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It is my understanding that halacha is determined by individual p'sak. That is, there is no divine body of halacha which we are trying to determine with poskim issuing their p'sak based on what they think "God would pasken". Rather, a person's halachic obligations are defined by his perosnal rav's p'sak, and nothing else. This is my understanding of "לא בשמים היא".

In view of this, I find it difficult to understand a certain halachic phenomenon which I have seen in several instances. When there is a difference of opinion among the halachic authorities as to one's halachic obligation, sometimes the Mishna Berura or the like will advise that one make a stipulation based on what is the "correct" halachic opinion.

For example, there is a machlokes whether or not to say the maariv sh'mone esre twice after forgetting yaaleh v'yavo during mincha of rosh chodesh if it is no longer rosh chodesh that night. Mishna B'rura's advice is to say sh'mone esre again with the following t'nai: "If I am halachically obligated to repeat the amida, then let this repetition satisfy my obligation. If not, let this be simply a t'fillas n'dava."

I have seen the same advice given for whether to say shema before the z'man of the Magen Avraham, if one will be able to say it during shacharis with a minyan before the later z'man of the Gra. "If the halacha follows Magen Avraham, let me be yotzei with this recitation. If the halacha follows the Gra, let this be simply talmud torah, and I'll be yotzei with my later recitation."

But I don't get it. What does it mean "If the halacha follows X"? Go to your rav and get a p'sak. If he paskens to follow X, then by definition, that is the halacha for you. It sounds like the idea is "If God would pasken like X...". But that conflicts with my understanding of the halachic process.

So my question is: How is the condition of such a t'nai as above not paradoxical? How can a stipulation of the form "If halacha follows X... If halacha follows Y..." be reconciled with the idea of "לא בשמים היא"?

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I believe the Peri Megadim made that suggestion well before the Mishna Berura. –  Double AA Jan 29 '13 at 4:15

2 Answers 2

Lo Bashmayim means that when your Rav gives you a Psak and you hear a Bas Kol saying otherwise, you should follow your Rav and not the Bas Kol. However there are areas in Halacha where there is no clear Psak as there is a Machlokes between compentent Rabbi's who were or currently are on this world. Since there is no clear Psak we try to saitsfy all Shitos when possible. If your Rav tells you that if you say Kriyas Shema by the Gra's Zeman then it is fine for you to do so, however some Rabanim feel that you should try to make it by the Magain Avraham's Zeman as the Magain Avraham was a reliable authority.

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Or to put it a little differently, perhaps: when we say "if the halachah is like X," what we mean is, "Eventually - when the Sanhedrin is reconstituted - they may end up deciding according to X; we therefore want to satisfy that opinion now, so that in retrospect we'll have done the right thing." –  Alex Sep 8 '11 at 17:37
    
Alex: You can edit my answer to clarify. –  Gershon Gold Sep 8 '11 at 17:47
    
But all disagreements in halacha are between two competent rabbis, or else the opinion of one side is not considered a valid halachic opinion at all. Why in regard to most of them do we decide one way, but these "areas" we are mysteriously indecisive about? Just like my rav can tell me that I should follow the opinion that holds that opening bottles on shabbos is forbidden, he can tell me to follow the opinion of the Gra with regard to z'man k'rias sh'ma. –  jake Sep 8 '11 at 17:57
    
@Alex, To put my response in your language: Why for these things do we care what Sanhedrin will decide in the future. As of right now, I may follow whatever my rav paskens independent of what happens in the future. That's the way it works for all other halachic disagreements, does it not? –  jake Sep 8 '11 at 18:05
    
"Since there is no clear Psak we try to saitsfy all Shitos when possible" This is not obvious at all. Indeed, before the advent of the Mishneh Berurah, I don't think this was a common trend in psak halacha at all. I think it would be more accurately phrased: "some poskim try to satisfy", since certainly other poskim take a more traditional approach to just pasken one way or another, without regard for trying to fulfill as many shitos as possible. –  Curiouser Sep 8 '11 at 18:14

"Lo BeShamaim Hee" tells us that the Heavenly Court cannot decide the law (without the Earthly Court agreeing). The rules of Torah stipulate that it is the Rabbis down here who decide the laws. There is a famous story in the Talmud (Baba Metzia 59B) That illustrates this point. Here's a quote from that story:

But R. Joshua arose and exclaimed: 'It is not in heaven.' What did he mean by this? — Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, After the majority must one incline.

