Now for part 2 summary for Rav Bar Hayim's keziath shiur. I will preface again with the following: All of this is in the name of Rav Daweed Bar Hayim, from his audio shiur, and if I have conveyed anything incorrectly it is due to my own mistake or my own misunderstanding. Feedback, opinions, corrections, etc are welcome. Hopefully I am conveying accurately the message Rav Bar Hayim sought to present.
At times I have added my notes in parentheses for clarifications, translations, etc.
Part 2: Rather than “discarding the Rambam” as someone suggested before, [Rav Bar Hayim is] following the instructions of Rambam as to how one should approach any Torah/halachik issue, as he wrote in hakdama (introduction) to Mishne Torah (after explanation of how Talmud and mishna were all written and edited by the chachamim etc) - When one chacham (wise Torah scholar) determines a certain halacha as “x,” and comes along a different chacham or beit din (court) later and they see it apparent as being “y” based on their own study, and they say “this is not the correct understanding of what it says in the Talmud” (they say this in reference to the first chacham/ first opinion, which said x). [In other words they see original view as mistaken, and now you have in front of you at some later date and a different reality both of these opposing opinions], Rambam says you don’t go by who came first and decide based on that, rather you go by whichever opinion stands up to reason and analysis of the sources, “whether it’s the latter or the earlier opinion.”
Rambam thus tells us the final deciding factor in halachic matters: analysis of the sources and which interpretation fits best with the sources. This also suggests that many commonly thrown-around axioms such as “halacha is like the latter opinion” used as a rule in of itself is not the correct way in which one makes a decision in halacha according to Rambam’s view. R Bar Hayim states that it is clear from the Rambam’s opinion that “Truth and reason and intellectual honesty are the very lifeblood of the halachic system.” And Rav Bar Hayim claims that since he (Rambam) was an intellectually honest person and a man of truth, he would apply the same system to himself. Of course this applies only to a person who has the capability of looking into a halachic matter deeply and making a decision, not just the average person who knows very little, not the average Yossi on the street. Only someone knowledgable and qualified – a posek. As when Rambam says, “the opinion which seems more reasonable” who is to say what is more reasonable? A certified doctor decides medical matters, and a qualified posek/Talmud scholar decides halachik matters. To claim that no one in this generation (or even previous generations) can possibly understand such matters, is simply not true. This subjugates halachic process to a claim that we cannot make rational assessments by looking into the sources, and this effectively shuts down Torah She Baal peh (Oral Torah)! And this is what has happened over the past 500 years, particularly after the appearance of the Shulchan Aruch. People believe themselves obligated to a certain book, or certain minhag, or certain posek, or community, and this allegiance overrides anything else, including the truth. This is not right. If you take any one book and say, whether it’s a work by Rambam or the Rosh or Shulchan Aruch or Gra or anyone else, and you say, “Everyone must follow every single thing in this particular book. This is what you must do and it is incumbent upon you” – This means that even if a great chacham understands quite well that there is a mistake in this halachic work that everyone is obligated to follow, he (the chacham) is forbidden to say so. He is forbidden to state his opinion. (And such a scenario is pernicious and a distortion of Torah).
Rav Bar Hayim relates a story regarding Rav Yisrael Salant (founder of “Mussar movement”), pertinent to this issue. Just to preface the story, the "Shach" who is mentioned in the story is a reknown Torah scholar and posek who is revered by all Jews as a source of great wisdom in halacha, and who published his work before the time of Rav Yisrael Salant. The Shach wrote a commentary on the Shulchan Aruch in the 1600's. Rav Yisrael Salant lived in the 1800's. The Shach's work was heralded by the Jewish people and many declared it "binding" or "universally accepted" like what happened earlier with the Shulchan Aruch. And Rav Bar Hayim seems to be arguing that such tremendous work like the Shach's when it receives distinctions like this, but people then distort Judaism and say/teach that no rabbi can now argue against a given opinion and that every single thing that one person writes is infallible and there is no room for debate, that this is damaging to Judaism and Torah, it uproots and nullifies the process of Torah she baal peh and restrains the rabbis from doing what they are supposed to do.
This story is brought down in book by a dayan (judge) of Yerushalayim (Rav ____ Raphael, difficult to make out audio). Rav Salant was not only baal hamussar but also a great lamdan (genius in Torah learning) and baal halacha (masterful in halachic renderings), but wished not to be appointed an official rabbi of a East European city as was common amongst others who came from Vilna like he did. Someone asked why do you never take a position of chief rabbi anywhere? He responded, and I am paraphrasing here: “Baruch Hashem, I know how to learn, and I know how to distinguish true from false, and I know for example that on certain issues the Shach is mistaken. That because people think the “halacha is like the Shach,” and I know I’m going to get asked questions about these issues, I will find myself in the following position: Either I’m going to have to say the halacha is like the Shach because that’s what everyone expects you to say, or if I say otherwise (and tell my real opinion instead – the honest truth), people will say, ‘What kind of rabbi is this, he doesn’t even know the Shach.’ In which case I’m going to be lying, [because] I know that it’s not true but I’m going to tell people to do what I think is not true. Or I’m going to tell them honestly what I think is correct and then people will say how can I disagree with the Shach. Since I don’t want to be in such a position, I choose to avoid that situation altogether.” That is result of a halachic system that has been shut down. Whether Shulchan Aruch or the Shach. Once a claim is made that everyone must follow what the Shach says, any real lamdan who understands the issues is in a bind if he’s an intellectually honest person. Probably very few are really in that position today and feel that way like Rav Yisrael Salant did because so many talmidei chachamim of today have been “dumbed down.” And so many today really believe they cannot formulate an opinion of their own, cannot understand anything for themselves, and so they must only quote from other books like a machine. The rabbi has been turned into a computer program. Punch in question, and get right answer, all standardized. That’s the end of halachic system, the end of Torah she baal peh, if such a system is accepted.
Yes there are some chachamim past and present who have believed in such a system, but there are many who never believed in such a thing. As one example, The Rambam as we just quoted him. In fact, ALL rishonim would not have believed in that kind of system (which Rav Bar Hayim asserts is a corruption of our tradition). All of them felt compelled to say what they thought was truthful, as they saw things. Rashi never felt compelled to agree with Rabenu Gershom (the greatest chacham of France and arguably all Ashkenaz in the generation preceding that of Rashi), just because it was said by Rabenu Gershom. Rashi never felt that he could not disagree if he understood things differently, and the proof is in Rashi’s commentaries. When he disagrees he says so explicitly, and Rav Bar Hayim presents an example: He says in many places “rabothai pershu kacha… and I don’t think so.” [This translates loosely to Rashi saying in his manuscript “my rabbis explain thusly, and I think differently.”] On a number of issues Rashi feels himself at liberty to say such things. The Rabenu Tam and the other Baalei Tosafoth also did not feel obligated to agree with their grandfather, Rashi. They often disagree with him plainly in their commentaries on the gemara, as anyone who learns Talmud can see.