Avodah Mailing List

Volume 03 : Number 028

Wednesday, April 21 1999

• Msaye'a (was: Dina de-Malkhuta Dina -- The Tzitz Eliezer)
• Hallel on Yom Ha-Atzmaut
• History of Ashkenazic Minhoggim, etc.
• Re: traffic (was: Dina D'malchusa Dina)
• Dmai
• Re: Naval Berushus Hatorah
• Re: traffic (was: Dina D'malchusa Dina)
• Re: Hallel on Yom Ha-Atzmaut
• Re: History of Ashkenazic Minhoggim, etc.
• Re: Naval Berushus Hatorah
• Re: tax announcements
• Re: dina d'malchusa
• Re: dina d'malchusa

--- "Clark, Eli" <clarke@HUGHESHUBBARD.COM> wrote:
> As recapitulated by RYGB, R.
> Waldenberg
> argues that we don't classify as mesaye'a such indirect acts as
> rental
> of an apartment to an oved avodah zarah or owning stock in, say,
> McDonalds.  Only "literal" assistance.  It seems to me that the
> sales
> tax case IS literal assistance.  I am not merely providing an abode
> in
> which an issur may take place or financing for business activities
> which
> involve issurim.  In the sales tax case, I am providing the
> instrumentality by which the issur is violated, i.e. it is a
> percentage
> of my payment to the proprietor that 1) he is obligated to pay over
> to
> the tax authorities and 2) what he illegally retains.  In my view,
> this
> should constitute literal assistance, even according to R.
> Waldenberg.
>
Without doing any research on the matter (and I know that you did,
Eli), I would think that a priori, one could differentiate between
cases where the assister is consciously assisting the avaryon and
cases where the assister is doing an action for his own purposes but
knows that the avaryon may misuse the instrumentality by which the
issur is violated.

In the case at hand, when a purchaser buys an item from a storekeeper
who does not pay over the sales tax to the state, the purchaser does
not consciously assist the storekeeper unless the storekeeper reduces
the price as an inducement for the customer to go along with the scheme.
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For those of us who believe that it is proper to say Hallel on Yom Ha-Atzmaut, what would be the reason for doing so without a bracha?  What authorities have discussed whether to say a bracha when reciting Hallel on Yom Ha-Atzmaut?  What authorities have discussed the suspension of the aveilut of s'fira on Yom Ha-Atzmaut?

David Glasner
dglasner@ftc.gov

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

Moshe Feldman <moshe_feldman@yahoo.com>:
>>Dr. Chaim Soloveitchik ... 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.<<

Without regardin the Medrash itself per se, Dr. Agus taught us something 
similar.  (I did not have the source for this when I was originally 
challenged).  That is the minhog of Ashkenazaim relates to minhag EY via Italy, 
etc.

This goes to my thesis that even when an Ashkenazic Minhog is be out-of-sync 
with the Bavli, you cannot simply dismiss it w/o considering that it might have 
an equally legitimate, alternate source (eg oral or TY). EG asking how can 
Ashkenzim follow minhog x when the TB dismisses it (eg kitniyos) is no tiyuvto.

I might add based upon a conversation with R. Dr. E. Kanarfogel,  that Tosfos 
attempted to reconcile the 2 traditions, thereby winning the acceptance in 
Ashkenaz of the TB as authoritative. (continuing the process started by Rashi as
above). Fruther, it's been posutalted, that this is the rationale for Tosfos' 
pilpulism; that as a result of reconciling the TB with the prevailing Minhog 
Ashkenaz, he "kvetched" the peshat at times.  (Also questioning the validity of 
pilpulism in general)

A corollary question remains: Are we bound to the TB when the TY argues?  If TB 
is Talmud Diddon (the Rif - Ri Migash school) than TB overrules TY.  OTOH 
Ashkenazim can appeal to a "another authority", i.e. the minhog/mesorah which 
often co-incides with TY.

It also seems that the "yeshivishe velt" frequently considers the TB as 
paramount w/o considering this background.  If you use the TB as a closed 
system, w/o TY, w/o Tsoefta, etc. then you will  indeed probably move minhoggim 
more towards Sepharidc practice, and this is how I explain that progression 
during the last several centuries.  But if you look at the Remo, Maharil, etc. 
you will see a reverence for the minhogim of Ashkenza that goes beyond any 
textual justifications. 

