Avodah Mailing List

Volume 27: Number 126

Sun, 30 May 2010

• 1. Re: is there morality outside of the Torah? (Micha Berger)
• 2. Re: Pinui kevarim (Zev Sero)
• 3. lawyers in Israel (Goldmeier)
• 4. Re: Pinui kevarim (Ben Waxman)
• 5. Re: Pinui kevarim (Chana Luntz)
• 6. The Meaning of Derekh Erets (Arie Folger)
• 7. Re: everyone is a liar (Arie Folger)
• 8. Re: everyone is a liar (Zev Sero)
• 9. Re: everyone is a liar (Arie Folger)
• 10. Re: everyone is a liar (Zev Sero)
• 11. Re: responsa (Moshe Y. Gluck)
• 12. Re: Pinui kevarim (Shoshana L. Boublil)
• 13. Re: responsa (Shoshana L. Boublil)
• 14. pinui kevarim (Dov Kaiser)

On Wed, May 26, 2010 at 11:14:33PM -0400, T6...@aol.com wrote:
: "Derech eretz" has a number of overlapping meanings, somewhat depending
: on context. It can mean civilization, ethics, morality, etiquette or
: basic menshlichkeit...

Quoting myself, v4n36:
> I think this is a different usage of DE. I've identified what I
> believe to be three different usages:
> Yafeh TT im DE -- involvement in the outside world
> DE kadma laTorah -- midos and being a mentsh
> zu p'rishus DE -- proper usage of ta'avos gashmios (or at least one
> of them)

And v24n58:
> TiDE presumes a definition of DE that has to do with beingpersonally
> refined. More like the usage I associated with DEKL.

> My unifything theme is aretz, life in olam hazeh. Especially as
> gemillus chasadim is developed by the Maharal on Avos 1:2 -- "gemillus
> chassadim" is the perfection of one's relationship to other residents
> of olam hazeh. (In contrast to avodah - one's relationship to the
> Borei, and Torah - one's relationship with the sole resident of one's
> mind, oneself.) And thus marital relations with full kavod given to
> one's partner are the ultimate in DE, being the synthesis of actions
> to build the physical world, enjoy the physical world, and bond with
> another resident of that world.

And then in v4n395:
> Derech Eretz (as I concluded in v04n036) has three meanings that
> share the basic notion of knowing how to live in Olam haZeh
> ("eretz"). Avraham Avinu discovers HKBH by noticing the wonders of
> eretz, is mekareiv people, willingto associate with what he thought
> were three sand-worshipping idolaters. This is TIDE. He is mekareiv
> them how? By performing chessed -- DE in the sense of DE kadma
> laTorah. And he is given the b'ris milah -- DE as in the "perishus
> DE" of the haggadah.
...
> While TIDE looks at an external DE, including mentchlach because of
> its impact on others, mussar looks at DE as a means of improving the
> self.
> It therefore only centers about the chessed/mentchlachkeit aspect of
> DE. Mussar included an asceticism that doesn't jibe with the other
> uses of the expression "DE"...

> We discussed on Avodah the overlap between TuM and Chassidus, in the
> sense that Chassidus too utilizes the gashmi -- in some contexts.
> The tisch and the use of alcohol come to mind immediately. What
> they really share is an outsideness. The mountain and the field are
> very different -- one lifts the earth, the other glories in its raw
> G-dliness, but they are both ways to be outside the home.

Tana devei Eliyahu Rabba (1:1) tells us the Bereishis 3:24, "lishmor es
derekh eitz chayim" is "melameid sheDE qodomah le'eitz chayim, ve'ein
eitz chayim ela Torah".

There is also Medrash Rabba on Vayiqra 9:3, where R' Shemu'el bar
Nachman teaches that the 26 generations between Adam to Moshe is to
teach us that Derekh Eretz Qodmah laTorah. 1312 years of human history
because DE is a prerequisite before Torah is a possibility.


In terms of our discussion, it's clear that if DE is held out as a
different category, and one that Torah requires rather than requiring
Torah, then DE is something of ethical value that is beyond Torah.

I take it that was RnTK's whole point.

