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Volume 06 : Number 101

Thursday, January 11 2001

• Fwd: SICHOT61 -12: Commitment vs. "Connecting"
• RE: Shabbat, gender
• uvash'vi'i request
• Re: Woman and learning
• Re: Dor Revi'i and TSBP
• parsha - chessed shelo lishma
• Neviim writing down halachah

Here is an elevated form of our never ending discussion on superficiality, 
etc in shemiras hamitzvos
                                 Steve Brizel
                                  Zeliglaw@aol.com

Sichot
Harav Yehuda Amital
Yeshivat Har Etzion

Commitment vs. "Connecting" -- The Current Crisis of our Youth

One of the cornerstones of Judaism is commitment. However, the very
concept of commitment today faces a severe crisis among some of the
religious-Zionist youth, in high schools and pre-military academies
and, I imagine, also among some students at hesder yeshivot. (Although
my remarks are directed primarily at the Israeli scene, I am sure that
they are relevant in some measure to religious youth in the diaspora as
well.) I am not going to address the issue of secularization which, to
our sorrow, also exists in the high schools, but rather that of observant
youth who have developed a new ideology. We are faced with a fascinating
but frightening phenomenon, characterized by the term "hitchabrut" --
emotional identification, connection, or attachment.

Youth today seek "identification" with mitzvot, but not a "commitment"
to them. Authority and obligation -- two foundations without which it is
difficult to imagine living in accordance with the Torah -- have become
irrelevant in these circles. Not only are these concepts not spoken
about, but worse still -- the very mention of these terms by someone else
"turns off" these youth, since the "connection" they seek is personal,
individual and experiential. I myself do not know the extent of this
phenomenon, but it seems to be spreading.

A CRITIQUE OF CONTEMPORARY RELIGIOSITY

Before describing this phenomenon and its dangers, I shall say a few
words about some of the positive elements that underlie it.

1) There is no doubt that this represents a search for avodat Hashem
(service of G-d) that is meaningful and relevant in the here and now. The
Torah teaches us, "And you shall seek out the Lord your G-d from there
and you shall find Him, if you seek Him with all your heart and with
all your soul" (Devarim 4:29). The path leading from the first stage
of seeking to the stage of finding may be a long and difficult one,
but the act of seeking certainly should be taken seriously.

2) This phenomenon also represents a reaction to the "herd" mentality,
the monochromatic approach, the banding together under the aegis of a
few slogans and being satisfied with that -- which, during recent years,
have become the lot of the majority of religious-Zionist youth.

3) To my mind, there is also a reaction to the dryness and lack of
spirituality that characterize the great majority of religious-Zionist
synagogues. It began, I believe, with the establishment of synagogues
for young couples a few decades ago. Young people did not feel at home
in the existing synagogues, and this was justified to some extent. But
instead of seeking ways to integrate into the existing synagogues --
admittedly a difficult task, for reasons which I shall not discuss here
-- they established minyanim meant exclusively for young people. These
young people did not appreciate the influence of a prayer offered by an
"elderly person who has children but whose house is empty" -- the Mishna's
depiction (in massekhet Ta'anit) of the most desirable prayer leader for
a fast day. A heart-breaking sigh, the echo of silent weeping that one
could encounter at times in older synagogues -- these did not "speak" to
the youth. The establishment of the new minyanim was intended to bring
the youth closer to the synagogue, and indeed some positive actions
were undertaken, but there was no success in infusing these places
with "soul." The young people were brought closer to the synagogue,
but not to prayer. Meanwhile the youth of then have become older, but
most of the synagogues have remained as they were, devoid of vitality
and spirituality.

4) The search for "connection" also contains a hidden criticism of the
move towards nationalist ultra-Orthodoxy (charedi-leumi, or "chardal")
that is currently the vogue and to which no small number of yeshiva
graduates have been attracted. The criticism is aimed at the action-
oriented nature of this ultra-Orthodoxy. From the point of view of
strictness and precision in certain areas of Halakha, everything looks
perfect, but the internal, spiritual sense of love and awe of G-d,
which in general always accompanies precise observance of the details,
is not apparent to the outsider. The discrepancy between the "duties of
the heart" and the "duties of the limbs" is painfully obvious, and this
has led the youth of today to the logical conclusion -- to their view --
that this is not the way, and that new ways must be sought.

KEEPING TORAH OUT OF OBLIGATION, NOT JUST CHOICE

The factors that I have enumerated have served, I presume, as a catalyst
for the new phenomenon to which we are witness. In truth, the roots of
this phenomenon are to be found in the inner nature of religious life
in the modern era, and I refer here mainly to the religiosity of Jews
who are open to modernity and do not close themselves into ghettos.

