Update on Se'ir Izim, the Bach, and the Shach.

In the last post, I talked about how paskening does not mean that the losing side is wrong. In the real world, one must choose one side over the other despite the fact that both sides have some elements of truth, and neither side has all the truth. Emes and Emes Le’amito and the Emes of Shalom and the Emes of practicality are all different departments. I quoted a Shach and a Bach on this question. I apologize for quoting them after a merely cursory reading, something appropriate for a baal habayis that takes learning Torah no more seriously than reading a book.

Here is an outline of the Shach more carefully presented.

The Shach has a pilpul on the subject of Hanhagas Hora’as Issur Ve’Hetter, printed in Yoreh Dei’ah after Siman 242. Here is an outline of what he says.

I. The Mechaber in CM 25. The Mechaber states some rules that apply to a posek that is paskening on the basis of precedent and earlier poskim, (i.e., not deciding on the basis of his own analysis and interpretation). This is based on a Teshuvas Harashba.

a. Equal numbers of poskim on each side, then in De’oraysa, lechumra, and in Derabanan, lekula.

i. Lekula in dinim derabanan only where the two sides are equal in gadlus. But if one side is a lesser talmid chacham, then even in Derabanan you are machmir like the opinion of the greater talmid chacham.

ii. Similarly, if one side is greater “beminyan,” that he had a greater number of talmidim who were gedolim that held like him, then he has greater authority and his shittah is followed, even lechumra in a derabanan.

II. HOWEVER, the Mechaber says, THESE RULES DO NOT APPLY WHEN IT IS A SHAAS HADCHAK PLUS A HEFSED MERUBAH. In that case, you can pasken lekula even against these general protocols.

III. The Shach brings that the Bach argues on the mechaber’s statement that you need SHAAS HADCHAK PLUS HEFSED MERUBAH to follow the katan be’chachma ubeminyan. The Bach seems to hold that either one alone will suffice.

The Shach disagrees with the Bach, and says that you need a combination of Dchak and Hefsed Merubah in order to disregard the protocols of psak.


IV. The Bach holds that the Rashba only allowed this special hetter (being meikil where it is a shaas hadchak or hefsed meruba) where it will mean that you are paskening like a yachid against a rabbim, but it does not allow you to pasken like a Kattan against Gadol.

a. The Shach argues, and says that if Dchak/Hedsed allows following yachid against rabbim, where going after the rabbim is a fundamental deoraysa rule, then kal vachomer it should allow following katan against gadol. (Boy, can you argue on this pratt… Obviously, the Shach is not talking about differences like


against


But even so, if you're not being machri'ah on your own proofs, why wouldn't you go with the greater talmid chacham or posek? We would all be doing like Shammai because they were more sharp and bigger lomdim, if not for the fact that Hillel was more numerous and there was a bas kol.)
Then he lists many cases where we pasken like the lesser talmid chacham, like Reish Lakish against Rav Yochanan, and Rav Yochanan against Rav.

V. The Bach holds that the Rashba’s hetter applies not only for dinim derabanan, but also for DINIM DEORAYSA. The Shach argues. He says, you follow Rov even in Dinei Nefashos. That, he says, seems like a hefsed merubah, no?

VI. The Shach asks on himself the following question: if, as I say, by an issur deoraysa, you can never ever ever follow a daas yachid, why does the Mechaber often bring daas yachid in deoraysa issues? Why bother bringing the shittah at all, if you can never rely on it?

VII. To answer this question, the Shach brings the Mishna in the beginning of Edyos that says that Rebbi put daas yachid into many mishnayos for one of two reasons.

a. So that if someone comes and says “I have a kabala that the halacha is different,” we will tell him that his kabala comes from so and so, the yachid.

b. In order that “Im yir’eh beis din divrei hayachid ve’yismoch alav.” If a beis din finds the daas yachid convincing, they will follow his shittah.

