Avodah Mailing List

Volume 26: Number 172

Wed, 19 Aug 2009

• 1. Re: mesorah (Micha Berger)
• 2. Re: inconceivable-- Ben Sorer uMoreh (David Riceman)
• 3. Re: inconceivable-- Ben Sorer uMoreh (Zev Sero)
• 4. Re: inconceivable-- Ben Sorer uMoreh (Micha Berger)
• 5. Re: inconceivable-- Ben Sorer uMoreh (Zev Sero)
• 6. Investigating converts' sincerity (Michael Makovi)
• 7. Re: saves a life, or a Jewish life? (Yitzchok Zirkind)
• 8. following mesorah (Eli Turkel)
• 9. Re: Investigating converts' sincerity (Zev Sero)
• 10. Re: Investigating converts' sincerity (rabbirichwol...@gmail.com)
• 11. Re: inconceivable-- Ben Sorer uMoreh (Zev Sero)
• 12. Re: Kashrus of a Restaurant Under the Supervision of its Owner (Ben Waxman)
• 13. Re: inconceivable-- Ben Sorer uMoreh (Michael Makovi)
• 14. Re: saves a life, or a Jewish life? (Michael Makovi)
• 15. Deriving Halachah from Aggadah (rabbirichwol...@gmail.com)
• 16. Re: following mesorah (rabbirichwol...@gmail.com)

On Tue, Aug 18, 2009 at 11:44:37AM +0300, Michael Makovi wrote:
: Indeed. I forgot to mention that Professor*** Leiman brings a sevara
: as well...
: *** I am only referring to him as I have seen him most commonly
: referred to in literature; R' Micha points out that Professor Leiman
: does have smiha. I'd note that similarly, Professor Marc Shapiro also
: has smiha, even though he is *never* referred to as R' Marc Shapiro.

I wasn't clear about my point behind picking this nit.

If RSZL has any authority WRT the discussion of the CI from an
impact-on-halakhah POV, it's because of the "R", not the "Prof".

On Wed, Aug 19, 2009 at 01:28:38PM +0300, Eli Turkel wrote:
: If I understand Micha correctly he feels that halacha only takes into account
: the mesorah of the generations and any new or academic evidence is ignored.

Not at all! <He objects, looking down at his own murex-dyed tzitzis.
-narrator>

What I'm saying is that talmud Torah means dealing with the mesorah.
Academic approaches to Torah aren't talmud Torah, and don't shape
halakhah. IOW, if one could prove through academic tools that some
peirush dechuqah in the gemara was not actually the mishnah's intent,
or that we base a practice on Tosafos's resolution that we can now prove
wasn't the amora's intent, that sort of anaylsis has no impact.

Nothing about ignoring evidence WRT defining the metzi'us.

Which is why I couldn't give an answer about finding an authoritative
seifer Torah without first knowing whether relying on the majority
of sifrei Torah was a din in birur, defining the metzi'us al pi rov,
or a din in pesaq, and a means of doing acharei rabim lehatos of the
people who wrote, checked and used the sefarim. I personally would have a
different opinion if the archeology is being used to overturn a mistaken
idea about the metzi'us of a correct seifer Torah or if it's being used
to overturn pesaq by a means other than the historical flow of TSBP.

What I'm disagreeing with is RMM's assumption that halakhah without a
Sanhedrin is a science, not a legal tradition (as he explained himself
on RRW's blog), and therefore that we can discuss RMS's opinion and
the CI's in the same breath. I'm saying that as a tradition of legal
development, it's only through immersion into the flow and being part
of it that one produces more Torah. Analyzing objectively may get the
truth of someone's intent or what his words "mean to me" (depending on
whether we speak of the classical or post-modern academic), but not Torah.

I see an important place for O Wissenschaft, but it's not the same place
as the classical beis medrash. Determining what R' Chiya really meant
is significant; but it turns the statement into a text, static. TSBP is
oral, a dynamic. The professor who analyzes the Torah from a historian's
persective is studying "About It", not "It".

