Avodah Mailing List

Volume 13 : Number 078

Tuesday, August 24 2004

• RE: Lice
• RE: Lice
• RE: Lice
• Re: tikkun hamidot through eating and drinking
• What is Mussar
• Re: Public Ezpression by women
• nusach of kaddish
• Re:reading the ktuba
• Re: Pi
• Re: Pi
• Re: lice and change of nature
• Age of the Universe
• Re: Age of the Universe
• Re: Kaddish was Reading the ktuba
• Lice & Change of nature
• Re: Lice & Change of nature

> I cannot agree with RDG in his assessment of the position of the DR -
> the DR states explicitly that the sagacity that typified Chachmei Yisroel
> b'yoshvam al admasam was lost to later generations, and he then continues
> to state that foresight of the impending diminution led Rebbi to write
> the mishnah, and that similar foresight led Ravina and R' Ashi to sign
> the Talmud, and the Rambam and Mechaber to write their chibburim.

I am highly impressed, though not surprised, at Rabbi B's bekiut in
the words of the DR, and I thank him for this further contribution to
the discussion. Nevertheless, it seems to me that the DR was referring
to a need for an authoritative source of TSBP that could withstand the
demands and travails of galut. Once the galut set in and there was no
recognized final halakhic authority, the right of poskim to disagree with
their predecessors had to be constrained to prevent (or at least slow down
the erosion of halakhic standards. I don't believe that this sociological
circumstance requires us, with all due deference to Hazal, to assume that
all of Hazal's halakhic decisions were based on factually correct and
objectively true premises. It seems to me especially difficult to read
such a view into the DR when he himself has already said that spontaneous
generation and other factual assumptions of Hazal were incorrect, but
that nevertheless halakha l'ma'asseh does not change (at least, until,
speedily in our days, our judges are returned as of old).

David Glasner

From: Yosef Gavriel & Shoshanah M. Bechhofer [mailto:rygb@aishdas.org] 
> Oh no, it is not difficult at all. For that would place the DR in no
> less august company than the Derashos HaRan, who states explicitly
> that it is possible for Chazal to be "wrong" in some absolute (let us
> say "scientific") sense, but that the Torah vested them with official
> authority (ex cathedra) and commanded us to follow them nevertheless,
> since they are overwhelmingly correct.

At this point, I must admit that I'm baffled. The Torah commanded us to
follow the judge "of those days" which makes Yiftah in his generation
the equal of Samuel in his generation (not a perfect analogy in this
context but you get my point). It was Rebi who annulled the Torah in a
hora'at sha'ah to reduce the TSBP to a canonical text and thereby make
it impossibe (or at least really, really hard) to change the halakhic
decisions of Hazal. Whatever metaphysical significance we attach to the
opinions of Hazal, as a result of Rebi's hora'at sha'ah, I take it that
we do are not disagree that as a matter of physical reality spontaneous
generation was not in fact occurring in the times of Hazal any more than
it is today. So I am not sure what the argument is about at this point
unless it is about whether the ex cathedra authority of Hazal was given
them by the Torah (ba-yamim ha'heim?) or by Rebi (eit la'asot la-Sheim
HEIFEIRU toratekha).

David Glasner

At 11:30 AM 8/23/2004, Glasner, David wrote:
> It seems to me especially difficult to read such a view into the DR when
> he himself has already said that spontaneous generation and other factual
> assumptions of Hazal were incorrect, but that nevertheless halakha
> l'ma'asseh does not change (at least, until, speedily in our days,
> our judges are returned as of old).

Oh no, it is not difficult at all. For that would place the DR in no
less august company than the Derashos HaRan, who states explicitly
that it is possible for Chazal to be "wrong" in some absolute (let us
say "scientific") sense, but that the Torah vested them with official
authority (ex cathedra) and commanded us to follow them nevertheless,
since they are overwhelmingly correct.

