Chom 66, Sec. 126, Sec. 126, that one should not rule against a cherub when one knows the truth, and therefore the Rambam ruled there against most of the Rishonim.

Regarding all of our words, see more in the Anzit, Halacha, Skib and Skalb in length.

See the response of Divrei Chaim Sanz, AH "A" Si' 8, who strongly disagrees with the famous in Yehuda.
(which is usually highly regarded) whether they can dispute the statements of the Riyah with evidence from the Shas.

And I was also told that the words of Ben Azai Reish Horiyot should be discussed. I didn't check.

 

A study of the words of the early ones on the issue of the second half of the second century B.E.

• introduction

It is told of the author of "Tommim," Rabbi Yehonatan Eybshitz, who was asked by a Gentile why we Jews do not abandon our faith and follow the Gentiles who are the majority, since our Torah states, "following many leads astray." Rabbi Yehonatan replied that following the majority is a rule of conduct in a state of doubt, whereas we are not in a state of doubt at all regarding our faith. In a matter in which we are certain, there is no reason to follow the majority.

This is true, of course, for all the rules of ruling in situations of doubt. The relevance of these rules is conditional on our deciding that we are indeed in a situation of doubt. If we are not in a situation of doubt, there is no place for the rules of conduct in situations of doubt. No one would think of going to most of the butcher shops in town, butchering a piece of meat, or of ruling that there is a serious doubt in the Torah, and butchering this piece, when they know for certain that it is kosher according to the law.

In this article, I would like to discuss the question of whether the above distinction can be applied to 'spiqa darbavata'. In other words: is it possible to decide the dispute between the poskim ourselves, thereby determining that the issue is not in our view certain? Or is it that when there is a dispute between the poskim on a particular issue, we are obligated to act according to the rules of spiqa, such as doubt from the Torah to the matter, etc.

In the chapter "Ownership of Houses" (B"B 34: - 35:) several rules of jurisprudence are discussed that are relevant to situations of financial doubt. In this area, we find various rules of jurisprudence that apply in different situations, such as "Yahikou", "He who takes away from his companion the evidence on which he is responsible", "Khalil Dalim Man", "Shuda Dedayani", "Yahikou Moon", and so on. These rules deal with halakhic behavior in a situation in which ownership of the property is in doubt, and the choice between these rules depends on questions such as what the parties' holdings are in the object, whether the ruling can be true, whether both parties have a clear connection to the object (darra dammuna), and so on.

Even in the context of prohibition and permission, there are rules of jurisprudence for various situations of doubt. Although in these areas the rules of jurisprudence are usually different: to follow the voice in the rabbinate and the voice in the Dauraita, to follow the majority (the majority of the jurists, or a realistic majority, as in the example above), to follow custom, to follow his rabbi (or Mara Datra), to follow the one who is greatest in wisdom and in number, to follow the majority of the jurists (or the majority of recognized jurists, such as those whose books have been distributed in Israel), to follow a particular jurist that we have accepted as our own, and so on.[1]

Some of the discussions on the question of ruling in doubtful situations, as well as some of the aforementioned rules of ruling, deal with spikas that are 'spikas dedina'. These are spikas that are not related to the factual reality, but rather situations in which the reality is clear and completely known and there is doubt as to what the binding law is in this situation. This type of doubt can appear in two fundamental ways: 1. A new situation that we encounter, and as far as we know there are no direct halakhic references regarding it, and therefore it is not clear to us what the halakhic ruling is in this case. 2. There is a dispute in halakhic law that has not been decided regarding such a situation, meaning that there are opinions in halakhic law here and there ('spikas derabuta').

It should be noted that the second type can appear at several halakhic levels. It is possible that the law is disputed among Tannaim, Amoraim, Rishonim, or Aharonim. Of course, the Torah-halakhic weight of the disputing parties is also important for the purpose of the decision, and so on.

A common halachic approach today to behavior in halachic situations about which the jurists disagree ('spiqa darbawta') is to use the rules of decision for situations of doubt. In such situations, we usually follow custom, a particular rabbi, or a homura in the Dauraita and a kula in the rabbinate. At the same time, in spiqa in the law of the rabbis, we tend to rule that he will decide, that he will issue a ruling from his author on whom he has evidence, that he is certain, and so on. In this article, I would like to examine the more fundamental question: whether, and when, it is within our authority to decide that a particular situation is not at all a situation of doubt, and therefore there is no place for the use of the rules of decision that apply in place of doubt in such a situation.

This question is relevant mainly to halakhic sufika ('sufika dadina') and less to sufika in reality, since naturally the decision that reality is sufika is more unambiguous. If we are in doubt, then we must act according to the rules of sufika, and if not, then we must not. Regarding halakhic sufika (and also sufika in the law of property), we can divide between the two types of doubt mentioned above. In the first type (situations that are not familiar to us in halakhic law) it does not appear that such a problem would arise, since if in practice we are in doubt, then this is a doubtful situation for us. In this respect, such a situation is very similar to a state of doubt in reality.

The question arises mainly in situations of the second type, namely situations in which there are different opinions among the poskim ('spiqa darbuwata'). In such situations, we can ask ourselves whether this is necessarily a situation that we should treat as doubtful, and therefore we should act according to the rules of spiqa, as described above, or whether it is possible to decide in some way ourselves between the different opinions, and in any case not to treat this as a situation in which there is a halakhic doubt.

In principle, it is possible to raise another possibility for dealing with such disputes: deciding arbitrarily. Choosing the opinion that is most convenient for us, or the one that seems most convenient to us. On this, see Rabbi Elisha Aviner's article 'Arbitrary Ruling in the Dispute of the Poskim'.[2] In the first article in that booklet, entitled 'Rules of Instruction in Questionable Laws,' Rabbi Aviner refers to the rules of decision in place of doubt. In this article, we discuss another possible course of action, which precedes these two: deciding ourselves in the disputes of the jurists. If it is indeed possible to decide ourselves in 'spiqa darbuvata,' then this situation is not a questionable situation for us at all, and therefore there is no relevance to the two types of behavior mentioned above (ruling according to the rules of doubt, or choosing arbitrary behavior).

It should be noted that the very existence of the concept of 'spiqa darbuwata' indicates that it is seemingly impossible to decide such disputes, otherwise such a concept would not exist at all. If, in fact, when there is a dispute between poskim, we must decide for ourselves, then we are not in doubt. And even if we find that we ourselves are in doubt about this law and do not decide, it will be 'spiqa dadina' and not 'spiqa darbuwata'. In other words, the very existence of such a category indicates that there is a type of spiqa that is rooted in the disputes of poskim in halakhah. It is true that those who have an autonomous approach to halakhic rulings, those who would allow independent ruling in disputes between poskim, will indeed not recognize the existence of such a concept, or its uniqueness, and at least will greatly limit its application.

Approaches that advocate autonomy

A sharp reference to the issue of autonomy in jurisprudence is found in several places in the writings of the Maharshal. In his introductions to the "Sea of Solomon" (for the Holin and the Bek), he writes that halachic jurisprudence should not be based on precedents, but solely on a decision based on evidence from the Talmud.[3] In his introduction to the Bible, he writes:

For since the days of Rabin and Rav Ashi, there is no acceptance of a verse as one of the Ge'onim or the Achronim. Rather, those who qualify their words to be founded on a model cut according to the Talmud and the Jerusalem Talmud, and the Tosefta where there is no ruling in the Talmud.

Another example from the Maharshal's writings appears in Yeshiva P"k Dechulin Susi 42, where the Maharshal discusses the issue of the punishment of the sin of the bird, and the following:

If we deserve to build the Temple, I hope that I deserved it according to the law, and even though the Rambam was great in Torah, and even the Samag brought evidence for his words, and the Rabbad did not reach him, in any case I will not turn my face to the Torah, and I will examine as far as my hands can reach.

In these paragraphs, the Maharshal discusses a ruling that is disputed by the great rabbis, with evidence from the Talmud. In PB Devak 35, he refers to a more extreme situation, when there is a problem that has not been decided in the Gemara itself, and claims that even in such a situation we can enter into the problem and decide with evidence (!) for one side or the other, and the late Rabbinic scholar there:

And although the Talmud is not decisive, I have come to decide… In the case of a tie, the problem is closed in the Talmud and has not been resolved, and there is no authority for any guru in the world to explain it from the tenets or from the baraita or from the interpretation, it is as if a rabbi and a rabbi disagreed on the Talmud, just as it is impossible to resolve the Tevveta that was stated in the Talmud. But some problems that were stated in the Talmud and have not been resolved, if even one sage in our time were to bring evidence for the solution, the authority is in his hands and he will resolve them in his own way. Because since a tie has not been stated, then it remains in doubt until you understand its interpretation…

The Maharshal states that any problem that has not been resolved in the Talmud (and it turns out that he also means disputes between the Amoraim or the Tannaim, and not just problems that have not been resolved) can be resolved at any time by any decision-maker with his own evidence. However, if the Talmud itself states that this problem was resolved in the Tikva, or in the Tevveta, it is not possible to resolve it.[4]

We see that according to the Maharshal, there is indeed a concept of 'spiqa darbu'ta', but it is extremely limited. Only disputes that remain unresolved in the Talmud itself receive the status of 'spiqa darbu'ta'. In all other cases, we must rule ourselves.

We will add here another example from the words of Rabbi Yaakov Emdin in the Responsa "Sha'ilat Ya'avetz" Ch. 2, 326:

Even to those a thousand times greater than me, I will not show favoritism in the Torah. I say there is an error here, about the error – the error…and I heard from my master, my father the Gaon [the sage Zvi], the late, in the name of the late legislator, that a person is not permitted to instruct until he has the power to uproot and delete a section from the Shulchan Aruch.

And it is well known that Maimonides' statement that in matters of teaching, not even the power of the prophets is stronger than that of the wise, but rather they follow the majority or the power of the evidence according to the wise man's eyes. And this has been the custom of the sages of the ages, ever since. They do not weigh the scales of decision in favor of an earlier or later composition instead of definitive answers.

I also saw in S. Tikafu Cohen, by the author of the Shach (from S. 89 onwards), that he extended the proof that perception in a plaugata darbuwata also applies to the Md. that Tikafu does not, and he gave three reasons for this. And the second reason appears in S. 55 there, and is that in a spikata darbuwata perception is before the doubt arises, and Z"l:

In the case of a contract, since it is impossible to ever clarify that no one can undo it, since it has already been in the contract since the signing of the contract, therefore immediately at the time of the signing of the contract, doubt arises, and any seizure is a seizure after the doubt arises, and as above, cf. 7.

But in the Plugta Darbwata, since the judge has the power to decide from the Shas or the poskim even if he explains it as a single miniyahu, and even if this case occurred once and the dayanim were unable to decide, if it now comes before another dayanim, he can decide, since it all depends on the dayanim before whom the case comes, and as stated by the Rashal P. How the practice of Si' A, and as stated above Si' P. B in the name of the answer of the Ge'onim, and it is very simple... If so, everything here is taken from the cases taken before the doubt arose, because if the dayanim were to decide as a single miniyahu, he would have the power to order so. It is found that the doubt did not arise until the time the case came before the dayanim and he does not have the power to decide. And this division seems clear and true to me [and as stated by Si' P. V who brought evidence for this from the answer of the Riv'al].

A similar approach can also be found in the book 'Kontras Haspikot' (especially in section 5, see for example there at letter 3). See also his remarks in section 6, s.k.a., cited below, s.p.b. (regarding 'Kim Lee').

We will conclude with a quote from the "Triangular Thread", by the Grach of Volozhin, who, in Susi 9, after discussing the decision that is not in accordance with the opinion of his rabbi, the priest (and the reference is probably to Rabbi Raphael the priest, as in "Aliyot Eliyahu" note 62), brings a Kabbalah from his rabbi (the Grach), and the late Rabbi there:

Indeed, in the Torah, as it is written in it, "Truth is not except in the truth, but our eyes are toward the truth"... and I have already been warned about this by the teachers of the Holy One of Israel, our great Rabbi, the devout Mohra"a, N.A. of Vilna, not to show favoritism in teaching, etc.... [And in the book "Aliyot Eliyahu," note 62 brings this answer, and adds here: "Not to show favoritism in teaching, even to the decision of our rabbis who have written the Shulchan Arba." This addition was omitted in print].