Rich Wolpoe

In message , Moshe Feldman <moshe_feldman@yahoo.com> writes
>  In
>Israel, there is no DMD. 

Correction.  In Israel, some hold that there is no DMD.  See, eg, for a
contrary view Yechavei Da'at chelek 5 siman 64 "she gam l'gabei midinas
yisroel shayich haklal Dina D'malchusa Dina". 

> Many Chareidim say that as a result they
>are not bound by the laws of the State.

Any such people are therefore over on dinei gezela if they use any State
services (if the state has no right to tax, it likewise has no right to
use its taxes for your benefit).   Besides problems with kollel
stipends, how about the roads, the water, the electricity?  You may be
able to do a little bit of fancy footwork combining yeush and various
shinuim in some cases, but certainly not all.

>  Rav Ahron Soloveitchik
>believes that, on the contrary, Israeli laws have the status of laws
>promulgated by a King of Israel.  

Of course, one view (of many) for the reason permitting DMD in churz
l'aretz is based on the legitimacy of asking for a king "like all the
other nations", thus giving Torah legitimacy to the existance of kings
in other nations.  From this perspective, the conclusion is obvious. 

>(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.

See also Rav Kook, Mishpat Cohen 144, who espouses a similar view.

>  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.

This appears to imply that DMD is a rabbinic obligation.  I believe
there are opinions both ways.

>
>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").

Also not so clear.  There are opinions that hold this way (and no doubt
you could argue kum li in a beis din based on this), but if you want to
be choshesh for kol deos I think you would still need to be careful.

>  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.

Again, not necessarily - depending on how you posken based on Sanhedrin
20b and various commentators thereon.  See for example Yechavei Da'at
chelek 4 siman 65 for a different approach than set out above. 
>
>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. 

That seems like a tremendous oversimplification of an incredible
multitude of opinions (a oversimplification that I cannot credit in Prof
Septimus). It may well be true that, viewed with an academic historian's
eye, that those Rishonim who sought to limit the scope of DMD lived in
countries where the laws were used punatively against Jews, while those
who did not, did not.  However, there were rishonic opinions, for
example, that DMD was limited to matters of a nature similar to taxes.
The correct argument IMHO is not that these positions did not exist, but
that where we have, as with the concept of DMD, such a wide range of
rishonic opinion, you have to look to the codes and later to see which
opinions have survived the currency of time, and which have been
regulated to the status of minority. There has been a vast literature on
the subject (a search of the Bar Ilan CD of shutim since the Shulchan
Aruch turns up in excess of 1800 hits for DMD).  The Rema (Choshen
Mishpat siman 369 si'if 11) - appears to bring two circumstances - we
don't say dina d'malchusa dina except for a matter where there is in it
hana'ah l'melech or it is a takana of the benei medina. But even if you
exclusively try and apply those (and ignore all other opinions) is not
necessarily a simple exercise.

> Assuming that
>speeding laws are equally, though sporadically, enforced they should
>not be in the category of DDM.
>
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>


Regards

Chana

-- 
Chana/Heather Luntz

Question: Has anyone discussed the issue of buying Demai from an Am Ho'oretz as 
being "mesa'y'eia lidvar aveiro"?

Rich Wolpoe

<<
 Being a Naval Berushus Hatorah is Assur. This means that there is a 
 higher ethical plane that the Torah mandates in addition to Halacha.  
>>

Before we start adding new mitzvos, let us remember that it is Ramban's 
reading of K'doshim tih'yu that we are discussing.  And that most other 
rishonim did not see these words as discussing naval bir'shus haTorah.  I am 
not claiming that anyone permits such actions, but we are still discussing 
only one opinion.

EDT

--- Chana/Heather Luntz <Chana/Heather@luntz.demon.co.uk> wrote:

.. . . . 

> >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. 

I skipped a couple of words.  I should have written: "Using
historical
methods, he proved that Rishonim who wrote about 
the distinction between DDM and DMD 
lived in countries where Jews were unfairly targeted by laws..."

> 
> That seems like a tremendous oversimplification of an incredible
> multitude of opinions (a oversimplification that I cannot credit in
> Prof
> Septimus). 

I think based on my emended post that you should not have a problem
with my statement.  (I probably should not have chosen DDM as an
acronym, since it is so similar to DMD and you may have read my
statement as referring to DMD in toto.)

