Avodah Mailing List

Volume 01 : Number 027

Monday, August 24 1998

• Re: Zmanim for Ta'aniyos
• Re: Avodah V1 #26
• SHulchan Aruch
• Rav Moshe Feinstein and Beis Hashmashos
• Faith vs Knowledge, redux
• Re: perfect helping techniques -- Avodah V1 #26
• Re:Mitasek and rabbinic Authority
• Re:Mitasek and rabbinic Authority
• Re: Zmanim for Ta'aniyos
• Re:Mitasek and rabbinic Authority (fwd)
• RE: Avodah V1 #26
• RE: what is pesak?
• RE: Psychology, a new vol. of Shiurei HaGRach is in print!
• SHulchan Aruch:Acceptance

Being a fairly complete Am HaAretz in these issues, I am in not position to
comment on my own understanding. However a quick perusal of the authoritative
sefer HaZmanim BeHalacha by Rav Chaim Benish seems to indicate that Rav
Moshe's psak is not viewed as problematic. On page 528 he states that Rav
Tukachinsky who established the practice for Jerusalem held that Tzais is when
the sun is 8.5 degrees below the horizon and this is the practice in other
communities. "And also Rabbi Moshe Feinstein writes that in New York according
to what we see even for long days it is not more than 50 minutes" that is 8.5
degrees. And the majority of rabbonim who write calendars in our day utilize
this measure and thus is it in all calendars printed in Israel".  I would
recommend the sefer to anyone who wishes to understand the complexity of
deciding between the full range of opinions on the issue of time.

                                       Daniel Eidensohn

Shoshanah M. & Yosef G. Bechhofer wrote:

> It continues to be a pet peeve, and unfathomable by any standard I can
> grasp, and, the way you describe it, as a direct contradiction to every
> single rishon.
>
> On Sun, 23 Aug 1998, Shragai Botwinick wrote:
>
> > Therefore, what YGB said :
> >  "I would like to voice a pet peeve of mine that is a direct result of
> > misinformation on zmanim."  is really a pet peeve of yours on informed
> > people who follow the approach of Rav Moshe Feinstein.
> >
> > Shoshanah M. & Yosef G. Bechhofer wrote:
> >
> > > On Thu, 20 Aug 1998, Shragai Botwinick wrote:  > > > Doesn't Rav Moshe
> > Feinstein in Igrot Moshe (I believe vol. 4 orach chaim)  > > claim that
> > Rabbeinu Tam in America(N.Y.) is around 50 minutes - and a mil is > >
> > around 13 minutes.  > > > > Kol Tuv, > > Shraga >

>On Sun, 23 Aug 1998, Daniel Eidensohn wrote:
>
>> 
>> The Ohr L'Tziyon states that as a general rule what we call psak is
>> actually just a strategy to minimize the likelihood of error. In 
>other
>> words we are actually in doubt as to what is the correct ruling. The 
>rav
>> tries to cover all basis to minimize the likelihood of error. He 
>states
>> that there are two exceptions to the view that psak is the result of
>> sofek. The first is the Shulchan Aruch because it was accepted by 
>Klall
>> Yisroel and the second is the Arizal because the information he 
>received
>> came from Eliyahu HaNavi. Of the course the latter statement is not
>> acceptable to those who have a different from of Lav BaShamayim or 
>held
>> by the Gra's view of the Arizal (see Igros Moshe (O.H. 4 # 3 page 2) 

What a refreshing description for those of us who have a much more
limited understanding of "eilu veilu". However, I don't understand what
it means to say that the Shuchan Aruch was accepted by Klal Yisrael...
when? In the 1500's there were very big machlokes about it and such
gedolim as the Maharshal and the Maharal strongly criticized it. In the
1600's we find the nosei kelim willing to argue with the shulchan aruch,
Shach, Magen Avroham etc. and our practice generally follows these
positions, and even into the 1700's people like the Gra etc. had no
problem arguing on SHulchan Aruch. Plus, the very fact that there is a
Shulchan Aruch and a Rama which show that it never was accepted by all of
Klal Yisrael. (I doubt that the acceptance of Sephardim to follow R'
Yosef Cairo and Ashkenazim to follow the Rama is any more significant
than an individuals choice to follow a specific posek, and doesn't carry
any more guarantee of success) It was my understanding that the last
halachic work accepted by all of Klal Yisrael was Talmud Bavli

