Thank you for those very interesting posts.

Now let me ask you some questions:

1. For the most part do we rely on the Shulchan Aruch (and Rama) for the Halacha?

2. Would you be able to decide for yourself not to go according to a Halacha laid down by the Shulchan Aruch?

3. If not, then who would be able to decide the Halacha?

Now some comments:

1. Anyone studying Halacha in depth so as to be able to render a ruling would not stop at the Shulchan Aruch. At the very least he would study the Tur with Beis Yosef and the later commentaries on the Shulchan Aruch (Shach, Taz, Magein Avraham, Mishna Berura, etc.). He would also probably want to go right back to the Talmud and then the rulings of the Rishonim (and not just those that the Beis Yosef relied upon for his rulings). In short, such a person would have to be a Gadol BaTorah, which is what I think Rabbi Mitterhoff was hinting at.

2. Interestingly, if you look at the Responsa of Rav Ovadia Yosef he many times calls the Shulchan Aruch the "Moreh D'Assra" , the Rabbinic authority, of Eretz Yisroel and so hesitates to rule against him. The implication is that even Ashkenazim in Israel should go according to the Shulchan Aruch.

3. I believe that the Rama intended to write his own "Shulchan Aruch" for Ashkenazim but when the actual Shulchan Aruch was published he decided to afford its universal acceptance by writing his "Mapa" on it.

4. The bottom line is that we must rely on the Rabbinic authorities in our own generation for rulings.

Rob, your right one shouldn't make discussion of law base soley off the shulchan Aruch. at the same time no one really does or every have done. it was only a fear that laymen or lazy rav whould only come to know it's laws but wouldn't know how to apply it.

in fact in our day we have sefarim which traces the sources of their laws back to the gemora in which case we can just look them up so such reasoning as we might not be able to find the rational makes little sense.

most of the custom of the sephardim are and askhaism are still the same from what little i know of. as much from the land B"H artscroll complete the first tracet of Yashalim Talmud. as well the Mishnah Torah deals with such laws (and some of the mishnah torahs in circulation gives the source to the ramabam ruling)

and if you want a one volume set of law and rational you can get the Shulchan Aruch HaRav. written by R' Zalmud of Laddi,

Yisroel Phillips writes:

"Thank you for those very interesting posts. Now let me ask you some questions: 1. For the most part do we rely on the Shulchan Aruch (and Rama) for the Halacha?"

As far as I know, yes. (Well, one can say that in all observant Jewish communities we usually rely on the Shulkhan Arukh as interpreted by the local rabbis, and in line with responsa written since the Shulkhan Arukh, so it is theoretically possible that much of what we do isn't in line with the Shulkhan Arukh. Nonetheless, I think the differences are less than the agreement.)


"2. Would you be able to decide for yourself not to go according to a Halacha laid down by the Shulchan Aruch?" 3. If not, then who would be able to decide the Halacha?"

No, I don't think that we can all decide for ourselves. I think that one should rely on the collective wisdom of the rabbis, including the rabbis before, during and after the Shulkhan Arukh. Individuals paskening for themselves, in practice, happens all the time, and when done quietly and individually it poses no problem. But this should not be raised to the level a principle. It would be dangerous to hold that "I don't have to follow the Shulkhan Arukh, or any other code of Jewish law, as I can make up my own mind on each of these thousands of issues!" That leads to anarchy, and eventually to Reform Judaism, which is non-halakhic. Thus, I agree that one should generally follow the Shulkhan Arukh as a code of Jewish law, as long as one agrees that responsa written since then are also valid.


"Now some comments: 1. Anyone studying Halacha in depth so as to be able to render a ruling would not stop at the Shulchan Aruch. At the very least he would study the Tur with Beis Yosef and the later commentaries on the Shulchan Aruch (Shach, Taz, Magein Avraham, Mishna Berura, etc.). He would also probably want to go right back to the Talmud and then the rulings of the Rishonim (and not just those that the Beis Yosef relied upon for his rulings). In short, such a person would have to be a Gadol BaTorah, which is what I think Rabbi Mitterhoff was hinting at."

I agree with this, except for the last sentence. You don't need to be some sort of super rabbi, a Gadol, in order to have this knowledge. That would only be true if a rabbi had this knowledge about every aspect of the Shulkhan Arukh, Talmud and responsa, and could pasken on every possible issue. But for specific areas it is possible for many rabbis to have a very high knowledge and reasoning ability.


"I believe that the Rama intended to write his own "Shulchan Aruch" for Ashkenazim but when the actual Shulchan Aruch was published he decided to afford its universal acceptance by writing his "Mapa" on it"

Yes, this is my understanding as well. But in a way he did write his own Shulkhan Arukh; in his mappah he gives rulings that vary from those in the actual Shulkhan Arukh, so the result is the same.


"The bottom line is that we must rely on the Rabbinic authorities in our own generation for rulings."

