HASHKOFO-----paskening hashkofo

(updated 2/1/07 - amolam)

[a reader claimed that the Rambam says that there is no such thing as paskening hashkafa. he wanted to somehow extrapolate from there that a person can pick and choose whatever shitah he wants and follow it, as long as it, regardless of preponderance of authority, majority, understandability, compellingness etc. "Except," the reader added , "for the 13 ikarim".]

The Rambam says no such thing. You are mistakenly referring to the Rambam in Sanhedrin where he says regarding a disagreement in chazal about certain fact about the 10 shevatim, that we do not pasken things that have no halachic difference, but are merely a disagreement regarding knowing what happened.

This does not mean we do not pasken hashkafa questions - of course we do. The 13 Ikarim are hashkafa questions I noticed that you wrote "except for the 13 ikarim", but the Rambam in sanedrin makes no such exception. If the rambam means what you say he does, then there could be no psak on the 13 ikarim, at least not on the one that is subject to dispute in the Gemora, i.e. the coming of Moshiach.

Yet the rambam does pasken that someone who does not believe in the coming of moshiach is an apikores, even though someone who does so is merely holding like a legitimate talmudic sage. Ergo: Even if you have a source that agrees with you, if the Halchah is not like that source, your relying on it does not protect you from being an Apikores.

The Rambam is talking about paskening something that is an equal doubt. There are no proofs one way or the other, no preponderance of authority one way or the other. Normally, in such a case, that we would "pasken" what to do, because, well, you have to know whether to make the bracha or not, or whether to say the tefilah, or whatever the shailah is. Maybe you'll go lechumrah or maybe lekulah, depending if its derabonon or doraisah and many other factors. But we need a course of action to take - and so we pasken.

In Agada, we do not need any course of action; we can simply say "it's a machlokes" - we can indeed remain with a safek. So the Rambam says we don't pasken such shailos.

But if there is reason to hold like one side over the other of course we will - such as if one side has proofs against it or the greater authorities hold a certain way, or whatever.

And that is what the Maharitz Chayus says in Yevamos. The exact opposite of whoever told it to you. He does not say we do not pasken agadita, on the contrary - he asks why Tosfos says "kayma lan" on an agadita which is subject to machlokes in the gemora since there is no difference to us (and so we should just say we don't know who's right). His answer is that since the Targum seems to say one way over the other, it would be proper for us to hold like that side, since we have proof from authority that that side is correct.

So when we do not have reason to hold like one side over the other we do not determine a "course of action" ( = pasken) the way we would have to in halachah; but where we have reason to hold like one side (a different type of "psak") then we do.

There is a simple proof from the Gemora, which I heard name of both Rav Hutner and Rav Yaakov Kaminetsky, that we pasken hashkafa: "nimnu vegamru - noach lo shelo nivrah". "They counted and ruled" according to the majority - noach lo shelo nivrah, a purely hashkafic, non-halachic issue, ruled due to the majority count.

Also, there are meforshim that explain that the Rambam to be referring specifically to the type of agada he is talking about in context, where the question is about something that will happen in the future. Since the future is not fixed, depending on various factors, the future can still unfold either way, so it would make no sense to pasken one way or the other.

MODERATOR Posted - 28 January 2007 15:17

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I have just confirmed the source of that proof cited above, that we "pasken" hashkofo the same as Halachah. It was indeed Rav Hutner. It is quoted by his son-in-law, Rav Yoason David, in his "Kuntres Shavuos" He quotes the proof from "nimnu vegamru" as I described it above, and then adds:

"Thus, Psak Halachah also applies to an issue of Deos, i.e. what we refer to as Hilchos Deos V'Chovos Halevovos.

For the difference [between Halachah and Agada] is only regarding the method and means of fulfilling them - for the "obligations of the limbs" are done with your hands, and "hilchos deos" are done with the understanding of the mind of those who accept the Torah ... This foundation in its entirety, the Rosh Yeshiva ZTL instilled in us very much, regarding the fundamentals of Hilchos Deos and Chovos Halevovos." (p.34)