According to our Sages, Am Yisrael accepted the Torah at Sinai out of two
different motivations. The one was a freely-accepted and enthusiastic
declaration of "We shall observe and we shall hear" (Shemot 24:7);
the other was the coercive and threatening suspension of the Mt. Sinai
like a cask over their heads (Shabbat 88a). It would seem that nothing
could be more ideal than accepting the Torah out of free will and inner
conviction -- indeed, the Midrash narrates how, when Israel willingly
declared, "We shall observe and we shall hear," the angels on high were
astonished and asked, "Who revealed this secret to Israel?" At the same
time, acceptance of the Torah that is based only on willing assent,
without a basis of coercion, is deficient. The Maharal writes:

"The reason for holding the mountain over them was so that Israel would
not say, 'We accepted the Torah of our own free will, and had we not
wished to, we would not have accepted the Torah.' This would not have
represented the glory of Torah... it is not proper that the acceptance of
the Torah depend on the free choice of Israel, but rather that the Holy
One obligate them and force them to accept it, for were it not for this
[acceptance] it would be impossible for the world not to revert to its
primordial chaos." (Tiferet Yisrael, chapter 32)

Lately I have the impression that these Jews, whom I am discussing,
observe Torah and mitzvot not out of a sense of obligation and commitment
but rather out of free choice, out of a recognition of the superiority
of a Torah lifestyle over other lifestyles. The sense of obligation has
weakened in recent years, if not disappeared altogether. We are faced
with an acceptance of "the yoke of Heaven" out of a desire to accept
the yoke, and not out of recognition that the yoke is forced upon us. I
do not know when this phenomenon started, but in my public appearances
both in Israel and overseas I began to address it more than ten years ago.

A significant fact should be emphasized here. What is involved is not
an attitude of willing acceptance towards each individual mitzva, but
rather a willing acceptance of the whole framework of religious life,
undertaken with the clear recognition that the acceptance of a religious
lifestyle is founded upon commitment towards Halakha. What we have here
is acceptance of commitment to Halakha as part of the life that a person
chooses for himself, out of free will and not out of obligation.

LIBERAL INDIVIDUALISM

There can be no doubt that such an approach to Torah and mitzvot arises
from the cultural atmosphere prevalent today in the world. The place
of liberal individualism as a central foundation of modern culture
and the place of the rights of the individual at the top of the
hierarchy of values have led to a spirit of freedom from commitm The
very idea of obligation to any value or object is opposed to the idea
of freedom. This being the case, any commitment -- be it towards the
nation, the state, society or the family -- has no place in the era of
individual freedom. Commitment contains an element of coercion; only
action that is undertaken out of free will is desirable.

It is therefore no wonder that the modern religious individual is
influenced by this atmosphere in his religious approach as well, and
thus choice out of free will becomes the foundation of his religious
world-view. Again it should be emphasized that within this approach
there is a commitment to Halakha. Not only does such commitment exist,
but it is in fact heavily emphasized, recognizing that this is the sole
anchor preventing complete assimilation into the surrounding cultural
environment.

EXPERIENCE WITHOUT COMMITMENT

Now let us address what is happening today among the youth whom I am
discussing. The youth have taken one further step -- a step that is
far-reaching and dangerous: they have removed from their lexicon the
obligation to Halakha as well. Any obligation is invalid. The concept
of authority arouses among them the suspicion that obligation lurks not
far behind, and hence their opposition to the very idea of authority.

After removing authority from their lexicon, what remains? What remains
is "identification," or "connection." Those parts of the Torah and those
mitzvot with which the individual can identify and which sit well with
his personality, those to which his "I" can attach itself experientially
-- these become part of his "I," and this represents the sole basis
for his mitzva-observant lifestyle. This connection must be personal
and individual, and obviously it can only be experiential. Religious
experience is a personal matter; everyone experiences things
differently. Connection based on reason and logic lacks the personal,
individual element, since logic is something universal rather than
personal, and so it fails to satisfy him.

It is in the nature of the demand for personal connection, devoid of any
element of obligation, that a one-time connection at a conducive moment
is insufficient; there must be a new connection established from time
to time since there exists no accompanying obligation. Clearly, too,
the connection that once existed at a conducive time does not create
any obligation for other times that are less conducive.

SELECTIVE CONNECTION

The leap from this perception to that of selective "connection" is not all
that great. Selective connection means that one is not satisfied with the
idea of connection to a life of Torah in general; what is required is a
specific identification with each individual mitzva. Then what happens is
that one is able to "connect" to certain mitzvot, but with other mitzvot,
one has less success.

