Avodah Mailing List

Volume 05 : Number 031

Monday, May 1 2000

• Re: Avodah V5 #26
• Roles of the local rav
• Re: Avodah V5 #26
• Re: Avodah V5 #30
• Re: Lo S'Choneim (was Re: aniyei ircha)
• Re: Avodah V5 #29
• Re: Roles of the local rav
• Re: Lo S'Choneim (was Re: aniyei ircha)
• Minchas Sotah (was Re: Avodah V5 #30)
• Gedulah and Shalom
• Re: Lo S'Choneim (was Re: aniyei ircha)

On Sun, Apr 23, 2000 at 11:27:00PM -0400, S Klagsbrun wrote:
: An old yid (A"H) taught me: shtait in Mishnah: "Talmidai chachomim marbim
: shalom ba'olam". oib nit, as nit. V'hamaivin Yovin.

So, it would seem you'd answer R' Rich Wolpoe's question in
<http://www.aishdas.org/avodah/vol04/v04n460.shtml#13> by saying that the
quote is descriptive, not prescriptive. To my mind this better fits the
dikduk of the mishnah, and of the modified version of the pasuk.

However, shalom doesn't equal peace. As we have noted in the past, my Rebbe,
R' Dovid Lifshitz zt"l spoke of the difference between the end of hostilisties
and shalom. Shalom, from sheleimus, involves uniting in Avodas Hashem, working
together as a unit. Avoiding conflict won't always reach that end.

Second, one can't measure these things in the short term. So it would allow
give historians centuries later a mean of deciding who was a talmid chacham,
and does little to help us choose our leaders bisha'as ma'aseh.

Third, there is a notion about peace promoted by eastern religions that we
been exposed to through such varied sources as Gandhi and "Return of the
Jedi". The idea that violence is inherently evil regardless of the target.
There is such a thought in Xianity as well ("turning the other cheek"),
which is in vogue now but obviously wasn't the inquisition's approach to
dealing with things they labeled (libeled) evil.

Mi shemirachaim al ha'achzarim... the road to shalom isn't always peace.
For that matter, as paradoxical as it seems, the road to peace isn't always
peaceful. One should apply smaller quantities of violence in order to stop
those who would otherwise cause greater quantities.

To put this another way: Yes a talmid chacham's presence causes more peace
than his absence. But who knows what level of peace would have existed in
his absence? Who knows what larger battles weren't fought because the talmid
chacham caused smaller ones that guided history away from those crises?

Perhaps then even our future historian is incapable of knowing who increased
the peace and who did not. Only HKBH knows what could have been. In which case,
our mishnah is a statement of faith, not something one could verify.

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 30-Apr-00: Cohen, Kedoshim
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Rosh-Hashanah 32b
For a mitzvah is a lamp, and the Torah its light.         Yeshaiah 3

A friend and I were discussing what we percieved to be the gap between the
local rav's role as practiced in society today, and what percieved the role
to be in the ideal.

I think we need to clearly define three different (albeit overlapping) roles:

- communal poseik: he set halachic standards/norms for the community as a
  whole. This is p'sak halachah in the same sense as what Sanhedrin did.

- personal poseik: he offers rulings tailored for where the questioner is,
  knowing who he is, what his derech is, what he's capable la'amod bah, etc...

- moreh derech: this is like a personal poseik, but on more fundamental
  inyanim than halachah -- mussar, help in finding one's derech, etc...

The first is pretty well represented.

The second is represented, but less so. The two of us felt that the tendencies
toward relying on printed halchic handbooks, and toward poskim deferring
to their poskim more and more often (largely because we can not do it --
telephones mean that the local poseik isn't the only available poseik), cause
this role to be in the decline in our generation.

The third? How many people do you know are fortunate to have a true moreh
derech?

I'm curious to know what the chevrah thinks of our assessment. Also, to
address a question we couldn't really get to because it was time for
minchah. It's one thing to criticize the situation -- how does one work
to change it? (A question you hear from me often on Avodah.)

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 30-Apr-00: Cohen, Kedoshim
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Rosh-Hashanah 32b
For a mitzvah is a lamp, and the Torah its light.         Yeshaiah 3

In a message dated 4/30/00 6:28:14 PM US Central Standard Time, 
micha@aishdas.org writes:

<< one can't measure these things in the short term. So it would allow
 give historians centuries later a mean of deciding who was a talmid chacham,
 and does little to help us choose our leaders bisha'as ma'aseh. >>

Do you draw a difference between a historian's long view of who was a talmid 
chacham, on the one hand, and a modern Gadol, on the other?

You imply, correctly I think, that when true Torah mastery is published for 
the ages, it is recognized and preserved by the ages. It is tested by time, 
not the kind of consensus politics that produces modern Gadolim. After all, 
who cares -- who even knows -- whether Ibn Ezra or the Raibad, or the Ohr 
Somayach, attracted the type of followings in their lifetimes that would 
entitle them to the title "Gadol" under current sociopolitical realities? Can 
one even imagine a supremely gentle and modest soul such as the Chofetz Chaim 
gladhanding his way through an Agudath convention, issuing well-timed press 
releases (edited by Yonasan Rosenblum) to charedi journalists, or doing all 
the other stuff that goes into becoming a contemporary religious leader?