YGB 

>Can anyone direct me to sources in machshava that discuss teshuva and/or
>tikkun hamidot in the area of eating and drinking? I am particularly
>interested in sources from the Middle Ages or earlier, including Chazal
>(on one hand), and Chassidut (on the other).... What I am trying to
> understand is how a Jew should relate to food and eating beyond the
> level of issur ve'heter.

A good place to start is sifrei musar on the subject of prishus. You
can begin with Mesilas Yesharim, 1st chapter on prishus (the reference
to Chizkiahu is given as pesikta only in most editions; it is Pischa 6,
p. 59b) and Ma'alot Hamiddot of R. Yekutiel Harofe, Shaar HaHistapkus
which is full of citations. Chassidus: Shulchan Hatahor of R. Aharon Roth
as had been suggested; also the first few chapters of Kuntres Umayon of
R. Sholom Dov of Lubavitch (translated into English by Zalman Posner,
Kehot).

M. Levin

On Fri, Aug 20, 2004 at 01:15:11AM +0200, in an email titled "tikkun
hamidot through eating and drinking", Rn Simi Peters wrote:
: Can anyone direct me to sources in machshava that discuss teshuva and/or
: tikkun hamidot in the area of eating and drinking? ...
:                                              Sources from Mussar would
: also be of interest, but I have generally found Mussar to be depressing
: rather than uplifting. (Sorry, R' Micha...and I'd be happy to be persuaded
: that I'm missing something.) ...
:                         What I am trying to understand is how a Jew should
: relate to food and eating beyond the level of issur ve'heter.

I am happy to inform you that despite your problem with mussar, you've
apparently bought into it.

To my mind, the sole defining features of mussar are:
1- The notion that the Jewish mission is definable in terms of tiqun
hammidos.
2- The idea that #1 implies the need to address tiqun hammidos through
means other than the letter of halakhah.

Your subject line takes the first part of my definition as a given, and
the closing line makes it clear you're referring to the second.

As for the emotional feel of mussar... I think it depends which mussar
one speaks of. The feel of Kelm is very different than Novorodok, both
of which are very different than Slabodka. For that matter, the mussar
Rav Yisrael Salanter taught in Kovno was very different than what he
taught in Berlin or Koenigsburg. And RAEK taught something quite
different again.

RSWolbe, who I assume we agree is a/the voice of Tenu'as haMussar today,
said (shmuess given 8th of Cheshvan, 5764, December 3, 2003, translation
from <http://www.jewish-parenting.org/Links/wolbe12_03.htm>):
> Thirty years ago, fifty years ago, education meant telling the child what
> to do, yelling at him if he did not do it, punishing, beating..that was
> how it was..

> You cannot educate children that way today.

> Today all education of children has to be done with love. Wherever
> children are educated, in the home, in every primary school, in every
> yeshiva -- everywhere there is education -- know this, that today
> education is only with love. Students and children have to feel the love
> of their parents and their teachers.

Because mussar is about the self, and different kinds of things work
in very different cultures, mussar's trappings vary quite widely from
venue to venue.

-mi

-- 
Micha Berger             A person must be very patient
micha@aishdas.org        even with himself.
http://www.aishdas.org         - attributed to R' Nachman of Breslov
Fax: (270) 514-1507

R Y Blau pointed out in part:
> I find it difficult to find the proper balance between preserving the
> traditional Jewish family and the critical role of women within it,
> and acknowledging that women now have the opportunity be fully educated
> and to use their talents professionally

Why not acknowledge that while the need for educated women has grown and
simultanneously reiterate that there are different roles or levels of
Kedushas Yisrael for men, women, children? RYBS publicly stated that men
and women had an absolutely equal Tzelem Elokim, albeit with different
functions. We should view attacks on this system in the same view as
RYBS did, as "sheer libel" that was motivatewd by those who sought to
substitute common sense for lomdus. That is one of the core elements
of RHS's critique of feminism. We should not be afraid of rejecting the
radical feminist critique that denies that men and women are different.

Steve Brizel

I'm trying to do some homework on why there seems to be a difference
in the nusach of kaddish drabbanan and other kaddeishim (brachamav,)
as well as whether to add v'ara and tovim. I've found different nuschaot
in general of kaddish but not that would explain why drabanan would be
different nor why to prefer (or not) the additions.

