The latest article of R’ Hershel Schachter that appeared in Beis Yitzchak has been posted online by Menachem Butler. Apparently this article is a write up of a speech given in commemoration of the yahrtzeit of the Rav and contains many interesting stories, but also contains 2 chiddusim in lomdus that are of more concern to me.
The Shulchan Aruch paskens (Y.D. 188:2) that a woman who has a mareh (a stain on a bedika cloth) and says a Rav was matir a similar mareh for her, or tells her friend that she does not have to worry about a particular mareh because a Rav was matir a similar case, is not believed. Why is this not a case of eid echad ne'eman b'issurim? R’ Shachter explains in the name of the Rav that the content of the woman's testimony relates to conveying a psak halacha. Issues of psak halacha must be determined solely by experts who are chachamei hamesorah - an eid echad has no ne’emanus when it comes to this domain. This becomes a springboard for R’ Shachter to bemoan the many Rabbis who incorrecly cite psak in the name of the Rav based on their own misunderstanding. R' Shachter claims that the Rav himself enjoined others not to accept halacha cited in his name because an eid echad is precluded from ne'emanus regarding psak. Leaving aside the pragmatic question of who is a member of the chachamei hamesorah, and the criticism of incorrectly cited psak not withstanding, the basic lomdus here seems difficult to understand.
The source for this halacha is a braysa in Niddah 20b. The gemara tells us that a women who shows a mareh to a Rav and says "I saw a similar mareh but lost it" is believed - a Rav can pasken assuming the mareh which was lost indeed matches the one before him based on the woman’s testimony. However, if a women has a mareh that is available and not lost, or says about a mareh of her neighbor’s that "Ploni Chacham paskened a similar mareh is tahor", we do not believe her. Clearly, as the first case indicates, we accept a woman's expertise to compare two maros accurately, so why in this second instance do we not believe her that Ploni Chacham was already matir some similar case? R’ Shachter’s reading is that the second testimony concerns itself with a conclusion of psak and is categorically excluded from the parsha of eid echad. However, the Rishonim explain the case quite differently. The more obvious difference between the cases is that in the second case, the mareh in question is available before us for examination, while in the first case it is not. The Rashba writes that the physical evidence of a questionable mareh casts doubt on the accuracy of the woman’s ne'emanus to say that Ploni Chacham saw an identical case and paskened unequivically tahor. It is the physical evidence of a safek before us which throws into doubt the accuracy of the eid echad's comparison. Rashi is even sharper in his formulation, writing about the second case ‘hacha d’isa Kaman nechzei anan’ – if the mareh is here and not lost, let us examine the physical evidence! There is no need to rely on the weaker evidence of eid echad to resolve the issue. It is not the content of the eidus (psak vs. other areas) which removes the ne’emanus of the witness, but rather we simply hold physical evidence leads to a more accurate conclusion (see the Aruch haShulchan's citation of this halacha).
If we take Rashi’s formulation to its extreme conclusion, every single mareh must be shown to someone for psak because physical evidence precludes ne’emanus. However, the achronim write that this was true only in the days of Chazal where chachamim made fine differentiations between different shades of red. Today, we do not draw such fine distinctions, and a women has a right at least to draw gross comparisons between maros. This caveat fits nicely if one works with the understanding that the physical evidence is the barrier to ne’emanus – where the physical evidence is clearly in accord with the eid, there is no reason to require psak. But according to R’ Shachter’s understanding, why should this be true? No one other than the chachamei hamesorah can ever draw any halachic conclusions, so a posek should have to address everything, even the most obvious maros. Is this not a reduction ad absurdum?
I do not know the answers – maybe one of R’ Shachter’s talmidim can offer some insight.