The reference to RRW's blog is
<http://nishmablog.blogspot.com/2009/08/cognitive-dissonance-b
etween-halachah.html>
or <http://bit.ly/1W5JtA>; you can see RRW's post and an exchange of
long comments between RRW and myself.

Another place where this discussion overflowed into was my own blog at
<http://www.aishdas.org/asp/2009/08/postmodernism-and-mesorah.shtml>
and in particular the copy that got propogated to FaceBook
<http://www.facebook.com/home.php?#/note.php?note_id=117153247262&;c
omments>.
R' Ira tick writes a long reply in 5 parts. I didn't digest it all yet,
but I presume I will be replying at some point.

On Wed, Aug 19, 2009 at 08:17:44AM -0400, Rich, Joel wrote:
[RET:]
:> 4. I brought separately that R. Dessler felt that Rabbenu Tam changed
:> the order of the parshiyot in the tefillin based on his learning of the
:> gemara. He obvious was not overly concerned about the previous Mesorah.
:> R. Dessler explains that this was because there was no clear written
:> mesorah in Talmudic or Gaonic writings. The mesorah of what was
:> practiced by the kehilla was not of paramount importance.

: More interesting to me is that R' Dessler aiui did not have this as a
: mesorah - the question is which highly valued constructs required him to
: come up with this approach to minimize his cognitive dissonance?

And I would argue that REED, or chiddushei RCB for that matter, are
based on trying to make the mesorah work on its own terms. He comes up
with a kelal in Torah, that one may change common practice when there is
no textual backing in favor, and your understanding is against. If this
is what Rabbeinu Tam was doing, it is an exception to the usual rule --
the baalei Tosafos tended to explain gemara in light of the assumption
that it and common practice don't diverge unless one proves otherwise.
IOW, R' Tam would have to be very convinced that Rashi's understanding
of Menachos couldn't possibly have been right.

And actually, from a historical perspective, REED's assumption is wrong
-- there is no indication that from the time of bayis sheini until R'
Tam that either of the two orders of parshiyos was dominant; we find
the remains of tefillos shel rosh in both arrangements among finds from
throughout that period. That's not to say his new kelal is therefore
unsupported and to be repealed -- THAT's the very kind of "halachic
argument" I am objecting to.

I should point out that Historical School didn't manage to remain O.
Mixing academic study of halakhah with halakhah itself historically
didn't work. Someone who wishes to convince me out of my position has
to explain to me what it is the Historical School did that led to C that
isn't inherent in their version of the project.

Tir'u baTov!
-Micha

-- 
Micha Berger             Strength does not come from winning. Your
mi...@aishdas.org        struggles develop your strength When you go
http://www.aishdas.org   through hardship and decide not to surrender,
Fax: (270) 514-1507      that is strength.        - Arnold Schwarzenegger

Zev Sero wrote:
> I have no
> intention of reading this Katz's book; if he says anything relevant,
> please say what it is.
>
Unfortunately it's been decades since I've read the book, and I don't 
have access to a copy.  Maybe someone who does can cite sources.  
Incidentally he had semichah from Pressburg, from an einickl of the 
Hasam Sofer, so "this" may not be the appropriate title.

David Riceman

Micha Berger wrote:
> On Mon, Aug 17, 2009 at 06:57:40PM -0400, Zev Sero wrote:
> : Which chachamim?  Bear in mind that the halacha accepted by everybody
> : until about 1800 was that one may *not* do so, and *not* to worry about
> : eivah...
 
> RDR already raised the question about universality. I'm curious too.
> Given the sugya in AZ ein maamidim, it would seem the machloqes rishonim
> is how much eivah (not doing the job, or not doing it even though he was
> going to pay you) vs the Mei'iri. In any case, the Taz is before 1800,
> no? YD 154 s"q 5, seems to assume that in most cases, we are mechalelim
> Shabbos mishum aivah.