VIII. This, the Shach says, is true here as well: the reason the Mechaber brings minority opinions in deoraysa issues is not so you can rely on them beshaas hadchak, as the Bach says. Instead, it is because if some later poseik brings rayos and svoros and holds like the yachid, he can do so: it’s legitimate, it’s not as if he’s overturning a halacha lemoshe misinai. Or, if there is a country that does like the yachid, they may continue doing so, because it is a legitimate alternative shittah, although it is not normative for people who have no minhag at all.


So: the interesting points here:

1. The Shach and the Bach argue about whether paskening like a kattan against a gadol is a bigger or a smaller chidush than paskening like a yachid against a rabbim.

2. The Shach, saying that if you can pasken against a rabbim, then you certainly can pasken like a kattan, because rabbim is deoraysa, and kattan/gadol is not, is highly arguable. Although the Shach throws acharei rabbim lehatos against the Bach, I think that’s irrelevant. That applies to a Sanhedrin, which is a unit, or chad bitrei by yavesh. It doesn’t apply to disparate shittos.

3. The Bach holds you can be meikil like a yachid against a rabbim where there is hefsed meruba or tzaar gadol, EVEN IN A DIN DEORAYSA. The Shach disagrees.

4. The Bach has two elements of kulah, and the Shach one.
a. Bach: applies the Rashba for either hefsed OR dchak, while the Shach requires both in combination.

b. Bach: applies the Rashba to Deoraysas.

c. Shach: applies the Rashba to allow paskening like a yachid against a rabbim AND a kattan against a gadol, while the Bach only allows paskening like the yachid, but never like the kattan.

But I will say that I'm beginning to understand what my father HK'M told me in the name of Reb Chaim Ozer. RCO was famous for his hetterim for agunos; he was mattir where others could not see any possible resolution. Someone asked him, how can he be meikil to that extent? How does he have the courage, or the right, to be mechadeish such heteirim? He answered that in all his years in rabbanus, he has not yet had one person come to him looking for an issur agunah. He would be thrilled if they would! It would be so much easier! But the fact is, that people come to him for Hetter Agunos, and his job is to do the best he can to be mattir.

UPDATE:
I was thinking that this is not so different than the din of ne'emanus of eidim; sometimes you need two, sometimes one. Apparently, the standard of proof varies according to the seriousness of the subject. This is also demonstrated in the case of capital punishment, where there is a unique halacha of ve'hitzilu ha'eidah, which generates far more demanding procedural and substantive standards. If so, perhaps this is just another application of that idea. In other words, going back to the Se'ir Izim, let's assume that both sides are, to some extent, true and correct. The level of truth, or correctness, that is required, varies. In difficult circumstances, we can be someich on a lower level of truth, because true it is anyway. In some cases, we require a higher level of truth, and in others, a lower level of truth suffices. Ke'dai hu Reb Eliezer lismoch olov be'sha'as ha'dchak.

UPDATE II:
This also explains why many lomdim don't like to pasken, or psak in general. If you're going to be machri'a, that's fine. But it's hard to be machri'a against the stated opinions of a range of rishonim and gedolei achronim. So what's left? Paskening on the basis of deciding which of the earlier poskim you agree with, or deciding which earlier psak is most relevant to the situation at hand. Who needs that? A lamden sees the lomdus in both sides, and to come down on one side or the other is an affront to the depth and beauty and truth of of one side. Rab Chaim had his Reb Simcha Zelig, Rav Rudderman had Reb Moshe, and so on.

Pinchas, Bamidbar 28:15. Se’ir izim echad le’chatas lashem. Flexibility in Psak and Eilu Ve'eilu

Rashi from Chulin 60– Hashem asks that we bring a korbon to be mechaper for Him for His having diminished the Moon during the Ma’aseh Breishis.

