Avodah Mailing List

Volume 15 : Number 066

Monday, August 8 2005

• Lo Sassur
• lo sassur
• Re:Covenant and Conversation - Pinchas
• Re: Rav Ashi and Lo Sassur
• Re: harry potter and kishuf
• praying to intermediaries
• shu't besamim rosh
• eruv in brooklyn avodah/vol14
• Re: holy body
• Fw: holy body
• Haftora Matos and Masei
• Re: Haftora Matos and Masei
• Re: Maximum time for Tosfos Shabbos
• Re: Lo Sechoneim -- decision by Rabbanut Rashit Council 1979
• Re: Rav Lichtenstein's halachic analysis of whether soldiers may refuse orders
• lo sassur
• Fwd: Calling A Spade A Spade: Rambam and Kollel
• Emunas Chachamim" for Christians
• Torah shebaal peh
• Re: Vchen haminhag vein lshanot
• Re: Killing spiders
• Re: yeridat hadorot - Arguing with Rishonim
• Haschalas Gemara
• hefker
• [none]

> However, they often reply that the pasukim do not say anything about
> Rabbinic laws and that the Torah is only speaking of a case in which a
> controversy or dispute arises, (dam l'dam, din l'din, nega l'nega...)
> AND that there is no implication of a Sanhedrin of Elders but rather
> "priests and Levites and A judge".

The objection that you quote is a standard Karaite objection. It has
been dealt with by R. David Nieto in Matteh Dan, Part 1. Basically
he uses this verse to show that they ahve to conceded that Rabbinic
interpretations have status of Torah at least in some cases. Once this
is conceded, other arguments carry the day.

The second objection can be handled similarly- as proof for principle.

M. Levin

[Micha:]
> That's because they're using a translation, and therefore don't know
> the real meaning of the word "yorukha" (as in "hora'ah").

Even the original does not imply this. But that "yorucha" is only in
regards to the "shaila" that arises for which you will go to that place
and seek their hora'ah. It doesn't imply that they can create decrees
unrelated to the question that brought you there.

>: AND that there is no implication of a Sanhedrin of Elders but rather
>: "priests and Levites and A judge".

> Isn't "the judge which you will have in those days" a little more than
> an implication? And what about the sarim instituted in parashas Yisro?
> Or the 70 zeqeinim?

We know that it is because we've been told that. But a "Judge" (that has
some of the dinim of a melech) is not the same thing as a Rabbinical
court that makes gezeirahs.

The Sarim that Yisro advised were judges (not Judges/Shoftim) in
judicial cases.

brent kaufman

RSMashbaum wrote:
> It has long struck me that although much of masechet Sanhedrin is devoted
> to the relationship between the executive and judicial branches, there
> does not seem to be any legislative branch in rabbinic law at all. This
> is no doubt because the extant corpus of laws was divinely given and
> thus perfect and inimpeachable. Nevertheless, there were gzeirot and
> takanot from time to time which are a form of legislation. These were
> instituted by chachamim who may have connected with the judicial branch,
> but seem to be outside the judicial process per se. I wonder if others
> have noticed the lack of a legislature in rabbinic thought.

Actually, the legislative function is absorbed and hence divvied up by the
following institutions: the king, the Sanhedrin, the leaders of respective
cities (shiv'ah tovei ha'ir) and individual communal leaders (the rabbis
mentioned by RSM). In addition to the judicial and executive branches we
also have the ritual/priestly/ceremonial branch (nomenclature needs to be
discussed here), which, while formally not involved in matters of state,
must have exerted quite some influence through the following means: Levi
produced many teachers and judges, the kohen gadol had to be consulted for
military action, through the urim vetumim, although frankly, it seems
that this was done only very rarely, only when the kohen gadol was very
righteous, on the level of a navi. Finally, we have the influence model
of the navi, who played an important role in stately and ritual affairs.

