Avodah Mailing List

Volume 27: Number 17

Wed, 13 Jan 2010

• 1. Seeing Policies Everywhere (rabbirichwol...@gmail.com)
• 2. Re: Seeing Policies Everywhere (Micha Berger)
• 3. Re: Seeing Policies Everywhere (rabbirichwol...@gmail.com)
• 4. Re: Seeing Policies Everywhere (Micha Berger)
• 5. Re: John Locke and Tzedaqa (Arie Folger)
• 6. Re: New Brachos (Arie Folger)
• 7. Re: New Brachos (kennethgmil...@juno.com)
• 8. Re: New Brachos (Micha Berger)
• 9. Re: New Brachos (rabbirichwol...@gmail.com)
• 10. Re: New Brachos (Chana Luntz)
• 11. New Brachos (rabbirichwol...@gmail.com)
• 12. Re: John Locke and Tzedaqa (Micha Berger)

Re: n'sarim for s'chach - 4 t'fachim or even less

See SA Harav hilchos Sukkah 629:29-33

As my havrusa - who until now was clueless about this thread - has
asked me "how can we make a g'zeira to a g'zeira?"

Read on!

Original g'zeira: s'ief 29 see fn 195-199 [viz. No nsarim > 4 t'fachim]

Then see s'if 32 v'achshav bizman hazeh fn 209 and his lashon "g'zeira
shema yeisheiv' [viz. Any nesser used now for a tiqra]

Then See SA R Caro O"H 629:18 where he terms it "minhag" and is more
machmir in terms of scope [namely any nesser period.]

Then see MB 629:49
> Yeish mai-harishonim ..
That it's assur midina
[Sh"hTz 72 - same sources as fn 209 above]

KT
RRW
Sent via BlackBerry from T-Mobile

On Tue, Jan 12, 2010 at 07:58:57PM +0000, rabbirichwol...@gmail.com wrote:
: Re: n'sarim for s'chach - 4 t'fachim or even less
: See SA Harav hilchos Sukkah 629:29-33
: As my havrusa - who until now was clueless about this thread - has
: asked me "how can we make a g'zeira to a g'zeira?"

Unless not every use of the word "gezeirah" doesn't refer to gezeiros in
the technical, Mamrim 2:2, sense of the word. As in this case, where the
SA says it's a minhag, and thus the word "gezeirah" is being used
loosely.

Tir'u baTov!
-Micha

-- 
Micha Berger             None of us will leave this place alive.
mi...@aishdas.org        All that is left to us is
http://www.aishdas.org   to be as human as possible while we are here.
Fax: (270) 514-1507            - Anonymous MD, while a Nazi prisoner

Micha: 
> Unless not every use of the word "gezeirah" doesn't refer to gezeiros in 
> the technical, Mamrim 2:2, sense of the word. As in this case, where the 
> SA says it's a minhag, and thus the word "gezeirah" is being used 
> loosely. 

Similalry mishna brura's use of "midina" is used loosely" 
I guess I'm the only one who needs to use terms precisely! 
And too bad my chavrusa failed to notice this. HMMM 

I guess when I see g'zeiros w/o the term g'zeira -- I am reading into it!
And when I term it a g'zeira when I quote the author -- I am failing to
NOT read into it! ;-)
Reminds me of the story of the anti-semitic emperor who executed Jews
for daring to give Shalom and for failing to give shalom! CATCH-22!

KT 
RRW 

Sent via BlackBerry from T-Mobile

On Tue, Jan 12, 2010 at 09:16:13PM +0000, rabbirichwol...@gmail.com wrote:
: I guess I'm the only one who needs to use terms precisely! 

Well, if you want to ask precise questions, like "may a gezeirah be made
today" or whether a particular case is "dan gezeirah al gezeirah" then
you have to be careful to use the technical usage.

If you do not intend to draw implications from the terminology, then the
fact that (lamentably, to my programmer's mind) it's common to also use
these buzzwords loosely gives you free reign to do so.

Like I wrote about the ambiguity of writing, "Saying XYZ isn't LH" --
does that mean it's altogether mutar (LH is being used loosely) or that
the particular issur of LH is being ruled out -- but it could be MSR,
rechilus, avaq LH, etc...

You asked about gezeira al gezeira where the SA tells you that it's a
minhag. A minhag isn't a gezeira in the technical sense, so what's the
question? Are you asserting that ein danin gezeira al gezeira was said
with a broad usage of "gezeira"?

Tir'u baTov!
-Micha

-- 
Micha Berger             It is a glorious thing to be indifferent to
mi...@aishdas.org        suffering, but only to one's own suffering.
http://www.aishdas.org                 -Robert Lynd, writer (1879-1949)
Fax: (270) 514-1507

RMM wrote:
> My argument concluded that in a small, self-contained community,
> where all the members know each other, and where the community
> is a very tangible entity providing concrete benefits to its members,
> that in such a community, tzedaqa IS conscionable even from a
> libertarian perspective. So your above statement, I agree with,
> because you speak of the kehillah, and the community.

