Avodah Mailing List

Volume 08 : Number 069

Wednesday, December 12 2001

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Subjects Discussed In This Issue:
Date: Tue, 11 Dec 2001 05:16:49 EST
From: Joelirich@aol.com
Subject:
Re: Rambam and REED


In a message dated 12/10/2001 9:47:04pm EST, RabbiRichWolpoe@aol.com writes:
<< 2) REED was issuing a legitimate Hora'as sha'ah >>

Did REED ever say this in writing?

KT
Joel Rich


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Date: Tue, 11 Dec 2001 09:27:05 +0200
From: S Goldstein <goldstin@netvision.net.il>
Subject:
Re: halacha methodology


From: Feldman, Mark <MFeldman@CM-P.COM>
>> Please note the AhS is quite ready to toss out chumros of
>> acharonim. Not exactly "stare decisis".

> But the AhS tends to throw out such chumros primarily when they conflict
> with minhag yisrael.  IOW, he takes the position that an Achron's words
> won't automatically have the power of a U.S. court decision (which has the
> power of stare decisis in the relevant jurisdiction).  Once an Achron's psak
> is ratified by either (a) minhag yisrael or (b) the preponderance of
> achronim, the AhS is likely to agree with the psak.

>to consider the psak to have the power of stare decisis.

What I claim is that there is no such thing as a requirement to follow Shut
as opposed to independently (or only in agreement with some Rishonim)
returning to Shas.

Kol tuv,
Shlomo


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Date: Tue, 11 Dec 2001 07:34:26 -0500
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
Re: Fwd: Re: Out of context


I asked Micha to reiterate his questions for me:

At 03:27 AM 12/11/01 +0000, Micha Berger wrote:
>1- RSM assumes that proving that anyone can be a Moshe Rabbeinu implies
>    he retracted on the world being for the wise only. I disagree with his
>    only -- perhaps anyone can be wise.

I am not sure anyone can be wise - it seems from the Rambam that there is 
an element of predestination for chochmo, not for tzidkus. I think this is 
borne out in Chazal.

>2- You assume that the Rambam divorces chochmah from tzidkus. I question
>    that as both are related to yedi'ah, leshitaso.

Why? A tzaddik is the subjet of Hil. Dei's, first three chapters.

>3- You assume that the people the Rambam limits the point of creation to
>    are a few YS. I see a limitation, but not necessarily down to a few
>    YS rather than all who are zocheh.

That is the mashmo'us of that Rambam in the Hakdomo to Zera'im.

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


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Date: Tue, 11 Dec 2001 11:21:13 +0200
From: "Carl and Adina Sherer" <sherer@actcom.co.il>
Subject:
Re: Nusach


On 10 Dec 01, at 11:37, Ira L. Jacobson wrote:
> "Carl Sherer" <sherer@actcom.co.il> seems to have entered the following to 
> Avodah V8 #67:
>>> My son ...    said that after shemoneh esrei of ma'ariv, they say
>>> kaddish shalem and then shir hama'alos mima'amakim. Then they told him
>>> to say kaddish and then borechu and alenu....
> 
>>This is standard Nussach Sfard (and Eidot HaMizrach) for during the
>>week.
> 
> In my experience, for Ashkenazim this is Nusah Yerushalayim only, and not
> even in all of Yerusalayim (such as Gilo). In such cases, Ashkenazim say
> qaddish after Shir Lama`alot and then again after Aleynu. Sefaradim (who
> practice this all over) recite qaddish only after Shir Lama`alot.

Huh? In my experience, those who daven Nusach Ashkenaz (which is whom
I referred to as Ashkenazim) do not say Shir La'Maalos at all.

-- Carl


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Date: Tue, 11 Dec 2001 08:31:46 -0500
From: "Shinnar, Meir" <Meir.Shinnar@rwjuh.edu>
Subject:
RE: bone marrow transplants


RC Sherer wrote
> And if we're not talking about America which is a malchus shel 
> chessed, but we're talking about Eretz Yisrael where the non-Jews 
> are mostly our sworn enemies R"L.... does the equation change? 