Reb Moshe in Kol Rom III and other places: this is a mussar haskeil that when deciding between two sides, a decision for one does not necessarily mean that the other is without merit and truth. There are times when a decision has to be made, and the decision accepts the primacy of one side over the other, but this does not invalidate the truth of the other. Dayanim have to remember this when presiding over a case involving a dispute either in civil law or halachah.

In the Teshuvos, EH IV 34, Reb Moshe he talks about hysterectomies. Of course, male castration is an issur de’oraysa, under the rule of Be’artzechem Lo Sa’asu. The question is what the halacha is in the case of hysterectomy. The Gaon, based on his understanding of a Sifri, holds that this, too, is an issur lahv de’orayso. The Gaon is a daas yochid. But in other teshuvos, he Reb Moshe writes that he paskens like the Gaon, and assers hysterectomies. But then in this teshuva, Reb Moshe brings that the Shach in YD 242, in Hanhagos Horo’oh, brings a Bach that even in an issur de’orayso, you can be someich on a daas yochid against a rabbim in cases of tzaar godol or hefsed meruboh. The Shach disagrees with the Bach, and holds that’s only true in cases of an issur de’rabbonon. However, the Taz holds like the Bach even in issurim de’orayso. Therefore, Reb Moshe is mattir hysterectomies in cases of Tza’ar Gadol where there is no alternative. (Obviously, one would need shimush talmidei chachamim to know what constitutes tza’ar gadol.)

I find this to be amazing. What does psak halochoh mean? Everyone that has given shiurim to not yeshivishe baalei batim knows that as soon as you tell them that there is a machlokes about something, you have someone saying "He holds like this, and he holds like that, you can do 'vat ever you want.' This, of course, is wrong. There is such a thing as a psak halacha: the poseik decides what the halacha is, and the majority of poskim decide what the halacha is, and precedent decides what the halacha is. But if you can be mattir when there is hefsed meruboh, what does it mean when you pasken issur under normal circumstances? How does tza’ar or hefsed affect the decision? If you’re paskening it’s assur, then it’s assur, isn’t it? Apparently not, according to the Bach and Taz. If there’s a daas yochid to be meikil, the fact that you generally pasken like the rabbim, or you generally pasken le’chumroh by de'oraysas, is a din in how to pasken when you have two shittos that are both emes on some level. But where there’s a hefsed meruboh or tzaar godol, then you can be someich on the daas yochid, because that is also true. Here's an example. The shittah of the Tosfos Rid in Kiddushin 14, and brought in the Avnei Milu'im, is that if a woman tells her husband "Put my Get over there on the fire hydrant that's twenty feet away from me," and he puts it there, she is divorced. Nobody except the Tosfos Rid holds like that. So, what if some guy says, I know nobody paskens like the Tosfos Rid; but I don’t care, I’m going to be meikil like the Tosfos Rid and be mattir a woman on the basis of tein get ahl gabei sela. Is she divorced or not? Would her next husband be oveir on an issur de’orayso? The children would be mamzeirim, of course, because that is a decision that we make, not him. But as for the issur questio, maybe he would not be oveir an issur de'oraysa. It seems that he was just oveir on the procedural rules of psak halacha. Or, it could be that there comes a point when a da'as yachid is totally delegitimized, like "Beis Shamai be'makom Beis Hillel eino mishnah."

Maybe the pshat is that the din of psak is to preserve the Torah. In other words, psak is not necessarily a guarantee of truth: when you seek a psak, or you study a question and pasken, your true obligation, your true quest, is to sincerely seek the answer to your question in the Torah, to develop a coherent approach that is based on a valid understanding of the Torah. What you come out with doesn’t really matter. The main thing is to seek to live your life ahl pi dinei Torah.

In fact, in the case of par he’elam dovor shel tzibbur, the Gemara in Horyos says that Beis Din brings the korban only when the psak was shown to be false, not where the balance of votes moved from heter to issur on a question of logic or precedent. If, however, there are individual dayanim on the court who maintain the previous psak, it would seem that, again, it is a procedural determination, not a finding of truth.