Avodah Mailing List
Volume 08 : Number 091
Monday, January 14 2002
Subjects Discussed In This Issue:
Date: Mon, 14 Jan 2002 18:23:34 GMT
From: Gershon Dubin <gershon.dubin@juno.com>
Subject: Re:RE: Flatbush Eruv
Stuart Klagsbrun <SKlagsbrun@agtnet.com> writes:
:I asked my rav whether the eiruv is good and he answered "Not for you".
Your own rav uses it as a snif lehakel while paskening she'eilos.
Rav Pam a"h took the same approach.
If it were a "dvar mishna" we wouldn't have needed Rav Moshe to paskin.
OTOH, for many of us, once he did paskin, it's kevar horeh zaken.
I believe that's why those mentioned, your rav (who dat?), Rav Marcus,
Rav Pam, and to add one, Rav Dovid Cohen, only use it as a snif.
Gershon
gershon.dubin@juno.com
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Date: Mon, 14 Jan 2002 13:38:19 -0500
From: Stuart Klagsbrun <SKlagsbrun@agtnet.com>
Subject: RE: RE: Flatbush Eruv
On Monday, January 14, 2002 1:24 PM, Gershon Dubin <gershon.dubin@juno.com>
wrote:
> :I asked my rav whether the eiruv is good and he answered "Not for you".
> Your own rav uses it as a snif lehakel while paskening she'eilos.
> Rav Pam a"h took the same approach.
> If it were a "dvar mishna" we wouldn't have needed Rav Moshe to paskin.
OTOH, for many of us, once he did paskin, it's kevar horeh zaken.
> I believe that's why those mentioned, your rav (who dat?), Rav Marcus,
Rav Pam, and to add one, Rav Dovid Cohen, only use it as a snif.
I don't know who that was meant to be. I only wrote the Rav Pam line. I
have heard from a very good source that RAK a"h had told RMF never to
build an eiruv in Manhatten or in Brooklyn. Either, I didn't use it when
I lived in Flatbush.
kt
sk
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Date: Mon, 14 Jan 2002 19:10:11 GMT
From: Gershon Dubin <gershon.dubin@juno.com>
Subject: Re:RE: RE: Flatbush Eruv
Stuart Klagsbrun <SKlagsbrun@agtnet.com> writes:
:I don't know who that was meant to be.
R' Gil's rov.
:I have heard from a very good source that RAK a"h had told RMF never
:to build an eiruv in Manhatten or in Brooklyn.
I don't believe it. I don't believe either that RAK would tell RMF that
or that RMF would listen against his own better judgement.
Gershon
gershon.dubin@juno.com
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Date: Mon, 14 Jan 2002 13:59:09 -0500
From: Stuart Klagsbrun <SKlagsbrun@agtnet.com>
Subject: RE: RE: RE: Flatbush Eruv
On Monday, January 14, 2002 2:10 PM, Gershon Dubin [SMTP:gershon.dubin@juno.com] wrote:
> I don't believe it. I don't believe either that RAK would tell RMF
> that or that RMF would listen against his own better judgement.
kach shomati. I don't consider it a gnai against RMF or RAK. If I did,
I certainly would not have repeated the story.
kt
sk
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Date: Mon, 14 Jan 2002 19:29:29 +0000
From: Micha Berger <micha@aishdas.org>
Subject: Re:
On Mon, Jan 14, 2002 at 01:57:18PM -0500, Stuart Klagsbrun wrote:
: It was just such a claim that got Rav Moshe involved in the eruv when it
: was first built. He did not want to pasken and some people used that to say
: RMF was matir. RMF then had to let his opinion be known.
Kach shamati mipi R Dovid Cohen.
Also, RDC said that while misvara he would have said the eiruv was
okay, he could not once RMF paskened.
In my years since, I forgot if RDC was saying that he couldn't pasken
once RMF did because of dinei pesak, or because of kavod harav -- or
even if those two answers differ.
-mi
--
Micha Berger Life is complex.
micha@aishdas.org Decisions are complex.
http://www.aishdas.org The Torah is complex.