Two separate issues:
1) the malchut shel chessed implies special obligations of hakarat hatov
2) One can reasonably argue that fundamentalist Islam does not meet the
Meiri's criteria, and only observes shisha mitzvot bne noach (lo tirzach
being absent). However, there is still an obligation for darche shalom
and saving their lives. If a Palestinian would have an autombile accident
in his neighborhood, or a Palestinian worker fall off a ladder and be
injured, wouldn't you give first aid? I don't know of any reputable
posek who would argue otherwise. (I would also add that any rav does
argue otherwise is endangering am yisrael - the Crown Heights pogrom
started when people claimed that Hatzala didn't treat a black victim -
and should be treated as a mosser) How is giving bone marrow donation
in any way different? Furthermore, the original discussion was that you
cited a claim (with which I am glad to hear you disagree) that some people
refuse to donate bone marrow because they don't want to possbile donate
to lo maalin velo moridin - even if one accepts (a position that I find
highly immoral and hillul shem shamayim, but for the sake of argument)
that one shouldn't give specifically to a lo maalin velo moridin, in
general, one doesn not know who will get the donation. Does the highly
questionable issur of lo maalin override the possibility of being matzil
nefesh miyisrael? Would anyone let someone die just because he wasn't
sure of who the person was?? Can anyone who does or advocates that
possibly be considered a ben torah?

Meir Shinnar


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Date: Tue, 11 Dec 2001 15:09:31 -0500
From: "Gil Student" <gil_student@hotmail.com>
Subject:
Ur vs. Or


Yisrael Dubitsky wrote on Areivim:
>RMB asked about Hag urim as opposed to orot. why is the urim ve-tumim not a 
>good enough parallel? Also, as far as an early (the earliest?) source of 
>calling the holiday after the lights, Josephus does so in Antiquities 12,
>ch. 7 (p. 169 in the Loeb Classics ed).

Are you sure it wasn't me who asked? Regardless, doesn't Ur mean fire
in Aramaic and Or mean light in Hebrew? Therefore, Chag Urim is the
holiday of fire and Chag Orot is the holiday of lights.

Gil Student


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Date: Tue, 11 Dec 2001 15:38:34 -0500
From: Stuart Klagsbrun <SKlagsbrun@agtnet.com>
Subject:
RE: bone marrow transplants


On Tuesday, December 11, 2001 8:32 AM, Shinnar, Meir <Meir.Shinnar@rwjuh.edu>
wrote:
> 2) One can reasonably argue that fundamentalist Islam does not meet the
> Meiri's criteria, and only observes shisha mitzvot bne noach (lo tirzach
> being absent). However, there is still an obligation for darche shalom
> and saving their lives....         (I would also add that any rav does
> argue otherwise is endangering am yisrael - the Crown Heights pogrom
> started when people claimed that Hatzala didn't treat a black victim -

The CH riots started on the pretext that hatzolah did not treat the black 
victim. The riots were the result of long standing animosity which had 
simmered for years.

> and should be treated as a mosser)

Whoa! Didn't we learn anything by the term 'rodaif' being tossed around 
lightly?

> How is giving bone marrow donation in any way different?

Donating bone marrow is nothing like donating blood. One does not weaken 
one's own health to any significant degree by donating blood nor is one 
'out of commission' for several days after donating blood. For a person 
with responsibilities to their family or kehilla the decision to donate 
marrow for someone for whom we are not 'areivim zah lo'zeh' is not so 
simple.

> Furthermore, the original discussion was that you
> cited a claim (with which I am glad to hear you disagree) that some people
> refuse to donate bone marrow because they don't want to possbile donate
> to lo maalin velo moridin...                           Does the highly
> questionable issur of lo maalin override the possibility of being matzil
> nefesh miyisrael? Would anyone let someone die just because he wasn't
> sure of who the person was?? Can anyone who does or advocates that
> possibly be considered a ben torah?

Too complex an issue to be used as a reason to write anyone out of the ben 
torah camp, whatever that means.

kt
sk


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Date: Tue, 11 Dec 2001 23:41:50 +0200
From: "Carl M. Sherer" <cmsherer@ssgslaw.co.il>
Subject:
RE: bone marrow transplants


On 11 Dec 2001, at 8:31, Shinnar, Meir wrote:
> 1) the malchut shel chessed implies special obligations of hakarat hatov
> 2) One can reasonably argue that fundamentalist Islam does not meet the
> Meiri's criteria, and only observes shisha mitzvot bne noach (lo tirzach
> being absent). 