And in the entire context (and in what he brought from the 22nd century), and also in Sussi 11 there.

The current accepted view

The accepted view today of 'spiqa darbuvata', at least in extreme situations such as an undecided dispute between Tanais or Amoraim, is that the matter cannot be decided by us. It seems that no one today would think of deciding on the evidence in a dispute that has not been decided in Shas itself. In these cases, we decide according to the rules of conduct in situations of doubt.

In less extreme cases, the question can still arise. For example, when there is a disagreement between the Poskim, the Rishonim, and the Aharonim Irgun. In such a situation, should we always act according to the laws of spikot, or can we decide the Halacha according to our own opinion, and then treat it as if there is no 'spikot dedina' here from our perspective.

In fact, towards the end of the Rishonim period, the attitude that we have no way of deciding disputes between the Rishonim is very prominent. This is expressed in the Shulchan Shulchan and the Nukkah, and in fact the very editing of the Shulchan Shulchan and the Rema's 'map' expresses such an attitude. Prominent echoes (for this reason, these are almost the last echoes) of a different attitude are found in the generation of the author and the Rema, in the Maharshal (as we saw above) and in the Maharal (whose words will be discussed later).

This is very evident in the words of the Torah scholar, Rabbi Si' Shn. 2, 2002, and Z"l:

The above is a great deal, and since they do not know who the law of the people is… and I wanted to say that all those who are divided were because of a real law, but the law of

The Torah discusses the question of what we should rule in a situation of a plegta darbuwa. Will they disagree, all the dalim are male, or are they sure? It seems clear that the possibility of deciding the dispute does not even occur to him. Furthermore, he expresses himself in the words: "My blood will testify to us that the halakha is as such and such a thing or as such and such a thing" (and so did the quotation from his words by the Sama'a Chom Sus'i Kal't, which will be mentioned below), and it is apparently proven that his intention is that it is not possible to decide the disputes of the poskim ('spiqa darbuwa').[5]

It should be noted that similar references can already be found in the first ones that preceded it, but usually these references deal with the situation where the Shas has cleared the tie, or where the Shas is expressed in a way that indicates a conclusion of doubt, or a tie. See, for example, in Tod "Vehilacha" in 2:32b and in Tod "Vehachim" in Gittin 14:2b, and more.

Following these words of the author of the 20th century, the Rema, in the Shulchan Shulchan Chom Susi 115, and Zal:

The G-d: A matter about which the jurists disagree and no one has grasped it, if it is a matter that requires division, they disagree, and if it does not require division, all the jurists are superior.

Below it appears that the Torah of the B.B. 62 A.B. believe that there is a possibility for the dayan to decide on his own in a 'spiqa darba'. Of course, if the dayan also remains in doubt, he must definitely decide according to which rule he should act. Therefore, it would be appropriate to say that the intention of the Tervad is also only in a situation where the posek himself has no position at all on the subject in question, and therefore he remains in a pelogta darba, and only then does a discussion begin as to whether to divide or not, etc. In general, it seems that the words of the Tervad and the Rema are not interpreted in this way, and even the plain meaning of their words apparently instructs otherwise. See also the Sama and Shacha and the rest of the Nok in the Shulchan

Indeed, I found in the G"A in his glosses to the Shulchan Ar"a a place where he quoted these words of the Torah, and the following:

And see also in Toss, R. P., who sells the house 62, in the book of Itamar, 28:1-3, where everything is in the matter that one is held, MM. Toss did not stand on the principle of the Gemara's statement, and they said here it seems to be the verse 28:1-3.

It is not entirely clear from the Gra's language whether he is referring to the words of the Torah on the subject itself, whether to the verse that will be divided or confirmed, or to the principled statement that appears there at the end of the Torah that can be used to decide disputes between the poskim (the quote he cites from the Torah does not appear at all in the Torah before us, and the most similar language appears at the beginning of the Torah's words when he discusses the subject itself). As stated, we will discuss these words of the Torah below.

The essence of the work of the first poskim

There was reason to think that the Maharshal's position was nothing new, since all the early poskim (such as the Rif, Maimonides, Rosh, and others) did was decide on disputes that remained open in the Talmud. If so, it seems obvious that there is no fundamental obstacle to doing so, and the question is only who has the permission and ability to do so. On the other hand, for some reason, the Maharshal's words seem surprising in their strength, and even provoked, and still provoke, harsh counter-reactions (see, for example, Novit Yod 3, 53, and others).

The reason for this is that the essence of the work of the poskim is not so unambiguous. In a significant part of the disputes, the decision is based on rules of jurisprudence that determine the priority of one author over another in general (halacha as in the case of Rabbi/Shmuel in the law, as in the case of Isuri, as in the case of Rabbi from his author and not from his authors, as in the case of Rabbi Shabag in our Mishnah, and so on). It is clear that decisions such as these do not constitute a decision from the opinion of the poskim in open disputes in the Talmud. This may depend on the question of the origin and meaning of these rules, and so on.

Another method of deciding, also very common, is to find a random issue that is taken as one of the opinions. This is evidence in favor of one of the disputants, but it is based on the Talmud itself and not on the opinion of the arbiter. One could see such a situation as if the Talmud itself had decided this issue, and therefore this too is not an independent decision of the arbiter in the dispute.

We should note that even in these two types of decisions, disagreements can arise between the poskim, and they do arise. Even in these decision procedures, discretion is involved in the ruling, and it is not at all purely mechanical. However, in these decision methods, each poskim decides as he understands that the Talmud itself decides, and not by virtue of his own opinion and reasoning.

The expression of deciding a dispute between Amoraim or Tanais because the mind inclines to one opinion is very rare in the Rishonim, and in some it is not found at all. Therefore, it is certainly understandable that there is indeed no permission after the signing of the Talmud to decide with our own mind the disputes that remain open in it. On the other hand, these (rare) expressions in the Rishonim about decisions based on a leaning mind indicate that there is nevertheless room for other conceptions of jurisprudence, such as the one we saw in the words of the Maharshal.

The Maharshal's intention is also not entirely clear. On the one hand, his words seem to be very much inclined to autonomy in ruling. On the other hand, he is talking about deciding on the basis of evidence in such disputes. If he means evidence from other types of stam'ah, then this is almost a standard work of stam'ah (at least among the early rabbis. After them, there is already a tendency to trust them and not decide for ourselves even based on stam'ah). However, it is very clear that the Maharshal's intention is to decide based on evidence against one of the opinions from the Senna or Baraita (or authoritative statements of the early Amoraim), and not just to prove that stam'ah from the Talmud itself, in another place, rules as one of the opinions. If this is indeed his intention, there is an opinion here that tends to impressive autonomy in ruling.

Just to clarify matters, let us imagine such a situation in our Beit Midrash. When we find a Mishnah against one of the parties in the Gemara, we immediately ask ourselves what it would have answered this question, and why the other side did not bring it as evidence. In such a situation, we are obligated to reconcile both sides, since both sides prove that this Mishnah does not support the same opinion that we thought it supported. It should be noted that the Maharshal in such a situation would probably have ruled on a halakhic case according to that Mishnah or Baraita.[6]

The relevance of such a reference to us is more in relation to the first and last poskim, and less in relation to disputes in the Talmud (although, theoretically, one can also ask about the possibility of our ruling on disputes in the Talmud itself, according to the Maharshal's method). In this article, we will investigate the issue of independent decision-making, mainly in the Talmudic realm, and we will briefly discuss the current implications at the end of our remarks.

• 'Work like a slave' in Mammon

The law of 'Shuda Dedayani'

One of the rules that appears in the above-mentioned issue of 'house ownership' (and in many parallels) is 'Shuda Dedayani'. There are two main directions in understanding this rule: Rashi (Ketubot 34) and his group believe that it is permission for a dayan to do as he sees fit. And R'T believes that it is permission for a dayan to do whatever he wants, even for completely arbitrary considerations.

In Rashi's Shaykh, the rule "Shuda Dedayani" can be interpreted as a general statement that if a judge has a heart inclination, this is not a ruling in a situation of doubt, but rather a legitimate decision that the halakha in this situation is not in doubt in his eyes.[7] Such an interpretation removes the rule 'shuda dedayani' from the group of rules of conduct in situations of doubt, since in fact there is permission here for the dayan to decide the issue in question himself. The interpretation of the R's can also give legitimacy to autonomous halakhic rulings, since if it is permissible to do what one wants, it is very clear that it is also permissible to decide the halakhic law itself. According to this, the disagreement between Rashi and the R's is only on one side: according to Rashi, there is no permission, even in such situations, to rule arbitrarily.[8]

Regarding the relevance of the rule "Shuda Dedayni" to the subject of Dedayni, two comments should be made:

1. The possibility of acting according to this rule is limited to very specific cases, namely, to special types of financial doubt. Some of the poskim have written that this rule applies only to those cases that appear in the Hadith of the Shas, where the halakha of 'Shuda Dedayni' is explicitly stated.
2. Generally, the ruling 'Shuda Dedayani' in Shas issues deals with spikut in reality and not with 'spika dedina', and therefore there is no permission here to decide as a specific halakhic opinion, but rather a method of conduct in a doubtful reality. It should be noted, and this will be emphasized below, that in a situation of doubt in reality, the dayan can decide as he sees fit on the factual question (what did the parties intend, etc.), and not necessarily on the halakhic question (see, for example, in Tud'ah 'Vakan Amru' Gittin 14b, and many more).

A halachic ruling that allows a dayan to decide a halachic dispute ('spiqa dadina') appears in the Talmud (according to some of the Rishonim) in the terminology 'servant like servant', which is discussed in the Rishonim in the issue of 2:262, and therefore we will begin the discussion with it.

The issue of 'a person bequeathing an oath to his sons', Shavuot 48

In the book of Shavuot 48, Rav and Shmuel disagreed with Rabbi Elazar about whether a person bequeaths an oath to his sons or not. The book concludes (ibid., 2):

It is not right for Itamar to go, not like Rabbi and Samuel, nor like Rabbi Elazar, but like David, like Rabbi and Samuel, David, like Rabbi Elazar, is a servant.

A priori, this statement can be understood in three general directions (similar to 'Shuda'):

1. Every judge can do whatever he wants, even arbitrarily (as the Rabbis say in the law of 'Shuda').
2. The judge can do as he sees fit in the case he is judging (to rule in favor of the one who seems right among the litigants before him).
3. The judge can decide the halakhah according to his own opinion (to rule according to one of the halakhic opinions).

The last two options are distinct from each other, since according to option 2, the judge rules in favor of the one he considers right in this case (see in Tod "Vakana Amru" Gittin 14b above, and more), but he does not decide the fundamental law that remains in doubt.[9] Therefore, in another case, if it seems to him that the other side is right, he can rule the opposite. In contrast, according to option 3, the judge can decide the law provided by his opinion (or by evidence, or perhaps even by reasoning). In such a situation, it turns out that he will have to be consistent in his decision in other cases of this type that come before him.

Explanations underlying the various explanations

There are reasons to act in a 'spiqa darbu'ta according to each of these understandings, and here, in summing up the speaker, we will only point out the principle directions. This can be understood similarly to the behavior in a situation of 'tari v'tari', that is, two sects of witnesses who contradict each other regarding a particular case (see in Tod'a 'Vahal' 22:32, which assumes as a matter of course that 'spiqa darbu'ta should be like tari v'tari, as well as the language of the Torah and the Sama'a above: 'Whoever testifies or decides a halakhic law as a man'. And so on in Konas, Rule 5 in detail).

In the situation of Teri and Teri, there is one true reality, but the Jewish Court has no way to reach it, since there is evidence with maximum strength in each direction. This is an equilibrium that does not allow the Jewish Court to act in any direction. In the situation of 'spiqa darbu'ta', there is a questionable law, in that there is an important halachic authority that expresses a position in each direction, and therefore there is room to liken this to the situation of Teri and Teri. Admittedly, this similarity is limited, since with regard to the law about which they disagreed, there is perhaps room to treat it as if there is no single truth here, but rather that each side is equally true ('These and these are the words of the living God'). In contrast, in Teri and Teri, it is clear that one party is lying, but we have no legal way to discover which one is. In light of this, we will see the explanations underlying the possible understandings that arose above:

1. The arbitrary ruling is based on the fact that both sides are right, as the saying goes, "These and those are the words of the living God," and therefore the court is permitted to do whatever they want. This is a view that assumes that there is truth on each side of the argument ('these and those'), and therefore one can do as each of them does.
2. The ruling as it would appear to the judge in this particular case is based on the fact that from the explanation above it follows that there is no point in trying to rule on halakhah in such a situation, and therefore we are not dealing with halakhah ruling here. However, here we assume that in the 'spiqa darbuwata' there is only one truth, and therefore it must be found. Instead of ruling on halakhah, we go outside the boundaries of halakhah and try to reach the truth using other methods. It is clear that we are dealing here with factual truth and not halakhic truth (for which we do not have the tools to reach a decision in such a situation). Below we will see that in ishur, haitar and mitzvot there is no such possibility, since in these types of halakhic spiqas only the halakhic truth is up for discussion, and not any factual truth.