Any sources (or ideas) would be appreciated.

KT
Joel Rich

To what I wrote in Avodah V13 #72  
> As far as I can see, RMB treated the qaddish in siddur AL with the
> same impressive care and precision that he treated the Hebrew parts of
> the siddur...

RMB responded:
>You can't read too much into that. My care in diqduq while davening is
>motivated by a need to pay attention to the words well enough to think
>about what they mean. Not for its own sake.

RMB and I are in agreement on this point; we agree that we do
not study the text of the Torah or the siddur in order to attain
perfection in Biblical or Aramaic grammar, but to understand the
concepts -- philosophical, ethical, or halachic -- embedded in the
texts. Nevertheless, it is clear that grammar is a necessary, significant
tool in properly understanding what the text means. Structure and meaning,
syntax and semantics, are inseparably entwined.

I liked RMB's analogy, in areivim, in the course of a discussion of
parshanut, of the text being a window. Are we supposed to be looking
at the window, or what we can see through the window? I would like to
extend the analogy. Study based on a thorough analysis of the text is like
looking through a clear window. If the window is smudged and streaked,
however, then there's a lot outside that you can't see, and that which
you do see may be distorted. That's what learning without analyzing the
text and its grammatical forms is like.

It is reasonable to surmise that not for nothing did RMB call his website
of divrei Torah (accessible from the AishDas homepage) asplaqaria .

Saul Mashbaum

<< Rather, we should take it as a lesson: Just as Chazal relied on the
greatest scientists of their day, who were upshlugged by later scientists,
we should realize that our scientists may very well get upshlugged by
tomorrow's. >>

How about another lesson? That despite the fact that certain science
may be upshlugged in the future, we - like chazal did - should still
rely on the scientists of the day?

Avi Burstein

On Fri, Aug 20, 2004 at 03:01:23PM -0400, Jonathan Ostroff wrote:
: MENA HANI MILI [that X]
: We need to fill in for ourselves what X is, the Gemora does not
: specifically state what it is.
: X is: how do we have a licence to record Pi as 3?

"Mena hani mili" means "from where are these words". X has to be an idea
already stated, thus the "hani". No?

-mi

On Thu, Aug 19, 2004 at 05:36:44PM -0400, Gil Student wrote:
: I assume that RYGB holds that the teva did not change but if it did
: then nishtaneh ha-teva would be valid here like it is in other places.
: Unless RYGB invalidates all cases of nishtaneh ha-teva.

It is difficult to know what someone holds if they don't explicitly
define "nishtaneh hatevah". They chould be saying:
a- scientific theory changed (R' Avraham ben haRambam, in the name of the
   Rambam)
b- the circumstances changed, due to breeding, nutrition, and the like, or
c- the laws of nature changed.

(a) implies accepting that Chazal could have erred by accepting mistaken
theories of then-contemporary science.

: Regarding gezeiros, many poskim hold (and I believe this is normative)
: that when the reason no longer applies the gezeirah still applies UNLESS
: the original gezeirah was issued together with the reason. In that case,
: if the reason no longer applies then neither does the gezeirah.

This is the whole machloqes over basar kafui -- is the reason part of
the gezeirah, or after the close-quote?


On Fri, Aug 20, 2004 at 12:21:59AM -0400, RYGB wrote:
:                                 L'havdil, if Congress legislates a law
: or the Supreme Court issues a ruling, it is never "incorrect."

Congress can legislate a law that the Supreme Court finds
unconstitutional. Such a law is "incorrect".

And this notion gives us a decent model for mesechtes Horios. An
"unconsitutional" din derabban or pesaq can be wrong, and thereby cause
acts requiring a chatas hatzibbur.

However, the only criterion for invalid rulings is "the constitution".
Bad science does not make a ruling invalid.

I might point out that to our MO contingent this position should
not be in the least surprising. RYBS's position makes an even
more pronounced separation between science and the autonomy of
the halachic process than the one RYGB has made. See my summary
of the relevent discussion from Nefesh haRav (pp 52-54) at
<http://www.aishdas.org/avodah/vol05/v05n073.shtml#12>.

