Avodah Mailing List

Volume 03 : Number 203

Tuesday, September 7 1999

• Re: feeding infants outside the succah
• Re: Lubavitch does it again, II
• Re: Toward a Definition of Psak
• Re: Toward a Definition of Psak
• Midgets and Giants:Poskim
• Definition of Ba'al Teshuva
• Re: Toward a Definition of Psak
• Eidus Kidush haChodesh
• Re; historical revisionism & artscroll- clarification for the rec ord

In a message dated 9/2/99 7:20:26 PM Eastern Daylight Time, MFeldman@CM-P.COM 
writes:

>  Any views on this issue?

See Misgeres Hashulchon 165 (3).

KVCT

Yitzchok Zirkind

> From: Hershel Ginsburg <ginzy@netvision.net.il>
> 
> b)  When you say "meshichist faction", was there an organizational name
in
> the the ad?  Was it one of the "mainstream" (such as it is) Loobby
> organizations, or one of the tiny offshoots?  Were there any names
attached?

I am glad that at least one person here is reluctant to impugn an entire
group based on the actions of one individual.

From Ha'aretz:
a member of Habad has recently begun a publicity campaign to demand from 
God that he bring salvation to Earth immediately. Meir Branes, of Safed
.. . .
Branes was ostracized roughly six months ago by Safed's Chief Rabbi, Levi 
Bisteritski, who also acts as the city's Habad leader, after Branes 
distributed pictures of the Lubavitcher Rebbe with the caption "King of
the Kings of Kings", an attribute generally reserved for God.
.. . .

Enough said. 
K'siva v'chasima tova

It seems that R. Carl Sherer and I agree far more than either of us had
suspected at first.

We both seem to feel that Rabbi Kaplan's use of the phrase "intrinsically
forbidden" (in sections 12:54-62 of R. Kaplan's "Handbook of Jewish
Thought") was intended to describe the ways in which a paskened-upon
cheftza will be "stuck" as mutar or assur. I am willing to concede this
point, even though I am still trying to understand how it works in the
absence of real semicha.

But it still seems to me (and I think to RCS as well) that the above
applies *only* to a cheftza, and not to other sorts of halachic
questions.

I had made a comment that when a person gets a binding p'sak from his
posek, he is "stuck" with it, even if it is a maykil p'sak. RCS pointed
out that according to the Handbook (12:45), individual scholars in the
community may choose to follow stricter opinions that the community
rabbi, provided they do so unobtrusively. My response is that this is in
a different part of the chapter than the "issur chaftza" we discussed
above, and seems to apply to the general practices of the Mara D'asra, or
even to specific pronouncements. But if paskening l'chumra on a cheftza
is real, then I would *imagine* that paskening l'kula on a cheftza would
have a similar effectiveness, which would cause serious Bal Tashchis
problems for anyone who wanted to be machmir. (Comments are invited, as
always.)

RCS's baby swing is an excellent model of the kind of p'sak which has had
me pursuing this subject for so many years. How long, or under what
circumstances, does such a p'sak remain valid? On a deep intuitive level,
I just know that Chana Luntz's argument is 100% totally on target, and
simply needs to be explained and justified according to the sources.
There comes a time when circumstances have changed, and one wonders if
we've "outgrown" the original p'sak, and perhaps the question can,
should, or even *must* be re-asked. (Side comment: Can someone suggest an
appropriate honorific for the learned Ms. Luntz? With all these "R"s
floating around, I'd like to show her the proper kavod as well. I hope
MCL will work for now.)

<<< In fact, there are some people whom I know will tell me that I am not
allowed to use the swing on Shabbos if I ask them. Does that mean I have
to ask? Or can I rely on the psak I got in the States almost sixteen
years ago? >>>

If we go by the idea that one is not "stuck" by a p'sak unless it is on a
specific cheftza, then the real question is: How comfortable are you with
that original p'sak? Does you know the logic involved, why your posek
made that distinction between different kinds of swings? And in contrast,
do you know anything about the logic of those who are telling you not to
use it?