Sounds right to me!


B'Shalom,

RobNE

I think the whole question is different. The meaning of the question is can anyone argue with R' Yosef Cairo, like the Rama. Rather, it's the Shulchon Orech at large. Including the Noisei Keilim and what is considered Halacha norm (Sugya D'alma) after all the dust settles.

Yes, if nowadays, someone wants to argue with the above and say he knows better then it's deffinitly a Toah B'dvar Mishna which is not a P'sak at all, if there is no other Shita that agrees with him. Or a Toah Bishikal Hadaas (which is a mistaken P'sak) if some earlier Shita agrees with him, but is not the Halachic norm.

In this discussion many people are treating the Shulkhan Arukh, sometimes including the Mappah, as a work of a Rishonim. It many circles it is just assumed that a decision by a Rishon cannot be overruled by a rabbi of todays era, an Acharon.

Yet can we really say this? I'd like readers to check out the letter by Mechy Frankel on the Mail-Jewish list. It seems pretty clear that Rabbi Yosef Karo, author of thr Shulkhan Arukh, was one of the Acharonim, yet is treated as if he was a Rishonim.


http://www.ottmall.com/mj_ht_arch/v27/mj_v27i48.html

Tzvi Harris disagrees, writing:
"If I recall correctly Mechy Frenkel mentioned that the difference between the Shulchan Aruch being a Rishon or an Acharon is important (one reason) is to establish whether other Acharonim can take issue with him. I don't think this would really make a difference with regard to the Shulchan Aruch, being that the Shulchan Aruch attained special status as the sefer pesika of almost all of Am Yisrael"


http://www.ottmall.com/mj_ht_arch/v27/mj_v27i53.html

Eli Turkel disagrees with this, and points out the most important fact: Who says that an Acharon (rabbi of today's generation) can't disagree with an Rishon? In fact, there is no such prohibition!

http://www.ottmall.com/mj_ht_arch/v27/mj_v27i55.html

"Though I have seen this quote I don't understand it. The implication is that the Rema could not disagree with the Shulcahn Arukh because he would be a acharon disagreeing with a rishon."

"First of all this is against the facts. In fact there were great arguments over many years about the authority of the Shulchan Arukh until it became universally accepted. No where does one use the fact that Rav Karo received "semichah" from Rav Yaakov Berav. The Rema highly respected his contemporary Rav Karo but certainly did not treat him as belonging to a different era. It is clear that Gedolim in Europe after the black plague no longer considered themselves on the level of Rishonim. On the other hand Ran, Rivash and even Radvaz did disagree with earlier authorities. Nevertheless, when the two communities did communicate they treated each other as equals."


"However, I have a more fundamental problem. Who says an acharon can't disagree with a rishon? I have also seen that statements that acharinim after 1664 (gezerot tach vetat) cannot disagree with acharonim before then. Also that acharonim today cannot disagree with the Mishna Berura. Nevertheless, this is always being done."

"A most famous case (recent daf yomi)
is the Vilna Gaon (and also shulchan Arukh harav) disagreeing with Tosaphot
and almost all rishonim on the definition of halachic sunset. It turns out
that Rav Sherrira gaon and Rav Hai Gaon agree with the Vilna Gaon whoever
it is doubtful that the Vilna Gaon knew this. In any case he does not quote
them in his commentary to Shuclchan Arukh. There are many other cases were
the Vilna Gaon and his contemporary the Shaagaot Aryeh disagree with
Rishonim. Even in our day Rav Feinstein has disagreed with the Meiri and
Toasaphot haRosh. Those these are "recent" finds one would expect that in the
absence of other authorities one could not disagree. In fact that is the
attitude of Chazon Ish on the international dateline who relies on Kuzari
and Baal Hamaor since they are the only rishonim that hint at the problem.

In fact it is not clear why Amoraim cannot disagree with Tannaim. Rashi
seems to state that the Mishna is equivalent to a psak of the Sanhedrin
since Rebbe was the head Sanhedrin. However, this would not apply to other
taanaitic material. I have my own personal answer for some other time.
Some gedolim have given different answers. Rambam writes with regard
to the Talmud that the was a gathering of the gedolim who accepted on
themselves not to disagree with the Talmud. Historically, it is doubtful
that there was ever such a gathering, nevertheless the effect is the same.
Even in this case it is well known that parts of the Talmud are from the
era of rabban savorai after Ravina and Rav ashi and some even from the
days of the geonim.

--- end quote ---

I think this post separates popular belief, folk-halakha, from actual laws and legal principles.



Shalom,

RobNE

quote:

Originally posted by RobNE:
In this discussion many people are treating the Shulkhan Arukh, sometimes including the Mappah, as a work of a Rishonim.

Where do you see that?

RobNe,
I'm trying to reach you. Please e-mail me.
Moshe