Avodah Mailing List

Volume 03 : Number 027

Tuesday, April 20 1999

• Quotes from Gedolim
• Re: traffic (was: Dina D'malchusa Dina)
• Girsos and Halocho
• Re: Avodah V3 #26-speeding
• manuscripts
• kiddush
• RE: chillul Hashem or, Look before you paste
• Psak based on Midrashim (was: Avodah V3 #26-speeding)
• yom hazikaron
• cooking cholent on Y"T samuch l'Shabbos
• The reliability of manuscripts
• Manuscripts
• Re: traffic (was: Dina D'malchusa Dina)
• Re: cooking cholent on Y"T samuch l'Shabbos
• Re: Avodah V3 #26-speeding

HM: >>I find this view of the Steipler hard to believe and very difficult to 
stomach!<<

Indeed I find it hard to believe that the Steipler acually said this.  But I do 
NOT find it hard to believe that someone said it bishmo!  IOW, I've heard a LOT 
of nonsense said in the name of gedolim and a number of sayings mis-construed, 
mis-quoted, mis-understood...etc.

As the cliche goes, believe half of what you see and nothing that you hear...

rich Wolpoe

--- Eli Turkel <turkel@math.tau.ac.il> wrote:
> > Would Dina D'malchusa dina apply  equally to laws which are not 
> > criminal in nature, but more like codes or regulations like
> traffic laws, or 
> There is a story that years ago someone drove Rav Lichtenstein to
> speak
> to the troops in Sinai (before it was given back). When the driver
> began
> to speed on a deseted road in the middle of the desert R.
> Lichtenstein
> made him slow down to the legal limit.

I'm not sure that Rav Lichtenstein's actions are necessarily relevant
to the issue of the purview of Dina D'malchusa Dina ("DMD").  In
Israel, there is no DMD.  Many Chareidim say that as a result they
are not bound by the laws of the State.  Rav Ahron Soloveitchik
believes that, on the contrary, Israeli laws have the status of laws
promulgated by a King of Israel.  (cf. Drashot HaRan about the
difference between Din of Sanhedrin and Din of Melech; cf. the famous
Rambam stating that a majority of Rabbis can reconstitute the
Sanhedrin.  I seem to recall hearing from Rabbi Michael Rosensweig of
YU that, based on the Rambam, we can postulate that the Sanhedrin is
the essence of Klal Yisrael and that in the absence of a Senhedrin,
Klal Yisrael has the ability to create Halacha; see R. Rosensweig's
article on Personal Autonomy and Halachic Creativity)  As a result,
Israeli laws must be followed because of a Torah obligation rather
than a rabbinic obligation.

I have heard people suggest that one need not follow the speed limit
because a large percentage of the population does not follow it. 
Under the rules of DMD, a law of the land which is ignored by many
goyim does not have the status of the law of the land (Dina
D'malchusa) but rather is considered an arbitrary law (Dina D'malka)
("DDM").  Consequently, one may argue that the speed limit is not DMD
(especially since many believe that bad driving rather than speed
kills and the speed laws are merely a revenue raiser for local
governments).  The distinction between DMD and DDM does not exist
under Rav Ahron Soloveitchik's categorization of the Israeli
government.

I should point out that Prof. Bernard Septimus (of Harvard) believes
that the above distinction between DMD and DDM is not borne out by
the Rishonim.  Septimus gave an entire course which I attended in
NELC (the famous "Twersky" program) on DMD.  Using historical
methods, he proved that Rishonim who wrote about DDM lived in
countries where Jews were unfairly targeted by laws; thus DDM is
analogous to laws which are declared unconstitutional by the US
Supreme Court because they are unequally enforced.  Assuming that
speeding laws are equally, though sporadically, enforced they should
not be in the category of DDM.

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>> The Chazon Ish in Kovetz Igros III:2 says that some texts of the gemara 
have been corrupted through the ages, but HKB"H, because of His bris with 
klal Yisrael that the Torah Shebe'al Peh not be forgotten, ensured that even 
the corrupt girsa reflects a facet of the Torah which may be relied upon 
lehalachah. He describes this corruption of the texts as due to a dearth of 
sefarim, whose texts naturally become smudged, etc., and are corrected by 
chachamim in different ways. The Chazon Ish thus refers to a process by which 
the text is altered unintentionally in an effort to restore the original 
girsa which has been lost. ...
Yisrael Herczeg<<

BTW, this is very close to the hashkofo at Bernard Reevel Graudate School when a
conflict existed between Halocho Pesuko that were based upon "erroneous" girsos.
Many of the talmiddim were convinced that the professor's were tampering with 
the Shulchan Aruch when altering Girsos.  When I queried the professors after 
class, they articulated something similar to the CI as cited above.

And, this is why I believe it is a bit dangerous to overturn minhoggim EVEN when
based upon a supposedly erroneous psak/girso/peshat.  Because if you allow for 
changes to halocho lema'asse based upon "proofs" that rishonim and others had 
faulty texts, or fualty udnerstandings of texts - im kein ein ledovor sof!