I wrote:
> In H. Mamrim (1:2) the Rambam writes that the prohibition of lo sassur 
> applies to rulings of the "beis din hagadol shebiyrushalem".  In the 
> hakdamah of the Mishneh Torah, however, he says that we're obliged to 
> follow all of the decrees enacted by the sages of the Holy Babylonian 
> Talmud, through Ravina and Rav Ashi, and he cites the pasuk "lo sassur" as 
> the source of the obligation.  How did Ravina and Rav Ashi's beis din 
> aquire the status of  "beis din hagadol shebiyrushalem"?

No one proposed an answer I found satisfactory, so I'd like to do it myself.

The first perek of H. Mamrim discusses the obligations the Sanhedrin
entails on individuals. The second perek discusses the obligation,
via precedent, it entails on later battei din. What I'd suggest is that
the prohibition of lo sassur prohibits any later beit din from violating
a precedent of the Sanhedrin, whereas it prohibits an individual from
violating only something from the current Sanhedrin (studiously ignoring
the question of institutional continuity - - when is a Sanhedrin not
current?), the obligation to follow the decisions of earlier Sanhedrins
is mediated, as described below.

This requires that we read the Rambam's statement in the hakdamah a
bit disingenuously: it's not the takkanos of Ravina and Rav Ashi that
we need to follow based on lo sassur, it's the takkanos which they have
informed us about but which in fact predate them and originate from an
authentic Sanhedrin.

What I find appealing about this is that it leads to an outrageous
conclusion. Our obligation to fulfill Mitzvos derabbanan in the absence
of a Sanhedrin stems not from "lo sassur" but from "shoftim v'shotrim
titen l'cha", the obligation to establish battei din (H. Sanhedrin 1:1,
cf. Aruch HaShulhan Hoshen Mishpat 1:18). That obligation exists however,
only when you live in a community which has a functioning beis din (see,
however, H. Deoth 4:23). It ought to follow that if you live in a town
with no other Jews that you are pattur from mitzvos d'rabbanan.

David Riceman 

From: Micha Berger <micha@aishdas.org>
> The Gra doesn't do away with the notion of davening at a qever. Rather,
> he says it's a way to invoke their zechus, and to be inspired to greater
> kavanah. , the Gra assurs directing one's requrests at the meis.

And who doesn't???

SBA

>>> Yirmiyahu hanavi's description of Rochel Imenu crying for her children,
> and many midrashim about the Avos at the time of the churban, seem to
> indicate that this is an idea which is quite old and well established.

>>And earlier still, Kolev ben Yefuneh temporarily separating from the
>>Meraglim to davven at the Me'oras Hamachpela.

Yes, but why? How is it any different than Catholics praying to 
Mother Mary to ask ysh'u for mercy?

brent kaufman

I am unfamiliar with the Besamim Rosh that was attributed to the Rabbenu
Asher (Rosh), but is believed to be an 18th century forgery. If the
charge is true, then how could anyone knowing this charge impute halachic
authority to a lie? If some poskim used this sefer as an authority out
of ignorance, then their halachic conclusions need to be reassessed. Of
course, if the citation is based on the cogency of the argument contained
in the sefer - rather than the authority of the Rosh, then nothing need
be changed.

In this connection, since the authorship of the Zohar is also in question,
it would be of interest to learn whether R' Moshe de Leon actually
claimed that he found an ancient manuscript that stemmed from Tanaitic
times. If so, then the argument of the critics that the errors in history,
geography, and language to be found in the Zohar is, indeed, evidence
that it is a forgery and should detract from its halachic significance. If
none of this is claimed, but is merely implied by the wording of the text,
then other resolutions to the controversy can be found.

Yitzchok Zlochower

RSBA asked:
> So what's the shiur for rivers and oceans??
> Like Australia is completely surrounded by oceans does that mean one
> can carry everywhere?
> And then of course EVERY island and continent is.

IIRC, the Ritva ponders this question and based on his interpretation,
we require that the area be less than 16 mil wide, or alternatively,
less than 32 mil. It has been a few years since I dealt with eiruvin,
so any further clarification is likely to be postponed until we learn
Eiruvin for daf yomi.

Arie Folger

From: Gil Student <>
>Is there a (Jewish) tradition for the concept of holiness in the mortal
>relics of exceptional personalities?