But it is the Gadolim who, as a practical matter, we are required to follow, 
because the Gadolim speak specifically to contemporary issues from the 
prosaic (e.g., microwave ovens and Internet connections) to the polemical 
(calling the wrath of HaShem down on centrist Israeli politicans who want 
yeshiva buchers to go to boot camp). And maybe because they're all we have, 
although personally I don't buy that theory.

There is a magnificent beauty in true Torah scholarship -- in the eternal 
Talmudic debate -- that transcends the pettiness of our current lives and 
politics. Don't you think that each of us has a duty to study hard enough to 
identify for ourselves who does and does not contribute meaningfully to this 
debate? And maybe to shrug our shoulders at the rest?

David Finch

Comments about a few issues:

Shaking hands - Rav Aharon Soloveitchik consistently maintained that it was
permissible to shake hands in social situations where there was clearly no
likelihood of sexual arousal.  he based it on the Yerushalmi in Sotah which
asks how a kohen can raise the minchas sotah (the kohen's hand must be
holding the hand of the sacrificer).  The Yerushalmi offers two answers -
either get an old kohen (who has a duller yetzer) or let any kohen do it,
since there is no yetzer hora in a momentary contact.  I do not recall ever
discussing the issue with RYBS ztvk"l.

Shaving - Rav Aharon Soloveitchik was the source of an obligation to shave
every erev Shabbos during Sefira for those who do not have beards; he
maintained that it was required as kvod Shabbos.  The Rov ztvk"l had a more
lenient position.  Based on his understanding of the rule of georo in
aveilus, he maintained that once one had shaven for erev Shabbos, one could
then shave daily during Sefira.  Apparently Rav Lichtenstein agrees with Rav
Aharon Soloveitchik.  The Rov ztvk"l did pasken that one should shave during
Chol Hamoed as an expression of kvod hamoed.

Shmita - one poster raised the question of mitzvo haba'ah b'aveira with
regard to the heter mechira, implying that one could not make a brocho on
such produce, etc.  This is not so.  Even if one were to violate the
prohibition of lo sechanem in selling the land, produce grown on it would
have nothing to do with the problem of mhb.  Also, the question was raised
about the status of money that may have kdushas shvi'is.  Aside from the
good points raised about the different nature of money in the modern
economy, the simplest response is that since shvi'is is generally accepted
as drabonon today, we are lenient in sfeikos drabonon.

Melech

M. Press, Ph.D.
Professor of Psychology, Touro College, 1602 Avenue J, Brooklyn, NY 11230
718-252-7800, x 275
mpress@ix.netcom.com or melechp@touro.edu

For those who have lost track, the >> lines are me, the > lines are 
Chana and the text without any carats is me.

On 29 Apr 00, at 22:24, Chana/Heather Luntz wrote:

> If you hold Rambam over the other two, then you would have to hold that
> lo s'choneim applies b'zman hazeh.

Correct. I would argue that Rav Kook himself was at least 
choshesh for that view based upon the introduction to Shabbat 
HaAretz that I quoted yesterday.

> >You had also argued that Rav Kook must have held from a 
> >"halfway" category because he would have needed it for the heter 
> >mechira. But Rav Kook did not hold that way either. Leaving aside 
> >the question of the heter's general acceptability (as you know, 
> >most of the Gdolim in Europe rejected the heter altogether), Rav 
> >Kook himself held that to get around the problem of "lo s'choneim" 
> >one had to sell the land to a non-Jew who *already* owned land in 
> >Eretz Yisrael so that by selling him land you are not giving him 
> >"chania" ba'karka. See Chapter 12 of the introduction to Shabbat 
> >Ha'Aretz. 
> >
> 
> I do not have a copy of Shabbat HaAretz, but Rav Kook deals with the
> matter in Mishpat Cohen.  In particular he discusses what he calls this
> "he'ara" which he ascribes to "echad m'bei dina" in hilchos shmita
> v'yovel perek 68.  

The original he'ara in the Introduction to Shabbat HaAretz Perek 12 
reads as follows:

"B'inyan 'lo s'choneim,' she'assur limkor le'goy karka b'eretz 
Yisrael, *yafeh he'ir* echad mibei dina, HaRav HaGaon R.Z. Shach 
N"Y, d'yesh lomar d'b'goy she'be'lav hachi yesh lo chania ba'karka 
ain ha'tosefes, mah she'mosifim aleha atta assura min haTorah; 
v'yoser nachon l'fi zeh livchor b'goy she'kvar yesh lo karka b'eretz 
Yisrael. Af al gav d'yesh lomar she'im yikneh mimenu Yisrael 
ha'karka ha'kodemes az ha'lo teitzei ha'chaniya mi'tachas yado, 
v'nimtza az she'b'karka zo ha'nimkeres lo ka'es nitna lo chaniya 
ba'karka. Mikol makom yesh lomar d'basar hashta azlinan, 
v'achshav hoo aino nosein lo chaniya ba'karka, she'harei kvar yesh 
lo mikodem, v'hu m'kushar l'eretz Yisrael b'lav hachi al y'dei karka 
sheyesh lo mikvar." [Emphasis mine].

He then goes into a lengthy proof that this is so from Hilchos Tuma 
v'Tahara.