In the case of Teri and Teri, we find such an approach in the Ritva and Ramban in Kiddushin 66a, and in Baran on the Rif Ketubot (9a in his pages), who state that Teri and Teri should not take any active action (similar to what is customary in the case of wealth to leave the wealth with the one who has it, so they also suggest in the prohibitions to leave the situation as it is and not take any action).[10]

3. The possibility of deciding the dispute between the jurists ourselves can be explained in two ways:

• Since there is an authoritative opinion that supports each of the parties, then instead of acting arbitrarily, the halakha can be ruled, since here it is impossible to make a mistake and one must trust whichever direction one chooses. This is a kind of approach to arbitrary ruling, except that the halakha does not want to allow the judge to behave arbitrarily, since his role is to rule on halakha. Therefore, the halakha requires him to rule on the law. In such a situation, it seems that there will be no dependence on the status of the ruling judge, since even if he is not the most competent, his ruling will be just in any case. According to this approach, any judge sitting in court can, and perhaps even should, rule on the dispute between the judges.
• As in any situation that comes before the dayan, here too the dayan is supposed to rule on the law. There is no difference between such a doubt and any other doubt, and the dayan is the only one who is supposed to decide the case before him. According to this option, it seems that we are only talking about a dayan who is the most qualified to decide a dispute in the Talmud, but his ruling has no meaning when there are wiser sages than him (such as the sages of the Talmud) who have disagreed on this issue. According to this approach, a dayan who is not the most qualified will have to act in a 'spiqa darbavata' according to the laws of spiqat.

It is important to note that the background to the discussion here is the demarcation of periods in halakhic law, which members of certain generations took upon themselves not to disagree with their predecessors:[11] Amoraim on Tannaim, Rishonim on Amoraim, Acharonim on Rishonim, and so on. If we assume that deciding a dispute between members of a previous era is in fact a dispute with one of them, then it is clear that such a decision is not possible. However, it can certainly be said that in a situation where there are two opinions of ancient jurists, it is possible to decide between them, and this does not constitute a violation of the prohibition of dispute about ancient generations.

Therefore, the approach that allows for the ruling of the halakhah itself clearly assumes that there is no ruling on a dispute as the ruling on a dispute over an ancient ruling. In contrast, an arbitrary ruling, or a specific ruling in a particular case, is a method of ruling that does not attempt to rule on the basic halakhic problem. Such ruling directions can correspond to the assumption that the ruling on a dispute between halakhic arbiters of a previous period is like a dispute over one of them, and therefore we should not rule on the halakhic dispute itself. Although this is not necessary in this direction either, and Akmal.

The Gemara quoted above is expressed in a way that seems like a principled rule in halakhic rulings. From the simple language of the Gemara, it seems that all of the cases where Itamar Halakta is not a slave can be decided in the form of 'Ebed Kamar Ebed'. On the other hand, the fact that the Gemara uses this language only in one issue also speaks to my concerns. There are very many issues in which Itamar Halakta is not a slave or a slave, and we do not find a similar statement regarding them. If so, we must examine in light of the words of the Rishonim whether this is a principled rule in halakhic rulings, or a specific statement that is relevant only to this issue. We must also examine which of the three solutions suggested above represents the meaning of the statement 'Ebed Kamar Ebed', and in particular what is the relationship between it and the rule 'Shuda Dedayani' mentioned above.

It should be noted that it appears that in the issue of B. B. 124 there is a similar expression. The G.M. there discusses whether the firstborn is taken twice in the praise of the da'i mamila, and rabbis and rabbis disagree on this. The G.M. there in Su'a rules:

Rabba bar Hanna said: Rabbi Chiya said: Do as my rabbi says, do as the sages say, do.

Although we do not find in the commentators any references to this expression that are parallel to those we see in the issue of B.B. 62.[12] The references there seem to indicate that this is clearly a satisfactory ruling, and not a principled rule of law. This seems to stem from the fact that later in the chapter it is explained that the basis of this ruling is the existence of doubt in the meaning of the rule 'halakhah as a rabbi from his author', meaning that it is a doubtful ruling. The language here also differs from the language in the issue of Shavuot (although the wording does not appear to be substantially different). If so, it seems that the statement on the issue of Shavuot is indeed unique, and this raises the question of whether there is a principled halakhic position here or a special rule for this issue.

Indeed, among the early scholars we found two fundamental approaches to interpreting this ruling on the issue of Shavuot. Some of them understood it as a statement that applied only in this particular case, as a special rule of the Sages. Some understood that there was general guidance here for situations in which the halakhah had not been ruled upon.

Thos., R. Yonah, and the commentators on the Bible, 62 A.B., believe that this is a general principle.

The Supreme Court of Israel, B.B., discusses someone who sells land to his friend and defines it through its foundations, or through its foundations, in various situations. In several cases where the Supreme Court remains in doubt about the meaning of the definition in the sale, it concludes:

I will tell her to be kind, and I will tell her to be kind, I am sure of it.

And the Rashbam commentary on the site:

And according to the Gemara, Shuda Dedayani, the judgment of the judges, since it is doubtful that we will be able to do Shuda, everything will depend on the matter, which the judges will see, and whether the seller's eye is good or bad, everything will be according to their judgment.[13]

And who is it in other places that is sufficient for us to follow the path of the tongues of the people, as we do not say that it is certain until it is explained that it is here, except for the one who brings out the evidence from his author.

In other words, the Rashbam states that there is an exceptional halakha of 'shuda dedayani' here, and in general, when no halakha was stated in disputes in the Talmud, one must act according to the laws of spikot. It also appears from the Rashbam that he understands the rule of 'shuda dedayani' as a principle that commands acting as is appropriate in this particular case (did the seller here sell with goodwill), that is, he understands the rule of 'shuda' similarly to option 2 above in the law of 'servant as servant as servant' (and this is also proven by the Rashbam above 35 a.s.). According to 7, it is very clear that the Rashbam will interpret the law of 'servant as servant as servant' in the above-mentioned issue of shavuot as an arbitrary ruling (option 1). It is unlikely that the Gemara allows a ruling of halakha as one of the parties (option 3) only in certain cases. If this is not possible in general, then it should not be allowed at all.

On the other hand, in the Itamar review on the website, they wrote:

However, in all the ways of saying that the one who cites the evidence against him from his companion, and the one who is a believer in the power of Mary, either here doubts the fact that he is a being [=doubt in reality]… or doubts it in law [='doubt in law']… except that here it seems to the sages to make a decision.

…In all these, it seemed to the sages that they would divide it. And it is not enough for the interpreter of the verse from the hand of Eit-Len to Mimar, who brings out the evidence against him from his author. And it is not enough for the judge to be a priest, not a priest, and not a priest, and not a priest, as one of the ministers and servants, who is a servant. Therefore, it is said in the Book of All the Swearers (Shevuot 48b): “It is not enough for the judge to be a priest, not a priest, and not a priest, as one of the ministers and servants, and as one of the ministers and servants.” And it is not enough for the judge to be a priest, as one of the ministers who brings out the evidence against him from his author.

Thos states that wherever a halakhic ruling has not been made, if the dayan has a solid position ("S"L for the dayan as one who is a miniyahu") he can do as he believes. The ruling of the Mammaha, which is stated in a situation of doubt, is only when the dayan himself is in doubt, and not in all cases in which the subject of the syllabus is in doubt. Thos's view is from the issue of the aforementioned shavuot, and therefore it is clear that he understands the statement "Abed kamar abed" as a sweeping halakhic instruction. And see in the comments of Dr. Yona on Atar, and the Nemoyi also cited it here in his name, similar to Thos.

The Torah does not define the law of 'Shuda' here, and therefore it seems that this is the same as their general understanding of this law. Indeed, in the Numa (and similarly in Rabbi Yonah) 20 and 21:

The judges will decide according to what they see in their eyes, based on taste and reasoning, such as whether they see that the blood is a sign or whether the seller sold it willingly.

Here it is clear that this is not a ruling of principle as one side, since according to the law, there are no exceptions to the rule that blood money does not go to the seller (it is not said that blood money informs), and the question of whether the seller sold willingly is certainly a question whose answer varies according to the circumstances. In other words, the law of 'Shuda' according to Rabbi Yona and the Nemoyi appears to be a ruling according to local justice (as option 2 above). And so does the Rosh and the Tur (see below).

In contrast, the ruling 'Ebed Kamar Ebed', which is clearly a different ruling according to the understanding of Tos, the Na'mi and R. Yona, indicates the possibility of ruling on this issue on a principled level as one of the parties (as option 3), not only because it seems to the dayan that this was the intention of the parties in this case (as option 2). In the language of the Na'mi and R. Yona, it is not clear whether this is what they mean, since they write that in the rabbinical court the dayan rules "according to what his mind inclines to," which can also be interpreted as the law of 'shuda.' Indeed, from the course of R. Yona's words, it seems clear that he understands 'Ebed Kamar Ebed' and 'shuda as two different types of ruling, since he writes that the law of 'shuda' is stated only in the place where it is stated that it is true that the law of 'shuda' is stated in the Shas, while the principle of 'Ebed Kamar Ebed' is a general principle wherever it is not stated that it is a halakha kamar or a halakha kamar.

If so, it follows from Rabbi Yona, Nemoi, and Tos that in any place in the Shas that a halakha has not been established, it is not permissible to rule on a halakha ourselves. In places where the Hadiya is told that the law is "sure," there this is the body of the Shas' ruling, and therefore we do as the judge sees fit in the local question, but there is no room to rule on a principled halakha in the disputed issue (as in the situation where the Shas dismissed the case).

For these methods, the law of 'shuda' is one of the rules of conduct in a situation of doubt, and it applies only in places where the Gemara explicitly states it (and apparently in each place one must find a special reason why the Sages determined to act according to this rule). Where the law does not define the law as 'mar' or 'mar', and the Gemara does not also state the law of 'shuda', then the law of 'servant as 'mar' applies.' This is a law that allows the judge to rule in a dispute himself, and to define the situation as an uncertain situation. It is clear that these Rishonim methods follow the Maharshal's approach presented above in Chapter 1.

According to the words of these early scholars, there is room to understand, as we also mentioned above, that the Tervudai also intends to speak in such a situation (where the judge himself is in doubt). In other words, the Tervudai also agrees that if the judge has his own position on the issue at hand, there is no room for discussion as to whether to rule in favor of a certain or divided verdict, or as the case may be, but rather he must decide for himself. The entire discussion of the poskim in the rabbinical chapter 11 revolves around a situation in which the judge himself does not have a clear position. Although I have already noted that it is not acceptable to interpret the Tervudai and the Rama (and also in what we quoted from the Gra).

And here I found in the Kush 22 the letter Shaach, from which it seems that he understood it simply in the same way also in the 16th chapter of the Torah, and the following there:

Baha David, as Mr. Abid, and not the words of the MMA, I heard the learned Rabbi Meir Atlas, the late Damieri, in a law that can decide according to his own mind between the disputants. But in one who cannot decide, the words of the MMA… and in Tervudai, 32 Sha’ab [and we see Decl. 2012], the MMA is clear about this.

From what the Qosh quoted at the end of the Tervad, it seems that his intention was to say that even the Tervad only targets a judge who does not know how to decide between the parties. And it appears that he would interpret the Ramma and Shaphat in the same way.

It is true that this is only a theoretical statement, since there is no one today who can decide between those who disagree in the Talmud, even among the Rishonim. However, it will be seen below that the words of the Rosh in the Sanhedrin mean that it is not so simple, and it is possible that even today there is a judge who can decide, and this is also explained to the Hadiya by the words of the Maharshal cited above.

