Avodah Mailing List

Volume 27: Number 46

Wed, 10 Feb 2010

• 1. logic (Eli Turkel)
• 2. Re: Rights in halakhah (Zev Sero)
• 3. Re: Microwave Ovens on Shabbos (rabbirichwol...@gmail.com)
• 4. Re: Rights in halakhah (Micha Berger)
• 5. Re: Rights in halakhah (Zev Sero)
• 6. Re: Rights in halakhah (Micha Berger)
• 7. Re: Microwave Ovens on Shabbos (Rich, Joel)
• 8. Re: Habituation (Chana)
• 9. Re: Rights in halakhah (Ken Bloom)
• 10. Re: Rights in halakhah (kennethgmil...@juno.com)
• 11. Whom to Marry (Richard Wolberg)
• 12. Re: krumkeit (Samuel Svarc)
• 13. Re: krumkeit (Prof. Levine)
• 14. Re: Mar'is Ayin and Personal Standards (kennethgmil...@juno.com)
• 15. Re: Seeing Policies Everywhere (kennethgmil...@juno.com)
• 16. Re: Geirut for marriage (Micha Berger)

> To train people in that there is only one type of "logical" sevara, like
> math does, is to do them a disservice when it comes to Torah study.

Mathematics allows for multi-valued logic, fuzzy sets and probabilty theory.
So everything is certainly not binary yes or no answers.

What distinguishes math is that there are rules for making decisions
even when the
decision is that the answer is correct only with a 70% probabilty
(mean, variance, etc)
Pilipul where one tries to twist things to whatever one wants won't work.
Bottom line - fuzzy sets are okay, fuzzy logic is not



-- 
Eli Turkel

Micha Berger wrote:
> On Wed, Feb 10, 2010 at 01:00:13PM -0500, Zev Sero wrote:
> :> Locke wrote about the (positive) rights to Life, Liberty and Property, it
> :> is his philosophy which shapted the US, and I'm saying that that's a major
> :> piece to the prevelance of the culture of entitlement in these parts.
> 
> : On the contrary, those are negative rights.  I can't imagine how you
> : understand them to be positive rights.
> 
> "Right to life" not "Right not to get killed".

What else does the right to life mean?  Someone has to "give" you life?
Who?  Hashem?!  How about the rights to liberty and property?  Do you
imagine it means someone has to give you stuff?!  Don't be silly.  It
means nobody can take the stuff you legitimately have, just as the right
to life means *nothing* but that nobody can kill you, and the right to
liberty means *nothing* but that nobody can lock you up.

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

> and that the issur of cooking on shabbos applies to cooking with
> fire exclusively

Who says only cooking by fire is cooking?
EG Any kli rishon cooks mid'oraisso even when off the fire!

The only exemption is cooking by Sunlight which as per Rashi, BY et
al. Is pattur because it's not a normal derech bishul.
And even "to'dah d'chama" is assur mid'rabbanan.

Any derech Bishul otherwise would constitute bishul. IIRc RMF/IM has
a t'shuva based upon this Rashi when microwaves were new.

As far as Shas and Posqim saying "fire", that's because it's what
they had. Only a strict fundamentalist interpretation would restrict
Bishul to davka combustion. And iiuc Shabbos has toldos to cover the
non-strict cases. In general, anything resembling a m'lachah - that's
not a kil'achar yad - is at least a tol'dah.

Now Imagine if someone nuked a potato and then reheated it on Shabbos
on a fire. If the nuking was NOT construed bishul, then the reheating
could be a d'oraisso mamash because it would not be exempted by ein
bishul achar bishul.

KT
RRW
Sent via BlackBerry from T-Mobile

On Wed, Feb 10, 2010 at 02:38:42PM -0500, Zev Sero wrote:
: What else does the right to life mean?  Someone has to "give" you life?

If I cared about implication, then I would say that rights and duties
are equivalent. What's my right to life but everyone else's duty not to
kill me?

My whole point is what is considered primary, how the legal theory
influences the culture of the people who fall under it. Reducing it to
nafqa mina lemaaseh, and all three are largely the same.