Since you like quoting Josh Berman, let me just point out that he
shows that the Torah precisely argues for treating the entire Jewish
people as close family, it is extending the bonds of kinship, to
prevent the abuse of only caring for your own friends, and in order to
counter the impersonality of universalism.

By that measure, your argument would fail.
-- 
Arie Folger,
Latest blog posts on http://ariefolger.wordpress.com/
* Internet Halakha: Should we Expect Privacy?
* Newsflash: King David had Literate Servants
* Was die j?dische Frommigkeit animieren soll
* Equal Justice for All - even in Israel?

RAM wrote (replying to an idea of mine):
> I see what you're saying, but I'm far from convinced. I've always thought that the
> Gemara's discussion of Motzi and Hamotzi was "What text did they establish?",
> not "Now that we know the basic idea, what's the best way to express it?" But
> even if they did originally establish only the basic idea, allowing future generations
> to write the exact text, how is that extended to new basic ideas?

My idea is mukhra'h from the fact that historically, nussa'h
hatefillah, including the shemoneh 'essre, was a lot more fluid for a
lot longer than standard authorized kashered history claims. Thus,
there is strong evidence, including an explicit Yerushalmi and some
wavering in the Bavli, that the Anshei Knesset haGedolah did not
compose shemoneh 'essrei, nor most other blessings. At some point, in
EY, there seems to have existed a catalogue of berakhot, from which
people chose 18 for any given tefillah betzibbur. Before that, there
wasn't even a catalogue. Also, the form of these blessings was still
fluid.

What AKhG seem to have created are the basic rules for how blessings
are formulated. Then, additional rules were legislated in Bavel and in
EY, but these weren't always in sync, which is why we don't always
follow the rules of beginning blessings with shem umalkhut (Tos.
Pesa'him IIRC 104b has some trouble with that, and suggests
solutions), nor about closing with me'eyn ha'hatimah and more.
However, I do believe that AKhG did legislate some blessings, and they
are probably to be credited with Avot, Gevurot, birkot hahaftarah and
birkot qeriat shema' and some others.

The above is not just supported by genziah fragments, but also by
Rishonim, by old siddurm that even made it into print (how about shelo
'assani kuti, somekh noflim and other berakhot, not all of which
merited to be discussed by major Rishonim) and by a close reading of
the Talmudim and related material. Watch out for a forthcoming book by
R' Barry Freundel, where he covers many of these areas.
-- 
Arie Folger,
Latest blog posts on http://ariefolger.wordpress.com/
* Internet Halakha: Should we Expect Privacy?
* Newsflash: King David had Literate Servants
* Was die j?dische Frommigkeit animieren soll
* Equal Justice for All - even in Israel?

R' Micha Berger wrote:

> I think this analysis slices the matter in a confusing angle,
> which is why I proposed looking at two distinct questions:
> 1- Does the situation call for a berakhah?
> 2- Is this berakhah an established nusach?

WADR, I'm not convinced that #1 is a legitimate question. Can there be a situation which calls for a bracha, yet Chazal neglected to establish one?

I have a very simple place where *I* draw the line between situations which
call for a bracha, and situations which don't. Namely, if there is a bracha
which I'm obligated to make, then it is a situation which calls for a
bracha. If there is *not* any bracha which I'm obligated to make, then it
is *not* a situation which calls for a bracha. Sounds pretty
straightforward to me. Where do *you* draw the line?

> But the question with puffed wheat or toasted grains isn't
> question #1. The person is about to eat, so the time is
> appropriate, there is no berakhah levatalah. However,
> arguably none of Chazal's standard coinages apply. So then
> the question is between (1) using a berakhah that post-dates
> gemara, (2) sheqer, or (3) not making a berakah desipte the
> general taqanah to make one before eating.

None of those three options is a good idea. But the system allows for situations like this, and tells us exactly what to do: Use the more general bracha.

That would be Haadamah over Mezonos, if we're unsure if the grains were
processed enough to be worthy of Mezonos. Or, if the question is the bracha
acharona, and we suspect that this food is chashuv enough to get a Bracha
Me'en Shalosh, but none of the three forms fit this food -- so we fall back
on Boray Nefashos.

Akiva Miller

PS: In the thread "The Dynamic of Post-Talmudic Brachos", RMB asked:
> On a related note, but I just don't know the difference
> between this thread and the one titled "New Brachos" to
> know if I'm really replying to something said here...

