Avodah Mailing List

Volume 26: Number 77

Tue, 05 May 2009

• 1. Re: Plurals (David Riceman)
• 2. Re: Yeast isn't chameitz (Michael Makovi)
• 3. Re: Yeast isn't chameitz (Michael Makovi)
• 4. Re: Yeast isn't chameitz (Michael Makovi)
• 5. Re: Rosh Hashanah and Easter (Zev Sero)
• 6. Re: Rosh Hashanah and Easter (Simon Montagu)
• 7. Re: Onein and Sefirah (Danny Schoemann)
• 8. Re: Plurals (T6...@aol.com)
• 9. Re: Ashkenazi Minhag (Danny Schoemann)
• 10. Re: Love/Mercy as a Factor in Halakhic (Michael Makovi)
• 11. The Forces Within Man (Saul Mashbaum)
• 12. water and electricity (David Riceman)
• 13. Subject: Onein and Sefirah (Saul Mashbaum)
• 14. Re: sephira question (Saul Mashbaum)
• 15. Re: sephira question (hankman)
• 16. Re: Love/Mercy as a Factor in Halakhic Decision making - Rabbis Uziel and Halevy (Chana Luntz)
• 17. Re: Love/Mercy as a Factor in Halakhic Decision making - Rabbis Uziel and Halevy (Yitzhak Grossman)

Jay F Shachter wrote:
> The only other example I can think of, of a phrase inflecting
> similarly -- and it is a poor example -- is "talmid xakham", which
> pluralizes as "talmidei xakhamim" rather than "talmidei xakham".
The Rambam, who was a grammarian (need I complete the quotation?), 
generally uses the singular "talmid hahamim".

David Riceman

As far as I can tell:

As far as halakha is concerned, yeast is nothing; yeast eino klum. In
ancient times, they didn't have bags of yeast, so they couldn't make a
pesak din on yeast anyway. Clearly, the ancients couldn't have ruled
yeast was hametz; Anton von Leeuwenhoek hadn't invented the microscope
yet. Back in the day, they didn't have sacks of yeast; rather, they
let dough sit out in the air, and culture yeast from the air. In fact,
they'd let this dough culture beyond being edible, till it was sour
(sourdough), and then they'd take a ball of this sourdough, and
introduce it into another batch of dough. The sourdough was used as a
yeast culture, nothing more, nothing less. The second dough, with the
sourdough added to it (to introduce yeast into it) was the real bread
that you'd eat once it leavened and was baked.

Moreover, if yeast itself were hameitz, then wine would be treif for
Pesah, because wine becomes wine davka via yeast.

Rather, hametz is any of the five grains after becoming wet, period.
Now, obviously, after becoming wet, the reaction between yeast and
gluten is what makes hametz, but halakha knows nothing of gluten and
yeast; halakha just knows that wet wheat/barley (oats is a serious
question, AFAIK) is hametz. The secrets are for G-d, and the revealed
things for us.

My mother, in fact, used to think that hametz was anything with
leavening agents in it, whether yeast, baking soda, or anything else.
She is a chemist, so she found some interesting leavening agents on
the ingredients, things no one else would have expected, but be that
as it may, this is how we did our Pesah shopping. She says, in fact,
that she never understood why wine is kosher for Passover, given the
yeast, but she took this as a hok. It was not until I became observant
and learned myself, and taught to her, the real laws of hametz, that
we finally understood these things.

Michael Makovi


-- 
Michael Makovi
????? ???????
mikewindd...@gmail.com
http://michaelmakovi.blogspot.com

Something I just talked with someone about this very Shabbat:

Given that matzah meal cannot become hametz, cannot one easily bake
bread on Shabbat using matzah flour?

However, if the process of cooking the matzah has degraded the gluten
in such a way that it cannot rise properly anymore, couldn't one add
baking powder, and chemically cause it to rise? (Yeast is biological
leavening; whereas any powder that produces carbon dioxide is chemical
leavening. The major difference is that yeast's metabolizing the
gluten also produces various chemicals that affect the flavor of the
bread; chemical leavening will not do this. -
http://en.wikipedia.org/wiki/Leavening)

So does anyone take advantage of this to bake wheat/barley-based
breads on Pesah? I'm rather amazed that no one I know does this. (Of
course, if someone did this, it would only make the prohibition of
kitniot even more difficult to understand.)