On the contrary, he says we are *not*, and has no notion of what has
now become the accepted rule.  The currently-accepted rule that, in
general, we are mechalel shabbos, was unheard-of in his time, and even
up to 150 years after him.  It's a modern invention, so we can hardly
say "lo plug chachamim"; when the metziut warrants it we can apply it,
but not when it doesn't.



> : About that time the metzius of the nochrim seems to have changed
> : and the fear of eivah to have become more real, leading the poskim of
> : that time to rule that one may be mechalel shabbos for this purpose.
> 
> Actually, eivah went DOWN during that period in most places where we
> lived.

No, it didn't.  The change was that there was less respect for religion
and more intolerance for our differences.  Before the Enlightenment,
the goyim took their religion seriously, so they understood our doing
the same.  If we told them that our religion only allowed chilul shabbos
for those who are commanded to keep it, they accepted that without
question; it made sense to them.  And they never expected us to regard
them as our own people; we were clearly separate nations, and that's how
both sides liked it.

The French Revolution brought with it a Devil's deal: we will tolerate
you, *and* let you practise your silly rituals, which we no longer
regard as evil; *if* you will give up your separate nationhood,
"vehayinu le'am echad", equal citizens of our nation, and stop taking
your religion seriously, just as we have stopped taking ours.  Their
new religion was the Equality of Man, and they expected us to adopt it
as well; to claim that a superstition like Shabbos could take priority
over helping a person in need was intolerable, and to insist on a
distinction between us and them was even more intolerable.  Thus, the
old excuse that Chazal gave, and that all the rishonim and achronim
gave, with every expectation of it being accepted, no longer worked.

At any rate, whether my theory linking it to the Enlightenment and the
French Revolution is correct or not, the fact is every posek until
about the Chasam Sofer was perfectly confident in the same excuse,
which we all know would not fly today.  *Something* must have caused
this sudden change.


> : When that concern doesn't exist, what possible basis could there be
> : for a heter?!
> 
> Darkhei Shalom.

That's a heter for giving away tzedaka money to aniyei akum, but for
chilul shabbos?!  Meheicha teisi?


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

On Wed, Aug 19, 2009 at 11:31:49AM -0400, Zev Sero wrote:
: >                                  In any case, the Taz is before 1800,
: >no? YD 154 s"q 5, seems to assume that in most cases, we are mechalelim
: >Shabbos mishum aivah.
: 
: On the contrary, he says we are *not*, and has no notion of what has
: now become the accepted rule....


??? The Taz says that the case of nursemaid is unique in getting a "no".

Tir'u baTov!
-Micha

David Riceman wrote:
> Zev Sero wrote:

>> I have no
>> intention of reading this Katz's book; if he says anything relevant,
>> please say what it is.

> Unfortunately it's been decades since I've read the book, and I don't 
> have access to a copy.  Maybe someone who does can cite sources.  
> Incidentally he had semichah from Pressburg, from an einickl of the 
> Hasam Sofer, so "this" may not be the appropriate title.

I've never heard of him, I have no idea who he is or was, and telling
me that he had smicha doesn't change anything.  Whoever he is, lo mipiv
anu chayim.

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

With mamzerut, murder, adultery, etc., we often overlook the evidence.
In Makot, Rabbi Akiva says that he'd so thoroughly cross-examine the
witnesses that the **Biblical** death penalty is wiped off the books.
(Cf. the discussion of halakhah being used creatively to effectively
deactive old laws even as they technically remain on the books -
http://www.aishdas.org/avodah/vol26/v26n169.shtml#10)

Why not do this with giyur?

Realize that we are cutting slack for mamzers, murderers, and
adulters, even though there is no mitzvah to love any of them. By
contrast, we DO have a mitzvah to love gerim. So if we ignore evidence
for murderers, why not do the same for gerim whom we are commanded to
love?

And yes, there is a Biblical requirement to accept only kosher gerim,
but isn't there also a Biblical requirement to execute murderers and
adulterers?

I'm not saying we should just let anyone at all in. But why not be a
bit lax? That is, ask them if they'll be observant, but don't go over
them with a fine-toothed comb. And certainly, don't investigate them
after the fact; after the giyur, if someone comes with testimony that
the ger ate pork, just don't listen to the witness.