> However Rav Kook rejects this idea for a number of reasons, including
> that it would nullify the whole prohibition even for the sheva amim that
> remained in the land after the kibush, as they continued to hold land,
> and this would mean that there would no longer be any Torah prohibition
> vis a vis them.  

I don't know why you think Rav Kook is rejecting the idea of the 
heara. In fact, he rejects the notion that if the heara is correct there 
would have been no issur of lo s'choneim. He writes (regarding the 
Sheva Umos in Mishpat Cohen 68):

"[t]ama ani mei'heichan haya lahem, ha'lo keivan she'kovshum 
Yisrael kanu es Eretz Yisrael b'kibush, u'pashut hu she'ha'kibush 
hu bichlal ha'uma, v'keivan she'nichbesha ha'uma, af al pi 
she'nisharu yechidim, ha'karka kvar knuya le'ha'kovshim. V'af 
b'osom umos she'lo kovshum klal, v'nisharu b'eretz Yisrael, lo 
shayach lomar she'lo yihye bahem issur lo s'choneim, she'harei 
adifa meihem ika, she'hem [Bnei Yisrael - C.S.] mechuyavim 
le'kovshom u'le'hamisom b'lo techayeh kol neshama - v'aich 
yitachen lomar shelo yihye bahem issur lo s'choneim." 

He also says that with so narrow a distinction, it
> would difficult to say when giving more land would and when it would not
> make them more likely to have a permanent dwelling.

Please point to the specific language in Mishpat Cohen 68(?) that 
you had in mind.

> Further to what Rav Kook said, I find this pshat in the Rambam difficult
> for additional reasons.  The gemorra in Baba Kama 80b rules that one may
> tell an akum to write a contract to sell land in Eretz Yisroel even on
> Shabbas, because amira l'akum is only a shvus, and mishuv yeshivas
> yisroel lo gazru bey rabbanan.  This is brought down by the Rambam in
> hilchos shabbas, perek 6 halacha 11.  If the halacha of lo s'choneim
> only applied before the akum owned land in eretz yisroel, why is there
> is permission to tell the akum to write on shabbas, since by that time
> he already owns land (and no distinction is made between him selling his
> only piece of land, and him selling one of his many pieces of land).

Because the reason for that halacha in the Rambam is because of 
the aseh of Yishuv Eretz Yisrael and not because of the lav of lo 
s'choneim. The aseh of yishuv eretz Yisrael is independent of the 
lav of lo s'choneim.

> Also, the language of the Rambam in hilchos avodah zara perek 10 halacha
> 6 prohibits us to allow them "l'haniach beinenu" - so it is hard to read
> in a distinction between selling land to them and land remaining with
> them.

I agree that Rav Kook's distinction (or the "chad m'bei dina's" 
distinction) in the Rambam is difficult. I'm not sure the Rambam 
himself would have accepted it. But in looking at the heter mechira, 
one has to keep in mind that Rav Kook regarded the heter mechira 
as a necessity brought on by a shas ha'dchak and not as a 
lechatchiladik thing. As Rav Kook himself writes in Mishpat Cohen 
69 (directed to the same Rav Kahn to whom Mishpat Cohen 68 
was directed):

"she'mei'olam lo kibalti alai achrayus lomar she'kol ha'poskim 
tzrichim le'haskim l'ysodos heter ha'hafkaa she'anachnu nohagim, 
ki im she'ha'davar yesh lo yesod *al pi aizeh poskim kamaei 
u'basraei*, v'al ydei tzeiruf shel od aizeh snifim yatza ha'heter 
b'beirur b'ofan sherauy li'smoch alav *bishas ha'dchak* b'lo shoom 
gimgum klal." [Emphasis mine].

> What he discusses (at greatest depth in the first teshuva in this
> section, at perek 58), is, given this, why is it permissible to sell to
> one of the Yishmaelim.

And again he says that this is because it is a shas ha'dchak (see, 
for example, the middle paragraph of the second column on Page 
122). But to be masik a maskana from this that Rav Kook would 
have held that it's assur to set aside land in Eretz Yisrael 
specifically for Jews to the exclusion of Arabs (which was the issue 
which was before the Supreme Court in the case you felt had a 
basis in Rav Kook's writings), is IMHO quite a bit of a stretch. Look 
at the last paragraph of the tshuva:

"Omnom yesh le'fakpek al heter ha'arama kazos, mipnei she'nikar 
ha'davar she'hi haarama. Aval rauy le'tzaref heter zeh im svara 
d'la'el she'ha'yishmaelim ainam ovdei avodah zara, u'mutar limkor 
lahem. V'im yefakpek adam ba'davar [i.e. if you hold like the 
Rambam - C.S.], nomar d'issur Torah leika b'chi hai gavna 
she'mocher le'tovas Yisrael, v'im kein b'midei d'Rabanan [which I 
think everyone other than the Ramban would hold is true with 
respect to shmitta b'zman hazeh - C.S.], *bimkom dchak gadol 
kazeh* yesh leilech l'kula." [Emphasis added].

Again, I don't see how you can be masik from here that Rav Kook 
would have held that it is assur to set aside land in Eretz Yisrael 
specifically for Jews to the exclusion of Arabs. All I see here is that 
he was matir to sell land to Arabs in a shas ha'dchak, where it was 
for the *benefit* of the Jews, and, according to the heara, where the 
Arab purchasing was one who already owned land in Eretz Yisrael.