-mi

-- 
Micha Berger                 Life is complex.
micha@aishdas.org                Decisions are complex.
http://www.aishdas.org               The Torah is complex.
Fax: (270) 514-1507                                - R' Binyamin Hecht

RMB:
"[T]he multiple creation theorists, the Ramban, the Zohar, the Tif'eres
Yisrael, have no problem giving the universe history between yeish mei'ayin
and the rest of 6 yemei bereishis."

And:
"The Ramban's talmud, R' Yitzchaq mei'Akko... somehow got the same kind
of age for the universe as current theory."

RMB evidently attributes to the Ramban the idea that after Hashem created
the world (Gen 1:1), it experienced a long, unknown history (into which
RMB would defend inserting aeons, within which lived dinosaurs, etc.,
to accomodate the belief that they lived millenia ago). He asserts that
the Ramban held that Hashem, after those aeons, then destroyed or ruined
that creation, resulting in the "tohu vavohu" of Gen. 1:2, from which
G-d got on to forming "our" world (which contains fossil remains from
that old world).

I find this untenable, for the Ramban (after going out of his way [end
of comments on Gen. 1:3] to clearly define all the days of Creation as
days consisting not of millenium or even years, but "literal days of hours
and minutes.. as is the plain reading of the Scripture" (V'da ki ha'yamim
ha'nizkarim b'maaseh b'raishis hayyu b'briass haShamayyim v'haAretz yamim
mammesh, m'chubarim mi'sha'os u'r'ga'im, v'hayyu shisha k'shayshess y'may
ha'maaseh, k'phuto shel mikra") he also goes out of his way (on verse 2,
p. 14 line 16 in the Chavel edition) to define the "tohu vavohu" as THE
FIRST STATE OF THE WORLD AT THE TIME OF ITS (ONE-AND-ONLY) CREATION:
"V'ha'aretz B'HIBAR'AH hayysa tohu v'hayysa vohu."

One might even wonder why Ramban thought it necessary to explicate this,
as any unbiased, un-agenda possessed reader of Scripture would naturally
assume these two points to be so--viz., that a day means a day, and that
there is not an aeons-long history to be inserted between the first and
second posuk--from a straightforward reading of the text. However, the
report that one of his talmidim, a (seriously mistaken--as per AriZal,
and now as per the Ramban) R. Isaac of Acco, accepted an Aggadic statement
as literally meaning that time existed before Creation, and that Hashem
"created and destroyed [physical] worlds" before creating this one,
might shed light on this: The Ramban, as well as the other meforshim I
will post later, went out of his way to correct this wrong impression,
derived from a literal meaning of an Aggadic/kabbalistic text that
contradicts the plain meaning of the p'sukim. (I haven't seen this RIOA
inside, so I can't vouch for it, and R. Ari Kahn mentions that this same
talmid elsewhere himself contradicts this, besides the fact that even
RIOA doesn't calculate anywhere near 15, billion years, R' Aryeh Kaplan
z"l's assertions notwithstanding.)

The fact is, in any case, all the rishonim I can find were up in arms
against taking this Aggada in its literal sense, which contradicts
the plain meaning of the Torah--that the creation it speaks of was the
first and only one, and it was the creation of the world we are in now,
and that the tohu va'vo'hu was the first state of that world immediately
upon Creation.

For example, Rav Yosef Albo (Ikkarim 2:18) attempts to reposition the
Aggada to be commenting on the situation after Creation but before the
fourth day, when the sun was activated; Rambam (Moreh Nevuchim 2:30)
goes so far as to vehemently reject the Aggada as an errant opinion,
its being so against the Torah's message. Rabbeynu Saadia Gaon and
Rabbeynu Yehudah HaLevy were also very averse to this idea--which the
evolutionary theory, at its root, really holds. (Even the "Big Bang"
theory maintains that the universe began with the explosion of a primeval
atom, which presumably was just always "there.")