Michael Makovi

On Wed, Aug 19, 2009 at 10:18 AM, Micha Berger <mi...@aishdas.org> wrote:

> On Tue, Aug 18, 2009 at 09:10:00PM +0300, Michael Makovi wrote:
> : Regarding Sanhedrin 4:5, about saving a life saving the world: does it
> : read nefesh ahat mibnei adam or miyisrael?


See Margoliyas Hayam on Sanhedrin 37a #22

>
>
> Kol Tuv,
> Yitzchok Zirkind
>
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FWIW
I don't know how RT got his sheeta. But neither he nor Rashi were the
first to champion their sheetos.

IOW the dispute (IIRC) preceded them in Gaonic literature >>

from

http://www.tzemachdovid.org/thepracticaltorah/bo.shtml

The Mordechai, in his Sefer MeHalachos Ketanos, printed in the back of
the Gemara in Menachos (Hilchos Tefillin, 10b Ibid.), writes that
among those who agree with Rabbeinu Tam are Rabbeinu Chananel, Rav
Sherira Gaon, Rav Hai Gaon, and the Rif; the Rashba (Sheilos
V'Teshuvos HaRashba attributed to the Ramban Siman 234) cites Rav
Saadyah Gaon as concurring as well. On the other side, the Rashba
himself (Ibid.) concludes that Rashi 's order is correct, adding that
Rabbeinu Yonah and the Ramban held that way too; the Sefer HaChinuch
(Mitzvah 421) also accepts this position, and mentions that Rav Hai
Gaon agreed to it as well. In a Teshuvah, the Rambam (Sheilos
V'Teshuvos HaRambam, Blau Edition, Chelek 2 Siman 289) also writes
that Rav Hal Gaon himself wore Tefillin with the Parshiyos in the
order that they appear in the Torah, and he asserts forcefully that
this is the Halacha, as he rules in his Mishneh Torah (Hilchos
Tefillin 3:5). The Ra'avad, however, both there (Ibid.) and in a
Teshuvah (Sheilos V'Teshuvos Tamim De'im Siman 79), disagrees and
accepts the other view.


-- 
Eli Turkel

Michael Makovi wrote:
> With mamzerut, murder, adultery, etc., we often overlook the evidence.

No, we don't.

> In Makot, Rabbi Akiva says that he'd so thoroughly cross-examine the
> witnesses that the **Biblical** death penalty is wiped off the books.

And he was justly criticised for that.


> Why not do this with giyur?
> 
> Realize that we are cutting slack for mamzers, murderers, and
> adulters, even though there is no mitzvah to love any of them. By
> contrast, we DO have a mitzvah to love gerim. So if we ignore evidence
> for murderers, why not do the same for gerim whom we are commanded to
> love?

You're begging the question.  There is no commandment whatsoever to
love those who are *not* gerim.   And shutting our eyes and pretending
someone is a ger when he is not won't turn him into one.

 
> And yes, there is a Biblical requirement to accept only kosher gerim,
> but isn't there also a Biblical requirement to execute murderers and
> adulterers?

No, there is not.  There is a requirement to execute that small subset
of murderers and adulterers who can be convicted by the uncontroverted
testimony of two kosher witnesses.  If their testimony can be rejected
then there is no mitzvah at all to execute the criminal, and indeed we
are specifically told not to: "Neither the innocent nor the acquitted
shall you kill, for I will not acquit the wicked", i.e. don't worry
about the guilty getting away with it, because the job of doing
*actual* justice belongs to Hashem.  (However, if a murderer poses a
danger to public safety, i.e. he's likely to strike again, then we do
*not* rely on a miracle, and we arrange his death extrajudicially.)



> I'm not saying we should just let anyone at all in. But why not be a
> bit lax? That is, ask them if they'll be observant, but don't go over
> them with a fine-toothed comb. And certainly, don't investigate them
> after the fact; after the giyur, if someone comes with testimony that
> the ger ate pork, just don't listen to the witness.