After the last fourteen months, I'm not sure the argument should be 
limited to "fundamentalist" Islam.... 

> However, there is still an obligation for darche shalom and saving
> their lives. 

Does that apply to fundamentalist Islam? 

> If a Palestinian would have an autombile accident
> in his neighborhood, or a Palestinian worker fall off a ladder and be
> injured, wouldn't you give first aid? 

In my neighborhood, yes (and in fact, I ended up with the dubious honor
of calling Hatzala when there was a head on collision between what turned
out to be two Arab vehicles in front of our shul last spring. But we
called Hatzala without checking who the victims were and of course, once
they came they treated. What if we had known for sure that these were
Hamasniks? I'm not sure that darkei shalom would require the Hatzala
people to treat them). In any event, in Ramallah (leaving aside the
clear and present danger of going there), probably not.

> I don't know of any reputable posek who would argue otherwise. 

Israel is not the US and I'm not sure this is correct. Is there an
inyan of being nice to goyim "mishum eiva" in a state whose government
is controlled by Jews?

>                                (I would also add that any rav does
> argue otherwise is endangering am yisrael - the Crown Heights pogrom
> started when people claimed that Hatzala didn't treat a black victim -
> and should be treated as a mosser) How is giving bone marrow donation
> in any way different? 

I'm not sure it is. 

> Furthermore, the original discussion was that you cited a claim 

... made to me by someone else... 

>           (with which I am glad to hear you disagree) that some people
> refuse to donate bone marrow because they don't want to possbile donate
> to lo maalin velo moridin - even if one accepts (a position that I find
> highly immoral and hillul shem shamayim, but for the sake of argument)
> that one shouldn't give specifically to a lo maalin velo moridin, in
> general, one doesn not know who will get the donation. Does the highly
> questionable issur of lo maalin override the possibility of being matzil
> nefesh miyisrael? 

I agree with you that it does not. I also agree with you in chutz 
la'aretz with respect to non-Jews and in Israel with respect to non-
Jews who are not hostile to us. I question whether the obligation  
extends to saving Hamasniks and the like. I have not really learned 
the sugya, so I'm just asking the question. 

> Would anyone let someone die just because he wasn't sure of who the
> person was??

No, but that's like any other safek pikuach nefesh and we know 
that only a shoteh asks in that case. My question is what if I know, 
for example, that my kidney is going to Osama Bin Laden or 
Sheikh Yassin R"L. Am I still allowed to donate it? Required to 
donate it? And if the answer is that I'm not allowed to donate it, am 
I required to check where it's going before I donate it or before I 
allow someone to be menabel a meis in order to take their organs? 

> Can anyone who does or advocates that possibly be considered a ben torah?

See above. 

-- Carl


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Date: Tue, 11 Dec 2001 17:53:25 -0500
From: "WARREN CINAMON" <w.cinamon@worldnet.att.net>
Subject:
OR SAMEACH RE: HADLAKAS NER CHANUKAH


The Rambam, as is well known, in hilchos chanukah, writes that even an
Ani who is supported by Tzedakah - must sell his clothes etc., in order
to purchase ner chanukah. In a number of late/current achronim - I have
seen the Or Someach quoted as having understood that according to the
Rambam this applied to the additional candles as well - not simply the
Ikar Hamitzvah - Ner Ish Ubeyso candle - Alas in searching for this Or
Somayach (in back of the RAMBAM) - I found no such statement.

Does anyone have any info re this Or Someach or know where it may be ?

thanks
warren


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Date: Tue, 11 Dec 2001 23:41:50 +0200
From: "Carl M. Sherer" <cmsherer@ssgslaw.co.il>
Subject:
Re: Rambam and REED


On 11 Dec 2001, at 5:16, Joelirich@aol.com wrote:
> In a message dated 12/10/2001 9:47:04pm EST, RabbiRichWolpoe@aol.com writes:
>> 2) REED was issuing a legitimate Hora'as sha'ah

> Did REED ever say this in writing?