... with one set of exceptions - charity. Charity can be a duty. But
the second you define a corresponding right, it's not longer charity
since it's no longer giving beyond what you owe the other. And within
the law as terms of a beris, there is no charity, only tzedaqah --
from the word tzedaq. As per R' Shimon Shkop in my previous post.

: Who?  Hashem?! ...

Actually, they are G-d given rights. Or, as Jefferson put it "endowed by
their Creator with certain unalienable Rights".

Tir'u baTov!
-Micha

-- 
Micha Berger             When you come to a place of darkness,
mi...@aishdas.org        you don't chase out the darkness with a broom.
http://www.aishdas.org   You light a candle.
Fax: (270) 514-1507        - R' Yekusiel Halberstam of Klausenberg zt"l

Micha Berger wrote:
> On Wed, Feb 10, 2010 at 02:38:42PM -0500, Zev Sero wrote:
> : What else does the right to life mean?  Someone has to "give" you life?
> 
> If I cared about implication, then I would say that rights and duties
> are equivalent. What's my right to life but everyone else's duty not to
> kill me?

That's exactly what I wrote about two messages ago.  A negative right
is the same thing as a prohibition on all other people; a positive right
is the same thing as an obligation on all other people.  Prohibiting
people from doing things such as killing you or locking you up or
stealing your stuff does not turn them into slaves; obligating them to
do things like work for you or give your their stuff makes them slaves.
And there's a natural limit to the things you can prohibit people from
doing to you; there's no limit to the things you can demand people do
for you or give you.

 
> My whole point is what is considered primary, how the legal theory
> influences the culture of the people who fall under it.

And this is what I've not been getting about your theory for as long
as you've been propounding it.  This distinction you're drawing doesn't
seem to make sense.  There is no "primary"; they're the same thing.


> ... with one set of exceptions - charity. Charity can be a duty. But
> the second you define a corresponding right, it's not longer charity
> since it's no longer giving beyond what you owe the other.

Exactly.  Because if it were a right it would be a positive right,
which natural law theory doesn't recognise as a possibility.
If charity is a duty then one must ask "*to whom*".  If it's a duty
you owe the poor, then you are their slave.  But a more sensible
answer is that it's a duty you owe to yourself, or to God, to be a
better person by cultivating good midos such as charity.


> And within
> the law as terms of a beris, there is no charity, only tzedaqah --
> from the word tzedaq.

Agreed.  Because the bris creates a right/duty where none existed
beforehand.



> : Who?  Hashem?! ...
> 
> Actually, they are G-d given rights. Or, as Jefferson put it "endowed by
> their Creator with certain unalienable Rights".

He created the right; how can it be a right against Him kiveyachol?!


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

On Wed, Feb 10, 2010 at 03:49:26PM -0500, Zev Sero wrote:
: >If I cared about implication, then I would say that rights and duties
: >are equivalent. What's my right to life but everyone else's duty not to
: >kill me?

: That's exactly what I wrote about two messages ago...

But since I don't care about implication, since it's less of an effect
on culture than how we talk about the principles, we're STILL in
disagreement.

:>My whole point is what is considered primary, how the legal theory
:>influences the culture of the people who fall under it.

: And this is what I've not been getting about your theory for as long
: as you've been propounding it.  This distinction you're drawing doesn't
: seem to make sense.  There is no "primary"; they're the same thing.

There is a difference between a philosophy that says the human condition
is based on A, therefore B, and one that says the human condition is
based on B therefore A.

The different self-images create different people. Even if they create
the same law.

Tir'u baTov!
-Micha

-- 
Micha Berger             When faced with a decision ask yourself,
mi...@aishdas.org        "How would I decide if it were Ne'ilah now,
http://www.aishdas.org   at the closing moments of Yom Kippur?"
Fax: (270) 514-1507                            - Rav Yisrael Salanter

> and that the issur of cooking on shabbos applies to cooking with fire
> exclusively

Who says only cooking by fire is cooking?
EG Any kli rishon cooks mid'oraisso even when off the fire!