These youth expect the Almighty to approach man and offer him
mitzvot through which he will be able to attain religious elation and
spiritual elevation; this style appeals to them. But to accept G-d as a
commanding King who makes demands and is coercive -- this is beyond their
comprehension and is meaningless to them. The Gemara (Rosh Ha-shana 28a)
teaches that, "The mitzvot were not given for our enjoyment." Rashi adds:
"That is, in order for their observance to give pleasure; rather, they
were given to be a yoke upon their necks." In the minds of these youth,
this saying is meant for a different generation.

In summary, we are faced with a most grave phenomenon, even if it does
bring the youth some enthusiasm in prayer, through song and dancing.

A RESPONSE TO ALIENATION

If my aim were to follow the example of R. Levi Yitzchak of Berdichev and
to find something to say in their favor, I would say that the search for
"connection" arises from the sense of alienation that characterizes the
world today. Much is said about how modern communications have made our
world into a global village. I believe that this represents a mistaken
definition. The world has changed not into a global village, but rather
into a global metropolis -- a huge city with all the attendant problems
of urbanization, which increase the feeling of estrangement among its
inhabitants.

The automatization that has spread to every sphere of life has brought
about a situation in which the connection between people and the reality
surrounding them has become devoid of any human dimension. Everything
is becoming "virtual," the virtual is the real thing, and reality has
become, as it were, an imitation of the virtual. All of this increases
the sense of alienation, especially among young people who have not yet
become fully-fledged citizens of the world and are still trying to find
their way in life. It is no wonder, therefore, that they seek the remedy
for their estrangement in "connecting."

It is reasonable to assume that there are in fact different levels of
the demand for "connection," and that the model I have presented is
somewhat extreme. I have chosen intentionally to present this extreme
model because I believe that any over-emphasis of the idea of "connection"
contains that danger that it may lead to the model I have described.

LOYALTY AND FAITFULNESS

I know that in order to address this phenomenon it is not sufficient
merely to point out its dangers. We need to deal head-on with the actual
ideology of "connection." And in this regard I would like to clarify
one particular point.

Words have their own dynamic. The concepts of "commitment" and
"obligation" are relatively new, and they arouse associations of coercion,
of something that is not part of ourselves but rather is forced upon
us. In our traditional sources, the term that is used instead of
"mechuyavut" (obligation) is "ne'emanut" (loyalty, trustworthiness,
faithfulness). We say in our prayers, "You are faithful to revive the
dead" -- G-d is obligated, as it were, to revive the dead. Moreover,
Rashi interprets the phrase, "I am Hashem" (Shemot 6:2), as meaning,
"I am faithful to give reward." The Tetragrammaton refers to G-d's
keeping faith with His creatures.

The concept of religious faith (emuna) is also an expression of loyalty
(ne'emanut), as we pray, "...and [He] fulfills His faith to those who
sleep in the dust." Faith, in the language of Chazal, means trust in
G-d because He is the source of loyalty; it is not "belief that" but
"belief in." "Since you did not believe in Me [to sanctify Me in the eyes
of Israel]" (Bamidbar 20:12), G-d's criticism of Moshe when he struck
the rock, means, "Since you did not have faith in Me, since you did not
trust in Me." In Mishlei (20:6) we read, "Most men will proclaim each his
own goodness, but who can find a man of faith?" The Maharal comments on
this, "A man of faith is both someone who has faith in Me, and someone
who is trustworthy in all his dealings and behavior." Faith, therefore,
expresses two things: faith in G-d, and loyalty in all one's behavior; in
other words -- obligation, commitment. In contrast with the strangeness
of the word "obligation," "loyalty" expresses something that is close
to man. It is a word that does not arouse any unpleasant associations;
it is a word that expresses something of which man is proud.

The Gemara (Ta'anit 8a) recounts: "R. Ami said: The rains only fall for
people of faith, as it is written, 'Truth will sprout from the earth and
righteousness looks on from the heavens.' And R. Ami also said: See how
great are those of faith -- from where? From a rat and a well. And if
this is so concerning one who is faithful to a rat and a well, then how
much more so concerning one is faithful to the Holy One, Blessed be He."