Shraga Rothbart

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>
>On Sun, 23 Aug 1998, Daniel Eidensohn wrote:
>
>> 
>> The Ohr L'Tziyon states that as a general rule what we call psak is
>> actually just a strategy to minimize the likelihood of error. In 
>other
>> words we are actually in doubt as to what is the correct ruling. The 
>rav
>> tries to cover all basis to minimize the likelihood of error. He 
>states
>> that there are two exceptions to the view that psak is the result of
>> sofek. The first is the Shulchan Aruch because it was accepted by 
>Klall
>> Yisroel and the second is the Arizal because the information he 
>received
>> came from Eliyahu HaNavi. Of the course the latter statement is not
>> acceptable to those who have a different from of Lav BaShamayim or 
>held
>> by the Gra's view of the Arizal (see Igros Moshe (O.H. 4 # 3 page 2) 

What a refreshing view  of p'sak for those of us who have a much more
limited understanding of "eilu veilu" However, I did not understand what
it meant that the Shulchan Aruch was accepted by Klal Yisrael ... when?
In the 1500's it had many significant detractors such as the Maharshal
and the Maharal. In the 1600's the nosei kelim such as the Shach Magen
Avraham etc. had no problem arguing with the p'sak of the Shulchan Aruch
and generally our practice follows these shitas and not the Shulchan
Aruch. Even into the 1700's people like the G'ra etc. argued with the
p'sak of Shulchan Aruch. More than that,  the very fact that there is a
Mechaber and a Rama, accepted by different segmants of Klal YIsrael shows
that the work was never universally accepted. I doubt that the Sephardi
decision to follow the Beis Yosef and the Ashkenazi decision to follow
the Rama is more of a gurantee of "halachic success" then any individual
who follows any posek. It was my understanding that the last halachic
work universally accepted was the Talmud.

Shraga ROthbart

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Rabbi Bechhofer, Shragai Botwinick, and others have asked about the
50-minute opinion.

Rav Moshe Feinstein explains his opinion about the 50-minute shiur in
several places. I think the clearest, though, is in the Igros Moshe,
Orach Chaim 4, Siman 62, where he writes at end of the first and
beginning of the second paragraphs:

<<< On Motzaei Shabbos, one has to wait until 72 minutes after shkiah,
and according to the very machmirim until 96 minutes, like the opinion
that a mil is 24 minutes. But in this matter, not all places are equal,
because it depends on the latitude, as we find in siman 261, in the Gra,
Mishna Brura, Beur Halacha, and elsewhere, and this is whether l'kula or
l'chumra.   So here in America, in our city of New York, and in New
Jersey, and all the summer places in the mountains - for I was in these
places personally - though I've heard it's like this in most cities in
America - that about 50 (k'chamishim) minutes after shkia, the whole sky
is full of stars, and it is as dark as the middle of the night, no less
than how it was in our places in Europe after 72 minutes or more. >>>

Rav Moshe then goes on to equate this 50 minute shiur with the 4 mil on
which the 72 minute shiur is based, yielding a mil to be 12 1/2 minutes
for purposes of calculating these zmanim. (I suspect this might be where
the "13 minute" idea comes from.) Now if a mil is 12 1/2 minutes, then
3/4 of a mil is 9 3/8 minutes.

Thus, of the total 50 minutes, Rav Moshe explains that the first 9 3/8
minutes are bein hashmashos according to the Gra, but fully day according
to Rabenu Tam. The last 9 3/8 minutes are bein hashmashos according to
Rabenu Tam, but fully night according to the Gra. The middle 41 1/4
minutes are fully day according to Rabenu Tam, but fully night according
to the Gra. 

For the remainder of that t'shuva, Rav Moshe goes into various
applications of these calculations. Specifically, he uses the idea of
"s'fek s'feka" to rule that IN SPECIFIC EXAMPLES - MOSTLY B'DIEVEDS - the
first 9+ minutes can be considered to still be daytime, and that the last
9+ minutes can be considered already nighttime. DON'T PASKEN FROM WHAT
I'VE WRITTEN HERE - LOOK IT UP YOURSELF.

This past February, I had the z'chus to meet Rav Reuven Feinstein, and I
had the opportunity to ask him more details about the above. From the
language of the Igros Moshe, it is clear to me that he really did hold
these calculations to such high accuracy (1/8 of a minute!) for such a
wide range of areas, both l'kula and l'chumra, but I never saw him
explicitly write whether or not it applies all year round. 

