Avodah Mailing List

Volume 24: Number 37

Wed, 31 Oct 2007

• 1. Re: Specific to general vs general to specific (was: Minhag Yisroel...) (Richard Wolpoe)
• 2. Re: Minhag Yisroel and Gra on 2 Matzos vs.3 Matzos/Rabbi shopping (Richard Wolpoe)
• 3. Re: A few notes on Parshas Vayeiro (Richard Wolpoe)
• 4. Re: Shabbas he mi lezok (Was An-im Zemiros) (Richard Wolpoe)
• 5. Re: What happened to the nefesh asher asu b'charan? (SBA)
• 6. FW: Re: [Areivim] praying to tzadikkim (SBA)
• 7. Re: Esther and Mordechai (wasMikveh l'zona) (menucha)
• 8. Re: praying to tzadikkim (Rich, Joel)
• 9. R. Dessler (Rich, Joel)

On 10/30/07, saul mashbaum <smash52@netvision.net.il> wrote:
>
> RCL
>
> But on a deeper level what this case illustrates (and I could have
> brought you many other examples) is that Chazal tended not to work from
> the platonic ideal and apply downwards, but tended to work from
> individual cases and work upwards.
>
> ===================================
> I will readily concede that in the gemara, deriving halachic principles
> from a given case is much more common, but I still think that to say broadly
> that the fundamental approach of Chazal is from the specific to the general
> is not accurate. On the contrary, I think that for the most part Chazal tend
> to determine the halacha in specific cases from well-known and accepted
> general principles.
>
> Saul Mashbaum
>

I don't know what hard and fast rules you can make from the various
examples.

Let's say the following:
The style of the Mishna and Tosefta is gnerally more about case law as
opposed to general principles. [Midrash halacha might be different]

Where did this case law come from?  Probably from decisions rendered in real
cases.
[In the hierarchy of p'sak the Gaonim establihsed the primacy of "ma'seh
rav" that a real live precedent trumps a Tannaic statment or a Meimra.]

But - and this is a BIG but, it dos not mean that law is extrapolated from
INDIVIDUAL cases. I would suggest a more broadly defined base from deriving
law fro mthe Mishna - by indicutively oncroporating the mass of TSBP and
using "davar mitcoh davar" to arrfie at principles

AISI the process works more like this:

   1. One or sevearl cases are brought to bear.
   2. Ta Shma's will be brought on either side of the proposed hypothesis
   3. The hypothesis is then established by summarizing a combination of
   cases and is ferreted out by the Talmud, and it is  rarely self-understood
   pre-eminent principle


Thus I reject both of the above opinions viz.:

   1. Mishnaic decisions don't flow fro msome great well-known principle.
   Rather, it is usualyl ferreted out and is therefore not so obivous.
   2. Extrapolating from a single case DOES happen but is relatively
   rare. Usually a dialetic accompanies it.

If the case ruled upon was the collective decision of a bona fide pre-Hurban
Sanhedrin, it is treated as Halchah/Maosroah and is a solid precedent - i.e.
it is fixed.  Later case law is not quite as fixed.




-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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On 10/26/07, Chana Luntz <chana@kolsassoon.org.uk> wrote:
>
>
> On another topic RRW writes:
>
> > I have a bitter fed with a colleague of mine - let's call him
> > Rabbi ABC.
> > let's recap:
> > He claims that the Bavli trumps all and THAT is a rule of pesak:
> >
> >    1. is that a fact?  is the Bavli the final arbiter of pesak?
> >    2. Or is the the decisiveness of the Bavli a matter of debate?
> >    3. are there sources to prove one side or the other?
> > [believe me I am
> >    looking at this ll the time?
> >
> > Toby claims that R&C rabbis decide the issue first and find
> > support in texts that suits their agenda.  But Rabbi ABC
> > posits that Behag, Toafos and many Orthodox rabbis do this
> > frequently, too. That a decision is mad on some agenda and
> > sources are mustered to make the argument plausible, or
> > cogent post facto.  First comes a minhag afterwards come the
> > rationale.
> >
> > How can  I answer Rabbi ABC? As a jew in need I request YOUR help!
> >
> > Disclaimer: I do not consider Rabbi ABC an honest broker of
> > the facts of how Halachah works. But in the interest of da
> > mah lehashiv, I need something that can be "makheh es shinav".
>
> The irony of this discussion is that if you were only analysing the
> halachic aspect of this (and leaving out the cries of misogyny) this Rav
> sounds like a Sephardi.