Tir'u baTov!
-Micha

-- 
Micha Berger             It's never too late
mi...@aishdas.org        to become the person
http://www.aishdas.org   you might have been.
Fax: (270) 514-1507                      - George Elliot

> To me it seem that this is the keystone to RZS's position. R' Rosen says
> that RAE and the Nesivos apparently identify the two. But hitting the
> Bar Ilan Shu"t system was in sufficient for me to identify any such
> meqoros. (Searched for "qever" and "haqever" in the Nesivos, RAE on the
> SA, and shu"t RAE.)

I posted the URL a few days ago. Maybe it was in one of the posts that
you rejected.  http://hebrewbooks.org/pdfpager.aspx?req=24714&;pgnum=65

RAE answers a shayla from the Nesivos, agreeing with him that in the case
under discussion the graves could be moved, since it was an extreme hezek
harabim ("ein lecha hezek gadol mizeh").  He then addresses a possible
complication: the case involved not a few lone graves, but a public
cemetery that had been established mida'as rabim; this is about as strong
as it gets.  Still, he says, the psak remains the same, since the tzorech
harabim overrides the daas rabim on which it was established.  This is
all dealt with in one sentence, because the case was clearly so obviously
a hezek harabim that there was no need to discuss it.  The bulk of the
teshuvah deals with the issue of a possible issur hana'ah.


But all we have is RAE's answer; we don't have the Nesivos's question, so
we have no idea what the situation was, and *why* it was such a hezek.
Therefore we can't learn anything from it, and R Rosen has no basis for
doing so.  It appears to me that what R Rosen did here was to pick on
one word in the teshuvah: "tzorech".  He wants to conclude (I think),
based on RAE having stuck in this word, that the criterion has shifted
from "hezek" to mere "tzorech".  But of course that's spurious.  RAE
has already established that the case was one of extreme hezek.  It's
obvious that mitigating such an extreme hezek is a tzorech harabim, so
it's no surprise that RAE should use that word.  But it's insupportable
to swoop on that word and conclude that he is making a revolutionary
statement, on which one can build an entire structure.  He's just using
a word in its ordinary sense.  Just because the public needs to mitigate
damage, it does not follow that it's damaged by not getting its needs!
Hezek creates a tzorech, but a tzorech doesn't create hezek.   And of
course the Nesivos didn't even use that word (as far as we know), in
fact we have no idea *what* the Nesivos wrote.


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

What is the hetter for a frum person to work as a lawyer in Israel?

Where most of the cases in court are lawsuits between Jews, any money 
extracted from a litigant using the secular legal system is taking money 
that halachically does not belong to you (or to your client) and is 
geneiva, lichora. Generally, the amounts of money awarded in secular 
court and beis din will not be the same, with secular court generally 
awarding larger sums of money - if you would not have deserved that 
money halachically it should be assur to take.

That is aside from the ethical issues of defending guilty people, liars, 
and all that. Just on the money issue alone it should be enough to 
prevent frum people from being lawyers...

Kol tuv
Rafi Goldmeier

What Rav Anselm wrote in his psak is that in a situation where there is a
tzorech harabbim, and if that need is not met then the tzorech will become a
hezek harabbim, and since at most we are talking about a safek derabbanan,
then moving the graves is permitted.

Ben

----- Original Message ----- 
From: "Micha Berger" <mi...@aishdas.org>
>
> : "Tzorech harabbim" is not the issue.  The issue is "hezek harabbim",
> : and in the case of an existing shul the hezek is there, while in the
> : case of a *non*-existing ER it is not.   If this were merely a
> : proposed shul, or even a proposed expansion of an existing shul, you
> : have no basis for assuming it would be permitted.
>
> To me it seem that this is the keystone to RZS's position. R' Rosen says
> that RAE and the Nesivos apparently identify the two. But hitting the
> Bar Ilan Shu"t system was in sufficient for me to identify any such
> meqoros. (Searched for "qever" and "haqever" in the Nesivos, RAE on the
> SA, and shu"t RAE.)

RMB writes:
> The question of which comes first only impacts the permissability of
> getting hanaah from the place afterward. I'm not sure what the point
> of "mutar lifnoso umeqomo tahor" if the Mechaber continues "ve'asur
> behana'ah". If you can't use the land anyway, how is the path any
> better off without the grave occupying it?

