from Daas Torah - translation copyrigthed
Chazon Ish (Beginning of Kelayim): It is well known that the requirement to follow the majority applies only to a beis din which is in session, but regarding scholars holding different views who lived at different times or in different places, the question of majority or minority is not relevant. In a particular area where most of the Torah derives from a particular rabbi and his disciples, and the disciples' disciples, it is correct to follow their rabbi even in a matter in which the majority (of authorities) holds a different opinion. In recent generations most of our Torah has come to us through the specific sefarim in our own teachers like Rif, Rosh, Rambam, Ramban, Rashba, Ritva, Ran, Maggid Mishne, Mordechai, and the commentaries of Rashi and Tosfos, and whenever there is a difference of opinion (and as mentioned above, majority ruling does not enter) it is in the hands of every individual Torah scholar to decide whether to take a strict view or to select particular authorities to follow; likewise, in the case where no decision has been taken and the question is still open (sofek). In addition to the fact that majority rule does not apply in the above situations, we do not even know what the majority view is, since many scholars did not put their views in writing, and many written views did not reach us. (Therefore Jewish law does not change when new manuscripts are printed which convert a minority into a majority. Despite this, the courage and insight needed to decide on a logical basis are sometimes lacking, and decisions are taken on the basis of numerical majority; but it would be better to rely on those authorities whose views have reached us in all branches of Torah. Even though we do not presume to decide between different Rishonim by conclusive logical arguments, nevertheless, the study of their arguments is a major factor in reaching a decision, and many times our master z"l (Rabbi Yosef Karo) decides in favor of one authority because his argument is convincing and removes difficulties. Our Rabbis have taught us not to abandon the use of our own intellect, and we must place great weight on intellectual comparison which is the connecting link between Creator and created.
Chazon Ish (Beginning of Kelayim): It is well known that the requirement to follow the majority applies only to a beis din which is in session, but regarding scholars holding different views who lived at different times or in different places, the question of majority or minority is not relevant. In a particular area where most of the Torah derives from a particular rabbi and his disciples, and the disciples' disciples, it is correct to follow their rabbi even in a matter in which the majority (of authorities) holds a different opinion. In recent generations most of our Torah has come to us through the specific sefarim in our own teachers like Rif, Rosh, Rambam, Ramban, Rashba, Ritva, Ran, Maggid Mishne, Mordechai, and the commentaries of Rashi and Tosfos, and whenever there is a difference of opinion (and as mentioned above, majority ruling does not enter) it is in the hands of every individual Torah scholar to decide whether to take a strict view or to select particular authorities to follow; likewise, in the case where no decision has been taken and the question is still open (sofek). In addition to the fact that majority rule does not apply in the above situations, we do not even know what the majority view is, since many scholars did not put their views in writing, and many written views did not reach us. (Therefore Jewish law does not change when new manuscripts are printed which convert a minority into a majority. Despite this, the courage and insight needed to decide on a logical basis are sometimes lacking, and decisions are taken on the basis of numerical majority; but it would be better to rely on those authorities whose views have reached us in all branches of Torah. Even though we do not presume to decide between different Rishonim by conclusive logical arguments, nevertheless, the study of their arguments is a major factor in reaching a decision, and many times our master z"l (Rabbi Yosef Karo) decides in favor of one authority because his argument is convincing and removes difficulties. Our Rabbis have taught us not to abandon the use of our own intellect, and we must place great weight on intellectual comparison which is the connecting link between Creator and created.
I love this. Interestingly, it could be interpreted to allow the practice (already common among the Modern Orthodox?) to scour history for the most lenient ruling on an issue and hold by that. Kol isha is an issue that comes to mind. Is this kind of halachic shopping valid? I would think it is, as long as the reasoning is convincing as the result is attractive.
ReplyDeleteCan I have your permission to use your translation of this chazon Ish if I would like to?
ReplyDeleteIn his notorious and brilliant teshuva on the Brother and sister case, Rav Goren brings a similar line of argument - he argues that (eg based on the Rambam), a Judge has every right to judge according to hwo he sees what is in front of him - and that the idea of a BD needing to be greater in number and wisdom only applies to overturning gezeirot, not decisions by a BD.
ReplyDeleteThe same people who hold by the CI, also turned around and called R Goren's psak "lies, games " etc.
However, it is essentially the same legal argument.
"Our Rabbis have taught us not to abandon the use of our own
ReplyDeleteintellect, and we must place great weight on intellectual
comparison which is the connecting link between Creator and
created."
This is also said by the 2 great rationalists - the RambaM and the RackmaN
Wow putting Raclman to par with Rambam?!
ReplyDeleteno, if they said the same or similar things, doesn't mean they
ReplyDeleteare at the same level.
I figured out the system for paskening a long time ago.
ReplyDelete1) Decide on what answer you want
2) List the authorities who agree with you
3) Dismiss the authorities who don't as irrelevant or unimportant.
4) If more authorities support you, say you're following the majority.
5) If more authorities oppose you, say you're strict like the minority.
It's the old "When my guy does it, great! When your guy does it, no!" argument.
ReplyDeleteThe difference between MO and UO paskening is just that - the UO scan for the most stringent position and announce it's the only legitimate one, the MO scan for the most lenient position and announce that it's just as legitimate. Bottom line - both sides decide on the answer and then go looking for relevant support.
ReplyDeleteOr UO say times have changed We need to be extra strict; Wheareas modern Orthodox say times have changed, we need to be extra lenient.
ReplyDeleteOr if a minority opinion supports your position then he is suddenly the most important and reliable authority.
ReplyDeleteExactly. And the Open Orthodox and Conservatives do the same thing and add in
ReplyDelete6) If you can't find any support for your position, hold a vote and announce you've changed the law based on that.