The only exemption is cooking by Sunlight which as per Rashi, BY et al. Is pattur because it's not a normal derech bishul.
And even "to'dah d'chama" is assur mid'rabbanan.

Any derech Bishul otherwise would constitute bishul. IIRc RMF/IM has a t'shuva based upon this Rashi when microwaves were new.
=================================
Listen here (from the upcoming audioroundup) for a good discussion of what bishul duraita is and isn't (at least in one Rabbis opinion:-))
http://media.libsyn.com/media/torah/bishul-beshabbat_ryzrimon_5770-02
.mp3
????? ????? ???? #02, ??? ??? ???? ??? ????? - ????? ?????
Defining Bishul (cooking) = preparing food to eat by flame (soft to hard?).
 Defining minimum heat needed and source of heat (another example of some
differences in very basic definitions)

KT
Joel Rich

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RRM writes:

> Rn' Chana explained how the AhS could hold there is an absolute issur
> of exposing hair for a married woman, but not for an unmarried one. In
> short: the sugyot regarding Sotah and divorcing one's wife speaking
> only of married women, and furthermore say nothing about hirhur. By
> contrast, he sugya in Berakhot speaks of hair in general (married or
> not), and speaks of hirhur. It is thus possible, but not obligatory,
> to say (as I do) that hair-covering applies to ALL women (married or
> not), and is mitigated by hergel.

> Thank you, then, for that explanation. I still hold by my position. I
> tend to prefer the positions that reconcile as much as possible.
> Furthermore, I prefer a few kelalim to many peratim - Occam's Razor.
> So I'll still prefer my own position, viz. that hair-covering applies
> to married and unmarried women equally, but that hergel mitigates the
> issur. This is the simplest explanation, and has more kelalim and
> fewer peratim.

Well it is even more possible, but not obligatory, to say, as the pashtus of
the Rambam and the Shuchan Aruch would seem to suggest, that hair covering
applies to all women (married or single) and is not mitigated by hergel and
that would seem to give you even more kelalim and fewer peratim.

This sort of segues into the other discussion you are having in which you
said:

>So I'm not sure why Rabbi Kaminetsky thinks it is obvious that the
non-scholar will answer that a non-Jew is preferable. It appears to me that
no, the >non-scholar will answer that the Jewish woman who violates niddah
is preferable.

>So I'm confused. Why does Rabbi Kaminetsky believe (wrongly, IMHO) that the
non-scholar will answer that a non-Jew is preferable?

The point is though, that RYK is not talking about a non scholar, or even,
IMHO a beginning or inexperienced scholar.  He is talking about a full
fledged scholar.  But I would disagree slightly with RRW's example of 2 plus
2 equalling four, as I think it is a bit more complicated than that and that
while the gist is the same, I will try and give what I hope is a better and
more nuanced example.

If you genuinely are a non scholar, you are highly unlikely to miss the wood
for the trees (to use the common English phrase and take it further),
because you can't access the trees as individuals.  Thus you are
unquestionably going to identify a wood as a wood.  Even an inexperienced
scholar, knowing how much more wood there is out there than the few trees he
knows well, will probably more easily relate to the wood than the trees.
But an extremely knowledgeable scholar, who has examined every single tree
in detail and in all its leaf ramifications and can recall each and every
one of them and marshal each reference to each tree as and when required,
can sometimes in the course of it forget about seeing the wood as a whole.
What, IMHO RYK is saying is that a gadol has to, by definition, be somebody
who knows the detail of each and every tree in the wood, but *still* never
forget that at times you need to look at the wood as a whole.