<<< BTW - when you come on aliya you will find that there are MANY issues
like this in Hilchos Shabbos.... >>>

The one which I remember most vividly was how many people would not open
their refrigerator unless the motor was already on, which I had never
heard of in the States. My feeling about both your swing and my
refrigerator is this: As a practical issue, no one goes to his posek with
every single question. Each person decides most questions for himself, in
accordance with how well he understands the topic, and how urgent the
matter is. Each person has his own level where "this question is too big
for me", and that decides which questions he brings to the posek.

In short, I believe that you can rely on the original p'sak for your
swing only for as long as you feel comfortable doing so. But depending on
what you remember of that p'sak, combined with exactly what it is that
your friends are now saying about it, you may reach a certain level of
discomfort, at which point, as MCL put it, you will have "grown out" of
that p'sak, and you will *want* to re-ask it.

<<< if I go back and re-ask the shaila again, and get told that I cannot
use the swing, does the cheftza of the swing become assur? >>>

Rabbi Bechhofer responded to this <<< FWIW, on a tangent, R' Yosef Engel
(Asvan D'Orysa) says Issurei Shabbos cannot be issurei cheftza, as
issurim that are tallui b'zman cannot be issurei cheftza. >>>

This is not a tangent, but an important part of this discussion, and I
thank you for bringing it to our attention. It raises at least two other
interesting questions:

1) In what context does R. Engel make that point? Why does it matter
whether the swing is an issur cheftza or not? If my theory is wrong,
about the difference between paskening on an object and paskening on an
action, then what is his point?

2) Is chometz tallui b'zman? If a shailah arises and the rav paskens that
something is chometz, is this not an issur cheftza?

Akiva Miller

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This topic has turned out to be far less controversial than I had
expected. Is this because people are not interested in it, or because
they think I'm correct? Please reply either to the group or privately.
Thanks.

Akiva Miller

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Hershel Ginsburg wrote:

> >From the tone of your note I get the impression (perhaps wrongly) that you
> have decided a priori that Rabbi Rackman by definition, can't be right, and
> you are now trying to figure out why.  Do  you allow for the possibility
> that Rabbi Rackman may be correct and that the RCA Beit Din might be wrong?
> Perhaps you should **ALSO** ask if some list members can come up with
> material to bolster Rabbi Rackman's position?  Wouldn't that be more
> intellectually honest?

Contrary to the impression given by your posting - the issue of Rabbi Rackman and
his beis din is not a viable option and is not considered as an unresolved
question by the vast majority of poskim - and not just of the RCA Beis Din.
Actually if you have heard of any responsible rabbonim who support Rabbi Rackman
I'd be interested in hearing about it. While there is room for a variety of
opinions in halacha - this is not so when it comes to the issue of marriage and
mamzerim or where there is a clear consensus has developed on a particular issue
e.g., electricity on Shabbos. There has been universal condemnation of Rabbi
Rackman's beis din and the principle of kiddushei taus which it utilizes.
Rabbi Rackman himself in his magnum opus - appropriately named *One Man's
Judaism* - devotes much praise to Rav Moshe Feinstein's liberality (sic) in
invoking the principle of kiddushei taus. At the end Rabbi Rackman himself notes
that a ready use of  this principle, however, would destroy the institution of
marriage and its sanctity.
Assuming that Rabbi Rackman has a genuine theoretical basis for his psak - which
so far I have seen no documentation for - that Rav Moshe Feinstein applied the
principle of kiddushei taus in exactly the same way as his beis din - what does
that mean? It only makes sense if the application of this principle is totally
independent of the posek. That would mean that we really don't need a beis din -
any one of us or our wives could just as legitimately determine when any marriage
was annullable. Not all poskim have the same latitude or are granted the same
lattitude in psak by Clall Yisroel.
An acquaintance told me that his father -  a distinguished Rav in America -  had
received Rav Moshe's psak concerning the nature of Conservative and Reform
marriages to save a number of people from the status of mamzer. The Rav himself
did not feel he had broad enough shoulders to posken on these cases. After Rav
Moshe was niftar - he went to Rav Elyashiv and asked him to pasken for him in a
new case according to Rav Moshe's psak. Rav Elyashiv said simply that he didn't
agree with Rav Moshe's ruling. That those cases where Rav Moshe had poskened that
the person wasn't a mamzer - that itself was enough. The basis of Rav Moshe's
decision was not required for him to accept the results. The same attitude was
held by Rav Shlomo Zalman Auerbach.
In contrast Rabbi Rackman has a beis din whose basis is a ruling and an
application of a ruling that is not acceptable. Rabbi Rackman is not Rav Moshe
Feinstein.