 

The opinion of the Rosh on the issue of B.B.B.

The Rosh of the B'B on the website (Pd. Si' B') wrote that the law in the case discussed in the Gm is 'shuda dedayani', meaning to do according to the judge's eyes. He adds that even according to the Shaykh R's opinion that the general law of 'shuda' is to do as he wishes, here we go according to the estimate of the opinion of the seller and the buyer and the blood of informants, etc. (as option 2 above).

And the Rosh adds (ibid., 3), that wherever a law has not been ruled as a prohibition, the law is the one that removes the evidence from its author, whether in a factual doubt or in a 'spiqa dadina'. And the learned judge there:

And here is a Gemara interpreter and a judge who does not stop the halakha, so that he may have sufficient money. And the judge should not say that since he does not stop the halakha, he will do whatever he wants, but rather that the money will be maintained and he will not spend sufficient money.

From the summary of the Rosh's words, it seems that his intention in these words is to exclude the opinion of Tos' and to rule as Rashbam. Although he does not mention Tos's approach, and does not refer to the Hadith on the law of 'a slave is like a slave', his apparent reference here to the subject indicates that the background to his words is a dispute between Rashbam and Tos'.

According to this understanding, the statement 'A servant like a servant' should be interpreted according to the first possibility (as the Rabbis say in 'Shuda'), which can go arbitrarily in either direction. It does not appear that we can rule on a halakhic ruling here based on evidence for either side, since there is nothing in the rest of the Shas issues that we do not have permission to do so (we raised a similar consideration above in the explanation of the Rashbam's opinion).

On the other hand, it is possible that the Rosh himself agrees that it is possible to rule on halakha in open disputes in the Shas, and what he is trying to negate here is only an arbitrary ruling ("The judge shall not say, I will do whatever I want"). According to this interpretation, the Rosh is not referring here to the possibility of ruling on halakha in a dispute in the Shas, and it is possible that he is not opposed to the approach of the Torah, the Nemoyi, and R. Yonah, above. Below, we will continue to examine the Rosh's approach, in light of his words in his rulings to the Sanhedrin.

The Sixth of the Twelve in the First Month of the Year

In the Toda "Damer" in the first verses of the 48th chapter, it was stated that the sages adopted several methods of ruling in several places, and not always the same. And the learned there:

And there are things that the sages said here that the law is provided for the sages because here they made it certain, one by one and one by one… And there are things that the sages said and it is not Itamar that the journey is not like a priest and not like a priest, like a priest, like a priest, like a priest, like a priest, like a priest, and a priest, like a priest. And there are things that the sages said that it is certain that the judge will judge, because the one who sells the house will be finished (22:62): Tell her, "This is her sister," and tell her, "This is her sister," and it is certain that the judge will judge.

It is clear from the text that they have adopted all of these as special rulings of the Sages, including the ruling of 'servant like servant' (which is different from the 'Shuda' ruling). In all of these places, the Sages, for certain reasons, established an exceptional ruling. In light of the text here, it is clear that in places where they did not state a different ruling, we are commanded to rule according to the law.

It is also clear from the text here, as argued in the Toss, the Mesopotamian, and R. Yonah above, that indeed the law of 'shuda' and the law of 'abd kamar abd' are two types of ruling. It appears that this Toss believes that 'shuda' is permission to act as the judge sees fit (option 2), and 'abd kamar abd' is to act as he wishes (option 1). In any case, it is clear that these are rules of conduct in situations of doubt. According to the Toss, it was possible to understand that the judge has the option of ruling in open disputes in the Shas, but this is not the meaning of the rules 'abd kamar abd' and 'shuda dedayani', which are specific rules for ruling in situations of doubt. Indeed, from the simple language of the Toss, it seems that the Rabbis in the Bible do not have permission for the judge to rule in open disputes in the Shas, but rather he must rule according to the law.

The Gam. Gittin S. A.B.: All the dalim are male.

In the Gittitin 62, Rav and Shmuel disagreed regarding the water source, and the Gittitan there rules:

Because it was not for Itamar, the leader, not for Kamer, nor for Kamer, all the Dalim were men.

Here too, it seems from the wording of the rabbinic law that this is a principled and sweeping rule of law. If so, we find here a contradictory rule, that when there is no explicit halakhah, one can do as the rabbinic law does. Although I did not find any rishonim who challenged the rabbinic law of the above-mentioned shavuots from this. And see also in Tervad, 3rd s. n.b. and Rema, and Nok, 3rd s. kal. t., which are based on this issue.

Therefore, it appears that they understood that this is not a general principle that states that it is not possible to decide. The issue only determines what to do when the judge cannot decide between the opinions. We also saw that the ruling of the Qosh 2:2, 3, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58,

And see in the chapter "Tiferet Yaakov" on Atar, who made it difficult for him to rule as follows, which means that they will continue to quarrel, when the entire dispute in the matter was what should be corrected regarding the water well for the sake of peace. Therefore, he explained that from the principle of the law of the Law, it was necessary to rule there as follows, and Rav and Shmuel disagreed about what to correct from the rabbis for the sake of peace. And when it was not possible to correct again, the law returned to its principle, and therefore they ruled there as follows. And the point is clear. Although according to the rabbinic tradition, nothing can be learned from the matter of ruling in cases of doubt.[14]

Another difference between the issue of Shavuot and the issue of B'B

It is important to note another important difference between the issue in Shavuot and the issue in the B.B. In the B.B., the discussion is about the intentions of the seller and the buyer, and therefore there it can be said that the judge will follow what he assesses as the intentions of both parties in the sale (option 2). In contrast, the case in Shavuot does not depend on the intentions of the parties, but is a purely halachic question.

This situation is similar to the situation in prohibition and permission, or in a mitzvah, as we will see below. For example, if there is a 'spiqa dadina' or a darbuwata regarding a certain food as to whether it is forbidden or permitted, there is no room to decide specifically only regarding this particular case (as option 2). Here we rule arbitrarily (as option 1) or decide the halakhah (as option 3).

This is probably the reason why, in the issue of Shavuot, we rule 'Abed Kamar Abed' (which is interpreted by the KJV as option 1 or 3) and not 'Shuda' (which is interpreted by most opinions as option 2).

Exactly such a distinction is presented in the OT in the OT, 55:19. The OT discusses the question of why the OT in the OT does not follow the OT assumption. And in his remarks there, the OT explains that in ordinary property laws, this is not a OT in the OT, but rather a doubt in reality, for even if the Sages disagreed on whether a particular piece of evidence is good or not, the judge is not required to decide regarding the evidence, but rather regarding the reality to which the evidence refers, and therefore it was not a OT in the OT, but a doubt in reality. And the Ravuni Devkonas (Clall 5, Sec. 6, second paragraph) disagreed with him on this point (and the OT also cited a reply from Reka, 37, according to the opinion of the aforementioned Konas).

Interim summary

If we understand the law of 'servant as servant' as a general guideline, and this is how Tos, Nemoi, and Rabbi Yona seem to have understood it, then there is a halachic concept here that seems revolutionary: a concept that allows the judge to decide and adjudicate in disputes that have not been decided, and even in disputes between Talmudic sages (Amoraim and Tannaim). This is precisely the foundation for the approach of the Maharshal and other later scholars that we saw above. On the other hand, Tos in the first chapters and the Rabbishab in the second chapter indicate that in a situation of 'spiqa darbuvata' one must proceed according to the rules of spiqa (the hammah). In the opinion of the Rosh, we saw two possible directions, and now we will try to clarify his position further.

The words of the Rosh in the Dasnahadrin

The Rosh in Sanhedrin, 4:6, deals with the issue of 'mistaking judgment' and 'mistaking a matter of Mishnah.' In his remarks, he cites the opinion of the B'A'M and the R'A'B, and shares on them. These words of the Rosh constitute a foundation stone for addressing the halachic ruling in the 'Spiqa Darbvata,' and therefore we will present extensive excerpts from them here. And the late Rosh there:

The late Baal Maor wrote: I heard from a great sage of our generation who is before us that he is wrong in his judgment, for all the laws are decreed by us either from the Shas or from the Ge'onim who came after the Shas...

And I [=B.A.M.] do not think these things are true except that anyone whose mistake is not clear from the Mishnah or the Shas is clear without a doubt, is not mistaken in a Mishnah matter, but in his judgment… And what the Geonim ruled after the completion of the Shas from decisive knowledge and not from clear and settled law from the Shas as a matter of course, and where I erred, I erred in judgment and not in a Mishnah matter.

And the Rav wrote about the words of Ba'am that the sage said, "If one errs in the rulings of the Gaonim who did not hear their words, and who, having heard them, would repeat them truly and clearly, one errs in a minor matter." And I would almost say that even if one disagrees with the Gaon's ruling on a ground that seems to him to be different from the Gaon's opinion or his interpretation, one also errs in a minor matter. That we should not now disagree with the words of a Gaon based on our opinion of interpreting the matter in a different way so that the ruling would differ from the Gaon's words, unless it is a well-known difficulty, and this is something that is not found today.

And I [the Rosh] certainly say that anyone who errs in the rulings of the late Ge'onim, who did not hear their words and when it was told to him that the ruling of the Ge'onim was correct in his eyes, errs in a mishnah matter. And not because he errs in the rulings of the Ge'onim, but even the sages of every generation that followed them, who are not slanderers in the Agama, and if the ruling is not according to their words and when he heard their words were correct in his eyes and admitted that he erred, he errs in a mishnah matter and repeats.

But if their words are not correct in his eyes, and he brings evidence for his words that are accepted by the people of his generation, he will open in his generation as Samuel did in his generation, you have no judge but whoever was in those days. And he can contradict their words. For all the things that are not explained in the Shas that Rabbi Ashi and Rabin arranged, a person can contradict and construct, even disagree with the words of the Ge'onim...

The latter Damoraim sometimes disagree with the former, and on the contrary, we perceive the latter's words as the main point, since they knew the former's reasoning and their reasoning, and they decided between these explanations and stood by the essence of the matter...

And if two great scholars disagree on a halakhic ruling, the judge should not say, "I will not do as I please," and if he does so, this is a false judgment. Unless he is a great scholar, shrewd and reasonable, and knows how to rule according to the words of one with clear and valid evidence that he has the authority to do so. And even if another scholar rules on a different matter, the scholar can contradict his words with evidence and disagree with him as I wrote above, provided he has assistance from one of the two dissenters. If not, then he will not spend enough money…

The opinion of the Gaon and the Rav is that there is no permission to dispute the ruling of the Gaonim, and the one who disputes is considered to be mistaken in a matter of Mishnah. And the opinion of the Ba'am is like them, that there is no permission to dispute the ruling of the Gaonim, but that in his opinion the one who disputes is considered to be mistaken in judgment and not in a matter of Mishnah.

In contrast, the Rosh himself states three fundamental determinations in this paragraph: 1. There is no difference between Geonim and famous Sages who came after them (even in the generation of the present dayan). Only the Shas compiled by Rabin and Rabbi Ashi is an exception whose rulings cannot be disputed. 2. Someone who is a bar-hi can dispute a ruling of Geonim, as well as later Sages, and is not considered to be wrong at all, neither in his judgment nor in a mishnah. However, anyone who disputes a Shas ruling. 3. Someone who is not a bar-hi is prohibited from ruling arbitrarily (as is the law of 'shuda') even in disputes between poskim, but must decide according to the law of the Mamma. And he certainly cannot dispute a ruling agreed upon by his predecessors who are greater than him.

It should be noted that the basic discussion here is not actually about the authority of a judge to rule on a dispute between previous sages. In this matter, it seems that whoever is most qualified can decide. The main discussion is about the disputes that have been decided, or the rulings of the sages, about which these early sages disagreed, and so on.[15]

And there is some debate about the intent of these words of the Rosh. Does he mean that the Shas is exceptional only in the matter of its rulings not being disputed, and not even in the rulings of the Geonim, for whoever is most righteous? Or does he mean that the Shas is also exceptional in the matter of the disputes that remain open in it (and not as a marshal).