This might tie into the issue of whether tzaddikim are metamim or not.

Ayen Taamei Haminhogim p.259-260

SBA

SBA wrote:
:> Is there a (Jewish) tradition for the concept of holiness in the mortal
:> relics of exceptional personalities?

: {from the top of my head..): "Likedoshim asher ba'aretz heimoh..."?

[Micha:]
> Not muchrach. The qedoshim could very well be a description of who was
> buried, not their remains or relics.

Maybe. Rashi zogt [Tehillim 16]:
"Bishvil hakedoshim asher heimo kevurim bo'oretz"

But see a totally different explanation from the Malbim.

SBA

We have heard that in NY there was a published psak of some rabbonim to
say the haftoros of both Matos and Masei last week [Matos] and this week
[Masei] to say Hashomayim Kisi.

Anyone know about this and which rabbonim issued such a psak?

SBA

On Sun, Aug 07, 2005 at 01:33:36PM +1000, SBA wrote:
: We have heard that in NY there was a published psak of some rabbonim to
: say the haftoros of both Matos and Masei last week [Matos] and this week
: [Masei] to say Hashomayim Kisi.

: Anyone know about this and which rabbonim issued such a psak?

The Gra.

In general, haftorah follows maftir. To the extent that one of the answers
Tosafos give for not leining "uvyom haShabbos" every week, as we do for
the qorbanos of the yamim tovim, is becuase it would necessitate reusing
a very small selection of nevi (references to Shabbos) and the tzibbur
would get bored.

The Ezras Torah calendar follows R' Henken's pesaq that we lein the
maftir of Rosh Chodesh but preserve the 3 diparnusa, but doesn't explain
why we break this rule.

This persharah allows leining all three during the three weeks, since
Matos and Mas'ei are adjacent (peraqim 1 and 2 of Yirmiyahu, respectively)
and can logically be one haftorah, while matching the maftir this week.

I don't know anyone who does it, though.

-mi

-- 
Micha Berger             Zion will be redeemed through justice,
micha@aishdas.org        and her returnees will come in righteousness.
http://www.aishdas.org   
Fax: (270) 514-1507      

From: T613K@aol.com
>                                                  Just like it's
> not possible to begin Shabbos any earlier than Plag on Friday, so
> too it is not possible to extend it further than chatzos on Motzaei
> Shabbos. 

R' Akiva Miller writes:
> I wonder where the shiur of chatzos comes from? 
> Any source?

I spoke about this to someone here.
It seemed to him that practically once it becomes Sunday morning and we
have to leig tefillin Tosfos Shabbos has to go.

SBA

Im kind of shocked that noone in this (areivim) discussion has mentioned
R' Kook's major point regarding heter mechira, that he spent most of his
treatise on the subject dealing with - that he believed that the issur
of lo sechanem doesnt apply to a goy who already owns some land in israel.

I guess Shabat Ha' Aretz isnt such a popular sefer?

                                               MikeW

In Avodah V15 #62 dated 7/31/2005 "brent" <fallingstar613@hotmail.com>
writes:
> I've heard from different sources, one being R. Lapin from S. Africa,
> that after Klal Yisrael regains Eretz Yisrael they/we will lose it
> again for a period of time (less than a year). Has anyone else heard
> this before? Does anyone know of such a source?

I heard exactly the opposite from my father zt'l. He said that now
that Klal Yisrael has been allowed to start returning to Eretz Yisrael
and build it up, we will never again be expelled from the Holy Land.
He said this with absolute confidence.

OTOH he did consider it likely that Israel would have to give up
some territory for peace--obviously, before Moshiach came--and also
considered it mutar to do so. (I don't know what he would have said
about the present withdrawal plans but likely he would have considered
them ill-advised. Not assur, but a bad idea. Giving up land for peace
is one thing, giving up land for the chimera of peace quite another.)

My father believed we are living in the era of ikvesa deMeshicha,
although we do not know how long this period will last. Once this era
began we would not lose E"Y again--there would not be another galus.