In sum - we have a situation where a beis din is producing mamzerim according to
the consensus of responsible poskim. Either because Rabbi Rackman's understanding
of kiddushei taus is not accepted or because the operation of the beis din and
its membership is not accepted. Unless Rabbi Rackman's psak is accepted - it is
the height of irresponsibility to tell these woman that they can remarry. It is
not for Rabbi Rackman to tell the world they must accept his interpretation of
halacha - no matter how well intentioned his interpretation is. Thus the burden
of proof is squarely on Rabbi Rackman. Failing to convince the jury of his peers
that his beis din's activity is legitimate - he needs to abandon his approach.

                         Daniel Eidensohn

On 9/3/99, Rabbi Bechhofer wrote:

>If, as RDNadoff proposes, we all
>should be Ba'alei Teshuva, and that Ovdei Hashem are a larger set, >the subset of which is Ba'alei Teshuva, some of which are those who >were once non-observant and now are, and some of which are those who >were always observant, but, as R' Sa'adia Gaon said, are doing >teshuva each day on the previous day's shortcomings (if I understand >RDN correctly), then it would be helpful to know whom we are talking >about. 

Rabbi Bechofer flatters me, but I cannot take credit for proposing the fundamental insight that we all should be ba'alay teshuva. Apart from the apparent committment of Anshay K'neses Hagdolah to this proposition, as evidenced by birchas Hashevaynu in Sh'moneh Esray, the following beautiful dictum is found in Yalkut R'uvauni in the name of Sefer Yonas Aylam: 

"Kol hanotzar mitipas Adom v'Chava yachshov atzmo shehu ba'al teshuva v'tzarich dikdukay mitzvos u'lhachzir atara l'yoshna b'sod t'chias hamaysim shenizkeh kulanu l'ksones or [with an aleph, not an ayin] b'ta'am yachin v'tzadik yilbash."

Rabbi Bechhofer's allusion to R. Sa'adia Gaon is also pertinent in this regard, and is discussed at length by R. Chaim MiCharnowitz in Siduro Shel Shabbos (vol 2, Drush 3:3:5-6)

A few hours ago, I sent out a post kvetching that <<< This topic has
turned out to be far less controversial than I had expected. >>>

That was a very arrogant thing for me to say, and I ask everyone's
mechila for it. (Actual email responses are *not* requested.) There are
many posts which I do not find interesting, and/or I don't know enough
about the subject to formulate an intelligent response. It took a lot of
chutzpah for me to presume my questions would be special. I wish I could
retract that post, and I apologize.

Akiva Miller

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Nimukei Yosef suggests that Rashi' needs a special gezeirat hakatuv to derive 
'lo tehei shmiya gedolah m'reiyah' by Kiddush hachodesh (R"H 25) because 
Rahsi holds that the principle of 'ein eid na'asah dayan' applies to an eid 
haroeh and not just an eid hamayid; other Rishonim learn 'lo tehei...' is not 
a special din by kiddush hachodesh l'shitasam that seeing an event does not 
alone create a psul to be a dayan unless testimony is given to B"D (see Tos. 
B"K 90).  

I would like to suggest that even if you disagree with Rashi's opinion that 
an eid haroeh is pasul to be a dayan, you can still accept the chiddush that 
we don't say ein eid na'asah dayan by kiddush hachodesh.  Tos. B"K 90 says 
one reason for 'ain eid na'asah dayan' is because you need eidus that is 
subject to hazamah; a dayan will never accept testimony of hazamah on his own 
eidus.  Minchas Chinuch raises a safek whether eidus hachodesh must be rauy 
l'hazamah or not.  If not, it makes sense acc. to Tos. to say even an eid 
hamayid can be a dayan by Kiddush haChodesh.