However, there are rules to how the Earthly Court makes decisions. One such rule (as explained in the Mishna (Ediot 1:5). Is that in order for a later court to overturn the decision of an earlier court, that later court must be greater in number and in wisdom. Because of a concept in Torah Law called Yeridat HaDorot (the decline of the generations), later Courts of Jewish Law would generally (I'm sure there must have been some exceptions, e.g Rav Tanna Hu Upalig) not consider themselves worthy of overturning the rulings of the earlier generations.

To be more precise, Rabbis from different time periods fall into different eras, and as a rule, later eras cannot argue with earlier eras, see here.

So for example, Rabbis in the Mishna may argue with each other (even if they lived in different generations), but a Rabbi in the Talmud could not argue with an opinion brought in the Mishna, unless he could prove that he was basing his opinion on another Rabbi in the Mishna, who himself argued with the first Mishnaic Rabbi.

The same is true for the Halachic Rulers of the later era (Achronim). They generally try not to argue with the Halachic Rulers of earlier era (Rishonim), although they do, when making a ruling, choose to rule like one over the other, using different criteria to make that choice.

[Incidentally, this is where the idea of LeChatchila and BeDiEved come into play. It is basically the Rabbis saying that the Halacha is like so-and-so, and that's what you should ideally do. If you already did it the other way however, you have a Rabbi you can rely on. Alternatively, the Rabbis are saying if you do it this way you will fulfill your obligation according to all authorities, so the ideal thing is to do it that way. If you did it another way, you may have still fulfilled your obligation according to certain opinions]

These days, a Rav cannot innovate Halacha if it goes against what was ruled in earlier eras. He must rely on the writings of earlier eras when formulating his Halachic ruling (he can however, interpret those writings in novel ways, as long as his interpretation is Halachically sound). As such, when faced with a halachic inquiry, the Rav can't just tell you what he thinks, he must look in the sources. There are times when there are different opinions in the sources that don't have a clear-cut resolution. It is times like this that Rav will tell you to try to do what needs to be done in a way that will fulfill all opinions, if possible.

Ruling that way doesn't go against Torah Lo BeShamayim Hee, since the doubt is not in Heaven but down here on earth, amongst the Rabbis.

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Imagine Rambam writing Mishna Torah. He reads the Talmud Bavli and finds the halacha regarding X to be a dispute between amora A and amora B without a "clear-cut resolution". Rambam will always rule like one or the other. Never do you see that he tries to make situations that fulfill both opinions, regardless of the fact that these amora'im were eras before him. It seems to me that halachic due process does not call for being indecisive about p'sak halacha. –  jake Sep 8 '11 at 20:54
    
@jake: I have no source for this, but I think that L'chatchila/Bideved started much later, with the Acharonim. It would be interesting to who was the first to use the terms in a halachic context. –  Menachem Sep 8 '11 at 21:24
    
@jake: We know the Beit Yosef used the Rif, Rosh, and Rambam as his basis for the Shulchan Aruch and ruled after a majority. according to Wikipedia, the Beit Yosef wrote that he "initially intended to rely on his own judgment relating to differences of opinion between the various authorities, especially where he could support his own view based on the Talmud. But he abandoned this idea because, as he wrote:. "Who has the courage to rear his head aloft among mountains, the heights of God?"" en.wikipedia.org/wiki/Shulchan_Aruch#The_standard_authorities –  Menachem Sep 8 '11 at 21:31
    
First of all, I am not asking about the l'chatchila/b'diavad phenomenon. This is different; you are trying to fulfill two opinions l'chatchila. B'diavad just means that if you did not or were not able to fulfill the halacha as it should have been done, you do not have to make it up or consider the mitzva "un-fulfilled", since you did do it correctly according to someone's definition of halacha. –  jake Sep 13 '11 at 14:22
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The notion that this sort of deference occurs only between groupings (tannaim, amoraim, rishonim, achronim) is simply not true in practice. The Shach and Taz are achronim. As a newly minted musmakh, so am I. But my rebbi's rebbi's rebbi wouldn't dare to argue with them. It seems to me rather that after some time (100-200 years I'd say) an issue is considered settled. If the settlement is a debate, one of two things happens: Group A does this and group B does that, or everyone tries to do both. And I understand @jake's frustration about the latter. –  Ze'ev Felsen Feb 29 '12 at 16:47

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