Now, because the matzah may not rise properly with only yeast, and one
may have to resort to chemical leavening, traditional breads (which
require the "yeasty" flavor) might not be advisable, but quick breads
(Pesadic wheat-based scones, anyone?) would be perfectly feasible on
Pesah, if baked from matzah flour.
http://en.wikipedia.org/wiki/Quick_bread

Oh, and we see that halakha is not concerned with the technical
process of biological leavening via yeast, from the fact that fruit
juice does not produce hametz, even if the yeast does metabolize the
gluten and cause the bread to rise. Even though the technical process
of leavening HAS occurred, it is NOT hametz. But were halakha
concerned with yeast per se, surely this fruit-juice-leavened bread
would be hametz, but in fact, it is not!

Michael Makovi

-- 
Michael Makovi
????? ???????
mikewindd...@gmail.com
http://michaelmakovi.blogspot.com

Oats: The Gemara says the five grains are all types of wheat or
barley. However, oats are not a type of either.

(Now, to be honest, the mishna in Kilayim says breeding dogs and
wolves together is kilayim, but this is of course strange, given that
the two are clearly the same type of animal. Perhaps halakha isn't
scientific here; perhaps oats are halakhically a type of wheat/barley,
even though biologically they are not, and conversely, perhaps dogs
are not a type of wolf, even though biologically they most certainly
are. Tzarich iyun.)

Moreover, oats lack gluten, the very ingredient which causes
leavening. Now, I've already said halakha doesn't care about yeast, so
presumably, it doesn't care about gluten either, but this certainly
ought to raise suspicions.

I asked Rabbi Yehuda Herzl Henkin about this. He added, moreover, that
oats were not in the Middle East at the time of the Gemara. Hhe said
that a certain rabbi (whose name I forget) applies a double-stricture,
considering oats to be the five grains as far as being hametz, but not
considering oats to be of the grains for making matzah. I.e., oats can
become hametz, but they cannot be made into matzah. (This rabbi whose
name I forget, didn't want to be so audacious as to eat stam oats on
Pesah, considering them  totally exempt from hametz. But he could of
course be strict, and forbid one to make matzah with oats for the
seder obligation. This is reasonable, I think.)

Of course, it is only Rashi who says oats are one of the five grains;
Rambam rather says two-row barley instead.

Michael Makovi

Mottel Gutnick wrote:

> The ADU rule was a late development in medieval times

I don't see how it can be.  If your theory of its reason is correct
then it must have been decided before the Moslem conquest of EY, Bavel,
North Africa, and Spain, i.e. the homes of the vast majority of Jews.
There is no way that a later invention, especially one coming from
Christendom, would have been accepted by Jews in Dar-al-Islam.

And yet, for it to have arisen during the Byzantine rule of EY, we
must suppose that the phenomenon of Eastertide anti-Jewish riots
existed then and there.  Is there any evidence for such a thing?




-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

On Sat, May 2, 2009 at 6:44 AM, R. Mottel Gutnick <1...@mottel.gutnick.net> wrote:
>
> I have a theory about dechiyat ADU (the calendar rule that Rosh
> Hashanah may not occur on a Sunday, Wednesday or Friday). The reason
> for DU (Wed and Fri) is that Yom Kippur should not occur
> consecutively with shabbat, either because of food spoilage or
> because of unburied corpses having to wait for two days - both great
> health risks. The reason usually given for A (Sunday) is so that
> Hoshana Rabba should not fall on Shabbat, which would have interfered
> with the custom of "beating Hoshanot" (the willow twigs). This reason
> has always struck me as somewhat strange, and even somewhat feeble.
>
<snip>
> The ADU rule was a late development in medieval times

But the ADU rule (or more correctly IDO, following Ezra 8:17), and
specifically the connection between "Alef" and Hosha`ana Rabba are
mentioned already in the Yerushalmi (Sukka 4:1). Do you have a source
for it being a late development in medieval times?