No, the issur b'hanah that you refer to relates to a grave which is in the
form of a building - it is that that one cannot get hana'ah from, even after
the grave is removed, but the *land* cannot become assur.  In fact  that is
precisely the sugya that the gemora is dealing with in Sanhedrin 47b - the
fact that land cannot become prohibited - the braise that is the jumping off
point for our discussion  "there are three types of graves, kever hanimtza
(a found grave - Rashi, this is new and the owner of the field knows that he
never commanded that they bury there and they by robbery they buried there)
kever hayadua (a known grave - buried with the knowledge of the owner) and a
kever hamazik es harabbim (a grave that damages the public),  - a found
grave, it is permitted to empty it, and if it is emptied the place is
tahor,, a known grave, is is forbidden to empty it, and if one does empty
it, its place remains tameh, and a kever that damages the public, where it
is permitted to empty it, but  if it is emptied, its place remains tamey ahd
it is forbidden to benefit from it.  And the gemora wants to learn from this
braisa what you have derived, that the earth is assur, but responds - hachi
name bekever binyan (Rashi where they built above the ground).  And so
poskens all the meforshim.


RZS writes:
> The status quo is that the public are walking down it, and it now
> transpires that there's a source of tum'ah along it.  Now there are only
> two options: either the grave must go, or the public most go.  And the
> psak is that the grave moves and the public stays.

That might be true if we are talking about a grave *on* a road.  But it is
certainly not true for a grave *next* to a road.  There are construction
methods, as described in chazal, which would perfectly adequately protect
the road and the cohanim from the grave by means of barriers etc.  The only
way, it seems to me, that these would not be a perfectly adequate solution
is if you assume that along with the acquisition of the road by the public,
is an acquisition of those portions of the road that are near to it, to
allow them to expand into them, if and when they choose.  If that is true,
and along with a public road goes an allowance for expansion, does it become
impossible to contemplate such protective construction, because such
construction would not solve the problem of the public expanding into the
area samuch to the road, in fact it would hinder them from doing so.

> Surely the difference is one of chazakah.  What is the status quo?  Is
> it "hecheziku bah rabbim" or not?  All these various stages of the
> construction are before the rabbim got there, and I'm not sure how we
> can show that the mere expenditure of money and effort is the issue.

It is not *surely*.  That is one option, the other option is that it is
about public expenditure.  You are making an assumption that the issue is
chazaka, others make the assumption that the issue is about the cost to the
public.  Neither is articulated in the Shulchan Aruch.  Both are plausible.
The cost to the public assumption is probably slightly more plausible,
because of the use of the word "hezek".  If it had really been about
chazaka, one might have expected language that refers to that chazaka, ie
the reason given why one could have move the grave is precisely as you have
articulated it - because hechiziku bah rabbim, not because of nezek rabbim.

 
> You're assuming that the issue is the expense and inconvenience of moving
> the road.  As I see it the main issue is not how hard it would be, but
> that the public has no obligation to give up what it has, even if it
> should not have had it in the first place. 

Again, this works if we are talking about on the road, but not next to the
road, where the public do not currently walk.

Then later RZS wrote:
> In any case, as I wrote earlier, I think this division of road
> construction into stages is artificial, and chazal had no notion of it;
> it's imposing modern ideas onto ancient sources.  In Chazal's day a
> road was a road, it came about long ago in a single event, and it would be a
> road forever more.

This is attributing extraordinary ignorance to Chazal, given that the
absolute masters of this kind of construction method were the Romans. 

Somehow I doubt that Chazal knew only of roads that came about long ago.
For example, when in the discussion regarding dina d'malchuta dina in Baba
Kama Rava argues for the validity of dina d'malchuta dina on the basis that
- "they cut down palm trees and make bridges and we go over them", he does
not seem to be describing something that came about long ago.  Now I agree,
this is discussing bridges (roads were most likely made of stone and hence
less likely to have been made of materials demanded from the locals), but a
public road that just ended in the water waiting for a king to come along
and build a bridge is somewhat unlikely.  As is a bridge built by the king
in the middle of nowhere waiting until the public decided to beat a path to
it.  Rather, I think you will find that along with the bridge building came
road building linking up the bridge to other public roads.