Being that every meforesh (as I hope to post soon) explains the
"six days" as (not surprisingly) six days, and explains the tohu
va-vohu as the immediate result of Creation, and being that every
standard meforesh decries a literal understanding of "creating and
destroying worlds," then b'michilas k'vodo of the Tifferress Yisroel,
I don't see how his construction based upon a literal understanding of
that Aggada can be accepted. In its details it bears no resemblance to
current evolutionary theory, and its basic concept is only censured by
the established meforshim and mechabrim, such as Rabbeynu Saadia Gaon,
the Rambam, Rabbeynu Yehudah HaLevy, Rabbeynu Yosef Albo, and, despite
RMB's assertion, specifically the Ramban.

Zvi Lampel

On Mon, Aug 23, 2004 at 10:13:09PM -0400, hlampel@thejnet.com wrote:
: And: "The Ramban's talmud, R' Yitzchaq mei'Akko... somehow got the same kind
: of age for the universe as current theory."

: RMB evidently attributes to the Ramban the idea that after Hashem created
: the world (Gen 1:1), it experienced a long, unknown history (into which
: RMB would defend inserting aeons, within which lived dinosaurs, etc.,
: to accomodate the belief that they lived millenia ago). He asserts that
: the Ramban held that Hashem, after those aeons, then destroyed or ruined
: that creation, resulting in the "tohu vavohu" of Gen. 1:2, from which
: G-d got on to forming "our" world (which contains fossil remains from
: that old world).

No, that's the Tif'eres Yisrael. The Ramban simply says it wasn't formed
into final shapes during the period between yeish mei'ayin and day one.

As I wrote, the assumption that this period was long is not mine, but
that of his talmid RYmA.

: I find this untenable, for the Ramban (after going out of his way [end
: of comments on Gen. 1:3] to clearly define all the days of Creation as
: days consisting not of millenium or even years, but "literal days of hours
: and minutes.. as is the plain reading of the Scripture" ...

Of course! Because the Ramban inserts time between Bereishis 1:1 and
yom rishon. He says the process of formation took six literal days. But
between beri'ah and the yetzirah of yom echad could have been 15 billion
years.

You're lumping in every shitah contrary to your as though they were one
and the same. You won't get sense that way.

:                                           Rabbeynu Saadia Gaon and
: Rabbeynu Yehudah HaLevy were also very averse to this idea--which the
: evolutionary theory, at its root, really holds. (Even the "Big Bang"
: theory maintains that the universe began with the explosion of a primeval
: atom, which presumably was just always "there.")

Not so. The Big Bang is a theory about yeish mei'ayin. As I said,
the "science is wrong" seifer is not a good place to learn what it
is science teaches.

:                           The Ramban, as well as the other meforshim I
: will post later, went out of his way to correct this wrong impression,
: derived from a literal meaning of an Aggadic/kabbalistic text that
: contradicts the plain meaning of the p'sukim...

Doesn't this simply presume your conclusion. You're saying that the
Ramban wrote something for the purpose of being soseir his own talmid,
whereas I see in the words the *maqor* for the talmid's words.

Far from going out of the way to disagree, they're in agreement. As one
would expect from rebbe and talmid.

: For example, Rav Yosef Albo (Ikkarim 2:18) attempts to reposition the
: Aggada to be commenting on the situation after Creation but before the
: fourth day, when the sun was activated...

Which is still a ra'ayah against your position of literalness.

: Being that every meforesh (as I hope to post soon) explains the
: "six days" as (not surprisingly) six days, and explains the tohu
: va-vohu as the immediate result of Creation, and being that every
: standard meforesh decries a literal understanding of "creating and
: destroying worlds," then b'michilas k'vodo of the Tifferress Yisroel,
: I don't see how his construction based upon a literal understanding of
: that Aggada can be accepted...

... You need to ignore both the TY and the Maharal, who tells you that
literalness is impossible, as the beri'ah is beyond our puny minds.