ZGG. This is exactly my problem with all the claims that REED 
intended it as a hora'as sha'a - I don't see that anywhere in the 
Michtav. 


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Date: Tue, 11 Dec 2001 14:58:57 -0800
From: Eli Turkel <Eli.Turkel@colorado.edu>
Subject:
yeshiva system


Eli Turkel, turkel@colorado.edu on 12/11/2001:
>2) Regarding the correctness of Rav Dessler's assestment, I would
>suggest reading the analysis of Prof Low...
>"Rabbi Dessler takes it as axiomatic that there is a direct
>relationship between Gedolei Torah and yeshivot....However, a deeper
>analysis shows that the majority of real Geonim had not received
>their important training in yeshivot...

>A cogent attack on Rav Dessler's assertions was written by Rabbi Shwab.
>It was published anonymously in HaMa'ayan. A translation of this was
>published in Tradition.

Not having seen R. Schwab's analysis the above statements are
incomplete. In particular the question is what age bracket one is talking
about. Assuming the goal is to produce the most and best gedolim the
procedure would (or might) be different at the grade level, high school
and advanced students.
As Prof. Low pointed out many gedolim in the past were not produced by
the yeshiva system. However, this is irrelevant as today almost nobody
learns at home with their fathers anymore (out of curousity does anyone
know the learning background of R. Chaim Kanievsky - mainly with his
father or from yeshiva? I understand that R. Shmuel Auerbach is much
from yeshiva in addition to his father). In any case special places
like Slobodka did produce gedolim.

However, IMHO there is no hava amina that someone past the age of
20-25 will become a gadol if he has not already been an ilui by then.
For safety I would also throw in great masmidim in addition to the
ilui. However, I find it hard to believe that anyone really advocated
for older men (pick your age) should stay in kollel just in case they
become the next gadol.

Thus, it seems to me a legitimate debate how lower grade students should
be treated, i.e. should the best 2nd graders be put aside or not and
should the level of instruction in 5th grade be aimed only at the top
student or at the average student. Similar debates occur in secular
society. It is clear to me that special programs should be available for
the older special students. Just by the lack of facilities I imagine that
R. Dessler would agree that not everyone could become a talmid of CI,
Brisker Rav etc. By defintion that was reserved for the top student.

kol tuv,
Eli Turkel


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Date: Tue, 11 Dec 2001 17:35:10 -0500
From: "Kenneth Miller" <kennethgmiller@juno.com>
Subject:
Re: Out of context: Rambam and REED


Rabbi YG Bechhofer wrote <<< I believe the CI truly believed in
the pro-active development of a semi-agrarian, petty-shopkeeper and
craft-based society in EY. Thus, the "other 999" would find their places
in Moshavot and Kefarim, guided by "the 1." >>>

Was the Chazon Ish ever able to implement this ideal? It seems to me
that if he ever tried, it did not catch on.

You seem to be saying that did *not* advocate the current philosophy of
"learn forever and work never". But if that is so, then where did it
come from? Did thousands of individuals *independently* decide to follow
Rav Dessler?

Maybe it is more likely that NO ONE is truly following Rav Dessler
B'SHITA. Maybe it was the practical realities of trying to avoid the
Israeli army caused them all to avoid working (so their deferments would
be legitimate) and then the inertia of not having worked thus far caused
them to look for a reason to continue not working, and they found this
in Rav Dessler -- after the fact, and regardless of what Rav Dessler
actually meant or where he got it from.

Just wondering...

Akiva Miller


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Date: Tue, 11 Dec 2001 18:28:06 +0000
From: Elazar M Teitz <remt@juno.com>
Subject:
Re: Avodah V8 #68


> he was, of course, not a Zionist by any stretch of the imagination, 
> renowned for saying Hallel at a bris since it occurred on Yom ha'Atzma'ut.