I agree with you that the reason does seem somewhat feeble lich'ora.
Why are we concerned with Shabbat interfering with beating the willow
branches on Hosha`ana Rabba, and not with it interfering with teki`at
shofar, netilat lulav or mikra megilla? I would suggest two answers:

1) Those other mitzvot all have other days when they can be performed
(even though in the case of lulav we lose the mitzva d'oraita), but if
Hosha`ana Rabba was on Shabbat the `aravot would not happen at all in
that year.

2) We can learn from this that beating the `aravot is more important
than we might otherwise have thought, and do it with more kavvana.

> Say someone lost a family member, and qevurah had to be delayed
> more than 24 hours. Does he not count omeir that day, and thereby
> lose the entire year's count (if it is one chiyuv)?

Kitzur SA 196:18 - An Onein counts [during the day] without a Bracha
so as not to loose the entire Sefira.

- Danny

 
 
From: "Jay F Shachter"  <j...@m5.chicago.il.us>
>

>> fact, we do not say a  prayer for the Reish Galutha; we say a prayer
for the Reishei  Galvatha.

....why,
in Aramaic (which inflects like Hebrew in this  regard), do we say
"reishei galvatha" and not "reishei galutha"?  What  are the plural
Exiles over which the Exilarchs presided?  We do not say  that one
Reish Galutha presided over, e.g., Galuth Mitzrayyim, while  another
Reish Galutha presided over, e.g., Galuth Bavel -- so why do we  say
"Reishei Galvatha"? <<


 
 
>>>>>
You could have asked, why are we praying for the Resh Galusa when there  
hasn't been a Resh Galusa (capital Resh capital Gimel) in a thousand  years?  
Why are we talking about the masters and sages of Bavel when Bavel  ceased 
to be a major Torah center a thousand years ago?
 
The answer is to be found in the Art/Scroll siddur but it is really  
intuitively obvious.  "The original text of the prayer has been maintained  
throughout the centuries of exile--even when the great masses of Jewry no longer  
lived in Babylonia.  By extension, however, this timeless prayer refers to  
all Jewish communities; the word Babylonia is a general term for all Jewish  
communities outside of Eretz Israel."
 
"Reshei galvasa" is translated in the A/S as "leaders of the exile  
communities" -- lower case resh, lower case gimel.
 



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




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3)
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>shavuos - hakayl b'samuos uzecha
>sukkos/shmini atzeres - hagadol b'chevod shemecha
>pesach - hagibor lanetzach
>rosh hashana/y.k - hamelech

>I assume nobody continues this minhag today - please let me know if I am wrong.

Wrong! Every Yekkish shul I have davened in [Adas Yeshurun,
Johannesburg and Etz Chaim, Strasbourg] did it this way.

> why some minhagim are no longer practiced (in general, but also this one specifically).

Because kids of Yekkes don't daven in Yekkishe shuls - so we're an
endangered species. :-)

- Danny

In reply to two of R' Yitzhak Grossman's posts,
http://www.aishdas.org/avodah/vol26/v26n076.shtml#11, and
http://www.aishdas.org/avodah/vol26/v26n076.shtml#12

R' Yitzhak Grossman replied with a ruling by Rabbi Uziel, decrying the
use of moral/emotional feelings and compassion and love, etc., in
deciding a specific case, viz. whether a man is liable to pay child
support for a child born to him out of wedlock. I will have to read
this later, as the Hebrew will take me some fair time to wade through,
but I thank him for this.

On the other hand, Rabbi Angel cites a case (in Loving Truth and
Peace, p. 108) where Rabbi Uziel ruled, on the basis of compassion and
mercy, that a man must pay child support for a child he had with a
gentile woman. Rabbi Uziel says, in no uncertain terms, that even
though this child is not halakhically his child, nevertheless, he
says, this man cannot use halakha to avoid a moral obligation he has.
Rabbi Uziel says that this child is nevertheless the man's
flesh-and-blood, and that even if halakhically there is no familial
relationship, nevertheless, the man must pay child support. I haven't
seen Rabbi Uziel inside (Mishpatei Uziel 5724 #4), but he seems to be
relying davka on extra-halakhic morality; Rabbi Uziel even closes the
teshuva saying that this is all because "derachayah darchei no'am
v'chol netivoteiah shalom".