>It may well be true that, viewed with an academic
> historian's
> eye, that those Rishonim who sought to limit the scope of DMD lived
> in
> countries where the laws were used punatively against Jews, while
> those
> who did not, did not.  However, there were rishonic opinions, for
> example, that DMD was limited to matters of a nature similar to
> taxes.

Prof. Septimus was not dealing with the issue of limitations of DMD
other than the issue of DDM.

> The correct argument IMHO is not that these positions did not
> exist, but
> that where we have, as with the concept of DMD, such a wide range
> of
> rishonic opinion, you have to look to the codes and later to see
> which
> opinions have survived the currency of time, and which have been
> regulated to the status of minority. 

Prof. Septimus' course was academic and was not geared towards psak
halacha.  His point, though, was that those who use the DDM concept
today may not accurately reflect the Rishonim's views in light of the
fact that those Rishonim lived in countries with a particular
political climate.  (His analysis of the political climate of each
country was a real tour de force.)

Kol tuv,
Moshe


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--- David Glasner <DGLASNER@FTC.GOV> wrote:
> For those of us who believe that it is proper to say Hallel on Yom
> Ha-Atzmaut, what would be the reason for doing so without a bracha?
>  What authorities have discussed whether to say a bracha when
> reciting Hallel on Yom Ha-Atzmaut?  What authorities have discussed
> the suspension of the aveilut of s'fira on Yom Ha-Atzmaut?
> 
There was an article in the RJJ Journal of Halacha & Contemp. Society
sometime between 1984 & 1986.  Actually, there was a semi-debate on
the issue; one of the articles was written by Solomon Ryback.  As I
recall, there is a tshuva from Rav Ovadia Yosef against making a
bracha.  I know that Rav Soloveitchik zt'l was against a bracha and
actually said Hallel at the end of the entire davening.

One reason to say Hallel w/o a bracha is if one is in doubt as to
whether Hallel is required based on the various Gemarot dealing with
when Hallel is said.  

Remember also that Hallel said on Rosh Chodesh is said with a bracha
only according to Ashkenazim, who make brachot on minhagim.  Query
when a practice rises to the level of a minhag which Ashkenazim deem
worthy of making a bracha upon (I seem to recall hearing a shiur from
Rabbi Jeffrey Abel on this issue in 1982 but I don't recall exactly
what he said; I would think that it would depend on whether you have
a cheftzah shel mitzvah which one normally makes a bracha upon).

My own feeling is that in the 20th century there is a reluctance to
create new halachot; making a bracha imputes a different gestalt to
the saying of Hallel, making it more "official."

Lastly, I remember that a certain Israeli "oldtimer" recalled at a
Yom Haatzmaut (or Yom Yerushalayim) dinner at Yeshivat Har Etzion in
1990 that a certain charedi individual felt that the events that
occurred were miraculous and therefore made sure to recite the entire
book of tehillim at a certain minyan factory, arriving at the Hallel
portion at the time a Dati Leumi minyan was about to recite Hallel.

Kol tuv,
Moshe
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Most of your points were made by Dr. Soloveitchik in his lectures.

--- richard_wolpoe@ibi.com wrote:
> Moshe Feldman <moshe_feldman@yahoo.com>:
> >>Dr. Chaim Soloveitchik ... 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.<<
> 
> Without regardin the Medrash itself per se, Dr. Agus taught us
> something 
> similar.  (I did not have the source for this when I was originally
> 
> challenged).  That is the minhog of Ashkenazaim relates to minhag
> EY via Italy, 
> etc.
> 
> This goes to my thesis that even when an Ashkenazic Minhog is be
> out-of-sync 
> with the Bavli, you cannot simply dismiss it w/o considering that
> it might have 
> an equally legitimate, alternate source (eg oral or TY).

Exactly what Dr. Soloveitchik said.

 EG asking
> how can 
> Ashkenzim follow minhog x when the TB dismisses it (eg kitniyos) is
> no tiyuvto.
> 
> I might add based upon a conversation with R. Dr. E. Kanarfogel, 
> that Tosfos 
> attempted to reconcile the 2 traditions, thereby winning the
> acceptance in 
> Ashkenaz of the TB as authoritative. (continuing the process
> started by Rashi as
> above). Fruther, it's been posutalted, that this is the rationale
> for Tosfos' 
> pilpulism; that as a result of reconciling the TB with the
> prevailing Minhog 
> Ashkenaz, he "kvetched" the peshat at times.  (Also questioning the
> validity of 
> pilpulism in general)
> 
> A corollary question remains: Are we bound to the TB when the TY
> argues?  If TB 
> is Talmud Diddon (the Rif - Ri Migash school) than TB overrules TY.
>  OTOH 
> Ashkenazim can appeal to a "another authority", i.e. the
> minhog/mesorah which 
> often co-incides with TY.