After the fact, even if he served AZ as Shimshon's and Shlomo's wives
did, and "their secret is revealed", they are still Jewish.  This is
not a matter of being lax, it's simple halacha.  We are not mind-
readers, and so can't actually know what was in their minds at the
time of their kabalat ol mitzvot.  What is different about some of
the current cases is that the evidence of their deceit is overwhelming,
even more than in the cases of Shimshon's and Shlomo's wives; i.e. the
evidence is that they *never* intended to accept ol mitzvot, even for
a moment.  But that is a very difficult call to make, especially since
the Rambam uses the term "nitgaleh sodan" and still considers them
Jewish anyway.

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

Michael Makovi:
> I'm not saying we should just let anyone at all in. But why not be a
> bit lax? That is, ask them if they'll be observant, but don't go over
> them with a fine-toothed comb. And certainly, don't investigate them
> after the fact; after the giyur, if someone comes with testimony that
> the ger ate pork, just don't listen to the witness.

I would make a hilluq between indviduals and masses

As in the time of Ezra - Israel is facing a massive influx of "quasi-Jews"
from former Soviet Union etc.

So on an individual bases, rachmanus might be the way to go

Yet on a massive basis, perhaps political and societal pressures call
for middas haddin

Illustration:
Shimon ben Shetach had 80 witches executed in a day.

KT
RRW
Sent via BlackBerry from T-Mobile

Micha Berger wrote:
> On Wed, Aug 19, 2009 at 11:31:49AM -0400, Zev Sero wrote:
> : >                                  In any case, the Taz is before 1800,
> : >no? YD 154 s"q 5, seems to assume that in most cases, we are mechalelim
> : >Shabbos mishum aivah.
> : 
> : On the contrary, he says we are *not*, and has no notion of what has
> : now become the accepted rule....
> 
> 
> ??? The Taz says that the case of nursemaid is unique in getting a "no".

He says nothing of the sort.  


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

Actually I looked through AhS YD 119 and found something of a contradiction.
The Rema in YD 64 clearly that the kelim are OK (however lav dafka because
of stam kelim aino ben yoma but because their custom is based on sources.
The Beir Heitiv brings an opinion that clearly states that the kelim can be
ben yoma). And the Shakh adds that even food having some some kheilev in it
would not be assur.

However the AhS in 119:42 the AhS discusses what a guest should do when
eating at someone's table who does not have the same customs and dinim as
the guest (note to all: the AhS does NOT give the simple option of "just
don't eat there"). One point that the AhS makes (in the name of the Shakh)
is that if the guest does not eat some type of food because he feels that
this is the din (as opposed to not eating something because of minhag), then
it is assur for the host to prepare other food in the same pot used to
prepare the food in question. For example my guest refrains from khalav akum
because he feels that is the halakha, then I can not prepare food in a pot
previously used to cook khalav akum. It does not matter if the pot is eino
ben yoma because that heter is only bediavad. If I am preparing food for
both of us however, then that is OK.

Maybe I am missing something here.

Ben
----- Original Message ----- 
From: "Zev Sero" <z...@sero.name>

This is a settled question -- these are all variations on the case of
the Bnei Rhenus, who were known to eat what we hold to be chelev
de'oraita.  Because they relied on a legitimate minority opinion, the
SA says one may eat at their homes, from their fleishige kelim, relying
on stam kelim einan bnei yoman.  Obviously one could not eat a dish that
might contain this chelev, but one could eat other meat.

>> Which chachamim?  Bear in mind that the halacha accepted by everybody
>> until about 1800 was that one may *not* do so, and *not* to worry about
>> eivah.
>>
>> R' Zev Sero

Let's change that 8 in 1800 to a 9. Mishnah Berurah 330:8, as
translated in a source sheet at
http://www.lookstein.org/resources/hatzoloh.pdf

"The doctors in our own days even amongst the most observant, are not
wary of this at all. Every Shabbat they travel some distances to treat
non-Jews, writing prescriptions and grinding medicines themselves.
They have no [authority] to rely upon because even if it were
permissible to commit a Rabbinical infraction of Shabbat on account of
animosity?which is, itself, not clear?it is unanimously accepted that
it is prohibited to commit a Biblical infraction. They are deliberate
Shabbat violators, God forbid."