Rabbi ABC has a strong pro-Sehapridc tilt. [I think he studies with R.
Mordchai Eliyahu.But he claims that Bet Yosef follows the peshat of th
Talmud as his basic rule. Well, re: 3 matzos that ain't so because the
passage in the Talmud as codified by Rif and Rambam and as supported by GRA
clearly favors the 2 matzo rule. The Bet Yosef himself says the world
follows Rosh and Tosafot and therefore he follows consensus over text. [in
this case GRA is more Sphardic than Mechabeir]  A careful read of  the
hakdamot of R. Karo to both Bet Yosef and to SA will reveal that he makes
NOT attempt to get the best original read of the sources but rather is about
looking at the Talmud through the prism of Rishonim only, and then getting
the best Bet Din of Rishonim together. Rema essentially does the same but
simply has a different Beis Din

While the Rambam certainly could repeal Gaonic literature via Talmudic
citations, BY made noe such effort and rather looked to an amdau v'gamru
from Rishonim to decide pesak - with a few exceptions.

Also Rambam himself uses Yerushalmi and Tosefta to override Bavli. E.G.:
Lannochri Tashich he rules as per Sifrei over Bavli  [Shm Ase 198]



>
> Of course the Sephardi halachic analysis is precisely this - the Bavli
> trumps the Tosephta, and we don't follow Tosphos and the Rema.  And
> while highly I doubt misogyny would be something that would be raised,
> one of the Sephardi criticisms of a lot of Ashkenazi psak is precisely
> about using what seem to be external sources and dubious minhagim to
> trump the Bavli (and some of it might be argued to be not that polite -
> I think I have read some pretty strong things about not sitting in the
> sukkah on shmini atzeres).
>
> Now of course, if you want to talk about women making brochos on mitzvos
> aseh shehazman grama ...


Actually a Sepharidc young lady made a passioante anti-Ashkneazic argument
during Sukkos 2006 agaisnt Ashkenazim and their brachot on Sukkah for Women
etc. I then whipped out the BY who goes throug hboth sides. The Ashkenazic
position is artualted by  guess  who? It is the RAN!  Now how can Sephardim
attack this halachah as an Ashknezic deviation when it is th Ran himself who
articulates it and the BY gives it credibilty before deciding the other
way?!

And where does minhag end and halacha begin and
> end in such a case?  What about taking positions in a community?


Our esteemed moderator  recently took me to taskk by conflating minhag,
pesak and legislation. Anyone reading any major book on Halacha after the
Rambam will find these conflations to be par for the course.


I can
> think of two cases here - one is that one of the Rabbis at Aish here is
> Sephardi in origin (Syrian from the US, son of a Rav there), and very
> steeped in the Sephardi tradition.  But he is working with, on the main,
> Ashkenazi not yet frum, and within an Ashkenazi organisation.  He has in
> general chosen to put on a united front - including, for example,
> dancing and clapping on shabbas - to raise my earlier topic - where all
> the sources on which he has to rely are Ashkenazi.


True that Tosafos allows this, but Rema does so ONLY reluctantly. Ayein Rema
on 339 where his first opinion really  is closer to the mechabeir.  What is
fair to say is that some Ashkneazim not only ignore the Talmud or the
Shulchan Aruch to follwo a minhag - they wil ignore the Rema, too. And
conider that single men do not ewear a Tallis as  having been decried by the
Mishna Brura, we see that Minhag trumps  MB, too!


Is he picking and choosing?


Rabbi ABC is claiming that modern Poskim are playing games with Halachah by
not following the Talmud.  I am not a "TAlmudic-Karaite" but I do concede
that few poskim feal that they serve a particualr set of rules.  Bet Yosef
limited himself to an objective Bet Din for the most part. Few Ashknazic
poskim follow a unifrom shita nad feel free to pick and chosoe as they
please.   At least with yekkes, there are  sourcs that usually  trump
others.  E.G. in  liturgy and  Masoretic Stuff Heidenheim is the main
authority. For Minhag there are seforim that are consulted, Maharil being a
major source.