Simply put, there is no source for the Shas to have the authority to decide, and it also seems somewhat from his language in the Bible cited above that this is not possible (as in the Shabnam ibid.). On the other hand, since the entire discussion is only about deciding against previous rulings and not about deciding open disputes, this is not entirely clear. In any case, since the relevance of the discussion for us is mainly in relation to disputes between rishonim and poskim, the Rosh's opinion on this matter is clear: he definitely favors autonomy in halakhic rulings.[16]

If so, the Rosh here agrees in principle with the opinion of the Toss, the Nemoy, and Rabbi Yonah, that every Sage must decide disputes between Sages before him that remain open without a decision, and perhaps even disputes in the Shas (as option 3). Admittedly, we still have to discuss whether he intends option A or B above. That is, does he mean that there is truth on each side, and therefore any posk can do so, or does he mean that this is a literal halakhic ruling, and only someone who is 'the most righteous' can do so. We will examine this now.

Regarding ruling against the rulings of sages from previous generations, we have seen that there is disagreement among these rishonim, but even according to Shaykh Rosh, this can only be done under two conditions: 1. Only a sage who is 'bar hik' (=comprehensive and reasonable) can do so. 2. This can only be done with 'complete and clear evidence', meaning that he is not mistaken in a biased opinion (see also the Konas, rule 5, Mishak on this).

Although there was room for disagreement regarding the issue of deciding on a 'spiqa darbavata', as we saw that according to Option A, any judge can decide a dispute between Amoraim, and certainly a dispute between poskim, meaning that he does not need to be 'bar hik'. The situation is not similar to someone who comes to dispute the ruling of his predecessors, as here both sides are true, and in whatever he does he will not err. And according to Option B that we raised there, even in the matter of deciding disputes, the judge must be bar hik.

The Rosh's words mean that even in the matter of deciding disputes that remain open, the sage must be a 'bar hik', since the Rosh ends the above passage with the words: "And if he is not a bar hik, he will not spend sufficient money," and this means that even deciding the doubts of the poskim ('spiqa darbuvata') is not given to someone who is not a 'bar hik'.

Anyone who pays attention to the Rosh's wording in the last paragraph quoted above will see the similarity between it and the paragraph quoted above from his rulings in the Bible (in the Su'd in the Bible he also refers to the Hadiya for more detail in his rulings in the Sanhedrin). If so, the Rosh's words here are nothing more than a clarification of his words in the Bible, and our conclusion from the Rosh is that he understands as option 3 that a contemporary arbiter can decide an open dispute in the Shas, but as option 2 that states that he can do so only if he is most justified in doing so (and will be explained below). See also the Rosh's response, Rule A, cited in S. Tikvah Cohen, 33rd ed. (and 34th to 36th ed. have different explanations of his intention).

As stated, the B'A'M and the R'A'B'D cited in the Rosh deal only with the question of ruling against a previous ruling and not with the question of autonomous decision-making in open disputes. It is true that if it is not possible to bring evidence against the opinion of the sages of previous generations (geonim), it is also not possible to decide the disputes between them on the basis of evidence, and it seems likely that it is not possible to decide on the basis of 'inclined opinion' either. If so, it is possible that the R'A'B'D and the B'A'M will join the opinion of the Rashbam and Toss in the primacy, which cannot be ruled independently in open disputes from the Shas or of the Geonim of previous generations (although, this is certainly not necessary).

Halacha ruling

According to the law, the Rema rules in Khum Resh Si' 25, in accordance with the opinion of the Rosh, that someone who is prudent and reasonable can rule against the sages who preceded him with compelling evidence, and if he is not, he is prohibited from ruling arbitrarily, but rather must rule according to the rules of sufficiency. Hence, further evidence for the interpretation we proposed in the words of the Rema in Khum Sus'i 115, which does not intend to prohibit independent ruling, but only to instruct what the judge must do in a situation in which he has no position in the dispute. See also Tumim Si' 25, 115, 116, 117, 118, 119, 119, 119, 119, 119, 119, 119, 119, 119, 119, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129

Note from Dean 'Kim Lee'

It is necessary to comment on the entire discussion here on the possibility that exists in the law of property to claim 'Kim Li' as one of the opinions that has not been ruled on by the halakhah. Admittedly, this matter is a closed one, and many have been tired of finding its root and source, and there is no room here to dwell on it. In our opinion, there are many implications here for the law of 'Kim Li' (such as what we saw above, Sufa'a, regarding the law of seizure, which also needs to be extended), and there is room to examine in length all the words of the latter on this law (see in S. Tikfu Cohen, and the various abbreviations of our latter who discussed this). For the sake of brevity, we will briefly comment here on only one aspect.

In the Konas, Rule 6, Section 6, he presented opinions that it is possible to claim 'Kim Li' as a minority against the majority. And he presented there that the Tomi (in short, they attacked Cohen, 223-224) made it difficult for those opinions, how Maran ruled in Shulchan Aruch between three poskim (the Rif, the Rambam, and the Rosh), and how he did not feel that the one who is held can claim 'Kim Li' as a minority. And yet, no matter how much the poskim who support their opinions with various evidence, the one who is held will always say 'Kim Li' without any qualms.

And the owner of the 20th century to settle the general claim of the Tomitim, and the late:

Even what is difficult is that if so, the trouble and labor of the poskim who strengthen their opinions so that the one who is held will say, "I am against them," is not in vain. Certainly, I am not at all thin to me is not said except when the judge before whom that decision comes does not decide from his own understanding for one person. But when he decides from his own understanding, he can decide even as an individual against many, and even exclude the one who is held. And as in our law in the Barish Idiyot (P. 1:45), why do they mention the words of an individual among the many, etc., if the court sees the words of an individual, it will rely on it. And the late Rabbi David explained that if it appears to the court that the law is according to the words of an individual, it will establish the law as it is. And therefore, everyone is obligated to expand his mind and strengthen it with evidence, which the witnesses will give and justify, and if they are correct and upright, they will stir the heart of the educated dayan with the truth to decide as he does.

Although, in the opinion of the Toumim, it seems that there is indeed no room for independent rulings on the issue of spiqa darbuwata, he remains in agreement with these opinions. And I will elaborate more on this.

C. 'Serve as a servant' in the commandments

The difference between commandments and commandments

As stated, in the context of prohibition and permission, or commandment, it seems inappropriate to follow the inclination of the heart regarding the local truth (option 2 above), since there is no dependence here on the intention of the parties. The question that remains is what is the binding halakha, and this is binding in all cases. In such a case, it seems that we are faced with only two options: 1. Let the judge decide a principled halakha (option 3 above). 2. Let the judge rule arbitrarily (option 1, according to the law of 'shuda' according to the R.T.).

Although it seems at first glance that the second option is a rule of conduct in doubt, like the law of 'Shuda' in the R.T., and therefore it also does not necessarily indicate a possibility that the posak faces to decide that he is not satisfied. However, this is a difference only at the level of meta-halachic interpretation, since at the halachic level such a manner of conduct also allows for ruling on the halakha. If the dayan decides to go in a direction that he sees fit for halachic considerations, this is certainly no worse than a dayan who acts arbitrarily, and therefore it is clear that this would be permissible for him. There is indeed a practical difference between the two options: if he indeed actually rules on the halakha, and not just acts arbitrarily, it seems that he will not be able to change his ruling in different cases arbitrarily, meaning that he will have to maintain consistency, as mentioned above.

A servant who obeys the commandments

And here we find the law of 'servant like servant' also in the matter of a mitzvah (matters of the Och). In Mishnah Berakhot 26a, Rabbi Yehuda and Rabbanan disagreed regarding the time of Mincha and Ariv:

The offering of the offering is until evening. Rabbi Yehuda says until the offering of the offering.

And in the same book, Ibid., 27:1, italics added:

It was not Itamar who went, not as a priest, not as a priest, Dabed as a priest, and Dabed as a priest.

It should be noted that, as in the case of the Shavuot, the wording here also seems general. It seems that there is a general principle here that whenever a clear halakhic ruling is not stated as a single ruling, one can act as either party does. On the other hand, it again seems puzzling that the Shavuot does not cite such language in other halakhic disputes that were not decided in the Shas, and therefore it would be reasonable to understand that this is a special law specifically for this dispute. Therefore, we must also examine in relation to this issue whether this is a general principle, and also examine what the statement "servant like servant" means in the issue of blessings.

From the comments of the commentators and jurists on this issue, it appears that most of them interpret this statement as permission to act however they wish and not as permission to decide the law.

On the other hand, it appears that the Toss and R. Yonah and the Nemoyi in the Bible, who understood the language of the Gam in Shavuot as a general principle, and apparently based this on the language of the Gam, "Heshta dala Itamar halacha la kamar la kamar," will also interpret the similar expression on the issue of the Gam in the blessings as a general principle. Whereas the Toss in the Korot and Rashbam, who understood the statement on the issue of Shavuot as a unique statement (and not as a general principle of jurisprudence), it seems that they will understand it this way here as well.

As for the meaning of this language, here too it is sufficient to determine whether the intention is that one can rule on a principled level like Rabbi Yehuda or Rabbin, or that one can act as one wishes, arbitrarily (and the nefm is the possibility of changing our behavior from time to time). In relation to this aspect too, it appears that those Rishonim will continue to interpret the issue of Shavuot as they see fit.

It is important to note that although the language in both issues is identical, unlike the previous cases that dealt with the law of money, where the instruction "Ebed Kamar Ebed" naturally addressed the dayanim, the Gemara here addresses every private person who is debating when to pray Mincha or Arriv. Therefore, it is reasonable to understand that here, the intention is not to rule on the evidence of Rabbi Yehuda or Rabbinan, but rather to arbitrary ruling or behavior. This is according to the first explanation in option 3, namely that the posek must decide a halakhah in every situation that comes before him. According to this understanding, we saw that it turns out that we are dealing with a posek who is the most righteous. According to the second understanding, which holds that there is truth on each side of the dispute ("These and these are the words of the living God"), we saw that any posek, and perhaps even any layperson, can rule on whichever side he sees fit, and therefore this possibility also exists here.

In the commentaries and poskim on the website, we found that the ruling of the rabbinate here can be interpreted in different ways (see in detail in the section 'Eyes of Justice', blessings there). There is a rule that everyone must maintain complete consistency throughout their life: either according to Rabbi Yehuda or according to the rabbis. There is a rule that can be changed from time to time, but not according to the rabbinic rules (i.e., not praying Mincha and Arriving on the same day at the same time). Although some said so only for rabbinic reasons, i.e., so that there would be no confusion, in principle, it is also possible to act in a manner consistent with the rabbinic rules. There is a rule that can be acted in a manner consistent with the rabbinic rules in practice as well.

Attitude to other issues

Rabbi Kosh 2b, letter Sha'at, who cited from the issue of Eruvin 7a that there is a rule that everything here is forgotten by the Ten Commandments or the Ten Amoraic, and that the law is not stopped, neither by the Ten Commandments nor by the Ten Commandments, David as a Ten Commandment and David as a Ten Commandment. And so we also see this in the issue of Blessings 27 and Shavuot 48. Indeed, from his language there, and as proven in the issue of Eruvin itself, it is clear that he did not perceive this as an opportunity to issue a law, but rather as permission to act arbitrarily in any of the ways.

We also find in the Kosh 22 letter Ra'a, which was brought by Matthew (22 62 2b) and from the Rosh (Sanhedrin above, and see also in the words of the Kosh 22, end of letter Sha'a) that the rule 'servant like servant' is only for those who know how to decide. And they were made difficult by the Gam Berchot, which is proven by all the poskim that it is for the whole world and not necessarily for those who know how to decide.

And his intention seems clearly to emphasize that the rule "a slave is like a master's slave" is not a rule that allows for a decision in halakhic disputes as we wanted to interpret above, but rather it is a rule that allows anyone to act arbitrarily according to any of the halakhic paths in dispute.

Above, we have proven that for some of the early ones this is not the intention in the words of the aforementioned Shavuot, and it is possible that they will interpret it this way also in the issue of blessings. Although we have noted that it is possible that in the issue of blessings for the K'o'a, the intention is as K'o'sh, since the name of the issue is not addressed to the dayanim (since it is not about the laws of mammon), but to everyone in Israel. In such a situation, it becomes clear that it is not possible to permit a halakhic decision, and therefore it is possible that the intention is to permit all forms of leadership in an arbitrary manner (parallel to the rule of 'shuda' in mammon).