> He goes through a number of reasons, most of which center on the idea
> that either the Yishmaelim are indeed gerei toshav, 

I don't know how anyone can look at the PA's "court system" and 
seriously make that argument today, but this isn't the place to 
discuss that.

> >In conclusion, the Rambam apparently does not hold from any sort 
> >of intermediate category when it comes to lo s'choneim, and Rav 
> >Kook did not hold from and did not need an intermediate category 
> >in order to craft his heter mechira. I have not yet reached the 
> >question of whether making a Jewish-only city which excludes a 
> >ger toshav would be prohibited al pi haRambam, because given that 
> >the Rambam holds out no possibility for a ger toshav or any sort of 
> >intermediate category today that would allow giving chania ba'karka 
> >to a non-Jew today, I don't need to reach that question. It is not 
> >nogea until bias Mashiach (BBY"A). 
> 
> This is all assuming that you hold like the Rambam and against the
> Ra'avid etc.  That, it seems to me, puts you in an interesting position.
> Assuming you accept Rav Kook's rejection of the suggestion of the beis
> din, 

See above. I don't see where Rav Kook rejected the Beis Din's 
suggestion. 

then you pretty much have to hold that the heter mechira is based
> on there being (at least) some sort of half way house. In which case,
> you would have difficulty accepting the position quoted by you in the
> name of your Roshei Yeshiva on mail jewish that one should not protest
> if people rely on the heter mechira.  After all, if the heter mechira is
> based on a violation of the d'orisa of lo s'choneim, then how could such
> a position be tenable?  

Rav Lichtenstein did not say that "one should not protest" if people 
rely on the heter. What he said was that a bochur who is visiting in 
Eretz Yisrael for the year of Shmitta need not insult relatives who 
rely on the heter by declining their Shabbos invitations because of 
that reliance. Similarly, he said that Israeli bochrim should not use 
their parents' observance of the heter as a point of contention with 
their parents. He, like Rav Kook, put it in terms of a shas ha'dchak. 
I assume (I never asked him) that he, like Rav Kook, would hold 
like the heara that the issur of lo s'choneim is not violated when 
one sells land in Eretz Yisrael to one who already owns land here. 
One does not exclude the other (and BTW I think le'maaseh they 
sell to a Druze who owns land here, and not to a Muslim who does 
not).

> And you would have a whole lot of fascinating mitzvah haba b'averah type
> questions (brochas on the produce are they permissible etc). 

AFAIK I personally do not eat produce from the heter mechira. 
BTW - in Yerushalayim at least - it is easier to find produce that 
does not rely on the heter than it is to find produce that has a 
hashgacha that indicates that the heter was relied upon. Most 
produce either has hashgochos of batei din that do not rely on the 
heter, or they have no hashgocho at all. It is perhaps instructive 
that (at least AFAIK) most of Mercaz HaRav and its former 
talmidim do not rely on the heter today. (My brother in law with the 
orchard who was a talmid of R. Zvi Yehuda spends the year in a 
shmitta kollel).

> >The Supreme Court decision has no basis in current halacha.
> >
> 
> No.  Even if you hold like the Rambam, the Supreme Court have Rav
> Hertzog and Rav Kook to rely on.  That seems to me to be pretty weighty
> in terms of current halacha.

I don't see where Rav Kook would have supported the notion that 
it's assur to set aside land in Eretz Yisrael specifically for Jews to 
the exclusion of Arabs. I have not yet been through Rav Hertzog's 
writings. 

> This rather reminds me of the story of my husband and benching gomel.
> Rav Ovadiah apparently says you should bench gomel whenever you go more
> than 72 minutes away from a city, even by car.  So when my husband went
> up to Cambridge for University, he used to try and bench gomel every
> time he returned to London (which could be every week).  Now the shul he
> grew up in is a shul of Bagdadi Jews from Calcutta, and it would
> probably not be too unfair to say that the level of learning there is
> not terribly high.  And they basically wouldn't let him do it.  Whatever
> Rav Ovadiah said, they had never heard of any such thing in Calcutta and
> they weren't about to allow it now.  And when Robert spoke to his posek
> about it, the posek said to him that they were being somech on the Rema.
> Robert's response to this was "but they've never heard of the Rema!" -
> but the response to that was, that didn't matter, they had on whom to
> rely, and that was enough. 

Please tell me (with cites) on what basis you think Rav Hertzog 
would have held that it is assur to set aside land in Eretz Yisrael 
specifically for Jews to the exclusion of Arabs. I don't see that 
anywhere in Rav Kook - maybe it's in Rav Hertzog's writings? (And 
if it's anywhere other than the two volumes of Tchuka le'Yisrael, 
please tell me quickly because the sale ends Friday :-).

-- Carl


Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

Carl and Adina Sherer
mailto:sherer@actcom.co.il

Carl M. Sherer wrote:
> 
> [D]id [Rav Gershuni] allow shaving on Erev Shvii Shel Pesach,
> or Hoshana Rabba, and if not, why not?

I unfortunately never asked him. Nor do I know whether he "mattired"
shaving on Hol haMoed (as did the Rav).				