.  The whole thing boggles my mind.  Having read now quite a lot of
> ROY teshuvos, I would be really surprised if you would get a psak from
> him where the Mechaber would be trumped by a Tosphos.  Does it matter?
> Does the quality of the gadol matter more than their derech even when it
> is so far away from what one might expect their tradition to produce?
> Can one pick and choose if one has (like this case of megilla) the
> Sephardi tradition on which to rely - especially if one really believes
> that that is the "right" answer.
>
>
> Shabbat Shalom
>
> Chana
>

The question remains. Are poskim bound by any set of rules or are the
entitled to make them up as they go along?

What Rabbi ABC and other Sephardim mis-understand re: Tosafos is that
actaully Tosafos was notquite so innovative re: Halachah, and usually Tos.
was more about conserving traditional practices [mimetics over text]  It
would be unfair to say that Tosafos was unbound, aderabba, he was quite
bound  b certain rules, just DIFFERENT rules.

Aruch Hashulchan rarely repeals practice based upon original reads. Mostly,
he accepts precedent, tradition, and Minhag.


-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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On 10/25/07, T613K@aol.com <T613K@aol.com> wrote:
>
>
>
>
> Another question I have about this parsha -- "ba'asher hu sham" -- is, how
> does this square with the Jewish children who were killed in Mitzrayim,
> baked into the bricks  -- because if they were allowed to live, they would
> end up being reshaim and doing horrible things?
>
>
> *--Toby Katz
> =============*
>

HKBH had promissed to Avraham that Yishmael would live.

Yishmael had a destiny to fulfill.  HKBH does not populate the world with
just tzadikkim, ratter HE puts people on the planet to do what has to be
done, unless a society is so deeply into hammas that it cannot survive.

Remember, Haman got more Jews to do Teshuva than all of the Nevi'im put
together!  While aw orld full of Hamans would not survive, there was a
necessity for that one Haman!  After all wher would we be w/o Purim - a hag
that will sruvive all others?

-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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On 10/30/07, Michael Poppers <MPoppers@kayescholer.com> wrote:
>
> The custom not to make a Mi Shebeirach except in a case of saqanas
> n'fashos may relate more to why the weekday Amidah isn't said on Shabbos
> than to the concept of avoiding tza'ar (hmmm, do we avoid saying "Avinu
> Malkeinu" on YhK shechal baShabbos because of baqashos [hard to say because
> of tircha] or because of the likelihood of tza'ar?).
>
> All the best from
> --Michael Poppers via RIM pager
>
<< more to why the weekday Amidah isn't said on Shabbos >>

Agreed!  The entire  problem of Bakakshos on Shabbos is IMHO problematic
And since we do not say a weekday amidah on YT I am curious why we say Avinu
Malkeinu on RH!

OTOH -  since we say all kinds of bakachos on YK even when it is on Shabbos,
I am a bit clueless why we OMIT Avinu Malkeinu when YK is in Shabbos

This is a much broader topic of course.  I guess I question any bakasha on
Shabbos that is in the 13 weekday Amidah Bakashos. OTOH a bakasha for a
restful or an acceptable Shabbas [e.g. retzei vimnuchoseinu] seems highly
appropos.


-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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From: "Rich, Joel" < >

Rashi states that Avraham and Sara were megayer many people. What happened
to these people? How come we don't hear anything about them?
>>>

The Pardes Yosef quotes the rebbe Reb Henoch of Alexander zt'l, that after
Avrohom was niftar these geirim wouldn't accept Yitzchok as their manhig and
stayed away from him which led to them going back to their earlier
lifestyles.

(He uses this to make the point that one should accept today's leaders -
even if they are less than those of earlier generations.

SBA

(Deported from Arvm)

From: "Aryeh Stein" <aesrusk@gmail.com>
RZS wrote:
>>>I believe that you understand incorrectly.  If all you want to do
is invoke the zechus of a tzadik you could do that anywhere.