 -Toby  Katz
=============

From: Ari Kahn <ari@biu.013.net.il>
> Regarding "Emunas Chachamim" for Christians - see Mathew 23:1-3,
> Christians are commanded to listen to the Rabbis. I have successfully used
> this citation in various "discussions" with Christian religious leaders.

You're right. This is very useful and successful. Nonetheless, they have
contradictory verses calling those same chachamim vipors and what not,
so they always have an answer, even when there's no answer.

This however, doesn't address the initial question of how one
sees the pasuk as giving the Sanhedrin the authority to create
Dinei D'Rabanon.

What we know from the pasuk is:
When there is a controversy regarding a specific din,
one must go to either:
The Levi
The Kohain
The Shofet (the Shofet, no reference to the 70 Zekenim)
and follow his instructions regarding the controversy.

It isn't that they are being difficult. The pasuk itself is difficult.
I myself don't understand it and agree that they have a valid point
regarding pshat of the pasuk.

brent kaufman

Recently the Jewish Press published an exchange touching upon the
subject of full-time learning and the Rambam's attitude toward it --
pitting it against Rav Moshe Feinstein's shitta. I would like to throw
a few factors into the mix.

1. The Rambam's opposition to accepting public monies for Torah
activities is predicated upon the necessity to avoid using the Torah
"as a spade." He therefore disparages accepting money from others for all
such activities. This includes chinuch (impacting on a;; mechanchim such
as teachers, moros, rebbeim, tutors) and rabbanus, i.e., accepting the
position of a pulpit rabbi as a livelihood. One may entertain a new shitta
that pits accepting money for educational and pastoral duties together
with other forms of "work" against accepting money for academic Torah
research, but one may not ascribe this distinction to the Rambam. If
one is basing himself on the Rambam, he must disparage today's system
of salaried educators and rabbis as well as "kollel-for-the-masses."

2. Public and private universities and colleges for the masses, usually
extolled by those who disparage kollel learning for the masses, are
financially supported by taxes and public and private grants. This
is as true for the secular studies departments of Yeshiva University
and Touro as it is for totally secular institutions. (And let us not
forget the source of revenue for public elementary and high school
institutions.) Much of the public also enthusiastically supports
researchists and artists in many fields who produce results that are not
necessarily economic in value, and those researchists and artists readily
accept that support. Perhaps the collection methods for these bodies of
learning and academia are more savvy than those used by kollelim. But
why the outcry when the subject of study is Torah, and the admiration
when the subject of non-economic value is not Torah?

3. One should distinguish between public support and family support. It
is worth remembering that the Rambam himself attained his Torah greatness
through his brother's financial support for his full-time learning. It was
only after a shipwreck ended his brother's sea-merchant business and his
life, that the Rambam took on the profession of a physician. Eventually
he complained bitterly about the drain on his life and learning to which
this led. Evidently, the Rambam did not find the idea of family financial
support of full-time learning objectionable.

4. Again, one must properly understand the Rambam's shitta, and understand
it in proper context. We must remember that his paradigm was that of
one who devotes but three hours a day to parnassa, and nine hours to
Torah study (Hilchos Talmud Torah, 1:11). Ascribing to the Rambam the
recommendation of "part-time learning," accompanied by a full-time job,
is most inaccurate. (The Rambam himself was forced by royal "request"
to be the king's physician. He did not have the option of refusing his
country's ruler as he did England's King Richard the Lion Hearted.)

5. The Kessef Mishnah, author of the Shulchan Aruch, gave a point-by-point
rebuttal of the Rambam's arguments against accepting public money for
Torah activities. This rejection of the Rambam's strongly expressed shitta
was the normative, mainstream attitude which, in opposition to the Rambam,
saw no objection to Torah educators and rabbis accepting salaries and,
in theory if not in practice, Torah scholars accepting stipends.

Perhaps these reasons are among those for which Rav Moshe Feinstein
referred to those who leave full-time learning under the impression that
they are thereby fulfilling a Torah ideal (expressed by the Rambam?) as
caving under the influence of the yetser hara.