		Ar

On 30 Apr 00, at 19:47, Micha Berger wrote:

> A friend and I were discussing what we percieved to be the gap between the
> local rav's role as practiced in society today, and what percieved the role
> to be in the ideal.
> 
> I think we need to clearly define three different (albeit overlapping) roles:
[snip]
> - personal poseik: he offers rulings tailored for where the questioner is,
>   knowing who he is, what his derech is, what he's capable la'amod bah, etc...

I think this role is often played by someone other than the 
communal Rav today. With modern communications, it is a lot 
easier to use a Rav in the next neighborhood, town or even State if 
that is someone with whom you are more comfortable. I don't see 
anything wrong with that. So long as no one is questioning the 
local Rav's authority on communal matters, I don't see where 
individuals choosing to use someone else for their own personal 
affairs causes any problems. (I debated this with someone who 
currently lives in your town on mail jewish a few months ago - could 
be the same person you were speaking with last night :-).

> - moreh derech: this is like a personal poseik, but on more fundamental
>   inyanim than halachah -- mussar, help in finding one's derech, etc...

This strikes me as under-represented. I think it's a result of the way 
so many of us float from Yeshiva to Yeshiva before (in most cases) 
leaving learning and going out to work. While from a pure learning 
standpoint, I think there is a lot of benefit to be had from a young 
bochur being exposed to different drachim in learning before 
deciding on his own derech, I think that the price we pay is often 
the lack of a moreh derech. I'm not sure there's an easy answer 
either, unless we are going to have people learn in the same 
Yeshiva under the same Rebbe from the time they are 13 or 14 
until they are 30 or 40.

> The second is represented, but less so. The two of us felt that the tendencies
> toward relying on printed halchic handbooks, and toward poskim deferring
> to their poskim more and more often (largely because we can not do it --
> telephones mean that the local poseik isn't the only available poseik), cause
> this role to be in the decline in our generation.

See above. I would add to your list the tendency of people asking 
shailas to pick up a phone rather than going to speak to the Rav 
between Mincha and Maariv.

-- Carl


Carl M. Sherer, Adv.
Silber, Schottenfels, Gerber & Sherer
Telephone 972-2-625-7751
Fax 972-2-625-0461
mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

A minor heara on my own post:

On 1 May 00, at 8:15, Carl and Adina Sherer wrote:

> > And you would have a whole lot of fascinating mitzvah haba b'averah type
> > questions (brochas on the produce are they permissible etc). 
> 
> AFAIK I personally do not eat produce from the heter mechira. 

There is no mitzva habaa b'aveira for another reason. The classic 
case of mitzva habaa b'aveira is where at the very moment you 
fulfill the mitzva you are committing an aveira, e.g. you pick up an 
esrog and are yotzei the mitzva of arba minim at the same moment 
that you are koneh the esrog b'gzeila. But here, there is no issur 
on *eating* shmitta fruit, because the posuk is darshened "lo'ochla 
v'lo li'schora." So the aveira comes when you *bought* the fruit, not 
when you eat it (unless of course you are koneh it by picking it up 
off the table with your mouth :-). 

Now there is a problem with the bracha, namely "botzea beirech 
nee'etz Hashem," but that relates to the fact that HKB"H disdains 
a bracha that is made on something acquired through an aveira, 
but I don't think that makes it into a mitzva ha'baa b'aveira. 

Irrelevant to my argument, but interesting nevertheless.

-- Carl


Carl M. Sherer, Adv.
Silber, Schottenfels, Gerber & Sherer
Telephone 972-2-625-7751
Fax 972-2-625-0461
mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

On 30 Apr 00, at 23:04, M. Press wrote:

> Shaking hands - Rav Aharon Soloveitchik consistently maintained that it was
> permissible to shake hands in social situations where there was clearly no
> likelihood of sexual arousal.  he based it on the Yerushalmi in Sotah which
> asks how a kohen can raise the minchas sotah (the kohen's hand must be
> holding the hand of the sacrificer).  The Yerushalmi offers two answers -
> either get an old kohen (who has a duller yetzer) or let any kohen do it,
> since there is no yetzer hora in a momentary contact.  I do not recall ever
> discussing the issue with RYBS ztvk"l.

I can think of a third reason, namely that the contact itself is not 
derech chiba. I think that would work according to all Rishonim 
except the Rashba (and the Mechaber of the Shulchan Aruch if you 
count him as a Rishon).

-- Carl


Carl M. Sherer, Adv.
Silber, Schottenfels, Gerber & Sherer
Telephone 972-2-625-7751
Fax 972-2-625-0461
mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

On Sun, Apr 30, 2000 at 09:59:23PM -0400, David Finch <DFinchPC@aol.com> quoted
me and wrote:
: << one can't measure these things in the short term. So it would allow
:  give historians centuries later a mean of deciding who was a talmid chacham,
:  and does little to help us choose our leaders bisha'as ma'aseh. >>

: Do you draw a difference between a historian's long view of who was a talmid 
: chacham, on the one hand, and a modern Gadol, on the other?

: You imply, correctly I think, that when true Torah mastery...

You missed two words in your quote -- "These things". I was discussing R'
Simcha Klagsbrun's assertion that one can check who is a talmid chacham
by ruling out anyone who fails to be marbeh shalom. Only a historian is in
any position to know whether a person's acts ended up increasing the peace
or not. A contemporary can't really use this test. (I later also point out
that even a historian has limited ability in this regard, as he can't know
how much peace we would have had in a hypothetical world where the person
in question didn't exist.)