Fax: (413) 403-9905 - R' Binyamin Hecht
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Date: Mon, 14 Jan 2002 15:08:26 GMT
From: Gershon Dubin <gershon.dubin@juno.com>
Subject: Chalav Yisrael
:For example -- and this is not in any way meant judgementally,
: since there are other opinions, but only as an example -- a heter to
: use ChC given to Yeshivos who could not afford the high price of CY
IIRC Rav Moshe paskened that yeshivos should provide CY for chinuch
despite its higher cost.
Gershon
gershon.dubin@juno.com
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Date: Mon, 14 Jan 2002 17:52:44 +0000
From: Micha Berger <micha@aishdas.org>
Subject: Re: Chalav Yisrael
On Mon, Jan 14, 2002 at 05:40:33PM +0200, Akiva Atwood wrote on Areivim:
: If ChC is just as good as CY, why the psak? Especially given the financial
: constraints that yeshivos operate under.
: This would seem to imply that RMF held CY preferable to ChC, no?
His teshuvah implies that he does. But not alst halachah.
The heter for schools to spend tzedaqah money on lifnim mishuras hadin
is that there is a din chinuch to teach the value of going lifnim.
-mi
--
Micha Berger Life is complex.
micha@aishdas.org Decisions are complex.
http://www.aishdas.org The Torah is complex.
Fax: (413) 403-9905 - R' Binyamin Hecht
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Date: Mon, 14 Jan 2002 11:19:02 -0500
From: David Riceman <dr@insight.att.com>
Subject: reproducibility
Rabbi Schechter spoke at a local shul last night. I was home babysitting
so my wife could go but one thing he said, as reported back to me,
puzzled me quite a bit. Does anyone either (a) care to defend it or
(b) care to suggest a revised version?
As reported second hand, RHS said that it's possible for two people, in
exactly the same circumstances, on exactly the same day, to ask exactly
the same shaila of the same rabbi and receive two different answers.
That seems shocking to me. One basic desideratum of any legal system
is that it be predictable. I imagine that the "same day" clause was put
there to avoid the possibility that the rabbi changed his mind in between.
What could RHS have had in mind? Could he mean that the situations appear
to the outsider to be similar, but really aren't (this would mean the
report was inaccurate)? Does he randomize his psak (heads it's muttar,
tails it's assur)? Is it merely a rhetorical flourish to avoid people
adopting precedents they don't understand?
David Riceman
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Date: Mon, 14 Jan 2002 12:07:26 -0500
From: "Eric Simon" <esimon@bop.gov>
Subject: Tosafos
I was looking through a book last night called "Tools for Tosafos" In
it he writes, "The base language for Tosafos's discourse is Talmudic
Aramaic." _I_ had naively thought it was Hebrew with Aramaic mixed in,
but he is saying it's the other way around. For a beginner, this is
quite distressing, as many of the small words, the context doesn't help
a whole lot. when the same words mean almost the opposite (Ain = not =
yes; I (alef-yud) = not = if); etc etc.)
Any thoughts on the above?
And, if anyone's up for it, can someone translate part
of what seems to be a simple Tosefos for me? It's in
the last paragraph (Iboalahu) on Brachos 26a. (also at
<http://613.org/rafiles/disk4/upload/user6/e-daf/Berachos/26a.gif>.
The content I think I get. I think he is saying that while prayer
is rachamei, so that one can do teshlumin, on shacharis, mincha,
and ma'ariv; he is saying (I think) that this is not so with musaf,
that musaf really is more like a korban. But there are some specific
words I don't understand. The third line down from the beginning of the
paragraph, beginning with "musaf", I don't understand the next two words.
Also, the l5th line up from the bottom (beginning with v'n'shluma' (and
it's completion?)), I don't understand most of the words in that line.
Thanks!
- Shalom Simon
------------------
please reply to erics@radix.net
-----------------
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Date: Mon, 14 Jan 2002 19:24:43 +0000
From: Micha Berger <micha@aishdas.org>
Subject: More on Multivalent Logic
Here's another idea on this topic that I hope you'll rate as not bad...
In Yiddish, that kind of double negative (such as "it's not bad") is quite
normal. Perhaps because our culture is based on a multivalent logic.