This apparent contradiction would seem to tzarich iyun gadol indeed.

The difference that R' Grossman makes between bein adam l'havero and
bein adam laMakom seems valid, if we modify it a bit. I seem to recall
Rabbi Angel citing/quoting(?) Rabbi Uziel to the effect that when it
is bein adam l'havero, and ruling in one's favor will be ruling in the
other's detriment, then in that case, the law must cut through the
mountain, and one may not rule in favor of the poor. However, in a
case where there is only one party, and ruling by mercy/love will not
cause a loss to anyone else, then truth may be somewhat modified in
favor of peace.

The question remains, however, how Rabbi Uziel could exclude love and
mercy and peace from consideration in paying child support for a child
born out of wedlock, but utilize these notions regarding a child born
to an intermarriage of a Jewish father and non-Jewish mother. Whatever
factors exist to include or exclude considerations of hesed and
ahavah, would seem to apply equally to both.

As for the novel nature of the lenient ruling on the cows (treif
because of stomach incision?), I will admit, these seems rather
standard. Perhaps (pure speculation by me) the particular nature of
the given treifa was almost unanimously ruled to be treif by everyone
else, and Rabbi Uziel had to rely on an extremely minority opinion? I
don't know, but Rabbis Angel and Hayim David Halevy both seem to
regard this case as particular novel, the latter citing it as
paradigmatic of Rabbi Uziel's unique philosophy, so apparently there
was *something* about this case unique to Rabbi Uziel. I invite anyone
to see Rabbi Uziel in the original at Mishpatei Uziel 5710 #3.

In any case, I'm more amazed by Rabbi Halevy's saying that Beit Hillel
won because they ruled leniently; does this not sound exactly like
what is proclaimed to be a Conservative canard? I was simply blown
away by this assertion of Rabbi Halevy's; if he hadn't said it, I
myself never would.

Michael Makovi

RYL quoted RSRH on the two s'irim, who explains that virtue is
dependent on the possibility of sin. The s'irim represent man's moral
choice:

>>>

We all are faced with the decision between Ha Shem and Azazel . We all stand
at the Sanctuary entrance ? to choose between God and the power of
our senses. Inside, in the Holy of Holies, rests the Torah as the holiest
of holies. With our eyes on the Torah, we make our decision.
>>>

What bothers me about the s'irim is the lottery, which seems to
indicate that not conscious, moral choice, but mere chance and fate,
as it were,  determines whether a s'ir becomes la-Shem or la-Azazel.
There is a precursor of the s'irim in the previous parsha, M'tzora:
the 2 tziporei m'tzora, one of which is sent away and the other used
in the purification process. There are several similarities between
the 2 tziporim and the 2 s'irim, but one element which they do not
hold in common is the goral, the lottery, present in the s'irim but
not in the tziporim. If anything, this difference emphasizes that the
lottery is a unique, intrinsic element of the 2 s'irim. however, I am
unable to fathom what its symbolic message is. In the absence of any
rational or moral decision regarding the s'ir selection process, it is
hard to see how they symbolize, in RSRH's  words "With our eyes on the
Torah, we make our decision."

I hope that I have made clear that my question is not on RSRH, but
about  the Torah itself, k'vayachol. RSRH's profound explanation only
deepens my perplexity about the central, crucial role of the goral in
the atonement process.

Saul Mashbaum

The question came up over Shabbos whether Rabbi Karelitz, who prohibited 
opening and closing (as they say in modern Hebrew) an electrical circuit 
on Shabbos because of binyan and stirah, said the same thing about a 
water circuit (e.g., opening or closing a tap in the sink).  We could 
think of no logical distinction between the two cases.