So, while I'm ruling out one tool, or at least limiting its value, I'm not
closing the door on the pursuit.

: But it is the Gadolim who, as a practical matter, we are required to follow, 
: because the Gadolim speak specifically to contemporary issues from the 
: prosaic (e.g., microwave ovens and Internet connections) to the polemical ...

I disagree. I believe we are (with the caveat I'm about to note) to follow the
person who truly has gedulah -- not the one who gets recognized as a gadol.
The caveat: there is halachic power to that recognition, since there are
issues of azlinan basar rubba, perishah min hatzibbur, etc... However,
I still disagree on your fundamental point that a gadol can be absolutely
determined by his recognition.

To take it ad absurdum: How would your definition have prevented Tzadok,
Baisos, Annan, Shabbatai Zvi, or "Philip Berg" from qualifying? The definition
of who we are to follow has to be refined enough to clearly exclude just
anyone who can build a following off teachings that include Torah thoughts.


-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 30-Apr-00: Cohen, Kedoshim
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Rosh-Hashanah 32b
For a mitzvah is a lamp, and the Torah its light.         Yeshaiah 3

In message <200005010517.IAA15394@lmail.actcom.co.il>, Carl and Adina
Sherer <sherer@actcom.co.il> writes
>I don't know why you think Rav Kook is rejecting the idea of the 
>heara. In fact, he rejects the notion that if the heara is correct there 
>would have been no issur of lo s'choneim. He writes (regarding the 
>Sheva Umos in Mishpat Cohen 68):
>
>"[t]ama ani mei'heichan haya lahem, ha'lo keivan she'kovshum 
>Yisrael kanu es Eretz Yisrael b'kibush, u'pashut hu she'ha'kibush 
>hu bichlal ha'uma, v'keivan she'nichbesha ha'uma, af al pi 
>she'nisharu yechidim, ha'karka kvar knuya le'ha'kovshim. V'af 
>b'osom umos she'lo kovshum klal, v'nisharu b'eretz Yisrael, lo 
>shayach lomar she'lo yihye bahem issur lo s'choneim, she'harei 
>adifa meihem ika, she'hem [Bnei Yisrael - C.S.] mechuyavim 
>le'kovshom u'le'hamisom b'lo techayeh kol neshama - v'aich 
>yitachen lomar shelo yihye bahem issur lo s'choneim." 
>

The difference is that you seem to read this paragraph as somehow
supporting the notion that the heara is correct.  Where do you get that
from in this paragraph?  My understanding of the piece is this.  If the
heara were correct, then you would have to say that there was no further
obligation on the Bnei Yisroel to take away the land still held by the
yechidim of the sheva amim after kibush.  As this, according to Rav Kook
is not correct (ie there is a requirement to take away the land from the
sheva amim after kibush on the grounds of lo s'choneim) then the heara
is not correct.  

I get this as follows:

The line before the part you quoted [after he sketches out the full
principle of the heara] says "u'ma shehakashe k't"r di"k b'sheva amos
shnesharu b'e"y ain issur dlo s'choneim".

I translate this as saying - the Heara is problematic because it would
imply that the seven nations who remained in the land would not have on
them the issur of lo s'choneim.

The logic of this seems to me to be impeccable.  If you say that the
heara is correct, then it does not matter whether you sell the land to
one of the sheva amim or to any other goy.  In which case, you could
have accomplished the heter mechira by way of selling to one of the
sheva amim, without violating lo s'choneim, so long as they still held
land (which they did, because the kibush left some yechidim still
holding land).

He then goes on to argue, with the paragraph you bring, that this is not
the case - ie that l'schoneim applies to those yechidim  - which to me
is a proof that the heara is not correct (ie that lo s'choneim applies
even to one who already holds land). 

Can you explain how you are reading it - ie how you get around the
problem that if the heara is correct, then there should be no
applicability of lo s'choneim to those individuals of the sheva amim
that managed to hold on to their land after the kibush?

>He also says that with so narrow a distinction, it
>> would difficult to say when giving more land would and when it would not
>> make them more likely to have a permanent dwelling.
>
>Please point to the specific language in Mishpat Cohen 68(?) that 
>you had in mind.

"The conclusion to this section "Al ken di'acti shelo n'tkabela haera
tzu ki im l'shoeli yoter tov l'mchor l'mi sh'yesh lo k'var karka b'eretz
yisroel".

It is the last bit of the paragraph from which you quoted a middle
portion above.

>
>> Further to what Rav Kook said, I find this pshat in the Rambam difficult
>> for additional reasons.  The gemorra in Baba Kama 80b rules that one may
>> tell an akum to write a contract to sell land in Eretz Yisroel even on
>> Shabbas, because amira l'akum is only a shvus, and mishuv yeshivas
>> yisroel lo gazru bey rabbanan.  This is brought down by the Rambam in
>> hilchos shabbas, perek 6 halacha 11.  If the halacha of lo s'choneim
>> only applied before the akum owned land in eretz yisroel, why is there
>> is permission to tell the akum to write on shabbas, since by that time
>> he already owns land (and no distinction is made between him selling his
>> only piece of land, and him selling one of his many pieces of land).
>
>Because the reason for that halacha in the Rambam is because of 
>the aseh of Yishuv Eretz Yisrael and not because of the lav of lo 
>s'choneim. The aseh of yishuv eretz Yisrael is independent of the 
>lav of lo s'choneim.