Rav Reuven clearly explained to me that his father had given him 3
distinct figures on different occasions, those being 40, 45 and 50
minutes, and although 50 minutes is the only one he ever mentioned in the
seforim, he was less clear in person, for it seemed to him that Rav Moshe
"may" have changed his mind. I asked whether Rav Moshe was truly
inconsistent, or whether the different figures might have been for
different times of year, and Rav Reuven answered that he honestly did not
know, for the two of them had discussed this matter in depth only once.
(I have heard many people claim that Rav Moshe never changed his psak on
anything; Rav Reuven obviously is not so sure about that.)

Akiva Miller

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Sorry to do this again, but once again I saw a reference to a subject we
discussed a couple of weeks ago.

In R. Joseph Elias's commentary to Rav Hirsch's "19 Letters", letter 8, note
2, he comments on Hirsch's phrase "Avraham's /ahavah/, love for G-d, was
joined by /emunah/, rock-like trust...":

} This is How Rabbi SR Hirsch translates /emunah/. In [his commentary on
} Chumash Bereishis] 15:5, he explains at length why this word does not mean
} belief, acceptance of this or that idea or opinion, but trust, placing one's
} confidence in G-d. Later in the /19 Letters/ the author will repeatedly come
} back to his thesis that Judaism is not a set of beliefs, to be accepted as
} the price of entery into the future world. Rather, Judaism is baced on our
} firm /knowledge/ of the Creator...; it remains for us to develop trust,
} love, and awe for Him as we study His works...

} The term /emunah/ in the sence of trust can be found, for instance, in
} /Bamidbar/ 11:7. Yet is is commonly understood to mean faith. Rabbi SR
} Hirsch's objection that Judaism is based on knowledge of G-d rather than
} faith is, however, well taken. In hact, we may wonder how /emunah/ could at
} all be understood to mean faith. Rabbi Shack (/Avi Ezri/ to /Hilchos
} Teshuvah/ 5:5) reports that he asked the Brisker Rav on this score; the
} Brisker Rav had himself asked this question of his father, Rabbi Chayim
} Soloveitchik, who answered that there are limits to our rational
} understanding of G-d -- and that this is where faith has to step in (see
} /Beis Halevi/, end of /Bo/).

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 5902 days!
micha@aishdas.org                         (11-Jun-82 - 24-Aug-98)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

	Rabbi Hoffman's point challenging the "men are from Mars" series
is a valid one. As a psychotherapist, I too, have seen many so called
"self-help" books do more harm than good for a particular patient.
It is not the book that is helping the patient rather that which the 
person reading the book derives from the book that will affect him. The
general move away from self-help books in the psychotherapy field seems to
be because it is hard to tailor-fit the benefits of a general self-help
book thesis to a specific situation.  Still, as Dr. Eidensohn has noted
that there is no universal helping techniques, there is also no universal
ban on these books as well. A person who derives positive guidance from
these books could use the good within them provided that he has the
ability to sift out that which is chaff within them. In that matter, it
seems  important that one speak to a halachic authority who is well versed
in matters of psychology before deciding which books are going to exert a
positive influence within a halachically correct situation. 


J. schwartz
 

Last week YGB advanced two points: (A) mistaking the eiruv to be up when it
is down is Mitasek on Shabbos (B) Asking a Rav a sheila which he gets wrong
constitutes mitasek, EVEN if that psak be wrong m'sevara (as opposed to
factually being incorrect, e.g. Eliyahu comes and defines reshus harabim
vs. not knowing the eiruv wires got cut).  Because of this a wrong psak in
kashrus is more chamur then in Hil Shabbos bec. mitasek b'chalacim v'arayot
is chayav, but on Shabbos it is patur bec. of melechet machevet.

With regards to (A) I noted last week that Rashi in Kerisus disagrees with
Tos. and the Rambam on this issue.  I assume Shmiras Shabbos sides with
majority of Rishonim.  With regards to (B) I disagreed as well and thank
Menachem Lazaroff for pointing me to the MG"A 318:3 who writes that a Rav
paskening wrongly in Hil Shabbos is Shogeg.  There is no difference between
Shabbos and Chalavim/Arayot in this regard.  Wrong psak is not equivalent
to a factual error.

-Chaim B.

Nice try.