What I was told in Bnei Brak (at most five years after it happened, and
maybe as little as one--it was Yom haAtzma'ut in 1954 -- is that the CI
was to be a sandak at three brisos on 5 Iyar, but instructed his minyan
to say tachanun anyway, because "next year, the brisos will be forgotten,
but that we didn't say tachanun on Yom haAtzma'ut will be remembered."
It was not said at the bris itself.

> And, I believe, a critical nugget of information that I gleaned years ago
> from R' Schlesinger in Sha'alvim is essential to completing the picture:
> The CI stated, in R' Schlesinger's presence, that it was not possible
> for the State to survive more than ten years.  

Do you know how he came to hear it? Rav Schlesinger was no more
than 21 when the CI was niftar, and had not yet learned in Ponevez.
(He was there for 5715, the year he became a choson, and the year after
the p'tirah. We learned b'chavrusa that year.)

Elazar M. Teitz 


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Date: Tue, 11 Dec 2001 17:23:10 -0500
From: "Kenneth Miller" <kennethgmiller@juno.com>
Subject:
Re: Dr. Eliezer Berkowitz and the Shulhan Arukh


R' Micha Berger wrote <<< Solomon Schechter's problem is that he
formulated this notion of CI, but gave a circular definition for it. The
consensus of CI determines halachah, and membership in CI is determined
by who is observant -- of halachah. This means that any arbitrary pair
of definitions for CI and halachah could be used -- even Reform. ... One
needs to acknowledge a constitutional law, ideas that are not up to
consensus. And, like most constitutions, this would include laws about
how to coin and interpret law. There are halachos about how to make
halachos. About when precedent is binding and when not. About rov,
the power of the am vs the rabbanim, etc... >>>

Are we any different? The consensus of "the gedolim" determines halachah,
and membership in "the gedolim" is determined by who is observant of
halachah. We have no elections, as Rav Moshe pointed out: "The gedolim"
are the people who we naturally gravitate towards, upon seeing that they
understand Torah better than we do. And the "we" is constantly in flux,
which is why your gedolim are not necessarily my gedolim.

Let's take the example of someone who grew up in a Reform temple, and
has grown to respect the teachers and "rabbis" he has there. Is there
any objective way to demonstrate to him that his "rabbi" has a distorted
and false view of Torah? I don't think so. And any attempt to demonstrate
this to such a person will fail just as surely as I would be unmoved by
the attempts of anyone to my right at showing how *my* rabbi is krum. The
only solution is to encourage that person to learn as much Torah as he
can, and perhaps guide that learning in one direction or another.

This problem of "circular definition" has been with us for a long
time. Those who consider themselves Torah-observant follow leaders whom
they consider to be pinnacles of what Torah is. But we are human and
fallible, and what one *thinks* to be true Torah might not actually *be*
true Torah. We can all do no more than the try our sincerest best.

Akiva Miller


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Date: Tue, 11 Dec 2001 16:43:45 -0500
From: Jay Lapidus <jlapidus@usa.net>
Subject:
Re: Pelishtim


On Sun, 9 Dec 2001 11:08:39 -0500 (EST) Shalom Carmy <carmy@ymail.yu.edu> wrote
>The Pelishtim in Breshit occupy different regions than the Pelishtim
>of Shoftim and later...
>The Pelishtim of Breshit have Semitic names. The later Pelishtim tend
>to have Greek names (Achish=Anchises; seren=tyrannos)....
>Thus the two groups are different.

>If the Torah, in Bereshit, were anachronistically retrojecting the
>Pelishtim of later times into the period of the Avot, the two groups
>would occupy the same geography and be otherwise similar to each other.

The last paragraph is a non sequitur, as the conclusion does not
necessarily follow from the premise.

I read a number of years ago in JUDAISM quarterly an article by
someone whose name I can't recall who offered a novel thesis regarding
the wife-sister motif of Avraham and Yitzhak. He wrote that Avraham's
deception of the Pharaoh and Yitzhak's deception of King Avimelech of the
"Philistines" foreshadowed Bnei Israel's later enslavement by Egypt and
their woes at the hands of the (real) Philistines.

If I can locate the article, I'll give full references.

Hag Urim Sameach.
Jay S. Lapidus     http://jlapidus.tripod.com

[And in a 2nd email. -mi]

Here's the source for my previous message:

Gordis, Daniel H. "Lies, Wives and Sisters: The Wife-Sister Motif
Revisited." _Judaism_, Summer 1985, pp. 344ff. 