David Riceman

RMBerger
>>
Say someone lost a family member,
and qevurah had to be delayed more than 24 hours. Does he not count omeir
that day, and thereby lose the entire year's count (if it is one chiyuv)?
>>

This question is dealt within the Biur Halacha ot SA OC 489:7 d"h
v'lo. In the cited case one would count s'fira without a bracha during
aninut, and then may resume counting with a bracha the night after the
k'vura.
There are many s'frikot about sfira during aninut. According to some
opinions, an onen is not really patur from s'fira, since the brief
time devoted to s'firadoes not interfere with preparations for the
funeral. Some opinions say that an onen, although not obligated in
mitvot, may do them if he sees fit, and so one may count s'fira
during aninut.

IMO, according to the latter opinion,  further counting with a bracha
is dependent on the knotty question of whether a mitzva done in a time
of ptur counts for after a chiyyuv is (re)established, like someone
who becomes bar-mitzva during sfira. The common Ashkenazi practice is
to continue to count with a bracha in the latter case, and this would
apply to the case of an onen as well (according to the opinion that an
onen is patur from sfira). IIANM, Sfardic practice differs on this
point.

Implicit in RMB's question is the IMO correct assumption that if this
is possible, an onen waits until after the funeral, during the day,
and then counts without a bracha, again resuming to count with a
bracha the following night.

Th BH notes that if the onen did not count during the night and day,
he indeed cannot make the bracha on subsequent nights  One who did not
count *for any reason* (including illness or aninut) does not make a
bracha afterwards.

May our learned chaver RRW be comforted among the mourners of Zion and
Yerushalayim.

Saul Mashbaum

Regarding the question of "Cardinal or Ordinal" sfira counting:

Although it is clear to us that sfira-counting uses cardinal numbers,
the MB seems to accept ordinal numbers as valid. See Sa OC 489;6, MB
sk 32, towards the end (where he uses ot 42 to refer to the Shaar
Tzion). There the MB says "Od katvu, d'im taa v'amar "hayom yom
**r'vii** baomer... dayo sheyisayem **chamishi** baomer..." Athough
one can entertain the possibility that the MB is lav davka when he
wrote r'vii and chamishi, this is of course something one must always
propose with great reluctance.

Saul Mashbaum

The blog entry you refer to does not so far as I can see answer my question. I think you meant the following quote:

"R' Micha Berger, building on R' Elozor Reich, suggests that since the
Torah asks us to count complete days, perfect days, we count them as
wholes, as integers. Thus we can count them at the beginning of the day, as
Tosfos requires - once a moment of the new day has passed, we are into the
wholeness of the day, and can count the whole day. Otherwise, we would have
to wait for the whole day to pass before counting it, recognizing that
another whole day has passed. That sounds vaguely plausible."

This does not explain why weeks are different, they too require temmimos (sheva shabosos temmimos) so why the difference?

Kol tuv

Chaim Manaster




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RYG write:

> I discuss some of these issues here:
> 
> http://bdl.freehostia.com/2008/11/06/two-chief-rabbis-on-rab
> binic-wills-
> and-halachic-ways/
> 
> My piece revolves around a responsum of Rav Uziel in which he takes the
> *exact opposite* position to the one you ascribe to him here; it
> contains a lengthy and eloquent diatribe insisting that it is utterly
> illegitimate to base rulings on considerations of compassion.
> 
> [At the end of the post, I link to some Avodah controversy about my
> analysis.]

While I commented in more general terms in previous posts on this thesis,
mostly in response to RMB (and I see I get a link) I have not so far
commented directly on the blog piece.  I terms of your thesis, I would say
as follows:

a) I suspect that Rav Uziel would be horrified to have his position compared
to that of Justice Holmes - nor do I think it fair.  Rav Uziel would most
emphatically say that indeed he "does Justice" - in fact he says this in the
piece that you quote - the din must be "emet l'amito" and "btzedek tishpot
amitecha" is rather contrasted with having rachamim, which is not k'din.