See Shemiras Shabbos K'Hilchasa vol. 3 chap. 2 footnote 42 that vis a vis
Ma'aseh Shabbos - the topic of that MA - the halacha is the same by oness
and mis'asek as well. Special din.

Keep trying!

YGB 

On Mon, 24 Aug 1998 cbrown@bestware.com wrote:

> majority of Rishonim.  With regards to (B) I disagreed as well and thank
> Menachem Lazaroff for pointing me to the MG"A 318:3 who writes that a Rav
> paskening wrongly in Hil Shabbos is Shogeg.  There is no difference between
> Shabbos and Chalavim/Arayot in this regard.  Wrong psak is not equivalent
> to a factual error.
> 
> -Chaim B.

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

This is a good time to expound on what I believe should be the standard
for any lamdan who is not a f/t posek. Where the lamdan in question, has
no expertise in a topic, he of course defers to the Gedolei Ha'Hora'ah in
the matter in question.

A lamdan competent in research and analysis, however, who has researcehd
an issue, is required to abide by his own conclusions l'chumra, and may
follow them also l'kulla.

This is such an issue, for me personally. I invite you all to pursue the
sources on the topic in Leo Levi's book on the topic, an authoritative
book if there ever was one, but do go back to the sugya in Shabbos in the
Lameds and Pesachim in the Tzaddis and things will become clear. 

(You can also send for my tapes, CH 137-139, on the topic :-). )

Without getting into detail, the paragraph you write below is inherently
questionable and casts aspersions on its basis. It is impossible for the
8.5d to be consistent throughout the year. It would therefore follow that
there would be absolutely no reason to keep 50 minutes for Asara b'Teves,
and even Tzom Gedalya.

YGB

On Mon, 24 Aug 1998, Daniel Eidensohn wrote:

> Being a fairly complete Am HaAretz in these issues, I am in not position to
> comment on my own understanding. However a quick perusal of the authoritative
> sefer HaZmanim BeHalacha by Rav Chaim Benish seems to indicate that Rav
> Moshe's psak is not viewed as problematic. On page 528 he states that Rav
> Tukachinsky who established the practice for Jerusalem held that Tzais is when
> the sun is 8.5 degrees below the horizon and this is the practice in other
> communities. "And also Rabbi Moshe Feinstein writes that in New York according
> to what we see even for long days it is not more than 50 minutes" that is 8.5
> degrees. And the majority of rabbonim who write calendars in our day utilize
> this measure and thus is it in all calendars printed in Israel".  I would
> recommend the sefer to anyone who wishes to understand the complexity of
> deciding between the full range of opinions on the issue of time.
> 
>                                        Daniel Eidensohn
> 
> Shoshanah M. & Yosef G. Bechhofer wrote:
> 
> > It continues to be a pet peeve, and unfathomable by any standard I can
> > grasp, and, the way you describe it, as a direct contradiction to every
> > single rishon.
> >
> > On Sun, 23 Aug 1998, Shragai Botwinick wrote:
> >
> > > Therefore, what YGB said :
> > >  "I would like to voice a pet peeve of mine that is a direct result of
> > > misinformation on zmanim."  is really a pet peeve of yours on informed
> > > people who follow the approach of Rav Moshe Feinstein.
> > >
> > > Shoshanah M. & Yosef G. Bechhofer wrote:
> > >
> > > > On Thu, 20 Aug 1998, Shragai Botwinick wrote:  > > > Doesn't Rav Moshe
> > > Feinstein in Igrot Moshe (I believe vol. 4 orach chaim)  > > claim that
> > > Rabbeinu Tam in America(N.Y.) is around 50 minutes - and a mil is > >
> > > around 13 minutes.  > > > > Kol Tuv, > > Shraga >
> 
> 
> 
> 
> 

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

Conversation between Chaim and myself...

(To be read backwards, chronologically).

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

Chaim: I'll buy the first part, not necessarily the second.  Now post it
to the list. 

Me: The posek is shogeg. The congregant is mis'asek. Can we agree on that? 

Chaim: Last week you said the Taz would have to bring a korban chatas for
every time the Shach proved him wrong bec. of mitasek b'chalavim v'arayot. 
Sounds to me like you were talking about the posek as well.