What you are saying is that you are allowed to violate a takana chazal
(or, more strictly, the Chachamim specifically waived their gezera of
amira l'akum) for the mitzva of acquiring land in Eretz Yisroel, but it
is Ok to sell it to that same akum without problem, so long as he has
other land.

The point I am making is that the two halachas do not gell very well if
you read it the way of the heara.  If you read it that we are dealing
with two different classes of person then it fits nicely.  When it comes
to an akum, you cannot sell to him, and you need to act as quickly as
possible to get the land (any part of the land, whether only a piece of
his holding or all of it) away from him, even if that means getting him
to write on shabbas.  When it comes to a ger toshav, you can sell to
him, but you then presumably would not violate shabbas to buy from him.  

It is not impossible to hold the way you have, just, as I indicated,
difficult.

Question: if you hold the way you have set out - lets say you are
dealing with somebody like my husband who does not currently own any
land in Eretz Yisroel.  Would you hold that we could get a non Jew to
write a contract for you to sell land to him (assuming you were not
selling all your land, ie you you continued to own land within Eretz
Yisroel, while he then gained the mitzvah?)  If not why not? How is this
different from the goy who continues to own land.  If it is just that
you get a positive mitzvah from buying land from a goy, but there is no
problem selling to that same goy if he continues to own other land, then
we could all get lots of mitzvahs by selling that land and rebuying it
from him (why not do it constantly, great way to store up mitzvas in
olam haba).  Bit odd no?


>
>> Also, the language of the Rambam in hilchos avodah zara perek 10 halacha
>> 6 prohibits us to allow them "l'haniach beinenu" - so it is hard to read
>> in a distinction between selling land to them and land remaining with
>> them.
>
>I agree that Rav Kook's distinction (or the "chad m'bei dina's" 
>distinction) in the Rambam is difficult. I'm not sure the Rambam 
>himself would have accepted it. But in looking at the heter mechira, 
>one has to keep in mind that Rav Kook regarded the heter mechira 
>as a necessity brought on by a shas ha'dchak and not as a 
>lechatchiladik thing. As Rav Kook himself writes in Mishpat Cohen 
>69 (directed to the same Rav Kahn to whom Mishpat Cohen 68 
>was directed):
>
>"she'mei'olam lo kibalti alai achrayus lomar she'kol ha'poskim 
>tzrichim le'haskim l'ysodos heter ha'hafkaa she'anachnu nohagim, 
>ki im she'ha'davar yesh lo yesod *al pi aizeh poskim kamaei 
>u'basraei*, v'al ydei tzeiruf shel od aizeh snifim yatza ha'heter 
>b'beirur b'ofan sherauy li'smoch alav *bishas ha'dchak* b'lo shoom 
>gimgum klal." [Emphasis mine].

I agree that the Rambam is unlikely to have accepted it.  The problem
you then have with the heara, is that the objection to the whole matter
of sale of the land comes from poskening like the Rambam (as mentioned,
the Ra'avid etc are on side).  If the Rambam cannot genuinely be
reconciled with the heara, it doesn't seem to me to have that much
purpose - since the whole point is to reconcile the Rambam to the heter.

I also agree and disagree with you regarding Rav Kook's stance.  He
definitely felt that the heter was an absolute necessity.  I believe he
also personally believed that there was no need to be concerned for the
Rambam (ie he was comfortable poskening against the Rambam), as set out
in the first teshuva in the section, where it is clear his fundamental
reason for allowing it relates to a ger toshav (or a kind of ger
toshav).  On the other hand, he also felt the need to get everybody on
side, because of its dire necessity of the heter, and as there were
people out there concerned about the Rambam, he was willing to butress
his arguments any way he could to allow for all opinions.  That is why I
actually found it suprising he seemed to reject the heara.  From his
perspective, why not allow it and not argue (and he does makes comments
about being choshesh it l'chumra, which is more in keeping with the
general approach he took). I think he just felt that truth was more
important even that the heter, and he could not give support to an
argument that he felt was not valid.

That is why I am suprised that, according to you, he switched in Shabbat
HaAretz, and I would really want to see it inside, and understand how he
then dealt with his previous objections [Is it 100%  clear that the
language in Shabbat HaAretz is his, and not somebody else's - Mishpat
Kohen is probably his most famous work of teshuvas, so it seems strange
to me that there should be a contradiction].

  

>
>> What he discusses (at greatest depth in the first teshuva in this
>> section, at perek 58), is, given this, why is it permissible to sell to
>> one of the Yishmaelim.
>
>And again he says that this is because it is a shas ha'dchak (see, 
>for example, the middle paragraph of the second column on Page 
>122). But to be masik a maskana from this that Rav Kook would 
>have held that it's assur to set aside land in Eretz Yisrael 
>specifically for Jews to the exclusion of Arabs (which was the issue 
>which was before the Supreme Court in the case you felt had a 
>basis in Rav Kook's writings), is IMHO quite a bit of a stretch. Look 
>at the last paragraph of the tshuva:
>
>"Omnom yesh le'fakpek al heter ha'arama kazos, mipnei she'nikar 
>ha'davar she'hi haarama. Aval rauy le'tzaref heter zeh im svara 
>d'la'el she'ha'yishmaelim ainam ovdei avodah zara, u'mutar limkor 
>lahem. V'im yefakpek adam ba'davar [i.e. if you hold like the 
>Rambam - C.S.], nomar d'issur Torah leika b'chi hai gavna 
>she'mocher le'tovas Yisrael, v'im kein b'midei d'Rabanan [which I 
>think everyone other than the Ramban would hold is true with 
>respect to shmitta b'zman hazeh - C.S.], *bimkom dchak gadol 
>kazeh* yesh leilech l'kula." [Emphasis added].