Good point. Perhaps I should not have given my thread a distinct name. But
now that I did, I'd say that the difference between the two is this: That
other thread is rather lomdish, a high-level thread concerned with the
*application* of the rule against new brachos. My thread is much more
basic, asking the *definition* of when a bracha is legitimate or l'vatala.

____________________________________________________________
Auto Loans
Click here to save cash and find low rates on auto loans.
http://thirdpartyoffers.juno.com/TGL2131/c?cp=dQhYHO9YxtfLWRdQZDKkVgAAJ
z3zeK-F0bLcqGb51B0rOTOKAAYAAAAAAAAAAAAAAAAAAADNAAAAAAAAAAAAAAAAAAAWIwAAAAA=

On Tue, Jan 12, 2010 at 09:19:54PM +0000, kennethgmil...@juno.com wrote:
:> 1- Does the situation call for a berakhah?
:> 2- Is this berakhah an established nusach?

: WADR, I'm not convinced that #1 is a legitimate question. Can there be a
: situation which calls for a bracha, yet Chazal neglected to establish one?

I think you mean it's not a question if the answer to #2 is "no".
However, I gave an example:
:> But the question with puffed wheat or toasted grains isn't
:> question #1. The person is about to eat, so the time is
:> appropriate, there is no berakhah levatalah. However,
:> arguably none of Chazal's standard coinages apply. So then
:> the question is between (1) using a berakhah that post-dates
:> gemara, (2) sheqer, or (3) not making a berakah desipte the
:> general taqanah to make one before eating.

: None of those three options is a good idea. But the system allows
: for situations like this, and tells us exactly what to do: Use the more
: general bracha.

Which is what? I thought the whole reason why the rishonim had to
coin the berakhah we are discussing WRT granola bars is that we simply
ignore the fact that it's a grain and go with a more generic berakhah.
The situation, eating, calls for a berakhah. None of the berakhos coined
by chazal fit the particular food. Thus, a case where "does the situation
call for a berakhah" is "a legitimate question" even though there is no
appropriate nusach.

But in any case, a new coinage said to thank HQBH before eating can't be
a deOraisa, as Chazal's matbei'ah isn't on the deOraisa level either.
Thus, question one, being about a deOraisa, is distinct from the problem
of writing one's own berakhos.

: I have a very simple place where *I* draw the line between situations
: which call for a bracha, and situations which don't. Namely, if there is
: a bracha which I'm obligated to make, then it is a situation which calls
: for a bracha...

What about the 19 berakhos in a tefilas nedavah. They aren't levatalah,
if said bekavanah.

>                                                        Sounds pretty
> straightforward to me. Where do *you* draw the line?

I am not suggesting an answer. I'm suggesting a different set of
questions with which to frame the question.

Tir'u baTov!
-Micha

-- 
Micha Berger             You cannot propel yourself forward
mi...@aishdas.org        by patting yourself on the back.
http://www.aishdas.org                   -Anonymous
Fax: (270) 514-1507

RAM:
> WADR, I'm not convinced that #1 is a legitimate question. Can there be
> a situation which calls for a bracha, yet Chazal neglected to establish
> one??

See TB Brachos re: brachah acharonah on rice
And then see the RIF.

You could learn it both ways

Strict construction:
Talmud says "vlav klum" and means it zero zip nada.

Or the "how do we no Yaakov avinu wore a Yarmulka school" - meaning
since we cannot conceive [cognitive dissonance] that Hazal left a whole
so we'll plug with our own assumptions.

EG See Bach on O"Ch 46 Tur cites that H"anosein laya'eif koach" stems
from "siddurei Ashkenaz". Bach apparently cannot accept that premise
and posits that the brachah is in that part of the Talmud that got lost
somehow [iow a girsa problem]

And I guess we can now extrapolate to use this approach re: Birkas ner
Shabbos that Rav Amram Gaon had it in in HIS g'mara, but the Maggid
Mishnah failed to note that.

IOW ein l'davar sof...

KT
RRW
Sent via BlackBerry from T-Mobile

RRM writes:

RAM writes:

> Here's another way of looking at my problem:
> 
> Let's say that the issurim of Bracha L'vatala and Bracha She'eina
> Tzricha only apply when someone recites a bracha which has already been
> established, either in general context, or with specific text, and then
> he misuses that bracha in some manner -- but that these issurim do not
> apply to a bracha which is not "on the books".
> 
> If so, then how could anyone hold that Bracha L'vatala is an Issur
> D'Oraisa? Such a combination would happen only if he said Birkas
> Hatorah or Birkas Hamazon wrongly. But surely, the poskim who hold
> Bracha L'vatala to be d'Oraisa extend it far past these two cases,
> don't they?

