Skip to main content

Thought for the Day: Determining P'sak Halacha from Gemara

Repeat after me: The gemara is not a shulchan aruch, the gemara is not a shulchan aruch, the gemara is not a shulchan aruch, the ... On the other hand, all halacha is ultimately decided by and must trace its roots to those very discussions transmitted to us by our sages through the millennia.  So how does one go from תנו רבנן to פסק הלכה?

Obviously, it ain't that easy, but there are rules that give guidelines.  I know a few, and I just saw a new really cool one in a תוספות (Brachos 34a, d'h the middle ones have no order).  Just so we are clear, I am quite aware that anyone who uses the word "cool" is not.  Moreover, anyone who uses the word cool to refer to a תוספות never was.  I'm such a rebel.

One guideline is that we generally rule like a סתם mishna; that is, an unattributed mishna.  An unattributed mishna basically represents a consensus.  Generally also a mishna beats a bareisa.  (The b'reisos are not less authoritative, but were less known.)  The opinion of a group ("the Rabbis said") will take precedence over an individual.  In a disagreement between sages, there is often a hierarchy.  Of course, the fact that we pasken like Hillel over Shamai is well known.  Less well known is that we in a machlokes between Rebbie and pretty much anyone else, we will tend to pasken like Rebbie; but not, of course, between Rebbie and the Rabbis (see previous rule).  It can be more specific also.  In a machlokes between Rav and Shmuel, we pasken like Rav if it is a matter of ritual law (kosher, tahara and tuma), but like Shmuel in monetary matters.  When Rava and Abaye argue, we go like Rava except in six instances.  And so forth.

What did תוספות say that got me so excited?  It is a machlokes R' Huna and R' Assi.  תוספות says we pasken like R' Assi for the following reasons:

  1. R' Huna is like talmid of R' Assi.  That is, we find many places where R' Huna quotes R' Assi when quoting a halacha.
  2. This particular R' Huna is a דוחק.  Not that we think his reasoning in difficult; after all, he is an Amora and even תוספות wouldn't make that call.  Rather, the gemara presents a possible refutation and R' Huna has to defend himself.  He does, but that fact that it was even an issue makes his answer a דוחק.
  3. As the discussion unfolds, another amora, R' Sheishes, gets involved by arguing with R' Huna and implicitly agreeing with R' Assi.  As usual, two against one wins.
  4. Finally, R' Assi's opinion in this case is a leniency relative to R' Huna's; since this a dispute about a rabbinic matter, we go with the leniency.
I find the rules cool and all that, but at the end of the day, I am calling my rabbi for a p'sak halacha.  After all, its my immortal soul at stake and I am nervous about even balancing my checkbook correctly.


Popular posts from this blog

Thought for the Day: Battling the Evil Inclination on all Fronts

Yom Kippur.  When I was growing up, there were three annual events that marked the Jewish calendar: eating matzos on Passover, lighting candles on Chanuka, and  fasting on Yom Kippur.  Major news organizations around the world report on the "surreal" and "eerie" quiet of the streets in even the most secular neighborhoods of Israel.  Yom Kippur.

As you know, I am observant of Jewish law.  Some have even called me "ultra orthodox" (not in a kind way).  Given that, I have a question.  How likely do you think that I would be tempted to eat on Yom Kippur, that most holy day of the year?  Let's make the scale zero to ten, where zero is "as likely as driving through McDonald's on Shabbos and ordering a Big Mac with extra cheese." and ten is "as likely as breathing regularly".  Take your time.  If you answered "zero"; thank you, but -- sadly and penitently -- no.  The answer is more like nine; I'd like to say lower, but i…

Thought for the Day: Sometimes a Food Loses Its Identity When It Loses Its Bracha; Sometimes It Doesn't

Let's start with a question: Why are We Allowed to Drink Coffee and Whiskey Made by Non-Jews?  Before you ask,"Why would I think that I shouldn't be able to drink whiskey and coffee made by non-Jews?", I'll tell you. Simple, we all know that Chazal made a decree -- known as בישול עכו''ם/bishul akim -- that particular foods cooked by non-Jews are forbidden.  There are basically two criteria that determines if a dish falls into this category:
Is not consumed raw.Fit for a royal banquet. Cooked carrots, therefore, are not a problem since they can be eaten raw (I actually prefer them that way).  Baked beans are find because the are not prestigious enough.  (For great synopsis of the laws, see the article on the Star-K site, FOOD FIT FOR A KING, by Rabbi Moshe Heinemann, shlita.)  There are lots of cool questions and details (baked potatoes are prestigious, does that make even potato chips and issue?) which are for another time.  Clearly, though, both coffee an…

Thought for the Day: Coming Into This World for Torah, Avodah, and Acts of Loving Kindness

This TftD is so self-serving that I should be embarrassed.  But I am not... talking about grandchildren is always off budget.  I have, bli ayin hara, a beautiful new grandson; born at 6:11 PM CDT last Friday night.  The secular (aka -- by me, anyway -- slave) date is October 20, 2017 CE.  The Hebrew (aka Real) date is certainly Rosh Chodesh חשון/Cheshvan and certainly in the year 5778 since Creation.  The date, you ask... good question!

Sundown on Friday night was 6:01 PM CDT, which means he was born either at the end of the last day of תשרי or the beginning of the first day of Cheshvan; a period know as בין השמשות/twilight.  What's the big deal, you ask... I am so glad you asked.  We all deal quite handily with בין השמשות every week and every holiday; we're just stringent.  We start Shabbos and the first day of Yom Tov before בין השמשות; that is, before sundown.  Likewise, we end Shabbos and the first day of Yom Tov after בין השמשות; some 42, 50, 60, or 72 minutes after sundo…