Jay S. Lapidus     http://jlapidus.tripod.com


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Date: Tue, 11 Dec 2001 21:25:50 -0500
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
CI Statement


At 06:28 PM 12/11/01 +0000, Elazar M Teitz wrote:
>Do you know how he came to hear it? Rav Schlesinger was no more
>than 21 when the CI was niftar, and had not yet learned in Ponevez.
>(He was there for 5715, the year he became a choson, and the year after
>the p'tirah. We learned b'chavrusa that year.)

Sorry, he claimed to have heard it from the CI, but I cannot verify that at 
his juncture, as I have not been in touch with R' Schlesinger for many years.


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Date: Wed, 12 Dec 2001 15:02:42 +1100
From: "SBA" <sba@blaze.net.au>
Subject:
The CI z'l


From: "Yosef Gavriel and Shoshanah M. Bechhofer"
<sbechhof@casbah.acns.nwu.edu>
> .. That being said, he was,
> of course, not a Zionist by any stretch of the imagination, renowned
> for saying Hallel at a bris since it occurred on Yom ha'Atzma'ut.

Make that 'Tachanun'...

SBA


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Date: Wed, 12 Dec 2001 05:12:23 -0500
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
A Dichotomy Between Rav and Social Worker?


[Bounced by RYGB from Areivim. -mi]

I believe R' Chaim Brisker held that the ikkar tafkid of a rav *is*
to be a "social worker." He usually left the paskening for R' Simcha
Zelig - the dayan. I believe that there are many examples of this (KAJ
under comes to mind).

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


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Date: Tue, 11 Dec 2001 22:54:46 -0500
From: Gershon Dubin <gershon.dubin@juno.com>
Subject:
Comparative Liturgy


[Laying out a table requires knowing which font is being used to read
it. I tried to correct this table to be viewed in a fixed-width font
(e.g. Courier), as I figured that is the most neutral assumption. -mi]

I have been davening Nusach Sefarad for the amud; I am used to Nusach
Ashkenaz and made the observation that NS seems to be in a big hurry
(wisecracks on this should be made on Areivim<g>):

             Nusach Sefarad                             Nusach Ashkenaz
         -----------------------                  -------------------------
 1.  In the second beracha of                                None
kerias shema:  **Maher** vehaveh
alenu beracha veshalom **meherah**
.....vesolichenu **meherah** kommemius

2.   In shemoneh esrei,  birchas geula,                      Same
uge'alenu meherah lema'an Shemecha

3.   Birchas kibutz golios:  vekabetzenu                     None
yachad **meherah** me'arba kanfos ha'aretz

4.   Birchas mishpat:  umeloch alenu                         None
**meherah** levadecha

5.   In birchas haminim,  birchas Yerushalayim,
and birchas (matzmiach keren) yeshua,  both NS
and NA have one "mehera"                                     Same

6.   In birchas avodah,  usefilasam **meherah**              None
be'ahava sekabel

Comments?

Gershon
gershon.dubin@juno.com


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Date: Tue, 11 Dec 2001 23:18:42 EST
From: RabbiRichWolpoe@aol.com
Subject:
Re: Dr. Eliezer Berkowitz and the Shulhan Arukh


In a message dated 12/11/01 6:33:09pm EST, kennethgmiller@juno.com writes:
> Are we any different? The consensus of "the gedolim" determines halachah,
> and membership in "the gedolim" is determined by who is observant of
> halachah. We have no elections, as Rav Moshe pointed out: "The gedolim"
> are the people who we naturally gravitate towards, upon seeing that they
> understand Torah better than we do. And the "we" is constantly in flux,
> which is why your gedolim are not necessarily my gedolim.
> 
> Let's take the example of someone who grew up in a Reform temple, and
> has grown to respect the teachers and "rabbis" he has there. Is there
> any objective way to demonstrate to him that his "rabbi" has a distorted
> and false view of Torah? I don't think so. And any attempt to demonstrate
> this to such a person will fail just as surely as I would be unmoved by
> the attempts of anyone to my right at showing how *my* rabbi is krum. The
> only solution is to encourage that person to learn as much Torah as he
> can, and perhaps guide that learning in one direction or another.