That said, as I have said when this question has come up previously, I have
a certain difficulty with RYK's example, because, quite simply, it requires
a judging of the teshuva unlikelihood of the couple in question.  Clearly
marriage between two Jews is infinitely superior if the woman does teshuva
and decides to keep taharas mishpacha.  On what basis is anybody, Talmud
chacham or not, permitted to pre-judge that likelihood.  After all, if a man
known to be a rasha says to a woman that I am mekadesh you on condition I am
a tzadik, we consider her married, because perhaps he did teshuva.  If we
assume at all times that the Jewish woman might do (or indeed has done)
teshuva, then the answer to the question as which is preferable becomes
obvious to all.
And add to this, as a snif l'hakel if you like, that, especially today,
there are numerous occasions where a woman might nullify the issur kares
without even intending to.  After all, it is accepted that intention is not
needed for a valid tevila, nor indeed are bathing suits generally considered
a chatzitza d'orisa.  In which case, if you live in a locality in which sea
swimming is common and the weather is clement (or advise moving to such a
locality) you may well have a high probability of mitigating the risk of the
issur kares at least even without any actual teshuva.

Anyhow, that is a tangent, because while I may have a problem with the
specific example, I think the general point made, as understood in terms of
the wood and the trees, is a very valid one.  

And I think that is what is bothering me particularly about your particular
dismissal.  You need to have a working knowledge of the trees before any
real conclusion about the wood would seem appropriate.  And yet you have so
clearly not grappled with the original sources that the basis for the Aruch
HaShulchan's position is a revelation to you.  Given that it is the basis
for the general achronic approach to hair covering, it should hardly come as
a surprise if you had indeed worked through the rishonim and achronim on
this.

Now, I would contrast that to R' Broyde's approach which can be found at
http://traditiononline.org/news/article.cfm?id=105511 in his article Hair
Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and
Subjective (Dat Yehudit)?

He actually comes out not a million miles from where you are (or at least
argues that there is a limud to say this based on the Rishonim, although he
agrees that the other limud is the dominant one amongst the Achronim).  But
this is based on very very close readings of the gemora in Ketubos that I
cited to you, the Rambam, the Tur and the Shulchan Aruch (among many other
sources).  He is able therefore to link together statements such as that of
the Trumat HaDeshen explaining the Rambam as holding that hair covering is
d'rabbanan with an explanation as to why it might be so, and similarly
explain the position of the Tur (and then Shulchan Aruch) as implicitly
based on a Rosh in Gitten (90b) which states that hair covering is rabbinic
(this Rosh was a complete revelation to me, it makes the arguments vis a vis
the Tur so much more compelling).  You then fascinatingly end up with the
Shulchan Aruch's triumvirate as arguably being two rabbinic to one d'orisa
(although it is clear that the Bach's understanding of the Rambam is
different which would then point the triumvirate the other way - but still a
Bach versus a Trumat HaDeshen is an valid maklokus).

Now the motivations driving R' Broyde are, IMHO, not a million miles away
from yours either, it is about a "wood" type concept that where Jews who are
otherwise meticulous in their fulfilment of halacha are systematically
appearing to violate a particular halacha (as would seem to have occurred in
the Lita of yesteryear and hair covering), there must be some genuine basis
permitting that violation (if they are not prophets, they are sons (or
daughters) of prophets).  But he does this by an extremely extensive
treatment of many many sources.

But where one senses that there is no real knowledge of the make-up of even
some of the key trees in the wood, conclusions about the nature of the wood
as a whole does come across as somewhat premature.  Perhaps more normally
somebody attempting to be a genuine scholar puts their ideas of the nature
of the wood on hold while they learn about each and every tree, and what RTK
is, IMHO doing, is reminding somebody at the end of that process that they
then need to stand back and look at the wood as well, but, I suspect he
might say, only then.

> Michael Makovi

Regards

Chana

On Wed, 2010-02-10 at 14:28 -0500, Micha Berger wrote:
> On Wed, Feb 10, 2010 at 01:00:13PM -0500, Zev Sero wrote:
> :> Locke wrote about the (positive) rights to Life, Liberty and
> Property, it
> :> is his philosophy which shapted the US, and I'm saying that that's
> a major
> :> piece to the prevelance of the culture of entitlement in these
> parts.
> 
> : On the contrary, those are negative rights.  I can't imagine how you
> : understand them to be positive rights.
> 
> "Right to life" not "Right not to get killed".