b) it seems to me that there is also a more complicated issue at stake,
which is summed up by the legal axiom - "hard cases make bad law".  The
danger is always that because of the situation of the parties before the
judge, and the natural sympathies of the judge towards one party, he may
rule in favour of that party,  - and because of the nature of the precedent
system, that rule, if applied more widely, might in fact be the opposite of
just.  The case under discussion in the teshuva could easily fall within
this category.  While in the particular situation of Mazel Tov bat Eliyahu
and  David Chadad ben Machlif, it might be best that the father support the
son, to create a "rule" obligating such support may well have all sorts of
negative social consequences - while it might dissuade some potential
fathers, it might arguably encourage certain potential mothers to act in
ways that might not be desirable.  And hence in terms of compassion, it is
not totally clear how the chips fall - after all, is it ultimately
compassionate to encourage the production of children to be born in less
than ideal circumstances, or is it more compassionate in the long run to
deny maintenance if it will lead to fewer of such children being born?
Given this, I would turn to the mamzer case.  You and your challengers have
assumed that the case of a mamzer falls squarely within ben adam l'makom.
But it would seem likely that one of the primary aims of the "mamzer
legislation" if you can call it that, is to ensure that there will be fewer
children born out of adulterous relationships than might otherwise - thus
preventing potential children being born in difficult family situations, in
direct parallel to the maintenance case.  Is this really bein adam l'makom?


c) In light of this, it seems to me that Rav Uziel's fundamental concern is
both wider and narrower than you posit.  We have specific commandments in
the torah about how we approach din.  One of these is that we must not
favour the poor man in judgement.  Now the instincts towards favouring the
poor man are obvious - if we look at the two parties, it often seems hard to
justify why one man should be rich and another should be poor, and therefore
the temptation to redress the balance a bit is very strong.  And in many
ways - in terms of the two of them, one might argue that, in the
circumstances, that is the "just" thing to do.  But in terms of overall
society, what such a judgement will do is encourage the search for "deep
pockets".  But because of the nature of judgment, not all deep pockets will
be available (as it would in a pure redistributive system, where the money
would go in and out through a central repository such as government).  So
what would then happen is that there would arise a rule that deep pockets
plus proximity equals liability.  But proximity is again a matter of luck,
so we end up with a situation that neither deals with overall justice (as a
redistributive society would) nor with justice between the two parties seen
in isolation of their background possessions.  And it seems hard to see such
a scenario as a truly compassionate one at any level - despite the judging
thinking he is being compassionate in giving the original judgement.

So the logic for the Torah rule about using extraneous circumstances to
drive judgement seems soundly based, even if you were not talking about a
specific issur.  But here there is a specific issur - ie the case being
raised here would seem to fall fair and square with the context of the
particular circumstance that the Torah requires not to be taken into
account. A child seeking maintenance is poor, and that is what seems to be
driving Rav Toledano.  But to make the basis on which a child is entitled to
maintenance the poverty in which it finds itself not only puts it in direct
contradiction with the halacha of not favouring the poor, but also leads to
all sorts of potentially negative ramifications for the society as a whole.

However other forms of judgement will not necessarily impact in this way.
The tension between wanting to have compassion in the individual case and
get a person "out" of the status of mamzer, and the need to preserve the
deterrents that Rav Uzziel describes make mamzerus a great example.  It is
an accepted principle of halacha that any Rav will try their best in the
individual case to find reason why the person is not a mamzer (and this is
regarded as an aspect of compassion), without tampering with the general
rules of mamzerus (and, perhaps, ruling it out of existence).  A comparable
ruling might at times allow us to find, in certain particular individual
cases, a reason why perhaps the father should be supporting the child,
without necessarily making a blanket rule of paternal responsibility (and
think of the situation where it happened the mother was rich, and then died
leaving the child rich, would we necessarily want the father being able to
claim and control the wealth of the child - rather than the maternal
grandparents?  If the answer is no, then one can see clearly that the issue
here is about the poverty of the child, whereas it is much less common that
there is a situation where one might want to find a particular person to be
a mamzer - although of course, with one already married to a mamzer, and
with children, one might indeed find such a situation).

But following on from all this am not sure that your example regarding
husband and wife, if I have understood it correctly, is necessarily
apposite.  You write:

>the Dayyan is nevertheless permitted and even urged to try to find some
>Halachic basis for compelling the husband to give a Get. We are not
>infringing on the husband?s rights by this; he?s a Rasha, and the only
>obstacle preventing us from ruling ???? is a ??? ??? ????? concern for the
>extremely serious issues of Eshes Ish and Mamzerus that can arise in the
>event of a ?? ????? ??? ????. If, however, there is some legitimate dispute
>between husband and wife, then no matter how much sympathy we may have for
>the plight of the wife, we are absolutely forbidden against the slightest
>deviation from Din,...