I hear your questions, and I am not sure if I can provide satisfactory
answers, but my understanding of this as per the other view is to go back to
the pasuk on which the issur d'orisa is established, namely lo tisa (Shemos
20:7).  The prohibition is on taking the shem Hashem "l'shav".  A lot of the
discussion surrounding this pasuk is about shevuos.  If you go the Mishna in
Shevuos (19b), you get a description of four types of shavuos - shevuah
sheochal, shevuah shelo ochal, shevuah sheachalti and shevuah shelo achalti,
(see the discussion on 20b about which of these apply to this pasuk).

As you say:

> Let's consider the literal meanings and classic examples of these two
> prohibitions. The lesser prohibition, "bracha she'eina tzricha", is an
> "unnecessary bracha", such as if I would say "shehakol" on a steak
> during a Hamotzi meal. This is considered an unnecessary bracha,
> because the steak (having been covered by the Hamotzi) does not need a
> bracha. The greater prohibition, "bracha l'vatala", is a "wasted
> bracha", such as if I would say, *not* during a meal, "shehakol" on a
> steak, with no intention of eating that steak. This is considered a
> wasted bracha, because even though my intention was to praise HaShem
> for this beautiful and delicious steak, that is not the function of
> this bracha. The function of this bracha, as intended by Chazal, was to
> permit eating the steak, and because I did not use the bracha for its
> intended function, it is considered as wasted.

If you understand this in the context of the discussion vis a vis shevuos,
you can understand that if a bracha is the formula to be said to permit
eating the steak, then if you say the bracha and you do not eat the steak,
then you are effectively making a statement, using the Shem Hashem, which
says sheochal, and then you do not eat, which is shav indeed (or sheker, but
I don't think it really matters which pasuk we are talking about here - note
that the gemora there prefers to use shav to describe sheachalti, or shelo
achalti, ie about the past, which would seem to make the terms sheker more
applicable.  Note also that on 21a it understands shav to apply only when
the statement is to contradict that which is well known with the other
psukim applying to the four references to eating).

If you said a brocha during the meal then while you did not need to say it,
if you do indeed eat, this is not the equivalent of false testimony, and it
is only something prohibited d'rabbanan, because they did not want people
going around using the Shem Hashem when it was not needed.  

[Of course the alternative way of understanding all this is that if it is
not necessary to say the Shem Hashem, then any saying of it is in vain ie
understanding the concept of shav differently, which would seem to be the
pashut explanation of the gemora in Brochos, and, to be honest, the way I
would have aunderstood the pasuk itself from its pshat.  But if so, then how
do you explain the whole discussion surrounding 19-21 in Shevuos - if one is
over an issur d'orisa from using the name of Hashem by walking down the
street and commenting on the pretty rocks he has made, a statement that is
true, then why do we need to establish the truth or otherwise of the various
oaths discussed there - if he didn't need to say the name of Hashem, then he
should get flogged whether or not the statement is true].

So how about your rock case.  

> But suppose I am walking down the street and I see a very pretty rock.
> It is so pretty that I want to praise HaShem for it, so I say, with
> Shem and Malchus and in Hebrew, "Baruch Hashem Who makes pretty rocks."
> That's NOT assur.

How is this different from all of these oaths that get mentioned in gemora
Shevuos and elsewhere, where people go around saying all sorts of things and
appear to be using the shem Hashem and they only get punished, at least
d'orisa, if their statements are in fact untrue?

D'rabbanan you could say it - you could perhaps say it is not a necessary
brocha (because Chazal decided we didn't need a brocha on rocks).  But that
then means you have to scope the extent of the d'rabbanan.   There would
seem to be a number of different ways of scoping it.  I actually thought
that my suggestion "- we are dealing with a situation where under the rules
there ought to be a brocha except that the metzius of the situation means
that if one
said the normal expected brocha except that the metzius of the situation
means that if one said the normal expected brocha, one would actually be
saying a sheker," was not fundamentally different from RAF's:

> > Based on my recent investigation into these matters, I believe
> > that we do not generally hold that Chazal legislated the exact
> > wording of blessings. Rather, they decreed particular forms we
> > must observe. Thus, there is a discussion in the gemara about
> > whether one says motzi le'hem min ha-aretz or *ha*motzi...
> > ... This same reasoning may be what prompts the 'al neqiyut
> > yadayim and 'al peirot haadamah.

Or rather, I was saying that if Chazal decided that the particular
circumstance called for a bracha, then it was by definition "not
unnecessary".  But then if the wording was not correct for the circumstance,
it was axiomatic that it would need to be changed to reflect the truth
(especially given the shav issues underlying all this).

RAM then writes:

> Yes, I have heard of this before, that we don't write new brachos. But
> until the past few days, I never perceived it as a separate independent
> halacha, but only that new post-Talmud brachos would simply be
> *examples* of a bracha l'vatala. Where is this additional rule
> mentioned? What are the reasons behind it?