And indeed, the issue of eruvin seems seemingly relevant to our case, and perhaps even contradicts our statements so far. See, for example, in the Anzit on 'Halaka' s. 2, which went on to explain how we should act when a halakhah has not been ruled upon, and the foundation of the clarification is in the aforementioned issue of eruvin (as vocally as this and that, as materially as this and that, etc.), as well as in the aforementioned articles of Rabbi Aviner. There is a seeming contradiction here to all of our statements, since it seems that when a halakhah has not been ruled upon, we can at most act arbitrarily like one of the parties, but both are perceived as legitimate, and it would be reasonable to conclude that in such a situation we do not have permission to decide the issue in question.

Indeed, in light of everything we have seen (and will see), it is clear that in this case we are dealing with a situation in which the Dayan (or the teacher of the teaching) does not have his own decision (or he is not very competent), and then the question is how he should act. As stated, we are discussing a more basic level: whether a Dayan must be in such a situation at all. In our contention here, if the Posk has his own position on the issue in question, he does not at all need the rules of the Deiruvin case, which prescribe what to do in a situation of a plegta dervuta. In light of what has been said here, it is clear that the Eruvin issue is not at all relevant to the case under discussion.

Halacha ruling

For the legal issue of autonomous decision-making in halachic disputes regarding commandments and prohibitions, see Rama, Yod, 6, Rama 2, 53, and Pithai Teshuvah, s. 22 (and also Rama, Rama, s. 2). This means that every judge can rule as he sees fit, with the limitation of respect for the various sages, and with the limitation that he will not permit what his colleague has prohibited in the same case.

D. The importance of autonomous decision-making: who is the 'best'?

The meaning of the criterion of 'the best'

So far we have seen that, according to many of our first and last rabbis, a judge who is the most qualified can decide disputes between his predecessors, and perhaps even disputes that remain open in the Talmud. This can be made difficult from two opposing sides:

1. We have already commented that it seems at first glance that this assertion is merely theoretical, since it is accepted that no one today can truly put his head between the Tannaim, Amoraim, Rishonim, and even the important Aharonim, whose waist is thicker than our waist (and see in S. Tikfu Cohen from Sach 39 what the Rashba brought on the grounds that we cannot decide the disputes of our predecessors).
2. It can also be argued the other way around, that the statement that someone who is a bar-i-hi can also in our generation decide in a pleugta-i-drabvata is trivial, and everyone is obligated to agree with it. The whole problem is that we are not bar-i-hi. In the PIZ, there is no room for the discussion here.

The second argument is not necessary at all, since it is widely accepted to think that the inability to decide the disputes of our predecessors (at least up to the Rishonim) is not derived only from the fact that we are not descendants of the Hich (perhaps also from this), but also from the fact that we have taken upon ourselves not to dispute previous generations. In other words, just as Amoraim do not dispute Tanais and Rishonim do not dispute Amoraim, and so on, so too we cannot decide the disputes that remain open between them.[17]

In light of our previous remarks, it appears that this perception is not necessarily correct. Although we have undertaken not to disagree with previous poskim (at least the first ones), it is certainly possible to decide the disputes that remain open between them. The condition for this is that the poskim who does so be 'the most righteous.' There is certainly something new here.

Who is 'Bar Hi': Clarifying the opinion of the Rosh

To clarify the first claim above, we will now return to the words of the Rosh quoted in Chapter 2, and try to clarify from his words who is the 'Bar Hi' who can decide the disputes of the Poskim, and perhaps even in open disputes in the Talmud. We will see here that there can still be someone today who is the 'Bar Hi' who can decide the disputes of previous Poskim.

Within the words of the Rosh there is an expression that I find interesting. The Rosh states that "He will open in his generation as Samuel did in his generation, and you will have no judge except the one who judges in your day." In other words, the Rosh's assumption is that the sages of his time are indeed lesser than the sages of previous generations, and certainly than the sages of the Talmud. On the other hand, he states that "He will open in his generation as Samuel did in his generation," meaning that they are permitted to decide and we are permitted to trust them.

It seems that his words indicate that every Posk will do his best, and that the judge can only do what his eyes see. It is not clear how these things are consistent with the requirement that he be "the most qualified," since, as he himself implies in his above-mentioned words, no one in his generation is truly "the most qualified" to decide disputes between the Shas scholars.

It is very clear that the Rosh's intention is for a dayan, or a posek, who has the ability to negotiate according to the Torah, even if he is clearly not in the ranking of his predecessors. In other words, the requirement that he be 'bar hik' does not mean that he must be in the ranking of the Shas sages, but he must be 'gamir and sabiir' in the terms of the generation in which he himself operates. We have seen that the Rosh believes, as option 3b, that the decision of the dayan, or posek, is a true decision of the settled halakhah, and therefore he must be 'bar hik'. Only the decision of a dayan who is 'yiftah in his generation' can have the meaning of a halakhic ruling.

The opinion of the geniuses

And it seems that the intention of the reply of the Ge'onim (Prague edition, 33) which the Shach cites in the book 'Tikva Cohen', 35:2, and the late Z"l there:

The question here is two answers from two geniuses who disagree with each other, and each of the judges or dayanim has taken one of the two, which is their servant.

Answer: Will decide The judge who is present is as great as time.The knowledge is from the one who sees with his eyes. And what he decides in his heart, if the first judge is hung up on the words of the other guru, there is no one to watch over him…

From the words of the Ge'onim, it emerges, as we also saw in Rosh, that a judge who is 'the most righteous' in his time can decide the disputes of his predecessors. It should be noted that this is not a statement made solely out of lack of choice, as it might seem at a superficial glance. Every judge always has the option of ruling that the M'hah, or according to other laws of spikot, is the only way to decide.[18] Therefore, it is clear that there is a fundamental statement here, as we also saw above in the opinion of the Rosh. We will now deal with the fundamental significance of these things.

The taste of it

It seems difficult at all to rule on a halakhah by someone who is less than the sages of previous generations, even if he is a pioneer in his generation. If indeed the sages of previous generations were greater, then it turns out that they are the ones who are right, and therefore the judge should not follow his own opinion but rather rule like them.

It was said that there is no value in halakhic truth, but rather, "These and these are the living words of God," as it were. But this is not the case, since the Rosh does not allow everyone to act in this way, except for those who are "wise and reasonable" in their generation. In other words, it is clear that the Rosh is aware of the possibility of error in halakhic law, and even tries to prevent it. On the other hand, even that "wise and reasonable" person in his generation is inferior to the sages of previous generations (and certainly to the sages of the Shas), and why should he be allowed to rule against the greats of previous generations and take the risk of error in halakhic law?

From these words of the Rosh and the Ge'onim, a perception emerges that the goal of ruling is not only to reach the correct decision, but that the very process of independent ruling has an important Torah value. Someone who is involved in ruling on halakhic law, and whose ruling in the disputes of the sages of previous generations is not as huqa va'talula, is obligated to rule on halakhic law according to his own opinion, and to decide disputes between his predecessors. There is an important value to autonomous ruling, and it is this value that overrides the value of acting correctly from a halakhic perspective. Therefore, on the one hand, one should not rule as it seems to every judge, but only an important judge of his generation (a jurist and a reasonable person). On the other hand, an important judge can, and in fact should (and this is probably the essence of the innovation), rule autonomously.

Examples of distinguishing between Halacha and Halachaic truth

There are examples of the issue of halakhic rulings based on considerations that are not necessarily halakhic truth.[19] We will give here just one example out of many.[20] In the Sermons of the Rabbis, Drosh 11 (a similar argument also appears there in Drosh 7), the elder of Mamre finds it difficult to understand why a scholar who has come to teach, when he knows that the Sanhedrin is wrong in the law, is nevertheless obligated to obey its voice. The Rabbi knows that he is desecrating Shabbat, and that there will even be harm to his soul from this, and why he should not act and command as he understands.

And the author of the Ran's sermons explains that the value of the unity of the law and obedience to the sages of the Sanhedrin (the status of the sages) exceeds the value of observing the true law. See also in the teaching of the commandments of the 8th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 29th, 30th, 31st, 32nd, 33rd, 34th, 35th, 36th, 37th, 38th, 39th, 39th, 38th, 39th, 39th, 39th, 39th, 39th,

According to this, it is said that the value of autonomous halakhic rulings is also important, and therefore there is a place to pay a halakhic 'price' for it, meaning to accept the possibility of an error in halakhic law so as not to prevent us from ruling autonomously.

The Value of Autonomous Ruling: The Methods of the Maharal and Rabbi Migash

The value of autonomous halachic rulings has risen at various times in the history of halachic law, especially around what is known as the 'codification controversies.'[21] A very sharp autonomous position is presented in the Maharal in Softu from the Torah Path, and the late Z"l there:

Because it is more appropriate and more correct for a judge to be based on the Talmud, and although it is felt that he will not follow the path of truth and will not rule the case for its truth, so that the teaching is according to the truth, in any case, a wise man should not only do what his intellect gives and understands from the Talmud. And when his understanding and wisdom mislead him, with all this he is loved by God, blessed be He, when he teaches according to what his intellect requires, and a judge should not only do what his eyes see. And he is better than someone who rules from a single work and does not know the meaning of the matter at all, who walks like a blind man on the road.

And perhaps it will be said, then, that in this generation, who are not versed in the Talmud and do not know how to pronounce Halacha, surely it is a difficult thing that the Torah has been forgotten and we are not worthy to pronounce Halacha. And all this is why no one repeats his Talmud to become versed and accustomed to his study…

What emerges from the Maharal is that there is a supreme value to autonomous ruling, even at the cost of an error in ruling. In the eyes of God, a person who rules from his own understanding and not based on a previous book, and even if he is wrong, is better than one who rules from a book (according to precedent) and even if he is right.[22]

In contrast, in the Responsa of Rabbi Migash, Teshuvah 114, Rabbi Migash was asked whether it is appropriate to give instruction from the books of the Ge'onim even to someone who does not know the source of the law in Shas and the way of halakhic conduct. And it seems that there the exact opposite approach is presented, and the following:

Know that this man is more deserving of being permitted to teach than many people who have set themselves up to teach in our time, and most of them do not even have one of these two things in them, I mean: understanding the halacha and adhering to the opinion of the late Ge'onim. And those who pretend to teach from the study of halacha and the strength of their study of the Talmud are the ones who deserve to be prevented from doing so, since there is no one in our time who would be worthy of this, nor one who has reached the rule in the wisdom of the Talmud that he will teach from his own understanding without adhering to the opinion of the late Ge'onim.

But someone who is taught by the answers of the rabbis and relies on them, even though he cannot understand the Talmud, is more honorable and noble than someone who thinks he knows the Talmud and relies on himself. He who, despite being a teacher of an untrue explanation from the evidence of the rabbis, the late rabbinic scholar, is not mistaken in this, since he did what he did according to a great rabbi who is an expert in many things. And someone who is taught by his own knowledge of halacha may think that the same halacha requires that teaching, and it does not require it. And his knowledge misled him or he made a mistake in his interpretation, and in our time there is no one who reaches the level of Talmud that he can trust to instruct from.

In the Bar-Yi Migash, we see seemingly a statement that is exactly the opposite of what we saw in the R.A.L.: It is better for someone who is taught from a book and does not even really understand it, since he will probably stumble upon the truth, than for someone who is taught from his own study and is likely to make a mistake.

One can perhaps see here a dispute as to whether halakhic rulings are an attempt to reach the truth or whether the autonomous ruling itself is the value of halakhic rulings. One can perhaps even see here a dispute as to whether there is halakhic truth or not.

Indeed, if we look closely at both passages, it seems that on a fundamental level, both meant the same thing. The Maharal also does not claim that there is no halakhic truth, since he is explicitly speaking about someone who is wrong in halakhic law (but rather that he believes that he is superior to a posek who is right when he teaches from a book). The Maharal's intention is to say that there is value in autonomous ruling, and therefore sometimes it is better to rule autonomously even if at the cost of an error in halakhic law. Exactly as we saw above in the Rosh.

On the other hand, the Maharal also does not reach the conclusion that everyone can do so, since he ends the chapter by stating that in his generation many cannot do so because they have not reached the capacity to instruct. In other words, he too limits the recommendation for autonomy in ruling only to those who are "the most wise" (the most prudent and reasonable in his generation, according to the opinion of the Rosh).