Re: DeORasaia DaRabonon
Can Somebody please tell me whether the following are DeOrasaia or
DeRabonon
7 Shevah Mitzvos Bnai Noach
Hotzos Zera L'Vatolah
Goy ShShovos Chiav Mesho



Re: Men are from Mars
<< series, I have been told that these books very popular among b'nei Torah
in Yerushalayim.However, I think it should be pointed out that there has
been a lot of discussion about these books, and many professional
therapists feel they are not psychologically sound >>
I am sure that you will agree as R' Daniel Eidensohn says that there are as
many Theories in psychology as there are therapists also the psychology
"industry" has a vested interest in keeping psychology a "mystic art" and
anybody who "popularises" psychology is looked down upon. Carl Rogers was
looked down upon by the "psychology" profession because he let people into
the "secrets" of psychology. 
The only bit of Men are from Mars I read was the bit about just letting the
other person talk letting them get whatever it is bothering them out of
their system. Just listen without butting in with answers and solutions. 
What can be wrong with such advice apart from the fact that many people
find this almost impossible to do.


Re: Moled after 6pm

The Moled for Chodesh Ellul appeared in most calendars as 6 11 14 Motzoi
Shabbos.
I don't know of a single place in the world (OK Israel Europe and USA are
my World) that 6 11 was Motzoi Shabbos. I have heard that in Moled
calculations after 6pm is considered the "next day" does anybody have a
Makor for this?
  

Date: Sun, 23 Aug 1998 22:51:12 -0500 (CDT)
From: Cheryl Maryles <C-Maryles@neiu.edu>
Subject: RE: more evidence

<<While going over lasts weeks parsha (specifically the mitzva of alias
regel) I was reminded of another of the myriad of evidence which points to
the Divinity of the Torah. The mitzva of alias regel is virtually
impossible to attribute to a human author. Who would ever ask all male
subjects throughout the entire country to meet at one place at a
predetermined and revealed time. This would naturally leave the entire
country open to attack since the cities would be occupied by only women
children and old and sick men. Only a true G-d who could guarantee the
safety of his people would make such a request. A human would never make>>

Actually I have a few questions on this subject that have been bothering me
for a while 
Didn;t the siege of the ChorBon Bayis Shini begin PeSach time when people
were in Yerosholim for Pesach and couldn't get back home because of the
siege on Yeroshloim I vaguely remember reading this in Josephus. 
A second point is that there was never a time when ALL klal yisroel went up
to Yerosholim. They didn't all go up when Yisroel split up from Yehuda. The
only time when ALL Klal Yisroel went up Alias Regal was perhaps in Shlomah
HaMelach's time.
Now I don't know this for sure, I'm sure the Talmidai Chachomim here will
put me right, but weren't people who were "far away" Potor from Alia Regel,
and apparently "far away" is only a few days travel on foot. 
So what percentage of Klal Yisroel were actually Alia Ragel at the best
times?      

In the ongoing discussion of pesak, a consensus has developed that the
Mishnah Berurah is not, strictly speaking, a work of pesak, but more in
the nature of a yalkut of halakhic opinions.  This was contrasted to the
Arukh ha-Shulhan, which does express the author's personal halakhic
views.

But the discussion has ignored what I think is a critical point.  It is
true that "pesak" means a posek's statement of the correct or true
practice on a given halakhic issue.  But IMHO the word "pesak" generally
means something more: it also means the explanation of the basis of the
posek's view.  Because this is an essential part of pesak, we are left
pondering whether the MB even has a methodology of pesak.  In contrast,
the Arukh ha-Shulhan takes the reader through the Gemara, Rishonim and
Aharonim, before coming to a conclusion.  This makes it a sefer pesak,
while many of the works we learn and consult are not.

One reason Rambam's Mishneh Torah caused such an uproar when it appeared
was that it did away with the citation of sources.  For this reason,
most Rishonim opposed the use of the Mishneh Torah as a stand-alone
halakhic guide.  (See, e.g., the well-known statement of the Rosh on
this point.)  And later posekim generally incorporated a discussion of
the Mishnah Torah into a broader analysis of the relevant sugyot from
the Gemara.

Of course, generations later, the Tur evoked a similar response, leading
the  Mehaber to write his Beit Yosef.  Then he himself was the target of
criticism for the Shulhan Arukh.  Note also that both the Tur and
Shulhan Arukh routinely quote a a multiplicity of opinions, something
Rambam (virtually) never did in his Mishneh Torah.  Thus, not only did
these works largely abstain from providing sources and analysis, they
began the move away from presenting only a single opinion.  The Rema
reflects this development as well.