What is referred to by "faithful to a rat and a well?" This refers to the
loyalty towards a rat and a well, obligation towards them. The incident
is explained in the Arukh (s.v. Cheled):

"It once happened that a girl was walking towards her father's house,
wearing silver and gold jewelry. She lost her way and wandered
in uninhabited areas. By noon, she was thirsty but had nothing to
drink. She saw a well with the rope of a bucket suspended over it. She
took hold of the rope and let herself descend into well. After drinking
she wished to ascend but was unable to, and she cried and shouted. A man
passed by and heard her voice. He stood by the well and looked into it,
but he was unable to see her... He said to her, 'What has happened to
you?' She told him the whole story. He said to her, 'If I lift you out,
will you marry me?' She said, 'Yes.' He lifted her out, and wished to
have relations with her immediately. She said to him, 'From which nation
are you?' He said, 'I am of Israel, from such-and-such a place, and I
am a Kohen.' She said to him, 'I am from such- and-such a place, and
from such-and-such family, well-known people of good repute.' She said,
'[A member of] a holy nation [of Kohanim] such as you, whom the Holy
One has chosen and sanctified from amongst all of Israel -- you wish
to act like an animal, without a ketuba (marriage document) and without
kiddushin? Come with me to my father and mother, and I will become engaged
to you.' They each promised to the other. He said to her, 'Who will be
a witness between us?' A rat ran by them. She said to him, 'The heavens
and this rat and this well will be witnesses that we shall not deceive
each other.' Each went his own way. The girl stood by her commitment,
and anyone else who proposed to her was refused. When they pressed her,
she began to behave as if she was mad; she would tear her clothes and
the clothes of anyone who touched her, until people began to avoid her,
and she kept her promise to the man. And he -- since he was no longer in
her presence, his evil inclination attacked him and he forgot. He went
back to his city and returned to his occupation, he married another woman
and she became pregnant and bore him a son. At the age of three months,
a rat strangled the child. The wife became pregnant again, and bore a son,
and the child fell into a well. The man's wife said to him, 'If your sons
had died in a normal way, I would have accepted the judgment. Since they
have died such strange deaths, it cannot be for no reason. Tell me what
happened.' He told her the whole story. She divorced him, telling him,
'Go to the portion that the Holy One has assigned to you.' He went and
asked in her city. They told him, 'She is mad. Anyone who wants her --
such and such she does to him.' He went to her father and told him the
whole story, and said, 'I accept any fault that she has.' The father
brought witnesses. The man came to her and she started to act as was her
custom. He told her the story of the rat and the well. She said to him,
'I, too, have kept my promise.' They were immediately reconciled, and
their children and possessions multiplied. Of her it is said, 'My eyes
are on the faithful of the earth' (Tehillim 101:6)."

What do we learn from this story? The woman expresses fundamental human
nature, without cunning or artificiality. The story shows that commitment
-- "loyalty," in Chazal's terms -- is part of the essence of human nature,
and deviation from it is a deviation from human nature, and therefore
nature takes its revenge. Commitment is not something external; rather,
it flows from human nature. If one removes from man his loyal nature
-- or, in other words, if one removes from him his sense of binding
commitment and obligation -- then one has removed the Divine image
within him. Moreover, instead of the the realization of G-d's promise,
"And the fear and terror of you will be upon all the creatures of the
earth" (Bereishit 9:2), the rat and the well will overcome him.

A world that revolts against commitment is in fact revolting against
its human nature, and I believe human nature will ultimately prevail,
and this whole phenomenon -- which is contrary to nature and contrary
to humanity -- will disappear in the not-too-distant future.

The Gemara (Makkot 24a) teaches, "613 commandments were given
to Moshe... David came and summarized them in eleven... Yishayahu
came and summarized them in six... Micha came and summarized them in
three... Chabbakuk came and summarized them in one, as it is written,
'And the righteous man will live by his faith.'"

The reference here is not to faith in the sense by which we mean it today;
rather, it refers to its previous meaning -- loyalty to G-d. And so we
read in Chabbakuk (2:3):

"For there is still a vision for the appointed time, and it speaks
concerning the end and it does not deceive; if it tarries, wait for
it, for it shall surely come, it will not delay. Behold, his soul is
puffed up, it is not upright in him, but the righteous man will live by
his faith."

The significance of these words is that the faith that "it shall surely
come" is one aspect of faith; the other aspect is that the righteous
man will live by virtue of his loyalty, of his commitment. "Chabbakuk
came and summarized them into one" -- the concept of faith, which is a
two-sided coin: faith in G-d's loyalty towards man, and man's loyalty
towards the Holy One -- which we call commitment. Thus the concept of
commitment becomes the basis for the entire Torah: "And the righteous
man shall live by his faithfulness."

(Translated by Kaeren Fish with Rav Ronnie Ziegler. This speech was
delivered at Yeshivat Har Etzion's mesibat Chanuka, 5760 [1999].)