Conversely, if you stay fast to minhog avoseinu beyodeinu, you have the academic
freedom to research and postulate emendations because you would be doing so 
strictly from an academic perspetive and not from a halocho lema'ase 
perspective.  IOW, academic freedom is becomes dangerous only when it implies a 
change to halocho.   

Rich Wolpoe  

Rav Ahron Soloveichek has said that ,aside from dina d'malchusa dina,there is 
another halacha ,moreid b'malchus,that applies to any legtimate 
government,and requires observance of all just laws it legislates,even if 
they do not technically come under dina d'malchusa dina according to the 
Shulchan Aruch definition. He mentioned speeding as an example. His source, 
if I recall correctly,was a Midrash Rabbah in Naso.As far as using midrash as 
a source for halacha, he did not see it as a problem as long as the midrash 
is comprehensible. He once decided a certain dispute on the basis of a 
Midrash Rabbah in parshas Shemos.One of the parties objected to the 
decision,so R.Ahron told him to ask R.Ahron Kottler,who agreed with the 
decision. Maharitz Chayos writes, I think, that the restriction against 
deciding halacha from midrash applies only when the midrash contradicts a 
gemara.

> 
> The Chazon Ish in Kovetz Igros III:2 says that some texts of the gemara have
> been corrupted through the ages, but HKB"H, because of His bris with klal
> Yisrael that the Torah Shebe'al Peh not be forgotten, ensured that even the
> corrupt girsa reflects a facet of the Torah which may be relied upon
> lehalachah. He describes this corruption of the texts as due to a dearth of
> sefarim, whose texts naturally become smudged, etc., and are corrected by
> chachamim in different ways. The Chazon Ish thus refers to a process by
> which the text is altered unintentionally in an effort to restore the
> original girsa which has been lost. We don't see him legitimating a
> conscious effort to reject an accepted girsa. Nor does he deal in III:2 with
> manuscripts that have been lost for centuries and recently discovered, or
> with texts other than Shas itself.
> 
Rabbi Beich says essentially the same thing in his article, That is
one of the dangers of summarizing a detailed article in a few lines.

I again urge everyone to read the original article which gives much
more detail and apologize for misleading information caused by the
summary.

Eli Turkel

Classical sources relating to dying al kiddush hashem describe a scenario in
which a Jew is threatened with death to denounce his religion; upon his
(her) refusal, he is murdered, and the death carries with it the special
status of "al kiddush hashem", with all that that implies.

What is the status of a Jew who attempts to hide his religion, upon being
caught, denounces his religion, and is murdered anyway since he's a Jew.
Does that death carry any special status?

Avi Pechman

A request --

We've a several posts now where the posters have indiscriminately pasted
huge amounts of text or HTML gibberish without editing or at least checking
the consequences.  All this does is to the junk mail quota and bury the
important "signal" in a sea of "noise".

Therefore, please take the time look after you paste, but before you post.
Edit out the non-text junk.  If you are not sure about the outcome, e-mail
yourself a copy first and set your mailer to display the note as straight
text, without HTML interpretation.

hg


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--- JoshHoff@aol.com wrote:
As far as using
> midrash as 
> a source for halacha, he did not see it as a problem as long as the
> midrash 
> is comprehensible. He once decided a certain dispute on the basis
> of a 
> Midrash Rabbah in parshas Shemos.One of the parties objected to the
> decision,so R.Ahron told him to ask R.Ahron Kottler,who agreed with
> the 
> decision. Maharitz Chayos writes, I think, that the restriction
> against 
> deciding halacha from midrash applies only when the midrash
> contradicts a 
> gemara.
> 
Dr. Chaim Soloveitchik in his class at Bernard Revel said that many
of the pre-Rashi Ashkenazic rishonim (he gave the example of Rabbeinu
Gershom) paskened based on Midrashim.  He suggested (based on Saul
Leiberman) that Midrashim reflect the halacha of Eretz Yisrael, in
contrast to the Talmud Bavli.  Since early Ashkenaz derived from
Italy which, in turn, derived from Eretz Yisrael, it is likely that
the early Ashkenazic rishonim did not necessarily rule like the
Bavli.  As the Yerushalmi did not go through the same redaction
process as the Bavli and was not as robust, Ashkenanic rishonim felt
compelled to use other sources to arrive at psak halacha.  Only in
the time of Rashi did the Bavli become preeminent.
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live pictures of the yom hazikaron ceremony at thewall.org.   to my
knowledge, this is always the only time you can't find chareidim [or anyone
else] at the kotel  [untill the ceremony ends in about a hjalf hr]

Perhaps this is obvious, but it only occurred to me recently.  When you have 
a Y"T just before Shabbos (Thurs/Fri) like we had Pesach and will have on 
Shavuos, it should be assur (poss. d'oraysa!) to set up a cholent just before 
Shabbos that cooks overnight to be eaten the next day (which is how my wife 
usually does it). 