This puts you in a worse position than RAKahn's. He wants to challenge
RAKaplan's understanding of a mequbal, a pretty precarious place to be,
in my book. You're bucking well-accepted acharonim. Even though you
acknowledge their kavod, it should make you think twice about your givens.

-mi

-- 
Micha Berger             Until he extends the circle of his compassion
micha@aishdas.org        to all living things,
http://www.aishdas.org   man will not himself find peace.
Fax: (270) 514-1507                        - Albert Schweitzer

On Fri, Aug 20, 2004 at 02:41:25AM -0400, RabbiRichWolpoe@aol.com wrote:
: The tzeirei's in the first 2 words of kaddish make little or no sense
: to me.

: The fact that they are based on hisgadilti v'gomer in Yehcezkel is in
: itself not a sufficent reason to Hebraicize the words...

That's a matter of opinion, no? I could see the argument that making
the biblical reference more explicit is a valid reason for doing so.

The MB cites the Gra as saying that the first two words should be read
in Hebrew rather than Aramaic, as a reference to the pasuq in Yechezqeil.
The MB understands this to mean that the words take a tzeirei.

Although lema'aseh, with an alef they would be valid in either language.

The MB's words are hard to understand because the Gra's are. How can
the words be in Hebrew instead of Aramaic when the valid Aramaic is
valid in Hebrew as well? It would seem that he's saying that it should
be said in a manner that is only valid for Hebrew, thus explaining the
"not Aramaic", but the sevarah doesn't explain why one can't use the
form that is valid for both.

-mi

-- 
Micha Berger             When you come to a place of darkness,
micha@aishdas.org        you don't chase out the darkness with a broom.
http://www.aishdas.org   You light a candle.
Fax: (270) 514-1507        - R' Yekusiel Halberstam of Klausenberg zt"l

I wrote,
> Rashi ( Kesubos 57a) explains that Elu V'alu 
>only applies to a disagreement in Svara but not to a fact, because only 
>one can be true when it comes to a fact, whereas a svara can always have 
>truth to it. If you will agree that the reality on which the Halacha was 
>based is false, how can it be valid? In addition there is a Parsha in the 
>Torah & a whole Mashecte Horiyos regarding the possibility of a Sanhedrin 
>making an error. 

RYGB responded"
>2. If you recall, the parasha in the Torah and most, if not all of
>Horayos (I do not vouch to remember the entire mesechta offhand!),
>concerns mistakes that the Sanhedrin made in forgetting or contradicting
>pesukim or mesoros mefurashim, not mistakes pertaining to "reality."

>3. Halacha is a legal system. A law that is legislated properly is valid,
>regardless of the "reality." It may later be repealed or amended, but
>until that is done, it remains the law. The same is true concerning a
>judgment of a court - it is valid, so long as it is based on the law in
>effect at the time. Even if the reality is proven otherwise, as long as
>the law is not repealed or amended it remains the law.

>4. What does this have to do with Eilu va'Eilu? There is no machlokes
>here!"

What I meant to say is that a mistake in Metzeius is not Divrei Elokim
Chaim, and likewise is not a psak just like a T'aus B'dvar Mishnah or
a T'aus in a Posuk is not a Psak. See SA CM Siman 25. Likewise, if one
should hold that there is no logical reason for the Psak to be true,
and had Chazal been alive today ,they would certainly retract their
Psak, who says that such a Psak is binding even now? See also the Gemara
Yevomos 92A where it states that if a Bais Din Paskins that it is past
Shkiah on Shabbos( on a cloudy day) and one may do work, and then the
sun comes out proving them wrong,it is not a Psak, but rather a simple
mistake. Consequently, even if most of the Tzibur followed their error,
the Par H'elom Dovor is not brought by the Tzibur, but rather each
individual must bring his own Koborn. Similarly if the Bais Din permits
a woman to remarry based on one witness & she does so, and then the
(presumed dead)husband walks in to Bais Din, the woman and her second
husband must bring a korban. They are not exempt due to their reliance
on the verdict of Bais Din, because a Tous in Mitzeius is not a Psak.See
Rambam Shigogos Perek 14 Halacha 3. However, perhaps a distinction can
be made in that these cases the Psak was direcly against the reality. In
one case they claimed it was no longer Shabbos,when it clearly was, and
in the other case thay Paskined that the the woman's husband was dead,
when it in fact it turned out that he was alive. However,in the case of
lice the Psak is that one may kill them on Shabbos. The reason was perhaps
not part of the Psak, and therefore maybe still valid. You might also want
to say that when the SA rules that a Tous Bidvar Mishnah is retracted,
it still requires a Bais Din to do that, and that nowadays we don't have
any Bais Din that has the same authority as Chazal, which might have the
status of a Sanhedrin. See also the Rambam's Psak (Shegogos 13 Halacha
5) that if someone who is fit to pasken knows that the Sanhedrin made
a mistake, he has no right to rely on their Pasak Likula.

