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To rule according to the rules or explanation

שו”תTo rule according to the rules or explanation
asked 5 years ago

Hello Rabbi.
If I am studying an issue, for example the dispute between Rabbi Akiva and his friends, and the opinion of his friends seems to me to be more of an opinion, and the Gemara did not rule.
Is it obligatory to rule according to the rule “halakha according to Rabbi Akiva and his colleagues” or should one rule according to the most plausible explanation?
 


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0 Answers
מיכי Staff answered 5 years ago
Simply put, the Talmudic rule is legally binding.

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מיכי Staff replied 5 years ago

However, we have often found the first ones who ruled against the Talmudic rules (for example, the Rambam ruled that the Abiyyah is beyond Ya'el Kagam - "You shall not work, you shall not gather together, and so on").

משה כהן replied 5 years ago

What is the Rambam's Pasha really?

‫P replied 5 years ago

Certainly not a sweeping attitude towards the rules, as the Gemara itself does.

מיכי Staff replied 5 years ago

I suppose. There are other examples and not just the Rambam. In my opinion, when they were convinced of one side's argument or when they found a contradictory issue, they made up their minds to rule as the other side.

מיכי Staff replied 5 years ago

I once wrote that all the rules of jurisprudence are instructions on what to do when we have no decision of our own. But when we have our own position, there is no need to resort to rules. See, for example, my article on autonomy in relation to the rule of following the majority or doubting the merits.

בנימין גורלין replied 5 years ago

Rabbi Michi, how can one establish a halachic position that is not in accordance with the rules?

מיכי Staff replied 5 years ago

With common sense. How were the rules themselves created? Reason usually stands on its own and is not based on a rule. And the late Wittgenstein already stated that the illusion of acting according to rules is a facade, and in fact intuitions sit behind it (in his discussion of following a rule).

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