The explantion:  Even if you have a eiruv tavshilin, it only helps if you can 
take off the issur d'oraysa of preparing from Y"T to Shabbos.  The gemera 
(pesachim 46) has a machloket how that issur is removed: thorugh ho'il - the 
possibility of the food being eaten by unexpected guests makes the cooking 
into a Y"T necessity and not a preparation for Shabbos - or through the 
sevara that tzorchei Shabbos na'asin b"Y"T - there is no issur of cooking 
from Y"T to Shabbos (which the Rishonim offer various explanation for).  The 
M"GA and M"B paskin of ho'il, the ramifications of which include the fact 
that the food must potentially be edible on Y"T.  

(Obviously I'm not paskining for this list, but am making a he'ora to 
investigate in case anyone wants their normal Shabbos cholent on Shavous.)

-Chaim

In Eli Turkel's otherwise fine post on the reliability of manuscripts , the 
Meiri was unknown untill recent generations. Rav Schachter has stated that 
Rav Soloveitchik Z'l utilized it rarely. The Chazon Ish's position is 
analyzed quite well by Dr. Daniel Sperber in his article "On the Legitimacy, 
or   indeed, Necessity , of Scientific Disciplines for True "Learning " of 
the Talmud" which is found in "Modern Scholarship in the Study of 
Torah:Contributions andf Limitations".Dr Sperber points out that the Chazon 
Ish emended texts based upon other mareh mkomos which are consistent with the 
Munich manuscript that the Chazon Ish rejected vociferously.As both Dr 
Sperber and Dr Leiman point out, the Chazon Ish's position should be read 
carefully to discern what his shita was with respect to the use of 
manuscripts.
                                                                              
                  Zeliglaw@aol.com(Steven Brizel)

Perhaps tangentially apropos to the recent discussion of manuscripts, I saw 
on Shabbos that the Tif. Yisrael in Pirkei Avos ch. 2 casually comments on 
his feeling that certain masechtos were not edited as well as others.  I 
guess the same can be said of certain works of the Rishonim/Geonim.

(And just to stir up trouble - had an academic made the same comment as the 
Tif Yisrael, what would the reaction be?)

-CB

In a message dated 4/19/99 12:43:05 PM Eastern Daylight Time, 
moshe_feldman@yahoo.com writes:

<<   I seem to recall hearing from Rabbi Michael Rosensweig of
 YU that, based on the Rambam, we can postulate that the Sanhedrin is
 the essence of Klal Yisrael and that in the absence of a Senhedrin,
 Klal Yisrael has the ability to create Halacha; see R. Rosensweig's
 article on Personal Autonomy and Halachic Creativity)   >>
Dear Moshe,
I've heard something similar said over by R' Sacks in the name of the Rav(R' 
J B Soloveitchik) that the Sanhedrin sometimes acts as representative of klal 
yisrael(eg kiddush hachodesh - and this is meaning when we say kol yisrael 
chaverim).  Similar role split is seen in edit lkiyum hadavar versus edut 
lbirur hadavar

Kol Tuv,

Joel Rich

In a message dated 4/19/99 7:58:35 PM EST, C1A1Brown@aol.com writes:

> Perhaps this is obvious, but it only occurred to me recently.  When you 
have 
>  a Y"T just before Shabbos (Thurs/Fri) like we had Pesach and will have on 
>  Shavuos, it should be assur (poss. d'oraysa!) to set up a cholent just 
> before 
>  Shabbos that cooks overnight to be eaten the next day (which is how my 
wife 
>  usually does it). 
>  
Yes it must be ready before Y"T (I too am not Paskining for the group), see 
S"O Horav 527:8

Kol Tuv

Yitzchok Zirkind

In a message dated 4/19/99 12:52:03 PM EST, JoshHoff@aol.com writes:

>  Rav Ahron Soloveichek has said that ,aside from dina d'malchusa dina,there 
> is 
>  another halacha ,moreid b'malchus,that applies to any legtimate 
>  government,and requires observance of all just laws it legislates,even if 
>  they do not technically come under dina d'malchusa dina according to the 
>  Shulchan Aruch definition. He mentioned speeding as an example. His 
source, 
>  if I recall correctly,was a Midrash Rabbah in Naso.

See also Shmos Rabboh 47:5 (which is also brought in Bavli B"M 86b, which 
gives it an extra Tokef in Halacha).

As far as using midrash 
> as 
>  a source for halacha, he did not see it as a problem as long as the 
midrash 
>  is comprehensible. He once decided a certain dispute on the basis of a 
>  Midrash Rabbah in parshas Shemos.One of the parties objected to the 
>  decision,so R.Ahron told him to ask R.Ahron Kottler,who agreed with the 
>  decision. Maharitz Chayos writes, I think, that the restriction against 
>  deciding halacha from midrash applies only when the midrash contradicts a 
>  gemara.

The Maharatz Chayos can be found in Ndorim 40, and see Yad Malachi Kllolei 
Hoalef Ois 72, from the Kneses Hagdoloh, and see Sdei Chemed Kllolim Aleph 
Ois 95, 96.

With regards to DDMD most of the disscussion here can be found in 
Encyclopedia Taalmudis in vol. 7, also see Torah Shleimoh Melui'im to 
begining of Parshas Mishpotim.

Kol Tuv

Yitzchok Zirkind

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


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