We're used to the notion that "not bad" is different than "good" as it
includes all the points along the middle of the spectrum.
I also noticed while exploring the topic that the Britannica claims
that the a fortiori argument was first formalized in the medieval
period. (Formalized as opposed to claiming it was first used then.
It's likely people used it without studying the form itself.)
A fortiori is an argument of the form:
If X is sufficiently R to be S,
then Y, which is more R than X is, must certainly be S.
E.g. If this first esrog [X] is yellow [R] enough to be kosher for 4
minim [S], than the second esrog [Y] which is even yellower [more R]
must certainly be kosher [S].
Or of the negative form:
If X is not R enough to be S,
then Y, which is less R than X is, must certainly not be S.
Or of some other syllogistic form with this great enough concept added
as one of the terms.
You'll recognize this (at least these two variants) as qal vachomer.
Miqal lachomer umichomer laqal, respectively.
(At least, once you hold of dayo; without dayo you might have argued
that the first clause shows a proportion -- so much R implies at
least so much S, twice the R should therefore mean at least twice
the S.)
While we had examples of qal vachomer in mesorah, there is no indication
that the forms of derashos were studied and categorized until Hillel's
list. (Again, the difference between using an argument and consciously
studying its mechanics.) But even so, we got the idea well before
the west.
Aristotle, because of his two-value logic that had no middle between
true and false built / was symptomatic of a culture that asked "is the
esrog yellow?" (yes/no) rather than "how yellow is it?"
Along similar lines, Aristitilian logic, because it has a law of
contradiction (it can not be that both A and not-A are simultaneously
true) did not have the law of adduction that we know as "ad sheyavo
hakasuv hashelishi veyachria". At least not formalized. In the formal
western system, a pradox is simply that. There is no ranking of /more/
evidence vs less. The Britannica accredits Francis Bacon (!) with
this notion.
In any case, the rules for proving a navi sheqer show HQBH's knowledge of
adductive rules and are nearly a formalization of them. Compare Devarim
13:2 with 18:22. A "navi" whose os does come to pass is not necessarily
a navi emes (particularly if he promotes A"Z). However, a lack of
fulfillment does constitute a disproof. (Although Yirmiyahu tells us that
every negative prediction is implicitly conditional.) Matching predictions
add weight, but do not prove; one bad prediction disproves. The two
basic laws of adduction exactly.
I also wonder if these two rules (qal vachomer and sh'nei kesuvim)
are counted as derashah rather than sevara because they are particular
to our system of sevara. Even though they are rules of reason, not of
textual norms for the Torah.
-mi
--
Micha Berger Life is complex.
micha@aishdas.org Decisions are complex.
http://www.aishdas.org The Torah is complex.
Fax: (413) 403-9905 - R' Binyamin Hecht
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Date: Mon, 14 Jan 2002 19:40:07 +0000
From: Micha Berger <micha@aishdas.org>
Subject: Re: halachik methodology
On Sat, Jan 05, 2002 at 10:29:19PM -0500, Eric Simon wrote:
: If it was only the Gaonim/Rif/Rambam/Mechaber, then what you suggest
: makes sense. The reason why I (naively) didn't consider that was that
: the Rosh and Rema _also_ agreed, and so it didn't occur to me to be a
: Ashk/Sef split.
I suggested a different line: not Ash/Seph but rishon vs pre-rishon.
The general rule (before getting into any Avodah lomdus) is that rishonim
feel free to argue with ge'onim and other rishonim, but not with tanna'im,
amora'im or savora'im. As all the rabbanim cited are ge'onim or rishonim,
the baalei Tosafos can consider them peers, not binding sources.
Now, had the issue been closed by a consensus of amora'im or savora'im,
you would have had a question.
-mi
--
Micha Berger Life is complex.
micha@aishdas.org Decisions are complex.
http://www.aishdas.org The Torah is complex.