RDE wrote:
>What I am getting at is that the idea of nishtane hateva does not seem
>to work according to your theory. Or rather why should we care if teva
>has changed since the halacha is independent of teva?

RYGB responded:
"Cases of nishtaneh hateva are ones in which the law is not applicable
to the circumstances. The law remains the law; the circumstances are
not the same. For example, you cannot apply laws that were legislated
for a time at which most women had vestos kevuos to a time when they do
not. To do so would be the same as, say, requiring the use of a parking
meter when regulations do not require it - i.e., applying a law that
pertains to specific circumstances when those circumstances do not apply."

Why does it make a difference whether the circumstances changed or if
Chazal were not aware of the correct circumstances during the time that
they gave their ruling?

The DR was quoted"
> And even concerning matters that rest upon science or other disciplines,
> we may not depart from what was accepted as halakhah in the Mishnah or
> the Gemara. And this is what the Sages meant by the remark in Hulin 54a,
> "And is it permissible to add to the tereiphot? We have only what the
> Sages have enumerated." The Rambam (hilkhot shehitah 10:12-13) explains
> this passage as follows:

> And we may not add to these treiphot at all, for any injury or disease
> that befalls a domesticated or undomesticated animal or a foul other
> than what was enumerated by the Sages of earlier generations, which
> were accepted by Jewish courts, may not be fatal. And even should it
> become known to us through medical science that an injury or disease not
> enumerated by the Sages is fatal, and similarly if it should become known
> to us through the current medical science that one of the injuries or
> diseases enumerated by the Sages as a treipha is not necessarily fatal,
> we have only what our Sages enumerated for it is written "according to
> the tenor of law that they will teach you" (al pi ha-torah asher yorukha)

> Now come and see how far the view of the Rambam is from that of the
> Rashba in his responsum 98 in which he seeks to deny, on the strength
> of the tradition of Hazal, the reality that is evident to everyone.
> But the Rambam had a different view when he said that since it had been
> accepted in Jewish courts that these injuries and diseases were treiphot,
> and through the redaction of the Talmud that acceptance had been preserved
> for the generations, we have only what the Sages enumerated whether
> it be for leniency or stringency. And the proof is that concerning a
> murderer we judge him based on the evaluation of the physicians whether
> it be for leniency or stringency, and we do not consider the tradition
> of Hazal concerning the treiphot of an animal.

However Rav Moshe Feinstein understands the Rambam differently. As I
wrote in a previous post,he understands the Rambam as saying that the
Teva changed from the time of Chazal,both in finding new treatments
that were not available previously & in the actual change of nature,
both in allowing some animals to live that could not live previously &
the reverse that some injuries are nowadays fatal when in former times
they could live. However the list of Treifos of animals were given on
Sinai,unlike the Treifos of a human being(regarding murder of a Treifoh).
Therefore the halacha depends on what was a fatal injury during the time
that the Torah was given.

[R David Glasner:]
>I therefore don't agree with Rabbi B that the DR holds that Hazal had an
>inherent superiority over later generations that precludes disagreement
>with them. Rather, the situation is simply that the normal halakhic
>mechanism (inherent in TSBP when it was truly an Oral Law) is no longer
>available. However (and this is me not the Dor Revi'I speaking now).
>being a creative and resourceful people, we still find ways around such
>problems by inventing legal fictions like nishtaneh ha-tevah that allow
>us to change the halakhah even though for appearnces sake we pretend
>that we are not doing so.