Note also that Rava does not appear to say that the reason why one can walk
on these bridges is because cheziku bah rabbim.  This is actually, if you
think about it, and extraordinary omission.  Who cares whether the king is a
valid king or not, the public has now been koneh this bridge, whether or not
it was built by bandits, and that means we can't take away what they have,
whether they should have had it or not.  But he does not say that, rather he
has to resort to dina d'malchusa dina, otherwise, it would seem (and some of
the meforshim learn out explicitly), we could not walk on these bridges
because of the gezela involved in their construction. 

> It's certainly not *directly* addressed by them.  They don't mention
> widening at all.  The case they're discussing is a standard road, that
> goes where it goes, is in use by the public, and there's not a hint
> about any planned works on it.

As I have indicated, the reason I am assuming it is directly addressed, is
that so long it is only next to, and there is no issue about the public
expanding onto that area, there are unquestionably halachic solutions which
are far simpler to implement than moving the grave.

> Most roads in those days weren't very wide.  The width of an ox-cart,
> more or less.  We're talking cow paths, not super-highways.  A width of
> 16 amot was considered unusual, and was a condition for a reshut harabim
> de'oraita.  The difference between a grave near the road and on it
> wouldn't have been very much.

Enough to build a couple of walls and spaces in between and to put up a
marker.  For a cow path, that is certainly all you need.

By the way though, while the discussion in the meforshim on the Bavli is
centred on a road, the Yerushalmi that I quoted (Nazir perek 9 halacha 3)
which is the basis for the accepted distinction about which comes first, the
grave or the road is, as the meforshim note, discussing a city.  And the
measurement discussed there is seventy amah from the edge of the city
including its protrusions (assuming that the city only encompasses the grave
from two directions, if it encompasses the grave from three directions, then
there is no 70 amah limit for removal).

As you note, a road with a width of 16 amot was unusual, so what is this 70
amah all about?  Why does a city need to have 70 amah on all sides without
any evidence that the public goes there?  And would you then say that if a
grave was 71 amah away from the city, that means that the city could not be
expanded into some of that space as it would then bring the grave within 70
amah, allowing for removal of the grave?  And is a city something that the
public created by chazaka long ago without any planning or formal
construction?  

And none of the meforshim appear to have any problems with this Yerushalmi,
or suggest that it contradicts the Bavli, and indeed the Tur and the
Shulchan Aruch incorporate bits of it into their psak.

A consistent explanation therefore needs to understand this Yerushalmi as
well as what we can find from the Bavli and the meforshim on it.  And the
introduction of a city into the discussion means it is far harder to
understand the issue as being specifically about places that cheziku bah
rabbim, and far more likely that the discussion is about enabling the public
to use what they currently have to the fullest extent possible, including
expansion into areas which, in the context of whatever the construction is,
are reasonable to expect expansion (which clearly in the case of a road is
not going to be 70 amah, but in the case of a city may well be).

Regards
Chana

In a different thread, R'nTK wrote:
> "Derech eretz" has a number of overlapping meanings, somewhat
> depending on context. It can mean civilization, ethics, morality,
> etiquette or basic menshlichkeit. *Something* comes even before
> Torah and lays the ground for it -- some basic feeling for human
> decency.

In the Haggadah, it aslo has an additional meaning: conjugal
relations. I guess you could subsume that, along with teh Hirshian
idea of Derech Erets being about involvment in teh world and doing
economically productive work, under your denominator "civilization."

Good Shabbos,

-- 
Arie Folger,
Recent blog posts on http://ariefolger.wordpress.com/
* Helping Patients Face Death, She Fought to Live
* Neuer Audio-Schi'ur, zum 91. Psalm
* Significant Recent Manuscript Finds
* Ansprache anl?sslich des G?ttesdienst in der historischen Synagoge
von Endingen
* Burgeoning Jewish Life in Central Europe
* Raising Consciousness by Dressing Babies Outrageously

RZS wrote:
>  In Chazal's day a road was
> a road, it came about long ago in a single event,
> and it would be a road forever more.