I am not sure what exactly you mean by this -ie what is forbidden?  Do you
mean that the dayan finding for the wife in monetary matters to compensate
her for the lack of get?   Do you mean finding for the wife in monetary
matters to compensate her for the anguish she was put through before
receiving the get?  Do you mean holding up the judgement on monetary matters
because the get is still outstanding (that would also constitute taking
external considerations into account if you consider that the presence of
absence of a get counts as an external consideration which much not be
considered, akin to the wealth or poverty of a litigant)?

The point is, there are various places one could draw a line, when looking
at two litigants, in deciding which bit of the relationship between them is
relevant to a dispute and which is not. But there is certainly an argument
than any part of the relationship is relevant.  The existence or absence of
a get is due to the actions or inactions solely of the two litigants.
However, in general, the absolute wealth or poverty of a litigant is not a
product of the relationship between the two litigants, but of society.  Seen
in this light, the case of the child born out of wedlock is interesting,
because you could argue it both ways - one the one hand the child could be
said to be poor because the father did not marry the mother and bind himself
appropriately.  On the other hand, zeh v'zeh gorem, it is not just the
father whose absence caused the poverty, but also absence of wealth of the
mother - nor was, except in the case of rape, the conception solely the
responsibility of the father.  That Rav Uziel sees perhaps a greater
societal responsibility bringing it within the issur of dal lo tehadar, and
Rav Toledano sees it more as a matter of the individual responsibility
solely of the father does not, it seems to me, necessarily extend this case
to that of a husband and wife - or necessarily to other ben adam l'chavero
situations.


> Yitzhak

Regards

Chana

On Tue, 5 May 2009 12:38:54 +0100
"Chana Luntz" <ch...@kolsassoon.org.uk> wrote:

> RYG write:
> 
> > I discuss some of these issues here:
> > 
> > http://bdl.freehostia.com/2008/11/06/two-chief-rab
> > bis-on-rabbinic-wills-
> > and-halachic-ways/

...

> a) I suspect that Rav Uziel would be horrified to have his position compared
> to that of Justice Holmes - nor do I think it fair.  Rav Uziel would most
> emphatically say that indeed he "does Justice" - in fact he says this in the
> piece that you quote - the din must be "emet l'amito" and "btzedek tishpot
> amitecha" is rather contrasted with having rachamim, which is not k'din.

I think that Justice Holmes would be horrified at the insinuation that
his jurisprudence did not qualify as "emet l'amito" and "btzedek
tishpot amitecha" :)  In context, Rav Uziel's interpretation of the
principles you mention is *to the exclusion of compassion as a factor*,
which is *exactly* the point that Justice Holmes was making.

> b) it seems to me that there is also a more complicated issue at stake,
> which is summed up by the legal axiom - "hard cases make bad law".  The
> danger is always that because of the situation of the parties before the
> judge, and the natural sympathies of the judge towards one party, he may
> rule in favour of that party,  - and because of the nature of the precedent
> system, that rule, if applied more widely, might in fact be the opposite of
> just.  The case under discussion in the teshuva could easily fall within
> this category.  While in the particular situation of Mazel Tov bat Eliyahu
> and  David Chadad ben Machlif, it might be best that the father support the
> son, to create a "rule" obligating such support may well have all sorts of
> negative social consequences - while it might dissuade some potential
> fathers, it might arguably encourage certain potential mothers to act in
> ways that might not be desirable.  And hence in terms of compassion, it is
> not totally clear how the chips fall - after all, is it ultimately
> compassionate to encourage the production of children to be born in less
> than ideal circumstances, or is it more compassionate in the long run to
> deny maintenance if it will lead to fewer of such children being born?

This is all perfectly reasonable, but not the argument that Rav Uziel
makes here.

