Tuesday, July 18, 2006

psak and sha'as hadechak: R' Shachter's article (II)

The second chiddush in lomdus R' Shachter quotes is cute. Why is it that in halacha (especially in Yoreh De'ah) we often have a base psak but then have kulos that allow for leniency b'sha'as ha'dechak? If the psak is 'assur', why should pressing need make any difference? R' Moshe Soloveitchik is quoted as saying that in terms of dinei yoreh de'ah, m'ikkar hadin the halacha is in accordance with the lenient opinion. However, we defer to the views of the stricter opinion because of the halacha demanding that we show kavod harav. One is not required to incur grave losses or be placed in an tenuous situation simply because of someone else's kavod, so in those cases we revert back to the base yoreh de'ah law and its leniency.
It strikes me that this approach suffers from the same weakness that the Ramban notes in the Rambam's reduction of all dinei derabbanan to the d'oraysa law of lo tasur - by doing so one has effectively obliterated the source to distinguish between different levels of chiyuvim. Every derabbanan issue should be paskened l’chumra because it relates to a d’oraysa issue. Here too, once we introduce the issue of kavod harav as a factor in practical psak, every issue should be paskened l’chumra because of kavod harav. How can one justify the right to pasken l'kula when faced with a safeik in a din derabbanan - the factor of kavod harav should always demand adherence to the stricter opinion? Why in fact should rov be a tool of hachra'ah - kavod harav should demand we respect the minority opinion even in place of the majority (assuming the views are not in direct conflict)?
R' Shachter himself suggests what I think is the more obvious approach here. Psak is not a definitive yes/no that determines right opinions from wrong - we consider all opinions theoretically valid, but must make some choice as to how practically to act. Where possible, we try to conduct ourselves so we satisfy most views, but where necessity interferes, we have a right to call on the validity of more lenient views to base our conduct upon. The GR"A's hachra'ah does relfect an absolute determination of certain opinions as right and others as wrong, but it seems quite a stretch to superimpose this approach on the Shulchan Aruch - one wonders why R' Moshe Soloveitchik did not opt for the more straightforward answer here.

16 comments:

  1. yehuda2:50 PM

    RMS is not the first place I have seen that one can only rely on shas hadchack where m'ikur h'din it is mutter.I understand him as saying that in a case where the kloley horah would allow a certain action BUT due to kvod harav we were not noheg to or mekabel issur THEN we can act differently in shas hadchack(i.e. there was no kabbolah/neder to be machmir in shas hadchack if we were machmir due to kvod harav);Hoarah on the gem brechos of "kdai RSBY lismoch oluv b'shas hadchack"(a zaemanim shaalo)Rasai,the rif and rosh all say that he isn't yotzey if it isnt't shas hadchak whice implies that even m'ikur hadin we don't hold like RSBY other then shas hadchak.

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  2. >>>RMS is not the first place I have seen that one can only rely on shas hadchack where m'ikur h'din it is mutter

    That point is not a chiddush. The chiddush is that the chumra is m'din kavod harav and not simply because we are choshesh m'dinei issur v'heter for the more machmir shita when we can.

    >>>I understand him as saying that in a case where the kloley horah would allow a certain action BUT due to kvod harav we were not noheg to or mekabel issur THEN we can act differently in shas hadchack

    I don't see how your understanding is different than mine, except that you seem to be trying to limit this to cases where it is explicit that the chumra is based on kavod harav. I don't see how you can claim that about most cases in Y.D.

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  3. yehuda3:17 PM

    Yes I am trying to limit this but not to places where it is explicit in the chumra that it is due to kovod h'rav but rather to places where based on the klloley horah we understand that the chumrah must have been due to kovod harav.Hoewever if we were to feel that klloley harah would require us to act a certain way(e.g. the morah d'asrah paskened that m'ikur hadin one must be macmir) even shas hadchak wouldn't allow us to deviate.

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  4. >>>but rather to places where based on the klloley horah we understand that the chumrah must have been due to kovod harav

    Can you give me/us an example?