The "right to life" is convenient shorthand for the "right to not get
killed" either by murder or by an arbitrary determination of the
government. If you wanted to cast the right to life as a positive right,
would entail the right to medical treatment (even if you don't have the
means) and possibly the right to miraculous intervention when one's
ailment is beyond the capability of the medical profession to cure.

The "right to property" is a negative right for one's property not to be
stolen or confiscated by the government. The right to property, if
recast as a positive right, would require others to provide tzedakah to
this particular person if he were poor, and maybe require others to
fulfill this person's every desire.

--Ken

R' Zev Sero wrote:
> Except that in rights-based philosophies, at least those in
> the category of "natural law", recognise only negative rights;
> i.e. each person has the right *not* to have anyone else do
> certain things to him...

R' Micha Berger responded:
> Locke wrote about the (positive) rights to Life, Liberty and
> Property, it is his philosophy which shapted the US, and I'm
> saying that that's a major piece to the prevelance of the
> culture of entitlement in these parts.

I know nothing about Locke's philosophy. But when you talk about a
rights-based society leading to a culture of entitlement, the rights which
come to my mind are "positive rights" like Welfare, Social Security, or
Unemployment Insurance.

In contrast, rights to life, liberty, and property, seem like negative
rights that RZS referred to: others are not allowed to hurt my life,
restrict my liberty, or take my property. But they are under no obligation
to heal me, or help me, or support me.

Akiva Miller

____________________________________________________________
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In response to the following post:
"one should rather marry a non Jew
than not keep taharat hamishpacha - and the nafka mina was whether one
should try to be meshaddech two nonobservant Jews - or steer a
nonobservant Jew towards a non Jewish mate - and this RW poster was
insistent that it was preferable to steer the non Jew towards a non
Jew, and was against much of the activity of others for Jewish
shidduchim.
Therefore, the question does (and did) arise, and has a nafka mina
lehalacha for those who actually care about halacha
(most of the people on the list were shocked by the position taken -
but it is the extreme version of going by the book and determining
what is the most extreme issur involved...)"

I believe something is being missed here. If two non observant Jews marry,
there's at least the hope that one or more of the children may some day become
baalei teshuva.

ri
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On Wed, Feb 10, 2010 at 2:42 PM, Eli Turkel <elitur...@gmail.com> wrote:
>> And here lies your mistake. Torah is not like math. There is 70 facets
>> to Torah, there are multiple ways to 'mitaher the sheretz', etc. To
>> train people in that there is only one type of "logical" sevara, like
>> math does, is to do them a disservice when it comes to Torah study.
>
> In fact the gemara and tosafot were not happy with R. Meir being able to
> mitaher the sheretz in 70 ways. I was brought up that learning gemara requires
> a clear analytical mind and not pilpul of 70 ways to learn the gemara.

Then WADR you were robbed.

> There is a famous story of Lewin (now a famous lawyer and frequent advocate
> of O causes). When he first started law school he was thrown out of class
> for using gemara logic which did not amuse the professor.
> So using your logic learning gemara is also a poor preparation for the
> hi tech world.

To me, Torah is the only reality, everything else is only a construct
that I need to navigate based on it's rules. So to change how we teach
Jews based on how some construct is constructed seems to me as "making
the tofel ikkar".

KT,
MSS

At 05:03 PM 2/10/2010, Samuel Svarc wrote:
>To me, Torah is the only reality, everything else is only a construct
>that I need to navigate based on it's rules. So to change how we teach
>Jews based on how some construct is constructed seems to me as "making
>the tofel ikkar".


Please see
<http://www.stevens.edu/golem/llevine/rsrh/relevance_se
cular_studies_jewish_education.pdf>The 
Relevance of Secular Studies to Jewish Education (Collected Writings VII)
http://www.stevens.edu/golem/llevine/rsrh/relevance_se
cular_studies_jewish_education.pdf

YL


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> Someone mentioned to me that we may not make up our own
> "mar'is ayin" issues. implying it MUST stem from halachic
> sources and NOT from seichel.
>
> Akiva, I think your post hit the nail on the head - FOR ME.
> But I wonder if others will say: "Look at this owner making
> up his own shulchan aruch? Who says he may not use just the
> boxes of treif or dairy? Vu shtayt geshribben?"
>
> So my question is addressing THAT SHEETAH, not my own issues.