Well one place to start is on the question of saying "hanosen l'ayef koach"
(Shulchan Aruch Orech Chaim siman 46 si'if 6 and following). The Mechaber
says that there is a custom to say it, but rejects its saying.  Of course
the Rema says that in Ashkenaz we say it.  The Taz there on the Shulchan
Aruch (si'if katan 12) explains the Mechaber's reasoning as being that
despite the Tur giving a reason for the custom in Ashkenaz to say it, there
is a problem because the bracha is not found in the gemora. Once you have
looked at this section, work back and forwards through the various birchas
hashachar and the various discussions by the nose keliim, and their sources
and you will see that this is not the only place where there is an issue of
a brocha that is not from the gemora the commentators cite this rule and try
and explain the situation.  Ie it is an issue, and indeed it is an issue for
the Ashkenazi commentators, that needs discussing (even if minhag or perhaps
a takana of the gehonim might be able to overrule this rule).   Note that in
the middle of si'if katan 12 that I cited previously the Taz brings the
Tosphos and the Rosh (that I keep citing) that there is no chashash of a
bracha l'vatala even though the shem Hashem is mentioned - ie the Taz is
worried about the rule about no brochos which are post gemora even though he
is not worried about a bracha l'vatala (on the other hand, while the Taz may
be explaining the Mechaber, the way somebody like ROY explains the Mechaber
is that indeed he is worrying about a bracha l'vatala).

RMB then writes:

> I think this analysis slices the matter in a confusing angle, which is
> why I proposed looking at two distinct questions:
> 1- Does the situation call for a berakhah?
> 2- Is this berakhah an established nusach?
> 
> In the case of making shehakol on steak that was already included
> within
> the hamotzi on the meal as a whole, the answers are "no", and "yes",
> respectively. The berakhah is levatalah because that's what question
> #1 is all about. The fact that the text said is an established coinage
> doesn't change it from being sheim H' lashav.

But it is not lashav according to Tosphos and the Rosh, they say this
explicitly, that this is only an asmachta.   

> Ashk and Seph debate as tp when birkhos hamitzvah are said; is the
> defining feature "asher qidishanu" -- thus including the einah metzuvah
> ve'osah -- or "vetzivanu" and thus only on chiyuvim/issurim.

Yes, agreed, but this is only the second aspect of Tosphos's discussion.  It
seems clear from Tosphos that if in fact saying a brocha sheino tzricha is
an issur d'orisa, then women could not say it.  Once they have eliminated
this as a problem, they move on to discuss how can one say "vetzivanu" -
because potentially that is an issue of sheker.  That lashav is a separate
issue can be seen from the Taz's citation of the two in relation to hanosen
l'ayef koach where there is no "quidishanu" or "vetzivanu" at stake at all.

 While the
> Ashk position has a broad definition of when a situation "calls for" a
> berakhah and thus saying sheim Hashem, so does picking up a spice for
> the sole purpose of having a reason to say "borei minei besamim". We
> don't demand strict minimalism.

But even somebody like ROY, who states explicitly that there are issues of
bracha l'vatala allows for picking up a spice for the sole purpose of having
a reason to say borei minei besamim - in fact a fair bit of multiplication
of brochos is encouraged to get to your 100 brochos.  So in that sense
nobody has strict minimalism.  

And note that hanosen l'ayef koach would seem to violate both of your
questions: - does the situation call for a beracha? - no it would seem
according to the gemora, which does not mention it.  Is it an established
nusach?  Not at the time of the gemora.

Now of course is it a minhag Ashkenaz - ie Catholic Israel, or at least the
Ashkenazi portion of it, have accepted it.  And this, it would seem, appears
in Ashkenaz to trump the rule about not having new brochos.  Would they have
been prepared to let a minhag trump an issur d'orisa?   Not clear but not
necessary to consider in this case.  But the Mechaber is against it.  So
there are two possibilities in the Mechaber.  He regards minhag as being
weaker than they do in Ashkenaz, or he regards the saying of non gemora
brochos as stronger.  ROY certainly understands the latter - ie that he
understands it as being because he holds that there are bracha l'vatala
issues, and there would seem to be strong support from the Rambam and the
Rif at least.  Ie minhag can only go so far, but against an issur d'orisa it
does not triump.  But that does, it seems to me, raise the question as to
how come Chazal were able to be metaken brochos in the first place in the
face of a d'orisa - unless you say that there was a kind of exception under
the requirement to listen to the rabbonim.  And how do you explain the
gemora in Shavuos?  Ie in many ways I find the Ashkenazi position much
easier to understand than the Sephardi one.

Regards

Chana

Re: asher nassan lasechvi veena..

A simple read of Shas, Rambam, and SA say that this is said ONLY when
triggered by the physical crow of the rooster.
[More on morphing brachos with a specific trigger into "general shevach"
later BEH]
So how do we say this brachah every morning when 99% of us fail to meet
Hazal's criteria for recitation?