If we now examine the words of Rabbi Migasch, it seems that the same elements appear in them. The Rabbi speaks of the danger of halakhic error, and therefore is not willing to allow every poske to give independent instructions. On the other hand, it is quite clear from his words that if someone is indeed a 'bar hik', he is certainly supposed to rule according to his intellect, but in his estimation few in his generation are 'bnei hik'.

It turns out that Maharal and Rabbi Migash said the same thing, and perhaps there is a difference between them regarding their assessment of reality: whether there are "Beni Hiki" in their generation or not.

If so, it is clear that there is halachic truth in the law, and therefore there are also halachic errors, and it is clear that one should try and avoid them. On the other hand, there is also value in independent ruling, perhaps even at the cost of an error in ruling (although, the Rabbis do not explicitly state this). Therefore, someone who is not a 'Bar Hi' cannot rule independently, but someone who is a 'Bar Hi', even if he is less than the sages of previous generations, is certainly called to rule independently. These are the words of the Rosh, the Ge'onim, the Toss, Rabbi Yona, and the aforementioned Namoy, as stated in the Mushnet. These are the words of the Maharash, the Shach, the Ya'av'etz, the Gra, and the Konas, as we saw above in the Pa'a.

E. Additional explanation regarding the value of autonomous rulings

And it seems to explain the value that has changed in independent rulings, according to the Gm. Kiddushin 40:2. The Gm. there states that a question was asked before Rabbi Tarfon and elders who were in charge of the Ascension of the House of Netza, whether a great Talmud is or a great act. The conclusion there is: "A great Talmud that leads to an act."

And the words are correct, because the accepted way of expressing it is that the lesser depends on the greater, meaning that if the value of the Talmud is that it leads to action, then the seemingly obvious conclusion is that the action is the goal and the Talmud is the means. If so, it is not clear how the G.M. determines, in the same sentence itself, that the Talmud is the greater?

And perhaps the Supreme Court did not determine that the Talmud is great, but rather that the Talmud that leads to action is great. In other words, the investigation is basically not about whether a Talmud is great or an action is great, but rather whether these are two inseparable things. The goal is to follow a single chain in which the first link leads to the second: a Talmud that leads to action. Such rulings and learning constitute a completely different kind of 'Talmud', and also a completely different kind of 'action'.

In the world today, when we study 'Iyun', we say sevrov as our hearts desire, but in practice we usually rule according to the common books of rulings (Shulchan Shulchan, Kitsush, Arvah, Moab, and more). In this way of studying and ruling, the action is completely disconnected from the Talmud, since Talmud is studied separately and action is separated. The practical conclusion is not related to the study, and certainly does not stem from it. This is the reason for the common mistake today that studying 'Iyun' is not considered 'legal' study, and only memorizing books of rulings is considered 'legal' study.

And we are told that there is no greater mistake than this. The study of the 'Iyun' is the study of Halacha. The explanation given in the 'Iyun' is what should guide us in our practical practices. Only in this way is the goal of the study truly practical: "Talmud that leads to action." The 'two laws' explanation of the Grach, or of anyone else, is an explanation of Halacha. And after all, the purpose of the Grach's explanations was to explain the Rambam, which is a book of Halacha rulings. The Grach himself (and his successors, the Geraiz, following him) also ruled Halacha in this way in practice.[23]

Therefore, the work of God of learning and ruling as the Maharal expresses, and as we have also seen from the Rashal and Tos, and Rabbi Yonah and the Rosh present, is the expression and realization of the ideas and reasoning of abstract learning in the practical world. This only happens when the conclusions of our learning in the study of the 'research' are the halachic conclusions according to which we will act in practice. In such a situation, a person learns, and every reasoning he brings up receives expression and practical application in the practical world.[24] This is the essence of the inspiration of the Shekhinah in the underwear, which is the purpose of creation.

In some ways, this is nothing more than a demand for rational behavior, that is, a call for a person (who is 'most righteous', in the previous terms) to actually act in the practical world according to what appears to his intellectual eye.

Beyond the well-known quote by Rabbi Israel of Salant, who stated that the first commandment that applies to every Jew is 'not to be stupid,' we expand the scope and suggest that the basic goal is to strive to be rational, that is, to strive to be someone who is 'most wise,' and therefore someone who can act as guided by his reason.

F. Regarding the custom of Lilach according to a certain poskim

In the Kosh 2b, the letter of Ra'ab, the commentary of the Rabbi ben Rosh Si' 54, states that the Tolitula community did not agree to rule according to the Rambam except in what the Rosh disagreed with. And so the Rabbi states that this practice contradicts the words of the Rosh cited above. According to the Rosh, we have seen that someone who does not know how to decide on any matter should not say, "I will do as so-and-so says," and if he does so, this is a false judgment. In such a case, he must rule in the matters of the Mamma and the prohibitions according to the laws of spikot.

According to this method, the judge must decide, and cannot rely on any rules of decision, or follow this or that ruling. In any situation where he cannot decide, he must act according to the laws of spikot. This is an extremely autonomous approach in relation to halakhic rulings.

This seems to be a reasonable conclusion from these words of the Rosh. According to the Jewish tradition, the Eastern Jews do not have to follow the author, and the Ashkenazim do not have to follow the Rema, and in general, there is no place for us to accept any kind of ruling (a clear Mishnah, etc.). We must always decide halakhic disputes ourselves, or follow the laws of spikot. This seems a rather extreme conclusion, even though it seems to arise clearly from the Rosh's words.

And in the Kush, which made it difficult for the Rabbi of the Eruvin 46, who brought such types of rulings: Rabbi Meir and Rabbi Yehuda ruled according to Rabbi Yehuda, Rabbi Yehuda and Rabbi Yossi ruled according to Rabbi Yossi, and so on, and many more.[25]

Therefore, he interprets there that if a person, or a community, decides that a certain judge is a bar of greater authority, this can certainly be done even by the Rosh. Only if we do not even have the possibility of deciding who is a bar of greater authority (and not even deciding the halakhic dispute itself), only then must we follow the laws of spikot. This is how he also interprets the intention of the Rabbi in the above reply (that he knew that the members of the Tolitola community did not have the power to decide who is a bar of greater authority). Although in the Rabbi's words it does not mean so, and tsela.[26]

Afterwards, the 20th Kush (name of the letter Ra'ga) states that in many communities we find that they do so and we have not heard anyone disagree with this. The Kush explained that any community can appoint a judge over it, as a kind of great judge for all Israel, and in the 20th Kush, it is certain that that judge has the authority to decide laws for that community. And whatever the Rosh 20 does not say, the judge will do according to the words of so-and-so, this is only a judge who wants to do so at random, not according to a fixed custom, and so on.

If so, the Rosh HaYahu says that the judge must rule on the Halacha himself, or follow the laws of spikot. There is no place for an individual or a group to rely on a particular judge arbitrarily. As we have seen, most of the judges disagree with the Rosh HaYahu, and even from the words of the Rosh HaYahu himself, this is not a necessary conclusion.[27]

 

G. A few concluding remarks

1. As our words indicate, the approach to autonomy in jurisprudence has changed over the generations. During the time of the Rishonim, we saw opinions here and there, and in our time it seems that an approach to complete autonomy does not exist at all. Around the time of the composition of the Shulchan and the Map, we find several voices, apparently appearing as a response to the Shulchan itself (the codification controversy), who call for maintaining autonomous jurisprudence (mainly the Maharshal and the Maharal). After that, these voices almost disappear, and the precedential approach in jurisprudence takes over.

It is clear that the degree of reliance on precedents versus independent ruling varies, and this is not a simple question of yes or no, and therefore in all generations, and even in our time, different degrees of autonomy versus reliance on precedents can be found among different arbiters.

2. There is a widespread feeling that in the current method of ruling, i.e. non-autonomous ruling, we are 'following the herd', or: 'playing it safe'. The feeling is that there is no price for this, and therefore there is seemingly no reason not to act in this way, since this is the most likely way to arrive at halakhic truth and not make a mistake. However, as we have seen here, there is also a price for such a method of ruling. Autonomy in ruling is not merely a permit, or a possibility, but a positive and binding value (for one who is 'the most righteous') that must be striven for. As we have seen, halakhic truth is not the sole and exclusive goal of halakhic ruling. Autonomy also has its own value.

3. It is quite clear that in terms of halakhic rulings in our generation, the relevance of the discussion is not towards open disputes in the Talmud, but mainly towards disputes among the rabbis, the latter and perhaps also the former. On the other hand, one can see here a principled approach that legitimizes autonomy in rulings, and even requires that this be done. Surely, this calls for a (controlled) increase in the dosage of using this method of ruling.

4. Although, as we have seen, autonomous ruling is only relevant to a posek who is 'bar hik', that is, a jurist who is eloquent and reasonable in the terms of his generation, as a model that faces each student, there is a fundamental innovation in what is said here. In light of these things, it seems that every student should strive to reach a state in which he will be 'bar hik', that is, an autonomous ruling from the sources, and not necessarily a state in which he knows all the books of halakhic rulings by heart. At least according to the Maharal, autonomous ruling is the goal of the work of God (this is 'great Talmud that leads to action'), but the posek must be 'bar hik'. As we recall, this also comes at the cost of the possibility of making a mistake in ruling.

5. Methodological note. On the issue of the possibility of autonomous ruling in 'spiqa darbu'ta' itself, there is disagreement among the jurists, and therefore it is itself in the nature of 'spiqa darbu'ta'. Therefore, there is a fundamental problem of how to decide this question itself (the question of whether it is appropriate to rule autonomously or not).

It may seem that the argument could be raised that most jurists, certainly those who have been accepted into the halakha, rule that it is impossible to rule autonomously in a 'spiqa darbu'ta'. However, this argument cannot be decisive, and the reason for this is purely logical: this is the issue at hand. Ruling on this issue, according to jurists, is itself a reliance on precedents and not an autonomous ruling. Someone who advocates an autonomous ruling is not convinced by such an argument, since he does not accept this argument itself (even in this issue itself, he favors autonomous ruling). The question of what to do in a 'spiqa darbu'ta' cannot be decided according to the rules of 'spiqa darbu'ta', since they themselves are at the center of the debate here.

It seems that for this reason we can see poskim, such as the Shaga and the Maharshal, who decided disputes first based on their own understanding and evidence, and did not consider the opinion of their colleagues who believed that this should not be done, even though they were undoubtedly the majority. In our remarks above, in each chapter we have presented the opinion of the Shula and the Rema on the issues discussed, but it is not entirely clear whether the weight to be given to their opinion in this specific matter is decisive, as is the case with the Mushnat.[28]

6. As stated above, the presentation of the matter is purely theoretical, as today there seems to be no room for truly autonomous ruling. The reason for this is that even if we do not accept the formal authority of the poskim to decide on this issue (for logical reasons, and as prescribed), it is clear that the custom of the poskim has at least as much weight as any other custom in Israel. It is clear that we cannot ignore the prevailing customs in the halakhic world, which relies on precedents in a very clear way, and in particular on our rabbis the Rema and the author.

Above we saw that even the Rosh and the Maharshal, who are two main sources that we have cited for autonomy in ruling, accept the prohibition against ruling against an explicit ruling of the Talmud (and even to decide in a tie situation). If so, it seems that the practice of not deciding disputes in the Talmud, and generally also in disputes between our first rabbis and even the most recent poskim, will not be detracted from that practice.

For these reasons, it will be understood that the intention here is solely to emphasize the fundamental value of autonomy in jurisprudence, to call for an increase in the dosage of autonomy in jurisprudence, and to propose a slightly different model for the ideal that we must place before students and yeshiva students.

7. Despite all these reservations, the matters discussed here have many implications, both for the ruling and for the manner and form of study, and there is no room here to elaborate on this.

H. Summary

We have seen the opinions of many early rishonim (Tos', Rosh, R. Yona, Nemo'i, Gaonim, and others) and later ones (Maharshal, Maharal, Shach, Ya'av'etz, Kon's, Ka'sh) who believe that there is a fundamental power in the hands of a poske to decide disputes between his predecessors (Plugta Darvvata), and perhaps even in disputes in the Talmud. According to the Ka'sh's opinion, this also seems to be the opinion of the rishonim who disagree (such as Tervad, who is mentioned by him, and probably also Rashbam in Bab 62 and Tos' Bekorot), and their words only concern the situation in which the dayan is not bar-hi. The opinion of the Rabbi ben Rosh was that it is not possible to rule in any other way (but we have seen that this is the opinion of a single person). Therefore, the ability to decide disputes of Rabvvata does not necessarily entail the ability to disagree with them. Our conclusion is that even if we do not have the ability to disagree with previous poskeim, we still have the ability to decide disputes between them.