Again, exactly what Dr. Soloveitchik said.



> 
> It also seems that the "yeshivishe velt" frequently considers the
> TB as 
> paramount w/o considering this background.  If you use the TB as a
> closed 
> system, w/o TY, w/o Tsoefta, etc. then you will  indeed probably
> move minhoggim 
> more towards Sepharidc practice, and this is how I explain that
> progression 
> during the last several centuries.  But if you look at the Remo,
> Maharil, etc. 
> you will see a reverence for the minhogim of Ashkenza that goes
> beyond any 
> textual justifications. 

By the way, it is very clear to me that Dr. Soloveitchik's views
regarding minhagim serve as the backdrop to his famous (infamous?)
article in Tradition regarding mimetic tradition.

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--- EDTeitz@aol.com wrote:
> <<
>  Being a Naval Berushus Hatorah is Assur. This means that there is
> a 
>  higher ethical plane that the Torah mandates in addition to
> Halacha.  
> >>
> 
> Before we start adding new mitzvos, let us remember that it is
> Ramban's 
> reading of K'doshim tih'yu that we are discussing.  And that most
> other 
> rishonim did not see these words as discussing naval bir'shus
> haTorah.  I am 
> not claiming that anyone permits such actions, but we are still
> discussing 
> only one opinion.

Rav Lichtenstein believes that the Ramban's opinion is normative
halacha and is the correct interpretation of "v'aseta ha'yashar
v'hatov" (see Ramban ad. loc.).

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<< 
 Seriously, I am curious as to whether anyone knows of any other shul or 
communal
 Rabbi that has done anything like this? 

>>

I speak about it every few years.

Eliyahu Teitz
Jewish Educational Center
Elizabeth, NJ

<<
 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 
 zoning laws, et al. as they would to misdemeanors and felonies. 
 Perhaps that is a distinction one could make with regard to speeding and 
dina 
 D'malchusa dina.
>>

Writing without sources handy, I seem to remember that the rules of dina 
d'malchusa apply to laws that are established for the smooth operation of 
society at large.  Whether taxes falls under that category or is a separate 
designation I do not remember offhand.  But regardless of the tax issue, laws 
of zoning and speed limits and jaywalking and most other laws are passed so 
that society can operate smoothly.  If there was a law passed requiring the 
wearing of white shirts on alternate Tuesdays I could see an argument that 
there is no gain to thr public good from that.  (although I'm sure someone 
could come up with a reason why it would be).

Eliyahu Teitz
Jewish Educational Center
Elizabeth, NJ

--- EDTeitz@aol.com 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 
>  zoning laws, et al. as they would to misdemeanors and felonies. 
>  Perhaps that is a distinction one could make with regard to
> speeding and 
> dina D'malchusa dina.
.. . . .

>  But regardless of the tax
> issue, laws 
> of zoning and speed limits and jaywalking and most other laws are
> passed so 
> that society can operate smoothly.  

In American jurisprudence, one sometimes distinguishes between laws
which are enforced and those which aren't.  (For example, one cannot
sue to overturn a discriminatory law on the basis that it is not
Constitutional if the law is never enforced.)  Jaywalking is an
interesting law: a policeman will not stop 99% of the jaywalkers in
Manhattan unless they are jaywalking irresponsibly.  Essentially, the
legislature, in enacting a jaywalking law (at least in Manhattan, in
contradistinction to Israel), gives broad authority to a policeman
but expects the policeman to be selective in enforcement.

It would seem reasonable to propose (but I have no halakhic sources
for this) that DMD should distinguish between laws that are always
enforced and laws that are on the books but are rarely enforced.

One could make the same argument about the Nanny Tax, but I should
point out that I paid the Nanny Tax (and am therefore eligible for
nomination to the Supreme Court; nominations anyone?) and it is
possible that there are more closet payers of the Nanny Tax than you
would think.

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