-Kesivah v'Chasimah Tovah,

-Chaim

While I  have no particular interest in reprising the most recent dust up
over artscroll's editorial policies -puzzled as I remain by the refusal of
some of our givirim to confront the issues of gineivas daas cum yashrus,
which they apparently feel can be dismissed by the power inherent in their
own devotion to a virtuous cause - (very faint echo of mitzvoh habo'oh
biaveiroh here? - not that I'm accusing anyone who defended the artscroll
approach of being a  sabbatean. some polemical reaches are beyond even me),
there never-the-less remain two factual matters to be clarified for the
record.

1.  The first pertains to what it is that artscroll actually did.  From
RYGB's multiple postings along the lines of ...< It is interesting to
speculate, in the absence of the author, who is entitled to omit passages
that may do more harm than good. Yet, again, that speculatiion is wholly
distiinct from ...BTW, what Artscroll should probably have done, which I do,
is use those wonderful three dots...I will use them if I skip something in
the middle of a text that I am translating. YGB>
which convey the notion that artscroll distorted  R. zevin's legacy "only"
by deletion - by leaving out some crucial lines from his ouevre which
illumined the truth in a way which might have made him "unacceptable" to our
more sheltered and effectively less educated brethren.  With this assumption
a tzurboh mirabbonon can immediately distinguish fine moral differences
between two recent case studies; between the artscroll distortions of a
niftar -to  which one may be masqim since the distortion is allegedly
mitigated by the sheiv vi'al ta'aseh nature of the insult, and the
non-distortion of a niftar (R. Weinberg) which nevertheless invaded his
privacy , of which one mightily disapproves.    Not actually possessing the
english version of moadim bihalochoh I instead looked up the original
exchange of letters in Tradition.  it turns out that artscroll distortion
was more egregious than the recent postings would have it.  They not only
deleted his revealing parenthetical comment- but they also, clearly
intentionally, actively mistranslated his words - now literally putting
words in his mouth that changed the thrust of his remarks.   To wit,
r.zevin, when discussing the issue of mitzvas qiriyoh on the churbon
ho'oretz biziman hazeh uses the hebrew term "mistabeir" to introduce his
suggestion that it ought not apply following the reestablishment of the
state.  artscroll changed the plain translation from the assertive
"mistabeir" ( which one would translate as something like "it stands to
reason" or  "it seems to be" , i.e. it is) with the clearly weaker and false
substitute, "it can be argued that..." as though r. zevin were merely
raising a possibility that some others had suggested but that he was in no
way identified with.  it seems then that RYGB's preferred editorial recourse
to ellipses would not have sufficed after all.  and what now of the gineivas
daas and artscroll defense based on permissible distortions via sheiv vi'al
ta'aseh ? - not that it ever resonated well to us pilpulically challenged
non-ZMs. 

2.The other factual matter I remain puzzled by was R. Carmy's description of
the claims made by the artscroll editiors during the course of the incident
which he recounts as follows: < ...This matter was aired in the letters to
the editor column in Tradition, some time in the early 1980's. As I recall,
the representative of ArtScroll claimed that the deletions were made at the
request of R. Zevin's widow, communicating his wishes. Why R. Zevin himself
kept silent edition after edition, and why he told his wife to insist on the
deletions only in English translations prepared after his death, remains a
mystery.>

 I had no memory of any claim made by anyone in which r. zevin himself was
supposed to have distinguished between treatment of his hebrew editions and
any potential english translation.  nor did I remember any mention of r.
zevin's wife expressing an opinion in any of these matters.  After
rechecking the published letter (Tradition/winter 87) I still find no
mention of either - the artscroll letter references consultations with
unspecified "family members" and never claimed additional sanction for their
editorial policy based on any precedents articulated by r. zevin himself re
english vs hebrew versions.  I guess I was wondering whether there may have
been some additional, ex parte so to speak, interactions between artscroll
and tradition staff in which additional claims were advanced that were not
included in the published record.

Mechy Frankel					H: (301) 593-3949
michael.frankel@dtra.mil				W:(703)325-1277

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


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