R'SethM wrote:
> shabbas qodshokh...vo " at Shaharis, which is now standard Ashkenaz
> and Sefarad (but not Teimon)

D. and E-H. Bannett:
> It would appear that there are or were three nuschaot and some give each
> a fair turn.

> Shabbat ....bah
> Yom Shabbat ...bo
> Shab'tot ....bam

Well put.

AIUI, Bah is the grammatically correct version and therefore the
Roedelheim went with a more literal version; while the Bah-Bo-Bam is a
midrashic version that called upon a bit of "poetic license."

This is perhaps one example of many where there is a tension between
the literal and the poetic.

Shalom
Rich Wolpoe 
 

R' Michael Poppers request from R' Amihai B.:
> perhaps your Sabba could elaborate on "uvash'vi-i," a reading that
> I've seen no source for & which, IMHO, makes little sense.

R' Michael's request is my command. The Sepharadim have ve-ha-sh'vi'i
and most Ashkenazim uvash'vi'i.

The paragraph starts by talking about 'am Yisrael. They are shomerei
Shabbat, kor'ei 'oneg, an 'am mekad'shei sh'vi'i. In other words we are
the best.

Then we Ashkenazim continue: uvash'vi'i ratzita bo. If bo refers to us,
i.e., 'am Yisrael, the subject of all the preceding, it means that God
wants us on Shabbat. Doesn't he like us on any other days? Let's continue:
On the one day that God wants us ve-kidashto, he also made us holy. But
then we continue chemdat yamim oto karata. But this last phrase obviously
must refer to Shabbat. He certainly didn't call us chemdat yamim. Then
ve-kidashto must also refer to Shabbat. It follows then that bo might
also refer to Shabbat (or sh'vi'i for the zakhar/nekeiva medakdekim)
and the switch in subjects occurred just before that. Fine. Now we have:
On the sh'vi'i, God wanted, desired, or liked the sh'vi'i. God doesn't
want Shabbat on any other day. Why not? Why only once a week? Read the
mefar'shim who try to drei their way out of this without satisfying me,
R' Michael Poppers, or my grandson.

So now lets start again: We shomrei shabbat kor'ei 'oneg who are
mekad'shei shevi'i, we enjoy God's goodness. And He liked the shevi'i,
the Shabbat, and He made it holy and called it chemdat yamim. It's simple
and straightforward. It makes sense.

IIRC, Seligman Baer, a Yekke who thinks our tefilot should make sense,
chooses the ve-hash'vi'i nusach without going into all my analysis above
but stating that it is from R"D Abudarham and is correct.

Rambam (ketav yad Oxford), Baladi Yemenite, Sa'adia G. etc. don't have
these lines in their nuschaot so they cannot give evidence for or against.

So, IMHO, the score at this moment is Sefardim =1, Ashkenazim = 0.

As I've written before, I don't believe one should change his nusach to
a more historically correct one if his nusach has a long vetek and can
be understood. This is one I have changed because the one I learned as
a kid doesn't make any sense to me.

We are now waiting for R' Seth to had his two cents, unless he got ahead
of me as he usually does because I don't read the digests every day.

K"T,
Sabba David

On 10 Dec 2000, at 22:11, Chana/Heather Luntz wrote:
> Yes.  And we also have statements that women receive schar for learning.
> Of course, it is accepted that the schar for one who is commanded and
> does is greater than that for the one who is not commanded and does.
> However, in neither scenario, would the woman seem to be commanded and
> doing, in both she is voluntarily doing, and receiving reward for so
> doing.  

I heard an answer this morning. The Maggid Shiur for the Daf shiur,
Rabbi Leibel Shapiro, brought in the name of the Likutei Sichos
(unfortunately, he did not say where and I don't own the sefer) that a
woman who facilitates her husband's learning IS a metzuvah v'osa. He
proves this based on a Ran at the beginning of HaIsh M'Kadeish (I
forget the d"h, but it's the last one on 16a in the Rif dapin) who asks
why not only is it "mitzva bo yoser m'b'shlucho," but also "mitzva ba
yoser m'b'shlucha." Lichora the woman has no tzivuy in pirya v'rivya,
let alone in Kiddushin. The Ran holds there that by facilitating her
husband fulfilling pirya v'rivya, she becomes like, and gets schar like,
a metzuvah v'osa. The Likutei Sichos argues that the same thing applies
to a woman who helps her husband in Talmud Torah.

Now I suppose you could be mechalek and say that IF she does it she
gets schar like a m'tzuva v'osa, but that doesn't constitute a tzivuy
to actually do it, but if you made that same argument by Kiddushin, you
would find that men could not fulfill the mitzva at all. I think the idea
is the same - that a married man cannot learn Torah without his wife's
support (not necessarily financial - that's not what I'm getting at)
and therefore his wife is m'tzuva to support his learning and if she
does so, she gets schar like a m'tzuva v'osa.

> Question, do you think that gemorra (its in sotah as well BTW where this
> general discussion is) that states that women get reward for
> waiting/encouraging is davka in relation to husbands, or that eg a
> babysitter also gets equivalent schar in babysitting/encouraging so as
> to allow the man to learn?  

Davka the wife because she has the tzivuy. Note also that when the Gemara
discusses limud zchus for the sotah, it doesn't say she did mitzvos, it
says that she facilitated her husband's (and her sons') learning. The
Gemara goes on at great length to be mechalek there between learning
Torah and ordinary mitzvos.

> How about a woman who goes out to work (eg
> on Wall Street) and supports lots of kollelim?

That doesn't seem to qualify, because her tzivuy is parallel to her
husband's. Just like he is metzuveh on his own learning and that of his
children and grandchildren (see the Rambam at the beginning of Hilchos
Talmud Torah - I think it's 1:3), so she is metzuvah on her husband's
and children's learning, but not on someone else's. Supporting someone
else's learning would be counted as a mitzva of tzedaka, but not as
actual Torah learning as it would be with her husband and sons.

-- Carl

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 Tue, Jan 09, 2001 at 11:24:22AM -0500, David Glasner wrote:
:> He wasn't speaking about whether something is treated like midi'Oraisa
:> or midiRabbanan, but whether or not something can be subject to debate,
:> later legislation, etc...

: I was just observing that Mamrim 2:1 may also apply to dinei d'rabbanan
: insofar as those dinei d'rabbanan are properly subsumed under the 
: category of divrei soferim rather than takanot, g'zeirot or s'yagim.

Well, I have to bow the the Kesef Mishnah that 2:1 includes the resolution
of machlokesin, rather than only the discovery of new dinim. IOW, that the
rule that we do not reopen machlokesin of earlier eras is convention, not
mandatory. (Unless we should be exploring minhag Yisrael k'din on this.)

But I still do not go as far as you are.

First, I don't think there is a difference between a gezeirah and a s'yag.
They are both words that literally mean "fence" or "border".

Second, I think that takanos include the rest of dinim diRabbanan, because
the taxonomy in Seifer haMitzvos only has the two catagories. According
to the Rambam, every diRabbanan is either a din or a gezeirah.

:> 1 and 2 are dinim gotten from mesorah; 3 are things known to be from
:> derashah or sevarah. When in doubt whether a derashah or a sevara
:> is the origin of a din or a post-facto explanation/mnemonic, safeik
:> di'Oraisa. How is there a problem?

: I have trouble with the notion that the Sanhedrin whose function is
: to resolve s'feikot would use safeik as a basis for deciding what the
: halakhah is.

You and I must have different expectations of a resolution. I'm happy
with a p'sak -- you want the safeik to be eliminated.

: a mahloket between Rav Yoseiph and Abaye (I'm writing from memory now,
: so I may not have the names of the Amoraim correct) about whether lice
: procreate or not.  Under what theory of the power of Sanhedrin, would it
: be prohibited for a new Sanhedrin to change the halakhah and pasken either 
: like ... Abaye against R. Yoseiph (... being a mahloket in m'tziut)?

Haven't we discussed this before -- albeit not from this angle? RYBS
would say that they couldn't. Apparantly the Gra and R' Kook would say
that it could only override such a p'sak lehachmir, because to remove a
heter only requires doubting one of its causes, while removing a chumrah
requires knowing all of them. They might argue that repealing a kulah
isn't a violation of the Rambam.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

The Netziv writes that even though the servents of Pharoah accompanied
Yosef on the trip to bury Ya'akov out of respect for Yosef, not out of a
desire to be mechabed Ya'akov, still gemilus chasadim is rewarded afilu
shelo lishma (Harchev Davar 50:7).

Isn't this against the gemara in R"H 4a that for an akum shelo lishma
by tzedaka doesn't work?

The following is related to our conversation on writing down TSBP and its
effects on the halachah's authority.

-mi

Date: Tue, 09 Jan 2001 16:11:59 +0200 (IST)
From: Nehemiah Klein <ndk@hakotel.edu>
Subject: Subject: HaRav Steinberger's Shiur #5761-3

More About the Status of the Prophet in Halacha

We have seen in the previous shiur that the Rambam attributes to the
prophet as much as to the Head of the Supreme Court, the power to transmit
the Oral Halachic Tradition. Here we are going to offer more solutions
-- suggestions -- about the possible added value of the prophet in the
context of Halacha.