ZGG.... Chazal "condoned" many heretics as simply following minhag
avosom beyadam....

BTW, this is not only a rationale for showings Chazal's support for
minhag but it's a good teirutz to BD shel ma'alah. You can always ta'ana
"I did no kow the objective truth re: Halachah, but I followed my Masorah
because I was taught I could rely upon THAT."

> This problem of "circular definition" has been with us for a long
> time. Those who consider themselves Torah-observant follow leaders whom
> they consider to be pinnacles of what Torah is. But we are human and
> fallible, and what one *thinks* to be true Torah might not actually *be*
> true Torah. We can all do no more than the try our sincerest best.

And though we might wince or wink at Potter Stewart's definition of
Pornography, but it is basic common sense Re: Some heretics even Chazal
mention

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Wed, 12 Dec 2001 00:19:15 EST
From: RabbiRichWolpoe@aol.com
Subject:
Re: Dr. Eliezer Berkowitz and the Shulhan Arukh


In a message dated 12/10/01 9:47:14pm EST, micha@aishdas.org writes:
> One needs to acknowledge a constitutional law, ideas that are not up
> to consensus. And, like most constitutions, this would include laws
> about how to coin and interpret law.

> There are halachos about how to make halachos. About when precedent is
> binding and when not. About rov, the power of the am vs the rabbanim,
> etc...

But what Is the consensu of how to make a law! <smile>

I don't know exactly how Schachter meant it, but as I understand it,
CI or Cnesses Israel is a ratificaiion/rejectoin process of Halachah,
it is {usually} not an intiator of Halachah.

As far as Mimetic Minhag, I do NOT consider popularity a reason to
formulate a Minhag. Rather, popularity is a kind of Chazakah - similar
to chekzas battim - that indicates a particualr minhag is based upon
solid ground, albeit the written text of that ground is not available

Illustration: If RMF paskens a sh'eila b'al peh and his kehillah all
folows that psak even if is non-textual it is AS IF it wre textual

simlarly, if CI follow a minhag it's AS IF we had that in writing

And as you know, written psak can be upsjhullged and so can minhag,
but the presumption until it is upshlugged is that it is valid

Simlarly, the presumption is that a squatter owns the land unless/until
iru'ur and earlier chazakkah throws him off.

This kind of Chazzakah can ONLY work within the framework of an observant
community. The rejection of a given halachah by non-Observant proves
NOTHING.
 The rejection of a Halacha by an observant community COMBINED with
acquiescense of rabbonim is tantamount to this kind of chezkas habbatim .
I.E. you have those in charge NOT making a mach'aha.

If you read Tosafos, it seems obvious {at least to me} that this is his
pre-supposition when a Minhag goes against the text.

Others argue that Rabbanim witnessed violations but remained silent
becasue of mutav sheyihyu shogegeim. MAYBE in the short run, but I don't
buy this in the long run.

In Summary, CI is not so much a cause of Halachic change, rather it
serves as evidence of a psak that lacks textual support.

Considering the persecutoins and migrations, this becomse an important
alternate source "book".

The next point is, that mimetics usually preserved the WHATS very well
but did not always preserve the WHYS

IMHO the minhaggim to not sit in the Sukkah on Shmini ATzres in Galus were
probaly predicated on early psak that accomodated cooler climes. (see
the ARuch Hashulchan) Im kein even those with the minhag NOT To sit
should sit in warmer climes (e.g. Florida)

Another Case of mis-placed minhag IMHO are those who have wine at the
table but do not use it for Becnhing on Shabbas. The heter to NOT use
wine is IMHO predicated on the expensive nnnature of kosher wine in
Europse (See the MB). IOW the minhag is valid and has a svara but the
parameters have been lost. I cannot fualt someone who inists on keeping
it, but imho minhag is subject to analysis too.

Going back to REED . Just as we can read betwen the lines of a Minhag
to see its underlying ratoinale, so can we read between the lines of
REED to se HIS underlying ratoinale!

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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