Fax: (413) 403-9905 - R' Binyamin Hecht
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Date: Mon, 14 Jan 2002 19:48:08 +0000
From: Micha Berger <micha@aishdas.org>
Subject: Shelo asani isha
On Mon, Jan 07, 2002 at 07:41:24PM -0500, RabbiRichWolpoe@aol.com wrote:
: 2) Re: Shelo Asani Isha: Sara Leah claimed this was typcial and
: illustrative of a certain Rabbinic mysoginistic mindset. I pointed her to the
: Tur, Shulchan Aruch, Mishnah Brurah etc. and said they they have a completely
: different ratoinale based upon a hierarchy of Mitzvah obligation...
This subject is raised by the non-frum contingent of scjm regularly. Here's
a recent post of mine on the subject.
-mi
Let's put this whole thread to bed. A pre-R Meir version of the three
blessings is given in the Tosefta (Berachos 6:23):
1- who did not make me a non-Jew (goy)
2- who did not make me a woman
3- who did not make me a boor (the word used is actually "bur"!)
These berachos are given with reasons, and they are NOT intended as
a progression (unlike R' Meir's version, the one we use). The goy is
because "all the nations are like nothing before You" (Isa 40). The boor,
because a boor can not fear sin.
The reason R Yehudah gives for our blessing is clearly the reason I had
only seen until now in Rashi. "'Woman': because a woman is not obligated
in all the mitzvos".
So, the notion that this was a thank you for the extra mitzvos is roughly
as old as the blessing. If you find the blessing offensive, the problem
is in your understanding. Zil gemor -- go learn!
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Date: Mon, 14 Jan 2002 19:53:58 +0000
From: Micha Berger <micha@aishdas.org>
Subject: Re: Pluralism, Daas Torah.
RYZ wrote:
> 4) Tos. Y"T 2nd Perek of Tmura says that it is not possible to reject a
> Sevara Lhalacha (rather it's application).
RSG replied:
> Do you mean on the first Mishnah? All Tos YT says is that when there is NO
> distinction in practice, then HALACHA does not PASKEN in a disagreement in
> TAAM.
I saw this too. Looks EXACTLY like the rule I'm proposing: if there is
a question that is not nispasheit, one follows the pesaq that fits one's
hashqafah.
As to how universal a pesaq must be before it qualifies as nispasheit,
or how entrenched a pesaq must be in one's own minhag in order to qualify
lo zachisi lehavin. (In my case, the latter is not lema'aseh; our minhag
has been changing with our hashkafos for generations.)
-mi
--
Micha Berger Life is complex.
micha@aishdas.org Decisions are complex.
http://www.aishdas.org The Torah is complex.
Fax: (413) 403-9905 - R' Binyamin Hecht
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Date: Mon, 14 Jan 2002 15:22:43 -0500 (EST)
From: "Jonathan Baker" <jjbaker@panix.com>
Subject: Tosafoth Berakhot 26a d.h. Ibaya
From: "Shalom Simon" <esimon@bop.gov>
> And, if anyone's up for it, can someone translate part of what seems
> to be a simple Tosefos for me? It's in the last paragraph (Iboalahu)
> on Brachos 26a. ...
Here's my guess at that Tosfos. I may have some notes on it at home.
IBAIA LEHU taah velo hitpalel tefilat mincha...
He asked them, what if someone flubbed and didn't pray the mincha
prayer...
He doesn't ask "if he forgot and didn't pray the musaf prayer" because
here, of course he's not praying aravit, because how could he read the
korbanot when the time for Musaf has already passed, and further, Chazal
only decreed the seven blessings of Musaf because of "nishalma parim
sefateinu", we will compensate with the bulls of our lips [from Tehillim
somewhere, roughly, we can only talk about the sacrifices, so that will
have to substitute for the offerings], and therefore, of course its time
has passed, so his korban has been nullified [and thus can't be offered].
But the other prayers are for rachamim (derachamei ninhu), and if only
(levai) a person could pray all day, so here there is no expiration of
[this prayer's purpose when the] next prayer comes up.
IOW, Tosfos doesn't seem to hold that you can do tashlumin for Musaf, at
least not at Aravit, because the whole purpose of Musaf is to substitute
for a korban, and korbanot are time-limited: if the time for a korban
passes, you can't offer it any more. However, the other prayers are
for mercy, and one can always pray for mercy, so the question of making
up mincha at maariv isn't a problem, while making up musaf at maariv
would be a problem, therefore it was not asked by the Gemara. So you
got that about right.