Sources:
See Rambam MY hil. Tefillah 7:4
SA O"Ch 46:8
[NB: Obviously Rema argues - but what is HIS criteria?]

KT
RRW
Sent via BlackBerry from T-Mobile

On Tue, Jan 12, 2010 at 03:25:46AM +0200, Michael Makovi wrote:
: In fact, according to Locke, the form of government is immaterial, as
: long as it has the consent of the people. (In fact, Locke doesn't even
: require elections; for him, even complying with the government's laws
: grants tacit consent.) ...

I think this is an important point, because you appear to be conflating
two issues. As does Israeli political rhetoric, but that's off topic.
There is the issue of civil rights, and the issue of representative
gov't.

Dealing just with the latter, which I think is a tangent off the
original topic, RMM writes:
: As for my own view of elections: the Torah (in Devarim) says the
: PEOPLE choose the king of Israel (it says "you shall set up a
: king...", i.e. am yisrael will choose the king), but nothing is said
: of elections, and I doubt the technology of the time would permit
: national elections...

The technology allowed for a head count. So why not? Put a ballot box
right next to the pushqa for machatzis hasheqel.

: King David ruled in Hebron over Judah, he was not halakhically a king,
: because the whole nation of Israel hadn't accepted him yet. The
: Yerushalmi is obviously not talking about whether King David had had
: elections or not.

A king has to be accepted by the people. That's how a melekh differs from
a mosheil. But he isn't selected by the people. King is an inherited role,
and when the succession is broken or in dispute, HQBH sends a navi to
annoint the next king.

Look at Shemuel I 9:15-17 -- Hashem's selection of Sha'ul preceeds the
acclamation. Similarly, ibid ch. the annointing of David is before
anyone other than HQBH thought David ought to lead.

If I were to read "som tasim alekha melekh" naively, I would think it's
an obligation to accept (be machniah myself to) the king Hashem selected.
And if I don't read it naively, I need to deal with comparing the
chumash to Shemu'el's mussar shmuess when the masses ask for a king,
fitting in "ein melekh beYisra'el, ish hayashar be'einav ya'aseh" and
thus the machloqes rishonim.

On Tue, Jan 12, 2010 at 08:11:55PM +0200, Michael Makovi wrote:
: First, Locke derived his concepts from the Tanakh, and prima facie,
: the Tanakh has many democratic ideas (the people choose a king, the
: king must carry a Torah with him and abide by impartial rule of law,
: etc.), so my first presumption is that the Torah and democracy agree,
: until proven otherwise....

But here, we get back to the primary topic... Locke wasn't talking about
democracy, he was talking about rights. My earlier post didn't focue on
democracy at all.

Rather, I pointed out the difference between "live and let live" and
"kol Yisrael areivim". The former comes from the west's focus on civil
rights, and thus giving others their (figurative as well as literal)
"space" to be and do what they wish with what is theirs.

Halakha, I argued, is based on a philosophy of covenant. Meaning, G-d
enters a beris with a group of individuals to create a new corporate
entity and each piece of that entity pledges to further the new common
cause. Thus areivus, and the Rambam calling people "qetzaseinu" in Seifer
haMitzvos when describing MBALC specific to being between two Jews.
This is akin to RJB's notion of the Jewish people as a family (thanks
RAF!). The pasuq's "lo sisna es akhikha bilvavekha" is the Rambam's
"shehizharnu miseno qetzaseinu leqetzaseinu". Marriage, after all,
is also a covenent.

(The third form, that I provided for comparison, is law as duty to the
other. Whether that's contractual -- each side trading promises, or
imposed single-handedly by the powerful on the powerless.)

That's a basic gap in philosophy that makes Locke incompatible with
halakhah. There is no corporate entity in the implied social contract
Locke describes the citizen as entering. Also, meeting as parts of a
whole isn't "the state of nature", either.

: Second, Rav Kook said (as quoted at
: http://seforim.tradi
: tiononline.org/index.cfm/2009/1/28/Marc-B-Shapiro-Thoughts-on-Confrontati
: on--Sundry-Matters-Part-)
...
: Ke'she-ha-musar ha-tivi mitgaber ba-olam, be-eize tzurah she-tihyeh,
: hayav kol adam l'qabel le-tokho oto mi-meqoro, de-haynu me-hitgaluto
: ba-olam, ve-et peratav yifales al pi orhot ha-torah. Az ya'aleh b'yado
: ha-musar ha-tivi, amitz u-mezuqaq.

: In other words: even if the Torah and democracy are opposed, we might
: have an obligation, according to Rav Kook, to accept democracy and
: Torah-ize it....

