Pesak Halacha Is Reduced to ARITHMETIC…

It’s time to add two more halachic fallacies to our ongoing list. Remember, ideally, these types of arguments should not be made when trying to arrive at the true halacha.

1. Lagur Mip’nei Ish (Fearing a Man): Moses himself instructed the judges he appointed to “fear no man” (Deuteronomy 1:17), and this rule is based on the language of the verse. The basic meaning is that the judges should not fear potentially dangerous and vengeful individuals they may have to put on trial. But, on another level, the sages point out that (Sanhedrin 6-8) when rabbinical judges and decisors are called upon to render their opinions, they must be willing, when necessary, to disagree with precedent exposited by someone else, no matter his stature. That is, they should not fear any of their predecessors. For example, there are many around me today who will not entertain any opinion that goes against one of the explicit opinions of Rabbi Ovadia Yosef. Now, if they wish to follow the rabbi’s decisions all the time, I can not fault them, but ideally they should at least consider disagreeing with Rabbi Yosef, much like they would consider any side of a dispute, despite those throughout the ages who held otherwise. Another example was the case of Rabbi Eisenstein, who believed that Rav Elyashiv could not be disagreed with. Of course, he does not have a problem with disagreeing with the opinions of, for example, the Shulhan Aruch and other great decisors on occasion. It is only with regard to Rav Elyashiv that he applies the fallacy.

2. In Bava Bathra 36b we find what I will dub the Plurality-Precedent Fallacy:

R’ Bibi inquired of R’ Nahman: What is the reason of those [authorities] who hold that ploughing a field [year after year] confers a presumption of ownership? — [He answered:] A man will not watch someone else plough his field without objecting. [He asked further:] And what is the reason of those who hold that ploughing a field [year after year] does not confer a presumption of ownership? — Because the owner says to himself, ‘The more he ploughs, the better it is for me.’ The inhabitants of Pum Nahara sent the following inquiry to R’ Nahman son of R’ Hisda: Will our master please instruct us whether ploughing a field [year after year] confers a presumption of ownership? He replied: R’ Aha and all G’dolei Hador, the great minds of our generation, hold that ploughing a field [year after year] does not confer a presumption of ownership. R’ Nahman son of R’ Isaac said: Is it greatness to count men? For Rav and Samuel in Babylonia and Rabbi Ishmael and Rabbi Akiba in the land of Israel hold that ploughing does confer a presumption of ownership.

Note that there are three Amora’im by the name of Nahman in this passage. R’ Nahman son of R’ Hisda followed a known ruling by many great Rabbis, and the latter R’ Nahman challenged him, pointing out that although his opinion was well-precedented, it did not take into account that the other side of the argument also had its supporters. When a true decisor is asked a question of halacha, he is not merely supposed to start counting how many authorities would side with his ruling; he must consider all of the sides, and actually draw his own objective conclusion. And yes, it would be good if his conclusion has been reached by others in the past, but that can not be the only factor. Sometimes, I get mentally frustrated reading responsa that reach their conclusions by using R’ Nahman son of R’ Hisda’s methodology without trying to show which opinion best fits with the Talmudic sources.