The specific words: d'ha vadai: because here, of course...
neshalma parim sefateinu: we will compensate with
the bulls of our lips.
Pick the words apart. The prefix "d'" is the Hebrew prefix "she'",
or "that". Ha is here. Vadai is certain, so bevadai is certainly.
Heiach is aich, how.
- jon baker jjbaker@panix.com <http://www.panix.com/~jjbaker> -
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Date: Mon, 14 Jan 2002 20:36:09 GMT
From: Stuart Goldstein <stugold1@juno.com>
Subject: Re: Buy the Ger's book
From: Phyllostac@aol.com
> I was wondering - is it possible that there is a kiyum of the mitzvoh of
> 'viahavtem es hageir' when one purchases a book written by one?
The Rambam (DeiOs 6:3-4)seems to combine the descriptions of the mitzvos
of Ahavas Reiim and Ahavas Geirim, implying, at least IMHO, that whatever
constitutes the practice of Ahavas Reiim is the obligation of Ahavas
Geirim. He lists the following activities:
1) To speak of him positively (BiShvacho), treating his friend's Kavod
as sensitively as he would treat his own; and
2) To be careful of his money, the same as he would be careful with
his own.
It seems to me that this is solely a quantitative issue, not a qualitative
one. Do the above for a Jew and you get a mitzvah; do it for a Ger and
you get 2 mitzvos.
If this is the case, buying his book would not seem to easily fall into
the category of being Chas Al Mamono, unless you stretch the Sifri on
"O Kano MiYad Amisecha", which requires one to do business with Jews,
rather than Goyim. One might then argue that if you are going to buy a
book for leisure reading, buy it from a Jew rather than from a Goy. But
then this would apply to all Jews, not just Geirim. According to Teshuvos
V'Hanhagos (Rav Sternbuch), if he needs the money, obviously the Tzedakah
element should also be a factor.
Stuart Goldstein
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Date: Mon, 14 Jan 2002 22:40:19 +0200
From: "Shlomoh Taitelbaum" <sjtait@barak-online.net>
Subject: Re: Daas Torah
David Riceman:
> My guess is that, if you look hard enough, you'd have trouble finding
> any practical question that is important and free of halachic implications...
> Of course it's partly a matter of temperament whether you choose to
> describe these questions as halachic or as questions of "daas Torah"....
I see da'as torah as coming to fill in the Litvishe need for a Rebbe. A
chassidishe Rebbe purportedly has ruach hakodesh to decide on important
matters. What qualifies a Litvishe gadol (another term being discussed)
to make decisions, since they shy away from quasi-mystic ruh"k? Answer:
Da'as Torah! (and a gadol is one who possess da'as torah, which leads
me to believe the "gadol phenomena" started with the mussar movement
when R"Y Salanter introduced the concept of da'as torah).
WRT RDR point-- Consider O"Ch #231 that "b'chal d'rachecha
da'eihu." Halacha or "inyan"?
Shlomoh
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Date: Mon, 14 Jan 2002 20:43:11 +0000
From: "Leon Manel" <leonmanel@hotmail.com>
Subject: Keter Aram Zovah
I beleive the Lubavitcher Rebbe was against publishing the Keter Aram
Zovah as the legitimate text. I have seen a letter by him in his Igros
Kodesh to I beleive R Zevin about this. He said the differences should
only be noted in footnotes. maybe someone in Chabad knows more about
this and can comment
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Date: Mon, 14 Jan 2002 22:53:59 +0200
From: "Shlomoh Taitelbaum" <sjtait@barak-online.net>
Subject: Re: More on Multivalent Logic
[MSB:]
> While we had examples of qal vachomer in mesorah, there is no indication
> that the forms of derashos were studied and categorized until Hillel's
> list. ... But even so, we got the idea well before the west.
and
> I also wonder if these two rules (qal vachomer and sh'nei kesuvim)
> are counted as derashah rather than sevara because they are particular
> to our system of sevara. Even though they are rules of reason, not of
> textual norms for the Torah.
