2

Rashi, explaining the pasuk on inquiring of a judge (Devarim 17:9), says

"and to the judge who will be in those days": Although this judge may not be [of the same stature] as other judges who preceded him, you must listen to him, for you have only the judge [who lives] in your time.

How does this fit together with the notion of basing rulings on precedent, which is central Judaism (e.g. Amoraim not able to argue with Tannaim, Acharonim with Rishonim, compilations of law like Shulchan Aruch setting halachic precedent, etc.)? From Rashi's explanation though, it seems that the actual standing and stature of a contemporary judge is not so important - even if he is lesser than the judges that preceded him and still disagrees with them, he should still be listened to (because he lives in the present).

  • It is not so much that as the idea that he is the judge who will give the ruling even if he bases it on precedent. – sabbahillel Sep 3 at 1:26
  • But that's obvious - of course it's the currently living judge that will give the ruling, who else? – user9806 Sep 3 at 3:12
  • Isn't the ability to consider both and rule well a significant part of what makes one one of the Gedolim? – Gary Sep 4 at 12:41
2

Piskei HaRosh Sanhedrin 4:6

דאמוראים האחרונים פעמים חולקין על הראשונים ואדרבה אנו תופסין דברי האחרונים עיקר כיון שידעו סברת הראשונים וסברתם והכריעו בין אלו הסברות ועמדו על עיקרו של דבר

For the later amoraim at times disagreed with the earlier [amoraim], and on the contrary we grasp the words of the later ones as primary since they knew the reasoning of the earlier ones as well as their own reasoning, and they made a determination between the different reasonings and reached the main point of the matter.

According to this we follow the judges in our generation because we assume that they know what the previous judges ruled and still disagreed. We thus trust that they only disagreed because they evaluated the reasoning of the earlier judges as well as their own and decided that theirs was better. However, if the current judges are entirely unaware of the earlier material, then we might very well say that the current judges erred and would have ruled differently had they known what the earlier judges had said:

ואני אומר ודאי כל מי שטעה בפיסקי הגאונים ז"ל שלא שמע דבריהם וכשנאמר לו פסק הגאונים ישרו בעיניו טועה בדבר משנה הוא ולא מבעיא טועה בפיסקי הגאונים אלא אפילו חכמים שבכל דור ודור שאחריהם לאו קטלי קני באגמא הן ואם פסק הדין שלא כדבריהם וכששמע דבריהם ישרו בעיניו והודה שטעה טועה בדבר משנה הוא וחוזר

And I [the Rosh] say that certainly anyone who errs in the rulings of the gaonim of blessed memory, that he was unaware of their words and when made aware of the ruling of the gaonim it was proper in his eyes, is one who erred in an explicit Mishnah. And not only one who errs in the rulings of the gaonim, but even the sages in every generation after them "are not reed-cutters in the bog", and one who rules against them and when he finds out their words they are proper in his eyes and he admits that he erred, it is an error in an explicit Mishnah and is reversed.

  • Thank you for this answer. If this was so, wouldn't we have current Rabbis arguing in fundamental matters with the likes of the Rambam or the Tur or even Geonim and Amaraim. After all, we now have the most comprehensive (and searchable) access to all their source reasoning [than ever before in history] and so according to the Rosh we should be able to overrule any of them. But in practice the reality is that even the greatest current poskim will hardly ever argue even with the previous generation, much less with Acharonim or Rishonim. The assumed and usually given reason is that – user9806 Sep 3 at 12:38
  • [continued] they (the poskim) and we as a generation as a whole, are on a much lower level and of lower stature than the previous ones. But this shouldn't matter according to the above - both the Rashi and the Rosh you quoted. – user9806 Sep 3 at 12:41
  • @user9806 Part of taking into account the earlier opinions and reasonings is taking into account if they were greater. The fact that later generations can disagree with earlier ones doesn’t mean that the should do so flippantly. – Alex Sep 3 at 22:40

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .