Avodah Mailing List

Volume 06 : Number 130

Monday, February 19 2001

• Re: Hachono for Derech Analysis / Voss Iz Der Chilluk?
• Re: Derech Analysis
• Re: Derech Analysis
• Re: Hachono for Derech Analysis / Voss Iz Der Chilluk?
• Re: Derech Analysis
• Mishpatim Remez
• Re: Mishpatim Remez
• Shiva asar b'tammuz

On Wed, Feb 14, 2001 at 07:47:12PM -0600, Shoshanah M. & Yosef G. Bechhofer wrote:
: His answer. The moreh horo'oh is a shali'ach to pasken halocho: His
: chazoko shali'ach oseh shelichuso overrides the chezkas issur in the
: she'eila (he deals with the question that normally we do not rely on this
: chazoko vis a vis d'orysos, vakm"l).

Whose sheliach? HKBH's, Beis Din's, or klal Yisrael's? IOW, who "owns"
the right to pasken? I doubt that in a post-matan Torah, "lo bashamyim
hi" world, we pasken on behalf of Hashem. But I lack a makor with
which to rule it out.

-mi

On Thu, 15 Feb 2001 C1A1Brown@aol.com wrote:
> 1) R' Shimon/Telz - Abstract principle - rov only works if it leads to a 
> definitive resolution....

I am not sure I understand some of the things you wrote - and, therefore,
others will certainly have difficulties. Could you elaborate somewhat?

KT,
YGB
Yosef Gavriel Bechhofer
ygb@aishdas.org, http://www.aishdas.org/rygb

On Thu, Feb 15, 2001 at 08:44:46AM -0600, RYGB wrote:
: 3. If you propose a resolution, try to categorize what derech ha'limud you 
: are employing in resolving the query.

What about which darchei limud are even more likely to post the query? For
example, the question you posed is particularly Brisk-esque:
:          In Brisk they would mockingly say that in Telshe one would
: klerr (analyze) the following chakira (problem):
:          What makes tea sweet, is it the sugar or the spoon stirring?

The question starts asking for categorization between one of two options.
Not only does a derech define the means for reaching an answer, it also
defines what one considers an inyan, and what questions one asks.

I would have pictured R' Dovid Lifshitz phrasing a serious version of
that question more in terms of "How does stirring sugar into tea make tea
sweet?" The same question, but phrased almost as a ta'am hamitzvah
exploration. Which fits his Rebbe's teiretz:
: Yosef Leib Bloch & Reb Shimon Shkop. This chakira captures the
: hallmark of the former (Reb Chaim Telzer's) derech - Contingencies
: - but not the latter, which we'll explore later.

One last observation about RYGB's article.

: Shee'abud HaGuf (personal liens). The Briskers are satisfied to
: explain Shee'abud as a "partial acquisition" (a "miktzas kinyan").
: They classify all such amorphous transactions in a category known
: as "chalos" (roughly: "transaction"). They concentrate on defining
: "What." Reb Shimon, on the other hand, feels compelled to explore
: the "Why." He therefore explains that Shee'abud is a logical
: construct of the social contract between individuals which
: precedes Halacha.

I think the fundamental difference is a step preceding: Briskers do not
believe there is a concept of something that prcedes halachah. We can't
understand HKBH's mind -- explaining halachah is as futile as trying to
explain the Shoah.

RYBS's derech is, to my mind, a synthesis of Brisk's exploration of
chakiros and definitions of categories with Telz's drive to find the
essential meaning of the din. By assuming a philosophy of Kirkegaardian
dialectic, he can provide philosophical explanation for Brisker chakiros.
Tzvei dinim emerge from the tension of the dialectic.

And yet even RYBS takes the Brisker view that this is not an explanation
of halachah. He called these explorations "halachic hermeneutics" --
post-facto lessons we can learn from the din, not a priori explanations.


On Thu, Feb 15, 2001 at 01:56:16PM -0600, RGYB continued:
: The Sha'arei Yosher 4:9 queries in the case of 10 stores, 3 of which sell 
: Neveila meat, another 3 of which sell Treifa meat, and 4 of which sell 
: Kosher meat: There is a Rov for Issur, but for distinct reasons: Do we 
: follow the majority of Issur as the Rov, or the plurality of Heter? The 
: Poskim seem to be of the opinion that we definitely follow the majority 
: l'Issur, not the plurality l'heter.

I wonder if the fact that meat enters shechitah with a chezkar issur
is relevent. This would avoid the entire question to begin with. I'm
not sure which derech leans toward that kind of avoidance. Maybe
one could say it's a Poilsher out-of-the-blue teirutz.

Second, I can see arguing that there are three distinct concepts that
use rov:
    - bitul birov
    - azlinan basar ruba
    - acharei rabim lahatos
If so, one can't ask a question between the 2nd and third categories --
they're different kinds of rov. (Brisk).

Third, perhaps we can use a chakirah made by R' Akiva Eiger (shu"t 136)
between birur of the metzi'us, and birur of the din when the metzi'us
can't be determined. Rov is only usable in the former. Which is why
kavu'ah, where the metzi'us was once known, there is no sigificance
to rov.

We are asking whether issurim add to make a rov. If one says they don't,
then one is arguing that we are trying to determine metzi'us, and therefore
the mezti'us causing the issur is relevent. If one says that they do
combine, that it would imply that we are trying to get birur on the din,
and therefore issur viheter are the relevent categories.

However, there is no rov in the latter case. The meat is kimechtzah
al metchtzah dami, and is assur because we're discussing a safeik
di'Oraisa.

Beis din, however, are in a totally different universe. They are paskening
-- IOW, trying to find a din. Their metzi'ius /is/ the amitah shel Torah,
what is the din? R' Akiva Eiger's chiluk is now blurry -- is this like
a birur of metz'ius where rov would apply, or one of din where rov doesn't?

I could present this in a number of different ways, depending upon the derech
I was trying to emulate:

Polisher would focus on the idea of p'sak halachah as birur. The combination
of two ideas that one wouldn't expect as a means of explaining both of
them.

Telzhers would present the idea largely as I did above, using this as an
exploration of just what is rov, and when does it apply?

Briskers have a chakirah, so they'd be happy with such a teiretz.


On Thu, Feb 15, 2001 at 08:13:42PM -0500, C1A1Brown@aol.com wrote:
: 1) R' Shimon/Telz - Abstract principle - rov only works if it leads to a 
: definitive resolution.   In the meat case, no rov independently can resolve 
: the status of the meat to be kosher.  In the B"D case, the status of a 
: court's decision must by be based on legal principle, so it is the rov which 
: defines that principle which is the focus...

I am n ot sure R' Shim'on would be happy with an answer that boiled down
to saying that Beis Din follows rules that stand on their own merit, qua
legal procedure.

-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

At 08:54 PM 2/17/01 -0500, Micha Berger wrote:
>: His answer. The moreh horo'oh is a shali'ach to pasken halocho...

>Whose sheliach? HKBH's, Beis Din's, or klal Yisrael's? IOW, who "owns"
>the right to pasken? I doubt that in a post-matan Torah, "lo bashamyim
>hi" world, we pasken on behalf of Hashem. But I lack a makor with
>which to rule it out.

To be honest, I first thought HKB"H, but then I realized he is probably 
referring to the Gemoro at the beginning of Sanhedrin about poskim now 
fulfilling the role of "shelichusyhu d'kama'ei ka'avdinan".

KT,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

On 15 Feb 2001, at 20:13, C1A1Brown@aol.com wrote:
> 2) Brisk - there are 2 dinim in rov.  Rov can define a cheftza (e.g. rubo 
> k'kulo) or rov can define a hanhagas hagavra (rov b'ilos achar hba'al).  The 
> rov of the meat case is a rov of hanhagas hagavra - can the person eat the 
> meat?  

I would define this as rov on the cheftza (is the meat Kosher or not). 

> The rov of B"D tries to define the chalos shem B"D on the psak as a 
> cheftza.  (Brisk= categorization into types, no attempt to explain why the 
> different categories of rov work differently).

I think by the B"D there is no rov. That's why we don't go after the
two svaros and take the one which is the plurality instead.

(Still looking for the Noda b'Yehuda - every place I have checked has
the Machon Yerushalayim one which is only out on OH and EH).

-- 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.

Reb Barry Jacobson indicates that the sofei Otiyot of

"V'asu  -   Vav; Li     -   Yud; Mikdash-   Shin; Vshachanti - Yud;
Bsochom - Mem; Kchol  -   Lamed; Asher  -   Resh       Unscramble and
get Yerushalayim!"

Very Cute! Unfortunately, to the best of my knowledge,  Yerushalyim in
all of Tanach is spelled Chaser  "Yeushalem" - without a second yud!

--
Dr. Aryeh A. Frimer
E-mail: FrimeA@mail.biu.ac.il
Tel: 972-3-5318610; Fax: 972-3-5351250
Tel Home: 972-8-9473819/9470834

On Sun, Feb 18, 2001 at 09:03:32AM +0200, Prof. Aryeh A. Frimer wrote:
: Reb Barry Jacobson indicates that the sofei Otiyot of
: "V'asu  -   Vav; Li     -   Yud; Mikdash-   Shin; Vshachanti - Yud;
: Bsochom - Mem; Kchol  -   Lamed; Asher  -   Resh       Unscramble and
: get Yerushalayim!"

: Very Cute! Unfortunately, to the best of my knowledge,  Yerushalyim in
: all of Tanach is spelled Chaser  "Yeushalem" - without a second yud!

Actually, what I found was that references to Yerushalaim is usually spelled
without a yud, as you write. An odd occurance, the lamed takes both a patach
and a chirik. Perhaps, as you seem to assume, it's a k'ri of Yerushalaim for
a k'siv of Yerushalem.

Anyway, I wrote "usually". When speaking of the Yerushalayim of yemos
hamashiach, it is spelled in full, with a yud before the mem.

Perhaps this is because the post-messianic city is the fusion of the
Yerushalaim shel mata with the Yerushalaim shel ma'alah. Therefore the
"-ayim" suffix, denoting a pair, is used.

-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

This year Shiva Asar B'tammuz is on a Sunday.  Someone I know wants to plan a 
simcha the Saturday night before the Sunday fast.  Technically it's the 
seventeenth of Tammuz, but the fast doesn't start until the morning.  Is 
there any halachic problem with a simcha on saturday night?  Would it be any 
different if Shabbos was docheh the fast and the seventeenth of Tammuz 
actually fell on Shabbos?

Michael Feldstein
Stamford, CT

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


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