Qal vachomer is in the Torah itself (see last weeks parsha)--in case that
makes a difference. Wonder if we could say this is a binyan av to apply qal
vachomer where it fits . . . which may have something to do with its being
the most liberal of the rules to apply.
Shlomoh
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Date: Mon, 14 Jan 2002 23:10:33 +0200
From: "Shlomoh Taitelbaum" <sjtait@barak-online.net>
Subject: Re: reproducibility
David Riceman:
> Rabbi Schechter spoke at a local shul last night....
> As reported second hand, RHS said that it's possible for two people, in
> exactly the same circumstances, on exactly the same day, to ask exactly
> the same shaila of the same rabbi and receive two different answers.
> That seems shocking to me. One basic desideratum of any legal system
> is that it be predictable. I imagine that the "same day" clause was put
> there to avoid the possibility that the rabbi changed his mind in between.
> What could RHS have had in mind? ...
I remember reading about one poseik (big one 200 years ago, just forget
his name right now) who was asked a shealah of 3 agunos whose husbands
were all together in exactly the same circumstances, etc. He wrote
separate t'shovos on each case and mattired 2 and assured 1! To the
Rav ha'recepient's disbelief, he explained: it's possible to give 150
reason to be m'taher or m'tameh anything. With lamdus, one can argue
any position. So how does a poseik know what is ratzon Hashem and what
not? By following his mind where it takes him [I assume while leerning
lishmah i.e. to arrive at the truth/ratzon Hashem--take your pick]. While
writing the first to t'shuvos logic took me the way it did l'heter; but
the last agunah a totally different logic lead me until she seemed assur.
That's a meaty bone to chew over!
Shlomoh
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Date: Mon, 14 Jan 2002 23:53:42 +0200
From: "Rena Freedenberg" <free@actcom.co.il>
Subject: RE: reproducibility
> As reported second hand, RHS said that it's possible for two people, in
> exactly the same circumstances, on exactly the same day, to ask exactly
> the same shaila of the same rabbi and receive two different answers.
I was not at the shiur, but I have seen the same phenomena many times.
Halacha stays the same, but the situation of every single person is
different. A rav will take into account who is asking the shaila and also
what facts are presented to him when making a decision about what a given
person should do.
I know that Rav Eliashiv generally holds a certain way on a certain issue,
but I have had him give me a different psak on the issue because of facts
that I presented and the way that I presented my position on the issue.
Also, even when the information is identical and the question is identical,
you have to realize that people are on different madreigas. One person may
be on a level such that the Rav will feel that something is pas nisht for
him, whereas his next door neighbor may not be holding on such a level and
so the Rav would not hold him to the exact same standard.
---Rena
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Date: Mon, 14 Jan 2002 14:12:09 -0800
From: Eli Turkel <Eli.Turkel@colorado.edu>
Subject: shabbat clocks
> I don't have Mipninei Harav (yet). Could you summarize why RYBS felt
> that moving the time (in the way permitted by SSKH) is koach acher
> meurav bo?
(p78 in Mipinenei harav)
gemara in shabbat 120 says one can make a mechitza from dishes filled
with water to stop a fire because gram kibui is allowed.
Question: How is this different from koach acher meurav bo which is
assur
Many achronim answer the difference is whether it is immediate or
not. RYBS did not like this answer. He answered that if the other
force is already in existence it is prohibited but if the other force
only begins after he is finished then it is permitted.
Therefore if one moves the dials on a shabbat clock on shabbat then
it is considered koach acher meurav bo and not gram kibui
--
Eli Turkel, turkel@colorado.edu on 01/14/2002
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Date: Mon, 14 Jan 2002 17:35:28 EST
From: RabbiRichWolpoe@aol.com
Subject: Re: halakhik methodology + gedolim, da'as Torah & etc. - a framework for study
In a message dated 1/12/02 10:30:31pm EST, afolger@ymail.yu.edu writes:
> PUNCH LINE: sometimes poskim give their opinion, period. Other times
> they say what they are doing, namely interpreting another source. In
> the first case, it is dificult to just come and disagree. Just try to
> convince poskim at large that brain death is death. That depended on
> the DT of RMF, RSZA and others, who gave more their gut feeling than
> anyrthing else. (they do quote sources, but the issue is very murky and
> their value judgment is what carried most weight.) Same for abortion
> (see Seridei Eish for a dissenting opinon... and for teaching Torah
> lekhat'hillah in mixed settings.