What???? By that argument taken ad absurdum, RAYK would ch"v be saying
that if modern society considers it a moral imperative to allow two
consenting adults to do what they wish in the privacy of their own
bedroom, we would have to "Torah-ize" such an ethic as well.

It's only when we can already consider it a "musar hativ'i" that RAYK's
words even start to apply. Nothing opposed to the Torah would qualify.

I'm reminded of our discussion here of copyright law, and the Sho'el
uMeishiv's opinion that copyright law goes beyond DDD. Rather, because
this kind of property was recognized by general society as a moral
imperative, we must perforce extend the concept of baalus to include it
within halakhah as well.

But to do the same in case of conflict? How would such a system avoid
collapsing into Reform Judaism, refitting Judaism to the zeitgeist until
a generation or so later there is little Torah left?

But again, I didn't write about democracy, I wrote about basing law on
rights rather than covenental membership.

...
: So that is why I am interested in democracy, even if the Tanakh and
: Gemara would have been dumbfounded and perplexed. After all, wouldn't
: they be equally perplexed by our revulsion at slavery, or our
: rejection of polygamy?

I'm not so sure. I think slavery when not an economic need would have
shocked chazal as well. We don't find too many polygamous or slave-holding
tannaim or amora'im.

: > I should point out that this is a general problem I have with people who
: > describe MO in terms of the adoption of modern ethics.

: The introduction by David Hazony to Essential Essays on Judaism,
: discussing Rabbi Eliezer Berkovits, points out precisely this
: criticism against the Conservative movement...
...
: Alternatively, we could follow Rav Kook, as I have quoted him above.
: Perhaps we might adopt non-Jewish values, but we will let the Torah
: translate them into terms acceptable to us. Or, we will discover new
: Torah values, latent in the Tanakh all along, which we never realized
: were always there the whole time.

I'm okay with the latter, but the rest of it, I agree with Hazony that
that's C, not O.

However, there are those who do define MO that way. Eg RGS writes on
the "First Things" website
<http://www.firstthings.com/onthesquare/2009/09/when-values-collide>:
    The term "Modern Orthodox" is, in a sense, self-contradictory,
    which makes one wonder why it has been used for so long to describe
    a significant portion of the Jewish community. The "Orthodox" part
    refers to the community's strong commitment to traditional core
    beliefs and practices. The "Modern" part implies a willingness to
    absorb practices and values from contemporary culture. Sometimes
    the two complement each other, but often they conflict.
Notice that "a willingness to absorb ... values from contemporary culture."
(RGS then explores the field and ends up in a more nuanced position.)

Rav Kook is being sorely misrepresented.

: II. Two

: > It appears to be a system for getting people to be just, and not "ish
: > es rei'eihu chaim bal'o".

: > Notice it's not a social contract between people to keep each other safe.
: > It's an obligation imposed by a Third Party to get people to imitate Him
: > (veshameru derekh Hashem).

: I don't think Locke would disagree. Getting people to keep each other
: safe IS a large part of being just.

You comment on the similarlity between the two models I present, and not
the difference. Locke speaks of a social contract to guarantee rights.

Beris Noach is a covenent between the individual and G-d. And it's not
about rights. It's about redemption. The term in the chumash for courts
under the 7MBN is "veshameru derekh Hashem" -- imatitio Dei.

: Additionally, back when Shabbat observance was essential to the
: general moral fabric of society, then coercing another to keep Shabbat
: would be part of getting people to keep each other safe.

Where do you get the idea that beris Sinai is about keeping each other
safe? If that were true, it wold be halakhah, not royal law, that
punishes the murderer who was proven guilty without eidus and hasra'ah.
Yet there is nothing of that sort, even derabbanan.

There is another distinction between beris Noach and beris Sinai that I
couldn't find a better place in this post to spell out. Beris Noach is
between an individual person and G-d. The corporate entity is of two.
Beris Sinai (or again, perhaps that made in Devarim) creates a single
entity out of all Jews together with G-d. It's one beris for the Jewish
people, not one per Jew.

And so, for benei Noach, society exists to serve people. They have a
chiyuv to establish courts to that people don't swallow eachother alive.
A rights-based law does that well, since the law doesn't serve to
mediate between two members of the same covenant. Just to keep people
safe.

A Jew, however, is both an indidicual and part of a whole including
every other Jew since Sinai. Society serves people, and it's an entity
in its own right of which the people are components who exist to serve
it. (Dialectically.) The role of courts is similarly twofold in a way
that Noachide courts do not need to be. Not only can't we eat each other
alive, we also have a vested interest in the others' avodas Hashem.

: The Torah wants us to ensure that we are all just and G-d-fearing. But
: nowadays, coercion just doesn't work, and Rabbi Ya'akov Ettlinger's
: omer mutar/tinok she-nishba shita shows exactly why coercion no longer
: works...

