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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.


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