DT by Experts in Psak ought by right to carry more weight than just a
stam informed opinion. After all, when one is immersed in a subject over
time and truly masters it, he can form a highly authoritative opinion...
FWIW this is qualitatively different than a Gadol forming an opinion in
areas such as politics and economics.
Regards and Kol Tuv,
RabbiRichWolpoe@aol.com
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Date: Mon, 14 Jan 2002 16:58:10 -0500
From: Stuart Klagsbrun <SKlagsbrun@agtnet.com>
Subject: RE: reproducibility
On Monday, January 14, 2002 4:54 PM, Rena Freedenberg <free@actcom.co.il> wrote:
> I know that Rav Eliashiv generally holds a certain way on a certain issue,
> but I have had him give me a different psak on the issue because of facts
> that I presented and the way that I presented my position on the issue.
> Also, even when the information is identical and the question is identical,
> you have to realize that people are on different madreigas...
As Rav Gustman a"h taught his talmidim: before you pasken on the shiloh
you need to pasken on the sho'el.
kt
sk
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Date: Mon, 14 Jan 2002 18:03:41 EST
From: RabbiRichWolpoe@aol.com
Subject: Re: Minhag and lo rayinu eino raya (was Haclachic Methodology - Sur...)
In a message dated 1/11/02 12:43:17pm EST, RabbiRichWolpoe@aol.com writes:
> OTOH maybe there are cases of lo ra'inu hevei rayo.
> BTW: this BEH one of my next posts on Minhag) For some mar'eh mkommos
> simply see Tur Yoreh Deiah 1 and SA YD 1:1 and the issue of Nashim as
> ksheirim lishchot, and what the BY, Aggur, Rema and Shack say
Tur YD 1:1
women may slaughter lechatichila
BY there:
<<unlike the hilchot Eretz Yisrael who wrote that women should NOT
slaughter...
the poskim agreed to Tosafos...
The Agur wrote {BY quoting}:
<<<Even though the poskim opine so {IOW YES} the Minhag in all of the
exile to NOT slughter and I never say a custom to slughter therefore we
do not let tehm {i.e women} slaughter because the custom nullifies the -
halachah- minhag avoseinu Torah Hi...>>>
BY resumes:
<<And I say that if they WANTED to and did not {ie. were not permitted}
THEN it is possible to say "lo ra'inu eina raya.. but simply not seeing
is no proof...{meaning they may have never applied for the position -
but could have if they wanted to >>
SA YD 1:1
All slaughter lechatichila - even women
Rema:
Some say not to let them because this is the custom not to let them
Shach 1:1
<< so says the Agur - {as per Rema} The BY questions this {see above}
that lo rayinu eino raya... And i say that {based upon Maharik etc.}
that lo rayin IS a raya for minhag etc. as written by the Rav {ie. Rema}
In Choshen Mishpat end of 37>>
GRA 1:1
We can say {i.e. re: Tosafos's opinion and Rema} that lechatchila we do
not allow them although they are Kscheirin {worthy}.
***
Lo Rayinu eino Raya to me means more OVER TIME than in a given instance.
IOW, if I go to shul ONE TIME and they did not say Tachanun that day
(say 5 Iyyar) it proves nothing because there might have been a bris
that day etc. But if I come back to that shul eyar in and year out it
DOES mean something.
Apply this svara to women and shchita.
Now extrapoloate to women and Aliyyos and Women laying Tfillin.
Nir'eh lee that at least lechatichila, you can bring a raya from the
sheer weight of history - at least according to Ashkenazic Poskim.
OTOH If mei'ikkar hadin it is OK, it is possible these can be
ratoinalized bedi'eved. For example if a woman were called to the Torah
in some extra-ordinary circumstance you might stretch a svara to not
embarass her.
It seems that how widely a minhag srpeads in terms of geography and
how long in terms of history are 2 of the dimensions to consider in
using precedent
Regards and KT,
RabbiRichWolpoe@aol.com
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