If the halakhic mechanism is no longer available, what good does it do to
create "legal fictions" of nishtaneh ha-tevah? Are you fooling The Rebono
Shel Olom with make believe ideas? I don't think that the Poskim believed
it was legal fiction. They believed that Teva sometimes really changed.

According to the Dr, what is the nature & Torah source for Chazal's
authority? Why would it being written down give their words special
authority? Do they have the same status as a Sanhedrin( Rav Wasserman's
position)?

Kol Tuv,
Moshe Schor

At 12:22 AM 8/24/2004, Moshe wrote:
>What I meant to say is that a mistake in Metzeius is not Divrei Elokim 
>Chaim, and likewise is not a psak just like a T'ous B'dvar Mishnah or a 
>T'ous in a Posuk is not a Psak. See SA CM Siman 25. Likewise, if one 
>should hold that there is no logical reason for the

A mistake in metzi'us is a psak, so long as it was issued by a mumcheh 
lo'rabbim, as in the case of R' Tarfon and the Alexandrian animals from 
whom the wombs were removed.

>  Psak to be true, and had Chazal been alive today ,they would certainly 
> retract their Psak, who says that such a Psak is binding even now?

I am not so daring as to assert I know which psakim Chazal would have or 
would not have revoked.

>See also the Gemara Yevomos 92A where it states that if a Bais Din Paskins 
>that it is past Shkiah on Shabbos( on a cloudy day) and one may do work, 
>and then the sun comes out proving them wrong,it is not a Psak, but rather 
>a simple mistake. Consequently, even if most of the Tzibur followed their 
>error, the Par H'elam Dovor is not brought by the Tzibur, but rather 
>each individual must bring his own Koborn.

This is because the mistake contradicts the guidelines established by 
Chazal themselves.

>Similarly if the Bais Din permits a woman to remarry based on one witness 
>& she does so, and then the (presumed dead)husband walks in to Bais Din, 
>the woman and her second husband must bring a korban. They are not exempt 
>due to their reliance on the verdict of Bais Din, because a Tous in 
>Mitzeius is not a Psak.See Rambam Shigogos Perek 14 Halacha 3.  However, 
>perhaps a distinction can be made in that

But that is precisely because there was only one, not two witnesses...

>these cases the Psak was direcly against the reality. In one case they 
>claimed it was no longer Shabbos,when it clearly was, and in the other 
>case thay Paskined that the the woman's husband was dead, when it in fact 
>it turned out that he was alive. However,in the case of lice the Psak is 
>that one may kill them on Shabbos. The reason was perhaps not part of the 
>Psak, and therefore maybe still valid. You might also want to say that 
>when the SA rules that a Tous Bidvar Mishnah is retracted, it still 
>requires a Bais Din to do that, and that nowadays we don't have any Bais 
>Din that has the same authority as Chazal, which might have the status of 
>a Sanhedrin.

Of course.

>See also the Rambam's Psak (Shegogos 13 Halacha 5) that if someone who is 
>fit to pasken knows that the Sanhedrin made a mistake, he has no right to 
>rely on their Pasak Likula.

That has nothing to do with metzi'us.

>RYGB responded:
>"Cases of nishtaneh hateva are ones in which the law is not applicable
>to the circumstances. The law remains the law; the circumstances are
>not the same. For example, you cannot apply laws that were legislated
>for a time at which most women had vestos kevuos to a time when they do
>not. To do so would be the same as, say, requiring the use of a parking
>meter when regulations do not require it - i.e., applying a law that
>pertains to specific circumstances when those circumstances do not apply."
>Why does it make a difference whether the circumstances changed or if 
>Chazal were not aware of the correct circumstances during the time that 
>they gave their ruling?

Because Chazal, as the "Constitutional Convention" of the Torah, determine 
normative law. Period.

YGB 

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


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