The Mateh Ephraim ("ME") (581:50) explains that the place of kivrei
tzadikim is a "makom kadosh v'tahor" and a person's prayers are
accepted more readily there.  .. and says that a person
should not direct his tefilos to the tzadikim buried there; rather one
should ask HKBH for mercy in the zchus of the ... the reason one should
not direct his tefilos to the tzadikim is because it's "karov hadavar
sheyihye b'chlal doreish el hameisim.

The Mishna Berurah (581:4:27..but a person should not not direct his tefilos
to the tzadikim buried there; rather one should ask HKBH for mercy in the
zchus of the tzadikim that are buried there.
 ME ...davening at kivrei tzadikim is to be "m'oreir the holy tzadikim to be
a meilitz yosher for us on the Yom Ha'Din."  And the EH mentions that
there are tefilos which seem to ask the tzadikim to be a meilitz on
our behalf.
And the notes at the bottom of the page bring down from the Zohar
(parshas Acharei Mos, daf 70) the question of how can we ask deceased
tzadikim to seek rachamim on our behalf - isn't there a prohibition of
"doreish el hameisim"?  ...



See KSA 128:13 - which more or less has ALL of the above...
When discussing the minhag of going to the cemetery on on Erev RH:

"...lehishtate'ach al kivrei tzaddikim...umarbim tachanunim le'orer es
hatzadikim hakedoshim..sheyamlitzu tov baadenu bayom hadin, vegam machmas
shehu makom kevuras hatzadikim - hamkom hi kadosh vetahor vehatefila
mekubeles shom yoser biheyoso al admas kodesh, veyaaseh HKBH chesed biz'chus
hatzadikim. AVOL AL YOSIM MAGMOSO NEGED HAMEISIM HASHOCHNIM SHOM - KI KAROV
HADAVAR SHEYIHYEH BICHLAL VEDORESH EL HAMESIM, ach yevakesh meHashem
Yisborach sheyerachem olov biz'chus hatzadikim  shochnei afar..."

RZS:>>  And it wouldn't explain going to the grave of an ancestor or
relative who wasn't particularly righteous, and hasn't got any outstanding
zechus.

I would suggest that when you pray in such situations, you are simply adding
a zechus or 2 for the niftar - and not davening for yourself (just like we
give tzedaka at Yizkor for their zechus.

SBA

There is a view (Esther Rabba) that "vatitchalchal hamlka meod" refers 
to her miscarrying.  Also see a fuller discussion of this in the Yalkut 
Shimoni there.
menucha

>
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Rich, Joel wrote:

> Now it raises the question to me - do meitim have bchira? It seems yes

> but how given they now have "the ultimate Knowledge"  so perhaps there

> is no one correct answer to what one should be doing every moment?

Their bechira is not over actions - after all, they're incapable of
acting.  But they still have bechira over whether to pray for someone or
not.

Zev Sero            
--------------------------------------------------------
Yes but if their exposure to hkb"h is direct, how could there be bechira
if there were always one "correct" thing to do/think/pray etc.?
KT
Joel Rich
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From:www.vbm-torah.org/archive/shoah/03shoah.htm
<http://www.vbm-torah.org/archive/shoah/03shoah.htm> 


Lecture #03: "Da'at Torah" and Faith in the Sages -

The Orthodox Perception of History in the Wake of the Holocaust

By Rav Tamir Granot

Rabbi Dessler turned down an offer to serve as dayan in Vilna, choosing
instead to join his brother in business.  In 1928, following the death
of his step-mother, he was forced to accompany his father to England for
medical treatment.  He never returned to Lithuania.  In England he took
up a rabbinical position (first in the East End and later in Dalston),
and for a time he was also the private tutor of the children of the
Sassoon family from Bombay.  His wife and daughter joined him in England
three years later

=========================================

Is there any Mesora as to why "Rabbi Dessler turned down an offer to
serve as dayan in Vilna, choosing instead to join his brother in
business" - Did he ever speak or write on the issue?
KT
Joel Rich

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INFORMATION THAT IS EXEMPT FROM DISCLOSURE.  Dissemination, 
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strictly prohibited.  If you received this message in error, please notify us 
immediately by replying: "Received in error" and delete the message.  
Thank you.
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