Further there, we see the Mishnah that a Jew may not be a midwife for
a gentile, but Rav Yosef in the Gemara permits if the mother is
customarily charged a fee, for in that case, to refuse service would
invoke eiva. But Abbaye notes that on Shabbat, a Jew should refuse,
and the gentiles will accept the excuse offered (that Shabbat
violation is permitted only for those who keep Shabbat); thus, on
Shabbat, eiva is not sufficent.

Later, Hatam Sofer notes that whereas in Abbaye's time, the gentiles
would accept the excuse, this is not so today, and so eiva *does* now
permit Shabbat violation. Rabbi Moshe Feinstein cites the Mishnah
Berurah and says that whereas the Hafetz Haim's gentiles (like
Abbaye's) did not have enough eiva to permit Shabbat violation, our
gentiles (like the Hatam Sofer's) do have enough eiva, and so the
Mishnah Berurah's stricture does not apply.

In short, it seems (quite logically) that eiva permits violation only
when the eiva is sufficient to be pikuah nefesh. For Abbaye and the
Mishnah Berurah, the gentiles' eiva was not sufficent to permit
violation, but for the Hatam Sofer and Rabbi Feinstein, it was.

Michael Makovi

> It sort of depends on the precision of the translation. Is it "as though
> he saved all of humanity" or "all of the people" [ie the Jewish People]?
> You quote the latter.
>
> R' Micha

Good point. However, I forgot to note (I've now updated my blog entry
thanks to you) that the context of Koran 5:27-32 is Cain's killing
Abel, and the Koran speaks of "on that account" teaching the lesson of
killing/saving one equalling the killing/saving of the world.
Therefore, "the people" cannot refer to the Jews; how could Cain's
killing Abel (who progenated no Jews) teach us a lesson the meaning of
killing a Jew?

This is actually Meiri's explanation precisely, according to R'
Amitai! Meiri illustrates Sanhedrin 4:5 by pointing to Cain and Abel,
and so Meiri obviously holds that it is immaterial whether one
murdered is Jewish or not; the Koran seems to agree.

Of course, if anyone knows Arabic, please speak up; the website from
which I quoted the Koran in English also has the original Arabic on
the same page.

Michael Makovi

Generally Halachic sugyos and Aggadic Sugyos are fairly distinct.

There are some "K'lalim" re: making Halachic norms out of Midrash and
aggadic Passages - and there are some exceptions.

AFAI can tell, Abbaye's requirement to stand for Qiddush Levanah is
straight out of an Aggadic sugya ino the pages of Halachah

I was looking for a more comprehensive list or method to this

Do Yad Malachi or Sdei Chemed or Enc. Talm. Address these kinds of cases?

Any scholarly articles that would list samples

KT
RRW
Sent via BlackBerry from T-Mobile

RET
> http://www.tzemachdovid.org/thepracticaltorah/bo.shtml
> among those who agree with Rabbeinu Tam are Rabbeinu Chananel, Rav Sherira
> Gaon, Rav Hai Gaon, and the Rif; the Rashba (Sheilos V'Teshuvos HaRashba
> attributed to the Ramban Siman 234) cites Rav Saadyah Gaon as concurring
> as well.

> On the other side, the Rashba himself (Ibid.) concludes that Rashi's
> order is correct, adding that Rabbeinu Yonah and the Ramban held that
> way too; the Sefer HaChinuch (Mitzvah 421) also accepts this position,
...

This question is somewhat rhetorical

Given this how can we make a bracha on any given sheeta of Tefillin?
OR
IOW via what mechanics can we defitively settle this post-Tallmudic
dispute decisively enough to overcome "s'feiq brachos lehaqeil"?

KT
RRW
Sent via BlackBerry from T-Mobile



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