> Given this, I would turn to the mamzer case.  You and your challengers have
> assumed that the case of a mamzer falls squarely within ben adam l'makom.
> But it would seem likely that one of the primary aims of the "mamzer
> legislation" if you can call it that, is to ensure that there will be fewer
> children born out of adulterous relationships than might otherwise - thus
> preventing potential children being born in difficult family situations, in
> direct parallel to the maintenance case.  Is this really bein adam l'makom?

An interesting point.

> c) In light of this, it seems to me that Rav Uziel's fundamental concern is
> both wider and narrower than you posit.  We have specific commandments in
> the torah about how we approach din.  One of these is that we must not
> favour the poor man in judgement.  Now the instincts towards favouring the
> poor man are obvious - if we look at the two parties, it often seems hard to
> justify why one man should be rich and another should be poor, and therefore
> the temptation to redress the balance a bit is very strong.  And in many
> ways - in terms of the two of them, one might argue that, in the
> circumstances, that is the "just" thing to do.  But in terms of overall
> society, what such a judgement will do is encourage the search for "deep
> pockets".  But because of the nature of judgment, not all deep pockets will
> be available (as it would in a pure redistributive system, where the money
> would go in and out through a central repository such as government).  So
> what would then happen is that there would arise a rule that deep pockets
> plus proximity equals liability.  But proximity is again a matter of luck,
> so we end up with a situation that neither deals with overall justice (as a
> redistributive society would) nor with justice between the two parties seen
> in isolation of their background possessions.  And it seems hard to see such
> a scenario as a truly compassionate one at any level - despite the judging
> thinking he is being compassionate in giving the original judgement.
> 
> So the logic for the Torah rule about using extraneous circumstances to
> drive judgement seems soundly based, even if you were not talking about a
> specific issur.  But here there is a specific issur - ie the case being
> raised here would seem to fall fair and square with the context of the
> particular circumstance that the Torah requires not to be taken into
> account. A child seeking maintenance is poor, and that is what seems to be
> driving Rav Toledano.  But to make the basis on which a child is entitled to
> maintenance the poverty in which it finds itself not only puts it in direct
> contradiction with the halacha of not favouring the poor, but also leads to
> all sorts of potentially negative ramifications for the society as a whole.

This is all very thoughtfully argued, but I don't see any hint of this
line of reasoning in Rav Uziel's own words.  He focuses on the
fundamental and inherent injustice of commingling Din and Rahamim, and
not on broad, general questions of whether his ruling will lead to "all
sorts of potentially negative ramifications for the society as a whole".

...

> However other forms of judgement will not 
> But following on from all this am not sure that your example regarding
> husband and wife, if I have understood it correctly, is necessarily
> apposite.  You write:
> 
> >the Dayyan is nevertheless permitted and even urged to try to find some
> >Halachic basis for compelling the husband to give a Get. We are not
> >infringing on the husband?s rights by this; he?s a Rasha, and the only
> >obstacle preventing us from ruling ???? is a ??? ??? ????? concern for the
> >extremely serious issues of Eshes Ish and Mamzerus that can arise in the
> >event of a ?? ????? ??? ????. If, however, there is some legitimate dispute
> >between husband and wife, then no matter how much sympathy we may have for
> >the plight of the wife, we are absolutely forbidden against the slightest
> >deviation from Din,...
> 
> I am not sure what exactly you mean by this -ie what is forbidden?  Do you

For an example of the sort of thing I have in mind, see SA (EH 52:1)
where we rule that a woman must remain an Agunah for her entire life if
she cannot meet the financial commitments that she made at her Erusin.
Helkas Me'Hokek (3) notes that it is 'mashma kezas' that this is even
if the woman has not acted in bad faith, where she did have the
wherewithal but suffered a subsequent financial reverse.  [Others
disagree - see Ozar Ha'Poskim there.]  Now, if an Arus took advantage
of this Halachah and his Arusah sued him in Beis Din, the judges'
sympathy would quite likely be overwhelmingly with the woman, but it is
certainly forbidden to rule against the Halachah.

Yitzhak
--
Bein Din Ledin - http://bdl.freehostia.com
A discussion of Hoshen Mishpat, Even Ha'Ezer and other matters


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