No doubt there are many authorities and gedolim past and present who
for a variety of reasons recommend many to spend the bulk (time-wise) of
their activities, and find as the source for their incomes, non-kollel
pursuits. I am merely urging that we correctly understand the Rambam's
unique position, and that it should not be confused with other gedolim's
shittos or touted to support other people's personal opinions and
feelings.

Zvi Lampel

On Sun, 07 Aug 2005 01:10:03 +0200 Ari Kahn <ari@biu.013.net.il> writes:
<<Regarding "Emunas Chachamim" for Christians - see Mathew 23:1-3>>

R' Ari, quoting chapter and verse is annoying to some because they need
to pull out the sefer. However, in this case, it is fair to assume
that few of us have the option of looking up the citation. So, some
more detail?

Gershon
gershon.dubin@juno.com

on a tape shiur I once heard it was quoted in the name of R' Sternbuch
that when moshiach comes we will revert to oral transmission of tsbp.
The current written texts will be of historical interest. I'm not sure
what that meant or if it was an accurate report. Any ideas/sources?

Kt
Joel rich

In a message dated 7/13/2005 5:30:38am EDT, JRich@Segalco.com writes:
> This language, or something like it, appears frequently in the Rama. On
> other occasions he says just vchen haminhag.

> Does anyone know a reason for or implication of the different
> formulations?

Here are TWO explanations:

1) V'ein Leshanano is shorthadn for V"EIN LSHENAOT MIPNEI HAMACHLOKET

IOW it is shorhand just as yotzei means yotzei y'dei chovaso

2) It means that the minhag has been fixed. There are SOME minhagim that
are in flux and others that are a "done deal" E.G. AISI /Ma'arivArvit
is a universally accepted minhag and may no longer be "rolled back"

Hypothetical illustration for number 1:

A shul in Oshkosh does NOT duchan on Yom Tov shechal beShabbas:

A new Rav is engaged and insists on chainging the minhag. The kehilla
resists. ein Leshanot tells that Rav NOT to over-rule the minhag and
bring about machlokes. Better leave it alone. {And if the shul itself
is divided beforehand? I dunno!}

Kol Tuv,
R. Rich Wolpoe
Richard_Wolpoe@alumnimail.yu.edu

In Avodah V15 #62 dated 7/31/2005 Danny Schoemann <doniels@gmail.com>
writes:
> One of my father's favorite bed time stories was about how Dovid
> (yet to become King) was saved from capture by hiding in a cave and a
> spider weaving a web to made it look uninhabited.

> As a result, we  try not to kill spiders - a lesson in hakoras hatov.
...
> Any know of a "mekor" for the story and its lesson?

I don't know of a mekor but I do know it's not just Chabad. I was also
told as a child that we don't kill spiders. The only exception is if
the spider is poisonous--and since we don't know (or at least, I don't
know) how to tell which spiders are poisonous, I kill them all, albeit
always with a twinge of guilt. Thus the teachings of my childhood are
honored more in the breach than the observance.

 -Toby  Katz
=============

First and foremost I think that you can INTELLECTUALLY disagree with
earlier Doros, nvertheless you are bound by them. I remember that as
a youngster I often thought taht Rabbi Mei'rs Sevar was better than his
bar plugta - lemashal Rabbi Yehudah - but I was nevertheless bound by
the psak....

Now let's get to practical matters.

Iyou read the hakdamos by R. Y. Karao on his Beis Yosef and on the
Shulchan Aruch and the corresponding hakdamos of Rema on Darchei Moshe
and Mappah you get a very interesting hashkafa.

BOTH authors of the Shulchan Aruch did NOT attempt to go back to the
Talmud to make a psak - rather they worked within the "box" of the
Rishonim.

To go back to the Talmud and use NONE of the Rishonim was a virtual
impossiblity in their methodology. If you think the Shulchan Aruch is
the repository of Halachic psak, THEN you may no longer go outside the
box anymore...

The Mehashal to a great extent dissented from this approrahc and was
willing to go back to the Talmud and work forward. But there is a
caveat.. As I see it, the Meharshal AT LEAST dealt with the Poskim even
if he eventually rejected them. IOW at no point did he ignore them.
so EVEN the Mehrshal's methodology would DEFAULT to the Rishonim unless
he specifically takes them to task.