Yes, his first priority was the necessity for the heter.  But he is only
adding - his primary view is that the yishmaelim have a din at least in
some respects like a ger toshav.  This was followed  by Rav Hertzog.

All the Supreme Court are doing (or would be doing if they knew what
they were doing) is saying, look, we have some pretty strong opinions on
which to rely that say that Arabs have a din at least like a ger toshav
in some respects.  The halacha vis a ger toshav is pretty clear re
reserving land. QED. That is, if they wanted to claim that the Arabs
have a din like a ger toshav, they have some pretty strong positions to
cite, including the primary reasoning of Rav Kook for his heter mechira.  

What you seem to be saying is that because he was willing to bring
butressing arguments to try and convince even those who held like the
Rambam, that somehow undermines his fundamental position.  Rather, the
sha'a ha'dchak if anything is likely to push him to argue for the heter
even on the basis of positions he does not hold, to get as many people
on board as quickly as possible - just so long as he can see them as
valid Torah positions.  Of course, we need to be clear as to what was
his fundamental position, but I think the teshuvas speak clearly for
themselves (the language you cite most immediately above is a prime
example).  I hold X, but if you hold Y (ie like the Rambam), I can find
an argument for you too, to bring you on board, so we can deal with this
emergency immediately and not spend time arguing the point.
>
>Rav Lichtenstein did not say that "one should not protest" if people 
>rely on the heter. What he said was that a bochur who is visiting in 
>Eretz Yisrael for the year of Shmitta need not insult relatives who 
>rely on the heter by declining their Shabbos invitations because of 
>that reliance. Similarly, he said that Israeli bochrim should not use 
>their parents' observance of the heter as a point of contention with 
>their parents. 

Yes, but you must at least hold that the heter is valid.  You can of
course hold by the heara (whether Rav Kook rejects it or not, that does
not mean that Rav Lichtenstein is bound to accept Rav Kook's position,
he could just as well accept the heter for other reasons, including the
reason the Rav Kook does clearly give vis a vis those who hold like the
Rambam, despite his reservations with the argument as making the sale a
harama and hence not valid).  My point regarding this was made solely in
response you your comment that some people do not rely on the heter
mechira at all, and what I was trying to show is that many people who
may try themselves not to rely on the heter mechira, do not by any means
reject it, with the consequences that would be necessary were a complete
rejection to take place.

If you completely reject the heter mechira on the grounds of lo
s'choneim then you would have to protest other people using it and you
could not accept shabbas invitations.  We are, after all, talking about
a) and issur d'orisa here and b) possibly kedushas shvi'is.

>> >The Supreme Court decision has no basis in current halacha.
>> >
>> 
>> No.  Even if you hold like the Rambam, the Supreme Court have Rav
>> Hertzog and Rav Kook to rely on.  That seems to me to be pretty weighty
>> in terms of current halacha.
>
>I don't see where Rav Kook would have supported the notion that 
>it's assur to set aside land in Eretz Yisrael specifically for Jews to 
>the exclusion of Arabs. I have not yet been through Rav Hertzog's 
>writings. 
>

No, he doesn't say that.  What he says is that his primary basis for the
heter mechira, and the one he accepts, gives the yishmaelim at least
some (and possibly all) of the dinnim of a ger toshav.

You cannot reserve land only for jews if you are dealing with a full
fledged ger toshav (I don't know of any dispute vis a vis this).

Remember, if there is no lo s'choneim applicable (as per Rav Kook, Rav
Hertzog), and we have a safek ger toshav, safek d'orisa l'chumra, and we
would need to apply the dinim of ger toshav, at least m'safek.

That is, if you are the [new halachic] Supreme Court, and you have
before you a situation where what is being done is unquestionably a
violation of the rights of a ger toshav (if any exist).  The question
is, are the people who are claiming from you gerei toshav or not (or at
least safek gerei toshav). If you can eliminate from the equation lo
s'choneim (OK, lets even follow the Rambam as per the heara and say they
own other land in Israel, just not the land they want in the settlement
they want, but more powerfully on the basis that both Rav Kook and Rav
Hertzog held that they were at least sufek gerei toshav and hence lo
s'choneim did not apply), then is not the decision obvious?

In order to render the opposite decision, would you not need to hold
that they were *definitely* not gerei toshav (no safek about it) - or
that, to counterbalance this safek d'orisa, the other (at least) safek
d'orisa of lo s'choneim applied.  

That is what I am saying. When I was pushed to go away and read the
heter mechira teshuvas, balanced on top of Rav Hertzog, it suddenly
struck me that the logic seemed inexorably to follow.  Can you find a
way out of this?


>-- Carl
>

Kind Regards

Chana

-- 
Chana/Heather Luntz

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


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