The Rambam (Hilchot Beit HaBechira 1:4 and 2:4) writes that the
measurements of the sanctum and of the altar were determined by the
prophets. The "Chatam Sofer" (in his responsa "Orach Chaim" 2:8) says that
despite the fact that the prophets cannot innovate anything in Halacha,
here in the case of the dimensions of the first and second sanctum it was
different. This is because the Torah clearly instructed us to build the
future Temples (both that of Solomon and that of Ezra and even probably
the third one when Messiah comes) according to the rulings of the prophets
of those future generations. That is what the Torah (Parshat Trumah, Shmot
25:3) meant by commanding to execute the construction of the Temple and
its furniture and vessels was based on future delineation of the details.

Accordingly, there is a clear provision, at least in this case, to heed
the prophets even if it concerns a Halachic issue. Obviously the dictum
"Lo BaShamayim Hee" -- Heaven should not be adhered to, when it comes
to Halacha (Baba Metzia 59b), does not cover the issues of building the
holy fixtures of the Temple and its accessories. If so, the Rambam,
referring to the prophet (as having Halachic authority) could have
meant these issues which clearly constitute and exception to the above
mentioned rule. (It makes also some sense that when it comes to matters
of such esoterica as to how to build the house of Hashem, then it is
based on consulting a prophet. And anyway, this is a "Gzeirat HaKatuv"
-- a special decree that differentiates between here and elsewhere).

Rav Soloveitchick ("Shiurim LeZecher Aba" part I p. 228) makes another
important distinction. We cannot conult a prophet only in matters of
Halachic judgement. But when it comes to clarifying a practical question
about the actual behavior of previous generations or about discovering
and reconstructing the proper Oral Tradition as determined by an earlier
Sinaic decree -- then the prophet can be trusted even when he uses his
transcendental heavenly powers to find out the truth. (The Rav expands
there this idea to explain also the nature of "Halacha LeMoshe MiSinai"
that cannot be subject to Machloket. Since in practical Messorah a
prophet's authority is relevant, this therefore indicates that it is
not a matter of "Sevarah" -- logical judgement. Consequently, we find
no disputes regarding such Halachot. See there for further understanding.)

Two additional possible cases when the prophet's opinion is relevant in
Halacha are: 1) According to the "Ohr Somayach" (Yesodei HaTorah 9:4)
when the prophet (or the "Bat Kol") does not rule in favor of one's
specific opinion in a Halachic dispute, but favors generally one sage
rather than others, there is no problem. (That is how he explains
the Bat Kol that favored Beit Hillel over Beit Shammai. Albeit, the
Tosafot, mentioned in the previous shiur, seems to disagree with the Ohr
Somayach). 2) When two opinions seem to appear absolutely equal and there
is a stalemate. In such a case, the fact that one opinion belongs to a
scholar who is also a prophet, can possibly make a difference. Since he
is a greater Tzaddik than his opponent, we should assume that there is
less likelihood of a mistake from such a holy man, than from a scholar
who is not a prophet. There is a special Divine Assistance -- "Siyatah
DishMaya" for the holy ones, more than for ordinary people. Hashem
helps the Tzaddik not to have a "takkalah" -- a mistake that might cause
Halachic or other damage coming as a result of his behavior. Likewise a
prophet can probably testify that one of the two opponents in Halacha is a
greater Tzaddik and consequently (again only in a case of a stalemate),
the greater Tzaddik's opinion should be favored. Thus, our Rambam,
mentioning the "Navi", could mean him functioning in any of these cases.

The role of the prophets can be meaningful in Halacha from a totally
different angle as well. In "Maczhor Vitri" (attributed to R' Simcha, a
disciple of Rashi) on the beginning of Pirkei Avot (Horovitz, facsimile
edition p. 462) there is an explanation for referring to the writings
of the prophets ("Nach") as "Divrei Kabbalah". It is, he says, because
their sayings came through the "Kabbalah" -- euphemism for the Oral
Tradition. (Often it is used also as the name for the "Halachot MiSinai"
in the Oral Law -- see also Shita Mekubetzet Baba Kama 2b). This can
shed light on the status of the Halachot we sometimes find in the books
of the prophets, i.e. "Oneg Shabbat" -- the laws concerning the pleasures
of Shabbat (learnt from Isaiah 57:13), saying Hallel (learned from Isaiah
30:29), etc.