BTW, check out SA/YD/87:3 re: Bishul of OF {fowl} in Chalav. The
Rambam/Tur/SA/Rema all permit it, appanretly using the Maggid Mishna's
Rationale in Maachoalos Assuros 9:3-4

The Bach rejects this approach and notes that this is contrary to the
simple read of the Gmara as per Rav Ashi.

Furthermore Tosafos holds like the Tanna Kama that Of is d'oraisso and
probably favors Rav Yosef's ukimta over Rav Ashis' in Hullin 104.A

Point? Even though Bach is on solid Talmudic ground in rejecting
Ramb/TurSA/Rema, he ALSO has a Rishon who is out of the box on this issue
and this changes the dynmaic of going against EVERY Rishon involved.
BTW, Artscroll in 116 accepts Tosafot as peshat even though the B'eer
Hagloah sights about 13 supporting Rishonim who dispute Tosafos. Why?
Because after all Tsoafos has bette Peshat in the Gmara there plain and
simple. The other Rishonim are a bit of a dochak - see Rosh Hullin 8:51.

This suports myasetion above; You can GO with the Peshat gains the
stream but you porbably pasken like the mainstream of Rishonim which is
more or less what the Beis Yosef tried to do before he streamlined this
in the SA.

Bottom line, if you have ZERO Rishonim you are probably saying someting
radically outside the box. Whether that is assur I don't know.

Kol Tuv,
R. Rich Wolpoe
Richard_Wolpoe@alumnimail.yu.edu

Fri, 5 Aug 2005 "Rich, Joel" <JRich@Segalco.com>
> [R Zvi Lampel:]
>> More accurately (and emphasized by R' Reuvain Feinstein in this context):
>> What is someone /else's/, you don't take (verses something which is
>> hefker, for instance, which is not your yet, but which you do take).

> I've heard 2 understandings of hefker... The seemingly more common
> approach is that... it is now truly ownerless...The other approach is
> my being mafkir it just makes it available for you to take ownership
> but until you do, it's still mine.... Has anyone heard this 2nd approach.

I haven't (FWIW). But off the cuff, according to the second approach, how
would be making my chometz hefker help me on Pesach, if it's still mine?

Zvi Lampel

Rich, Joel" <JRich@Segalco.com wrote:
> I've heard 2 understandings of hefker... The seemingly more common
> approach is that... it is now truly ownerless...The other approach is
> my being mafkir it just makes it available for you to take ownership
> but until you do, it's still mine.... Has anyone heard this 2nd approach.

Perhaps you mean the shitta of R' Yosi who, according to one explanation,
holds that hefker is like matana.  See TB Nedarim 43a.

Kol Tuv
Avrohom Weidberg

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From: "Rich, Joel" <JRich@Segalco.com>
> I'd qualify this that in such a new issue case we'd expect the poskim to do
> so (even if it's a nireh li). There are poskim who just say yes or no to
> sjailot.

Granted you run to the rav (or call by phone) and ask a shaila, you
don't expect to get a thesis or an entire tshuvah with references. You
just wanna know if your spoon is kosher. But in questions of life/death
and the soul, unless you are the Ari"zal or a known navi, then I believe
that it is reasonable to expect to know what their basis for psak is.

I personally wouldn't accept a psak from any rabbi if he wouldn't give
his sources and/or reasoning after being asked, and I would teach my
children the same, not to follow just because the man with the long coat
says so. (but people are different)I think it is a dangerous path to
follow by not expecting a complete answer when someone else is telling
you what is allowed or prohibited in your life. We preceded the Na'aseh
to Nishmah to HKBH and His Torah. But if we don't know the reasoning
how do we know that such a psak is Torah or not?

> (And since it's not possible to research and understand the issues in
> that short a time period, one must wonder if the psak wasn't anything
> more than a "knee-jerk" reaction. Like my LOR, a well-known american
> posek, said at the time, too many times psak on issues like this is
> re-active, not pro-active.)

Exactly. And is an unthought out and unresearched psak valid?

brent kaufman

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