I believe that this was a crucial change.  Once you have works which
cite more than one opinion without stating a clear preference for one,
you will have people who try to fulfill them all.  This is especially
true when the presentation of these opinions is divorced from the
sources and reasoning upon which they are based.  Thus, the practice of
being "yotze khol hade'ot," it seems to me, originates from the
introduction of the "yesh omrim" in halakhic codes.  [See Daniel
Sperber, Minhagei Yisrael vol. 1, for a discussion of minhagim to be
yotze khol ha-de'ot.]

If so, the critics of the Mishneh Torah and Shulhan Arukh were
(partially) correct: though these works made the halakhah available and
accessible in a way it had not been before, it gave birth to a halakhic
observance divorced from comprehension of the underlying sources and
reasoning.

Today such observance is rampant, perhaps dominant.  The ubiquity of the
Mishnah Berurah is one sign.  In addition, we have seen an explosion in
the publication of halakhic works, many of which display broad
scholarship, but rarely do they take the reader through the sugyot and
the rishonim, substituting instead voluminous footnotes.  [There are
exceptions of course.  See, e.g., Dr Leo Levi's excellent article in his
Jewish Chrononomy, cited recently by R. YGB.]  I frankly find many of
these works to be a waste of ink and paper.  They do not present a
simple "do-this, don't-do-that" kind of advice, in the time-honored
tradition of the Kitzur Shulhan Arukh.  So they are not halakhic guides
for the layman.  And they don't discuss the halakhah in terms of the
Gemara and rishonim.  So they are not useful for the would-be lamdan.
[Last Purim I expressed my view on such works in parody form.]

An even more perplexing development (to which Chaim Brown may have
referred) is the tendency of some yeshivaleit and kollel yungeleit to
learn a sugya, master the Rishonim and Aharonim, yet later refrain from
making a halakhic decision -- even for themselves!  Even on basic
questions of Shabbat and kashrut, they run to ask a she'elah.  Thus,
while the Vikkuah Mayyim Hayyim criticized the Shulhan Arukh because it
would lead to people making halakhic decisions without delving into the
relevant sugya, today we have people who know the sugya but are still
not willing to make a halakhic decision.  [Again, I am not talking about
cutting edge issues of medical technology, but everyday issues in Yoreh
De'ah.]

There is more to say on this, but i feel I have already said a great
deal.

R. Daniel Eidensohn writes:

>After World War II there was a concerted effort by the
>Chazon Ish and Rav Aaron Kotler to establish the Mishna Berura as the common
>denominator of halacha for Klall Yisroel. The Aruch HaShulchan which
represented
>one Gadol's opinion - was not as acceptable as the Mishna Berura which was
more
>concerned with covering all bases.

I have never heard this before.  I would love to see some evidence.  I
would also note that the term klal Yisroel should be understood in a
narrow, Ashkenazic-Mitnagdic sense.  There are also two other imprtant
differences between the MB and AS which account for the former's greater
popularity. 1) The MB is a lot easier to study and consult.  2) The MB
is more mahmir.

Kol tuv,

Eli

I was just in a seforim store yesterday (unfortunaltely I don't get time to
browse them too frequently) and was amazed by the number of titles on self-
help, psychology (and I use the term VERY loosely), and advice that have
now been printed.  Dear Abby, Men are From Venus, or whatever, may be
consistant with some Torah values, but is that what our community has been
reduced to reading for advice, counselling, and hadracha?  The sad thing is
that these things sell much better then "real" stuff like the "Shiurei
HaGrach al B"K, B"M, and B"B", which I almost missed tucked away in a
corner by the door.  For you Brisker lomdus fans out there (like myself,
who immediatly bought it) it is put out by R' Yitzchak Lichtenstein and R'
Moshe Meimelstein, and is an impressive volume, though much of the stuff
you will recognize as classic Brisker Torah found elsewhere.