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  5. yehuda6:58 PM

    Niddah 7a The gem says we paskened like RY in his dor lkvodo but afterwards reverted to what we feel is the halacha.I realize that sugya is not talking about shas hadchack just I'm pointing out that the gem felt we can deduce thatwe were noheg like RY lkvodo and not eternly bound by his shitto m'ikar hadin.Actually I agree with you more then my post implies because lmaase(1)the shach YD 242 says that although we don't always pasken like the rov l'maashe rov is doraaso and we can't be somech on a daas yochid by a diraaso even b'shas hadchack(2)niether the shach ibid or the SO CM 25 in discussing klloley horah make any referance to kovod hrav IIRC.Furthermore I retract my question from brechos 9a above as the loshon of the RIF "l'chatcila lo" or RASHI "shlo bshas hadchak lo"is equivocle enough to say that m'ikkur hadin we hold like RSBY.

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  6. bill selliger8:49 PM

    The Rosh in Sukka 3:14 discusses the issue of heter b'shaas hadchak as opposed to other times very clearly. K'dai to see.

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  7. Anonymous9:58 PM

    Yehuda-you must mean niddah 7b and RE who argues on RY.

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  8. Yehudah, another example of that type approach is the gemaras that tell us in the place where the da'as yachid was moreh d'asra you follow his psak even though otherwise one would not, e.g. Shabbos 130, and many other places. But I have a hard time thinking these considerations apply to a machlokes mechaber/rama.

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  9. Tal Benschar9:36 AM

    Both the article and the original shiur (which I heard online!) mentioned that the Rema himself in the introduction to Toras Chattas says something along the lines of what RMS said. Anyone have access to that sefer and can see what exactly the Rema says?

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  10. Anonymous4:07 PM

    Please excuse my ignorance.

    If you take a look at the S"A Orach Chayim, Siman 58, Seif 4, the Mechaber paskens that if an individual who is not an "anoos" went ahead and leined krias shema after alos and before neitz, that person is yoitzeh bediavad.

    The MB in seif katan 19 states that if the person who is in a situation of "sha'as hadchak" needs to lein k"s, even on a consistent basis, then it is permitted for him to act accordingly, because what else can he (i.e. no alternative). However, a person who relies of this leniency and is not in a position of "sha'as hadchak" than he may be yoitzeh bdiavad on occasion but if he relies on it consistently, than he is no even yoitzeh bdiavad.

    It appears from this MB that given the choice of whether one will be able to perform the mitvoh of k"s or not, than in such a situation one is allowed to lein earlier to allow one to do so. It seems that l'chatchiloh and bediavad disappear for an "anoos" and since there is only one possibility or option available to him, than he has no choice but to be lenient and perform the mitzvoh in this manner.

    Applying this to Rav Schacter's kashye, shaas hadchak makes the m'
    ikar hadin "disappears" as it were, thereby leaving the only option available - the kuloh.

    What do you think?

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  11. Anonymous - is this a question? Sorry, i simply am not following what you are trying to prove.

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  12. L.J. Horowitz (or Anonymous, if you wish)11:05 AM

    Sorry, I should have been clearer. I was not asking a question - I was trying to answer the question R' Schacter posed. From this particular halachoh in Orach Chaim (which might not be applicable to a Yoreh Deah situation)I derive that in a shaas hadchak situation, there is no mikar hadin. For a person in a non-emergency situation, there exists an ikar din, and that ikar din may be that something is "assur". However, in extenuating circumstances, the ikar din is irrelevant, it "disappears" as it were, since the concept of ikar din is only applicable to a individual in a normal, regular set of circumstances

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  13. But the question remains: how does it disappear? To give an extreme example - you can't eat chazir. No one would say (barring pikuach nefesh) that b'sha'as hadechak it becomes mutar. By comparison - if you are not allowed m'ikar hadin to lein KS before haneitz, then how could it be permitted for sha'as hadechak? Al korchecha you have to say m'ikar hadin it is permitted, but in deference to kavod harav (RHS) or in deference to the majority of opinions of what zman KS is we postpone leining it until later.

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