On the other hand, there was reason to think that the possibility of autonomy in ruling is only a theoretical assertion, since someone who is the most knowledgeable may be able to rule in a case in accordance with the law, as stated in the Mushnat, but apparently it seems that no one is the most knowledgeable. It should be noted that this is indeed evident from the language of a significant portion of the poskim (for example, in the opinion of the Rishonim who disagree, and in the latter, such as the Tomiim we cited, and many others).

However, as we have seen, it appears from the Rosh and the Ge'onim's response that a 'Bar Hi' is not necessarily a ruling that is on the same level as his predecessors, but rather, as the Ge'onim say: 'as great as time.' It follows that autonomous ruling, at least to a certain extent, is a relevant aspiration for our contemporaries as well.

We also saw, mainly in the words of the Maharal, that autonomy in the ruling of halakhic law is an obligation and not just a right. We explained in the essence of the words that this is the way in which 'the Talmud brings about action.'

The main conclusion is that learners should be presented with increased autonomy in ruling (in the relevant doses), and at its core the aspiration to become 'the most righteous' (at least 'according to time'), as a central goal in learning.

[1] For a detailed discussion of these rules of jurisprudence, see, for example, the booklet 'Teaching Rules in Questionable Laws', Rabbi Elisha Aviner, Ma'aliot Publishing House (affiliated with Yeshivat Birkat Moshe, Ma'aleh Adumim), Jerusalem 1999.

[2] Appears in the booklet mentioned in the previous note.

[3] As is known, these words of the Chief Justice are directed against the precedential approach in the rulings of the Rema and the Ha-B'I, and this is part of the controversy sometimes called the 'codification controversy' (on this matter, see 'Hamishpat Ha-Hevri', Menachem Alon, 3rd edition, Agnes, Jerusalem 1992, volume 2, especially chapters 32-37).

The Maharshal's approach in this matter is very interesting. On the one hand, in his introductions to Yesh, he expresses himself very strongly against ruling based on precedents, and indeed he shows no partiality. He relies on evidence from the Talmud, and in the course of the book he sometimes expresses himself sharply even against the great rishonim. On the other hand, in his rulings in the Responsa Maharshal he seems more moderate, and there he often discusses precedents, that is, the words of the poskim who preceded him, and even establishes halakhah according to their opinions. It should be noted that the Sefer Yesh is clearly a book with a halakhic focus and not just an interpretive one, and therefore it is somewhat difficult to attribute this difference to the distinction between halakhic contexts and interpretive contexts. Perhaps because the Responsa was written as practical instruction for certain cases, the approach there is different, and so on.

For a halachic approach similar to that of the Maharashal, and in some respects even more extreme, see the article by Prof. Meir Benayahu, 'Revolutionary Opinions in the Rules of Halacha in the Glosses of Rabbi Shmuel of Sha'ar Aryeh on Beit Yosef', Jewish Studies Yearbook by Rabbi Nissim, Book Three, Jerusalem 1989. There too, the remarks appear against the backdrop of the polemic against the Bible.

Other famous statements in this spirit, and against a similar background, appear in the "Nativ HaTorah" of the Maharal in Petu (we will discuss them below towards the end of our remarks). His brother, Rabbi Chaim, also expresses a similar view in his book "Vaiqoq Mayim Chaim" which is directed mainly against the book "Torat Chetata" by the Maharal.

[4] Below, Mina the Maharshal discusses situations that the Talmud cites as 'difficult', and Akmal is in favor of this.

[5] And see below what we cite from the Kush 22 letter Shaach, which seems to be contrary to the words of the Tarvad.

[6] And there is indeed room for study for the Shaykhs who disagree with the Maharshal and believe that a halakhic ruling cannot be made even in disputes that remain open in the Talmud, why are there issues that the Shas has settled in the case, while other disputes remain open. If indeed even open disputes cannot be decided after the Shas has been signed, then their situation is exactly the same as in disputes that were settled in the case.

And it seems a bit presumptuous to say that this is merely a record of the conclusion of the discussion as conducted in the Amoraic Beit Midrash, without any relevance, or message, to later rabbis.

[7] Such an interpretation of the rule of 'Shuda Dedayani' is also possible according to Dr. T., since it can be said that this is a situation in which there is no halachic truth at all, and therefore everyone does whatever they want, and every leadership is considered true leadership, that is, a kind of regular halachic ruling.

[8] Again, I found this in the argument of S. Tikva Cohen, who raises this argument, and the late Ibid.:

But here is a case where a person who has been accused of a crime or a crime of treason has been convicted by a judge, even without evidence and without reason, because it is as if the judge has been convicted, and the judge has not served the judge, as if he had been convicted, and as in Proverbs 6:17. Therefore, from the beginning, the judge can rule as he wishes, because he will say, "I have committed a crime." Therefore, the Rosh understands that the judge will not spend sufficient money, and will bring evidence from the chapter of the contract...

It should be noted that the Rosh, who writes not to do so (we will quote these Rosh's words below), intends not to rule arbitrarily, as is the case with one of the opinions. However, the explanation we wrote above, that the dayan can decide the halakha according to his own opinion, does not detract from an arbitrary ruling (as a 'shuda' law), it also remains a conclusion.

[9] See on this matter the words of the UN, 15/1999, which will also be mentioned below.

[10] One might ask why in the Teri and Teri of the Jewish Council they depart, while in the Sfika Darbuta the Jewish Council takes a different approach. Ostensibly, here too we should have required the Jewish Council to depart. And it seems that in the Sfika Darbuta this is not an occasional case but a specific halakhic ruling, and therefore there is no room for a blanket halakhic determination that the Jewish Council must always depart in such a situation. The Teri and Teri of a specific case is a one-time occurrence, and in such a situation there is room for a ruling that the Jewish Council must depart. In any case, on a principled level, both approaches amount to departing from a halakhic ruling, as taught.

[11] I will not go into the basis of the prohibition against arguing about the ancients here, and in fact it is not clear that the basis of this law is a Kabbalah about themselves as I wrote above. See on this matter the words of the Kasam Refa"b Memmarim (who indeed linked this to a Kabbalah about themselves), and against him in Kush Hab"b ('Kontras Divrei Sofrim', 62). And in the words of the Maimonides in his introduction to 'Yad Ha-Ha-Khezka', there is a good reason to be grateful, and I agree with this.

[12] Indeed, he saw what the Qosh brought on this issue from his father-in-law, Rabbi Meir Atlas, and we will quote his words below.

[13] And we have already shown that in the law of 'Shuda', the first to disagree was whether this is a ruling as the judges see it, or whether they should do as their hearts desire. Indeed, there are some commentators (see, for example, Rabbi Yonah, published by the Complete Israeli Talmud Institute, and in note 79 by Rabbi Moshe Hershler there) who admit that they do according to what the judge sees as the halakhic law (or the intention of the parties) and not arbitrarily, and see in the first chapter that we will quote below, and in 'Eyes of the Law' on the website and above on page 35.

[14] And as for the Rishonim (Namoyi, R'n, R' Karshakash) who explained why they resorted to the Da'G and not the Shuda.

It should also be noted that the Rosh's opinion in the 3rd chapter of the book of the Law

[15] And see in the Novyi's responsa from the report of the O'C. 338, at the beginning of the reply what Rabbi Wolf Elsaker criticizes (and see the description of the above there in the Barish reply and in the report of the Rabbi Yod Rasi Tzo). These two replies of the Novyi show his clearly negative attitude towards those who disagree about the Rishonim, but he notes as a matter of course (see at the end of the reply in the report) that their disputes can be decided, and this is not the same as a dispute about them.

And in the Sud, he alludes to a passage from the words of the Ba'am and the Rav in the above-mentioned Genesis ("that one should not dispute a genius except with clear evidence from the Talmud, and this is not possible").

[16] There can be two fundamental reasons for the difference between the status of disputes in the Shas and the disputes that followed: 1. The meaning of the formal act of signing the Talmud also includes the negation of the possibility of ruling on halakhic disputes in it. 2. There is no formal meaning to signing the Talmud, and it is nothing more than a collection of opinions of previous sages. The inability to decide stems from the fact that the Talmud sages were much older than us (even in the Rosh's generation), and therefore deciding a dispute between them is not like deciding between geniuses. The meaning of the matter is that in relation to the Talmud sages, we are not all "sons of the great" (this is not obvious, see below for a brief clarification of the concept of "bar hik" in these words of the Rosh).

Distinguishing between these two possibilities is of great importance in terms of the implications for us. According to the first possibility, this has no implications for us, since the period of the Rishonim was certainly not formally signed, as the Maharshal notes. On the other hand, according to the second possibility, even without a formal signature, there are differences in level that do not allow for a decision. According to this, it is possible that the difference between us and the Rishonim is like the difference between the generation of the Rosh and the Talmud, and therefore we are not the 'best' to disagree about the Rishonim.

Although this entire discussion is conditional on us understanding that Rosh denies a decision in the disputes in the Talmud, and even more so, it seems that there is no way to decide in his intention between the two possibilities raised here.

[17] There are different opinions on why it is truly acceptable for members of a later generation not to disagree with members of earlier generations. Here we have defined it generally as being because they were given permission to do so, and so on.

[18] Perhaps in 27 there is room to understand that there is a lack of choice here, and one should not rule here according to the laws of spikot. Here we are talking (as the question says) about a situation in which each of the judges claims 'Kim Li', and perhaps they believe that he has the possibility of seizing according to the laws of seizing. For this reason, it is possible that the Ge'onim believe that the judge should decide the case in such a situation, and not rule according to the laws of spikot. However, none of this appears in their language, and therefore it seems as we said above.

[19] And perhaps this is how halakhic truth itself is defined.

[20] Additional examples, each requiring its own discussion: Halacha and there is no teacher who does. Relatives are not allowed to testify and to be judged, and more.

[21] See 'Hebrew Law' by Menachem Alon, Volume 2, which is almost entirely devoted to this issue.

[22] And compare this to the words of the Ketzvah in its well-known introduction, which says: "The Holy One, blessed be He, chose us and gave us the Torah according to the judgment of the human mind." Even though it's not the truth"And if so, its sanctification is a complete sanctification, provided that it is true in the judgment of the human mind."

[23] And some will bring up here the well-known incident of the question that the Rabbi asked Rabbi Yitzhak Elchanan, and asked him to answer only 'yes' or 'no', since the Rabbi could have answered any argument that Rabbi Yitzhak Elchanan presented with counterarguments.

Against this background, it should be noted that the Grach was the rabbi of the city of Brisk, and it appears that he received a salary to rule on laws and not to ask Rabbi Yitzhak Elchanan questions about halakhic matters. It is clear and well known that his rulings on laws were tested in the same testing furnace that his interpretations were tested in the Rambam. Therefore, the above example, although it has depth, does not express the full halakhic leadership of the Grach, and certainly not that which is required of us.

[24] In such a situation, there is also a responsibility not to raise arguments that do not stand the test of practical law. Today, there is no obstacle to raising any argument, since practical law rulings are almost entirely independent of the arguments raised in study. Anyone who is prepared to desecrate Shabbat by virtue of an argument he raises as a conclusion in his study should clearly be doubly careful about the arguments he raises.

[25] The Qosh assumes that these rules are sweeping guiding rules. It was true that it was appropriate to say that these rules are a summary of all the concrete halachic rulings, so that in all the disputes between Rabbi Meir and Rabbi Yehuda, the halachic ruling was that of Rabbi Yehuda. And the Akmal on this.

[26] And see also in Kona's rule 6, sek'6, in the name of the Radbaz (44, 167) Dbk'3, even 'Kim Li' cannot be argued against the accepted posak in that place.

[27] And see in the Kush 2b letter Ra'd what he brought from the Rema's response, and what the Kush itself made difficult for him.

[28] The codification polemic that took place in the 16th century, in the context of which these words of the Maharashal and Maharashal were uttered, was conducted against the Rama and the author themselves. As is known, they themselves belonged to the faction of the Poskim that greatly restricts autonomy in ruling, and the words are ancient.