The gemara's discussion of tokhachah says the same.

But that doesn't change the philosophy. There is still an areivus --
it's just that coercion doesn't tactically work as an expression of that
areivus.

: Locke's entire source for natural law is that G-d commanded it. G-d
: prohibited murder, and so all have a right to live....

This is correct, but misleadingly phrased. Locke's source for natural
law is that G-d wrote nature, and thus "bestowed man certain inalienable
rights". He has G-d granting a right to life inherently in how He designed
the world. Natural law does not come from his commanding "Thou shalt
not kill".

: commanded one to keep Shabbat, why is Shabbat any less legitimate a
: part of natural law than murder? ...

Again, murder isn't the concept Locke considers primary. It's the right
to live.

And therefore within the Lockian scheme, the nearest equivalent would be
a G-d given inalienable right to shevisas melakhah, qiddush hayom and
oneg Shabbos. But as a right, it's not a mitzvah; it's a choice others
must grant me.

Maybe asserting G-d's right to have me rest would do it, but that's miles
away from Locke and does serious damage to the concept of "right".

: Locke's arguments for religious toleration don't apply to Judaism.
: Locke offers three arguments:
: 1) The government shouldn't concern itself whether you believe in
: Jesus correctly,
: 2) Coercion won't make you believe in Jesus anyway; it'll only make
: you lie with your lips and claim you believe,
: 3) We have to be humble, and realize we don't know which religion is
: the true one.
: But Judaism would reply:
: 1) The government may not care what you believe, but it DOES care what you DO

The gov't does care what you believe. There are issurim that are thought
alone.

Besides, you're denying areivus. Every Jew MUST concern himself with the
welfare of every other Jew. As I wrote above, the fact is that our list of
productively expressing that concern is limited, but the concern is not.

: 2) Coercion may not be effective in compelling belief, but it is VERY
: effective in compelling action

Tell Yoshiahu. He thought he succeeded, but instead he drove AZ
underground.

: 3) We saw G-d on the mountain, for crying out loud! What do you mean,
: we don't know which religion is the true one? We saw Him with our own
: eyes!

Not to many non-O would buy into that. And if you assume you're only
speaking of a believer's response, any believer of any religion would
give a parallel answer. (Unless you're invoking the misnamed "Kuzari
Argument".) We rely on mesorah to believe our ancestors saw Him.

: But before the Reform movement came along, Locke's reasons for
: religious toleration didn't apply to Judaism, and so coercing Jews to
: keep Shabbat was perfectly libertarian...

But not Lockian, since there is no way to phrase it as a right.

: hurts his neighbors by destroying the social fabric. It also gets G-d
: mad, which isn't good for anyone.

Only if you assume we have a shared fate and destiny, that G-d being
mad at him effects me. This gets us back to a unifying covenent.

: G-d doesn't have a desire that we coerce each other, in and of itself.
: He wants us to coerce each other because it'll ensure that we do the
: right thing....

And that's where we part with Locke. QED.

: And the amazing thing is, I've gone from using Locke-ian
: libertarianism to forbid the kehilla to charge tzedaqa, all the way to
: justifying authoritarian religious coercion even according to Locke.
: Judaism has become libertarian and Locke has become authoritarian, in
: my skilled hands. Aren't I talented? ...

Only because you violate Locke by granting society rights qua society,
not granting each of its members' rights.

: The Noahide laws include the obligation to set up courts, which is
: very societal and NOT individual...

The courts exist to protect individuals. There is no entity called
"society" corresponding to beris Noach.

To return to your original question: Notice that nachriim aren't obligated
to give tzedaqah. (Kibud av va'eim and tzedaqah were commonly taken upon
themselves by geirei toshav, but that's not mandatory and not part of
the beris.)

It seems to fit my belief that the Noachide obligation of law can be
satisfied with a rights-based legal system, but the Sinaitic obligation
is neither rights based nor even can be modeled as one.

Tir'u baTov!
-Micha

-- 
Micha Berger             Like a bird, man can reach undreamed-of
mi...@aishdas.org        heights as long as he works his wings.
http://www.aishdas.org   But if he relaxes them for but one minute,
Fax: (270) 514-1507      he plummets downward.   - Rav Yisrael Salanter


------------------------------


Avodah mailing list
Avo...@lists.aishdas.org
http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org


End of Avodah Digest, Vol 27, Issue 17
**************************************

Send Avodah mailing list submissions to
	avodah@lists.aishdas.org

To subscribe or unsubscribe via the World Wide Web, visit
	http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org
or, via email, send a message with subject or body 'help' to
	avodah-request@lists.aishdas.org

You can reach the person managing the list at
	avodah-owner@lists.aishdas.org

When replying, please edit your Subject line so it is more specific
than "Re: Contents of Avodah digest..."