-CB

Paul Rothbart wrote:

> ..., I did not understand what
> it meant that the Shulchan Aruch was accepted by Klal Yisrael ... when?
> In the 1500's it had many significant detractors such as the Maharshal
> and the Maharal. In the 1600's the nosei kelim such as the Shach Magen
> Avraham etc. had no problem arguing with the p'sak of the Shulchan Aruch
> and generally our practice follows these shitas and not the Shulchan
> Aruch. Even into the 1700's people like the G'ra etc. argued with the
> p'sak of Shulchan Aruch. More than that,  the very fact that there is a
> Mechaber and a Rama, accepted by different segmants of Klal YIsrael shows
> that the work was never universally accepted. I doubt that the Sephardi
> decision to follow the Beis Yosef and the Ashkenazi decision to follow
> the Rama is more of a gurantee of "halachic success" then any individual
> who follows any posek. It was my understanding that the last halachic
> work universally accepted was the Talmud.
>

The understanding of the acceptance of the Shulchan Aruch is a subset
of  the understanding of the acceptance of the Talmud. There was in fact
no clear cut historical event that the Talmud was universally accepted.
The  Kesef Mishna asks in Hilchos Mamrim 2 1 "Why an Amora does not
argue  with a  Tanna (since the Rambam says in dealing with doreissa
issues a later court  can disagree with a previous one)". The Kesef
Mishna answers:"It is  possible to speculate that from the end of the
Mishna
it as accepted that  the later generations would not disagree with the
revious  ones. And they  did the same thing at the end of the period of
the gemora -  that from the  day it was ended no one has permission to
argue with it".


The Rambam in his introduction to the Mishna Torah states" Ravina and
Rav  Ashi and their colleagues were the end of the Gedolei Chachmei
Yisrael that  transmitted Torah SheBal Peh....And after the Beis Din of
Rav Ashi -  who  composed the gemora and it was completed in his time -
the
Jews were  dispersed to all the lands a great dispersion to the ends of
the
Earth and  the roads were blocked by hostile forces and Torah study was
reduced  and  the great multitudes of Jews did not enter to learn in
yeshivos as previously but instead remnants gathered separately in
various cities to  learn what they could...And every beis din which
arose after the gemora in  every land made decrees for their locale but
these did not spread throughout all of Israel because of the distances
and the difficulty of travel...Therefore the court of one land can not
force its rulings on other  land...But all the things that are in the
Babylonian gemora - all Israel is  obligated to follow and we can force
any community to follow the practices  of the chachmei haGemora...since
all these things in the gemora  were agreed  upon by all Israel...".

The Rambam seems to indicate that acceptance of Klal Yisroel was not a
specific event but the fact that the common practice was to follow the
rulings. After people got dispersed it was hard to develop a common
practice so future rulings were viewed - relatively speaking - as not
being accepted.

The Rosh - Fourth Perek of Sanhedrin also indicates that the words of
the Gaonim can be assumed to be halacha - but if someone has clear
proofs against them they can be overturned. The Raavad argues that the
words of the Gaonim have the status of Dvar Mishna.

To a lesser degree the Shulchan Aruch with the Rema developed a similar
status i.e. presumed to be the Halacha unless proven otherwise. This is
stated most clearly by the Chazon Ish (Choshen Mishpat Liktutim simnon
I). "...Halacha is always decided on the the basis of which proof is the
most convincing and even though we conduct ourselves according to the
Shulchan Aruch, nevertheless we typically deviate from the Shulchan
Aruch because the Achronim deviate with correct proofs according to the
understanding of the chochmim in each generation. In every halacha we
are required to study the decisions of the Achronim because chochma is
the deciding factor - however when things are deadlocked we go after the
one who is bigger and in this we have accepted the decisions of the Beis
Yosef and the Rema"


The difference between the Talmud and Shulchan Aruch seem to be one of
degree. The Talmud became such universal practice it can not be
abrogated by proofs while subsequent practices whether Gaonim, Rishonim
or Shulchan Aruch was accepted but not absolutely and therefore can be
displaced with proper proofs. Without proofs the Shulchan Aruch can not
be discarded.


There are many sources dealing with this issue. R' Aryeh Kaplan on page
240 of Handbook of Jewish Thought I states "The Shulchan Aruch was not
the individual opinion of its authors, but a compilation of opinions
found in the works of the Rishonim which had gained the widest
acceptance. Because of the near universal acceptance of the Shulchan
Aruch, its decisions are considered binding unless otherwise indicated
by the leading authorities of succeeding generations." He cites a number
of sources.

In addition see Chavas Yair#165, Urim V'Tumim Choshen Mishpat 25 (22)
and Kitzur Takfu Cohen (124); Yaavetz I #75;Shem HaGedolim Seforim 9 12;
Birchei Yosef Choshen Mishpat 25 (6; 26-28); Yabiya Omer V Introduction.
Sdei Chemed Klallei HaPoskim #13 Klall 31.


                                  Daniel Eidensohn

********************


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