All these laws seem to have a special status -- "Divrei Kabbalah",
which are more important than Rabbinical decrees but less important than
Biblical laws. (See Talmudic Encyclopedia, the entry "Divrei Kabbalah",
see also Baba Kama 2b). However, we have a problem dealing with laws
associated with prophecies, as we have mentioned all along. If so, what
is the nature of these laws that appear in the Neviim or Ketubim? It
seems that these laws are part of the Oral Law, created in the period
of the prophets, and on the surface they do not differ from any Mishna
we know from later periods. (We refer only to laws expressed as clear
decrees, not those implied through an incidental reference. See "Pri
Megadim" introduction to Orach Chaim 1:19). Nevertheless, there is
one interesting point that distinguishes them from the later, post
prophetic era, Mishnayot. They are part of "Torah SheBeKtav" -- the
Written Law, as stated clearly by the Rambam in Hilchot Talmud Torah
(Chapter I Halacha 12). Thus we have pieces of the Oral Law, which
were not given directly from Sinai (otherwise they would have the full
status of a Biblical commandment -- "D'Orayta"). they do not function as
prophecies because prophecies cannot constitute Halacha. They are not
regular Oral Law either, since they are considered Scripture. So what
are they? These pieces of law are Oral Law that were written down and
turned into Written Law. The prophets had the authority to do so, even
if Oral Law was not supposed to be recorded in writing. In other words:
by the same token that later the sages decided to write down the whole
Oral Law (see Gittin 60a), so did the prophets concerning certain laws.

According to this approach, the prophets had the distinct position to
turn Oral Law into Written Law (and give it a unique status between
D'Orayta and D'Rabbanan, as explained above). And this is probably the
meaning of the Rambam, saying here that since Moshe Rabenu there was no
corpus of Written Law until Rebbe. In the meantime, if there was some
kind of written recording, that was done by the Heads of the Courts or
by the prophets. Prophets, according to our explanation, were the ones
who -- by writing down the Oral Law of their times -- gave those laws
that unique interim status (of Rabbinical Written Law). Thus we have
Moshe Rabenu's writings, that turn every piece of Torah into D'Orayta
-- Written Law. We have Rebbe's that record the Oral Law in writing,
but don't grant those writings the status of the Written Law. And in
between we have the prophets who establish a third special category to
do this. It is within their authority as prophets.

[The only problem which remains is that now we do not view the activity
of the Heads of the Beit Din as being equal to that of the prophets. The
presidents recorded things just for their own personal records, or
probably as Registrars -- see the previous shiur. But the prophets'
writings, because the published matter of the Mitzvot and Takkanot
Neviim. It might be contrary to the implication of the Rambam that the
president and the Nassi function similarly basically.]

This approach can also answer an interesting historical question. How
can it be that the Mishna starts only from Shimon HaTzaddik (the first
sage mentioned in the Mishna of Rebbe -- in the beginning of Avot)? What
about the Oral Law learnt and innovated, taught and discussed, during
the time between Moshe Rabenu and Shimon HaTzaddik?! Where are all
the "chiddushim" of these generations, all the halachic creations of
approximately one thousand years?!

According to the presumption that most of the Oral Law of these
generations appears in the prophets -- we have a clear answer. Indeed
many Midrashim and commentaries seem to reveal numerous laws, a big part
of which appear later in the Mishna and the Talmud, behind the Pesukim
of the Neviim and the Ketubim. (A whole series of books "Eved Hashem"
by Rabbi Hominer is dedicated to these laws, and so are other works and
pieces of commentaries -- up to works of our generations).

It should be noted that besides the laws that are said and formulated
clearly by the prophets (Hallel, Oneg Shabbat, etc.), there are ones
that we assume their existence from way back, like "Kinyan Sudar"
-- a transaction referred to in Megillat Ruth. This, second type, is
not invented by the prophets. It is only that, that in their books --
writings, these happen to be mentioned for the first time. This type
has nothing to do with our Rambam. And there is yet another, third
category: Mitzvot and Takkanot Neviim, like Purim or beating an Arava on
Sukkot and many more. these might be also part of the innovations of the
prophets, that the Rambam here refers to. The prophets do have, as much as
presidents of Beit Din, the authority to invent Takkanot and Mitzvot of
their own. [The prophets have a special license in another field, where
they are comparable in their authority to the one that is granted to the
Nassi of the Sanhedrin. They can uproot the laws of the Torah temporarily
for the sake of reinforcing the Torah and its observance. (See Rambam
Hilchot Yesodei HaTorah chapter 9:3). Sanhedrin can do the same. Since
our Rambam does not seem to refer here to these cases, it is sufficient
just to mention them without further deliberations.]

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


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