If the owner claims that the halachos of Mar'is Ayin forbid him to use
those boxes, then those others would have a good point. But if the owner
says something like, "people could see it and come to the wrong conclusion.
I have a reputation to protect." - then I see no problem.

> May Kashrus agencies be *machmir* beyond halachah for
> sociological or marketing or ch'shad reasons - using seichel
> over the black letter of the law?

Again, as long as they don't make any claim that the halachah requires them to do this, they are on safe ground.

Akiva Miller

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R' Rich Wolpoe wrote:
> Thus those g'zeiros - both Talmudic - AND perhaps
> post-Talmudic - that have been voted upon are not subject
> to repeal w/o another vote.

How are you going to arrange such a vote in any post-Sanhedrin time?

> Hypothetically:
> RMF could have himself been gozeir "no smoking" [just like
> a p'saq]
> Or he could have assmbled all the rabbis in North America
> and had a "Minyan" ratify such a g'zeira.

I do not see how this is possible, even hypothetically, simply for lack of
a consensus on who counts as a "Rabbi". I'm not even talking about counting
clergy from C and R. I'm referring to distinguishing between semicha from
respected yeshivos, and semicha from less respected institutions, or people
who got whatever semicha some years ago and have had some other sort of job
since then. Who counts, and who doesn't?

Even if you were successful at arranging for a great number of recognized
rabbis to attend, and even if an overwhelming majority of them voted in
favor of this gezeira, you would still need at least an approximation of
the number of qualified rabbis who did not attend. Without knowing these
numbers, it is not possible to meet this criterion of "minyan".

This is why I don't understand how the scenario described by RRW might ever have occurred since the disbanding of the Sanhedrin.

Or perhaps I am misunderstanding exactly what "minyan" means in this context.

> Now go back to Igros Moshe and see how RMF treated
> Agudas haRabbanim as a "MINYAN" legabei certain
> cases - EG microphone on Shabbos.

Well, I suppose there can be communities, especially small ones, or
well-organized ones, where it is very clear who is a rabbi and who is not.
If you could get past the problem that today's semicha is not "real"
semicha, then I suppose they could organize some sort of get-together,
during which they could ratify some gezeros, which would then be binding,
but only on that specific community. You would still have a problem of
defining who the members of that community are. That could easily apply to
any shtetl in the Alter Heim, and maybe even a few more recently. But was
the jurisdiction of the Agudas haRabbanim ever so clearly defined? (If you
can point me to specific places where the Igros Moshe treated the Agudas
haRabbanim as a "minyan", I'll be happy to look them up.)

Akiva Miller

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On Wed, Feb 10, 2010 at 08:47:27AM -0500, Rich, Joel wrote:
: IIUC the rule is we don't lchatchila accept a ger who wishes to convert
: to marry, but bdieved "kulam geirim heim"

: 1. I assume this prohibition is on a rabbinic level-is it?

I understood it on very different terms.

But we debated this in
http://www.aishdas.org/avodah/getindex.cgi?section=G#GEIRUT

A convert who isn't meqabel ol mitzvos isn't a ger. But we're not
psychic, so we have to rely on watching behavior, listening to what the
person says, and relying on chazaqos that the qabbalah is real.

When the person has an alternate motive, it becomes far more difficult
to rely on the chazaqah. And so, as the Rambam writes (Issurei Bi'ah
13:14):
    ... ve'afilu noda shbishvil davar hu misgayeir
    ho'il unal vetaval
    yatza mikelal goyim
    vechosheshin lo
    ad sheyiba'eir tzidquso.

The issur is in creating dilemma -- a person who no longer has a
chazaqah of being a non-Jew, but we have cheshashos whether he is really
one of us.

Bedi'eved, a chazaqah is a chazaqah. But who wants to get to that point?

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


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End of Avodah Digest, Vol 27, Issue 46
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