Actually, that is incorrect. I grant you that many roads were
unplanned, but as is evident even from the Gemara Shabbat 33b, where
the Romans' infrastructure building, including bridges and
marketplaces, is discussed by Rashbi and some colleague Tannaim, in
Chazal's days, infrastructure was surely planned and executed by the
government. Note that while roads aren't explicitly mentioned, roads
are what connect bridges to marketplaces, and the Romans are known to
have built a lot of all of those.

Otherwise, I shall continue reading your interchange, which is most informative.
-- 
Arie Folger,
Recent blog posts on http://ariefolger.wordpress.com/
* Helping Patients Face Death, She Fought to Live
* Neuer Audio-Schi'ur, zum 91. Psalm
* Significant Recent Manuscript Finds
* Ansprache anl?sslich des G?ttesdienst in der historischen Synagoge
von Endingen
* Burgeoning Jewish Life in Central Europe
* Raising Consciousness by Dressing Babies Outrageously

Arie Folger wrote:
> RZS wrote:
>>  In Chazal's day a road was
>> a road, it came about long ago in a single event,
>> and it would be a road forever more.

> Actually, that is incorrect. I grant you that many roads were
> unplanned, but as is evident even from the Gemara Shabbat 33b, where
> the Romans' infrastructure building, including bridges and
> marketplaces, is discussed by Rashbi and some colleague Tannaim, in
> Chazal's days, infrastructure was surely planned and executed by the
> government.

The Romans, yes; but that was precisely one of their major inventions
that allowed them to establish and control an empire greater than any
previous one, for far longer than anyone before them ever managed.
And there aren't many Roman roads in EY.  The standard road that Chazal
discuss is a pre-Roman cow path, or even one that arose in the old way
during Roman times.  "Sratia gedolah haholechet me'ir le'ir" is surely
a Roman road, as indicated by the use of the Latin word for it.

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

On Fri, May 28, 2010 at 4:39 PM, Zev Sero <z...@sero.name> wrote:
> The Romans, yes; but that was precisely one of their major inventions
> that allowed them to establish and control an empire greater than any
> previous one, for far longer than anyone before them ever managed.
> And there aren't many Roman roads in EY. ?The standard road that Chazal
> discuss is a pre-Roman cow path, or even one that arose in the old way
> during Roman times. ?"Sratia gedolah haholechet me'ir le'ir" is surely
> a Roman road, as indicated by the use of the Latin word for it.

How so? Chazal lived in the Roman period, they shared a common
experience on roads.

-- 
Arie Folger,
Recent blog posts on http://ariefolger.wordpress.com/
* Helping Patients Face Death, She Fought to Live
* Neuer Audio-Schi'ur, zum 91. Psalm
* Significant Recent Manuscript Finds
* Ansprache anl?sslich des G?ttesdienst in der historischen Synagoge
von Endingen
* Burgeoning Jewish Life in Central Europe
* Raising Consciousness by Dressing Babies Outrageously

Arie Folger wrote:
> On Fri, May 28, 2010 at 4:39 PM, Zev Sero <z...@sero.name> wrote:
>> The Romans, yes; but that was precisely one of their major inventions
>> that allowed them to establish and control an empire greater than any
>> previous one, for far longer than anyone before them ever managed.
>> And there aren't many Roman roads in EY.  The standard road that Chazal
>> discuss is a pre-Roman cow path, or even one that arose in the old way
>> during Roman times.  "Sratia gedolah haholechet me'ir le'ir" is surely
>> a Roman road, as indicated by the use of the Latin word for it.
 
> How so? Chazal lived in the Roman period, they shared a common
> experience on roads.

The Tana'im lived in the early period of direct Roman rule; how many
roads would the Romans have built by their time?  For that matter, how
many did they ever build in EY, in all their centuries of occupation?
We know Chazal were familiar with the concept of a Roman road, because
they talk about "sratia"; but by that very token we can deduce that a
"derech" is a normal road, i.e. not one of these new-fangled planned
super-highways.


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

[To give context, the question of who has been writing shu"t lately, and
in particular the next generation's "Tzitz Eliezer, Minchat Yitzchaq, IM,
or Minchas Shelomo" was raised on Areivim. -micha]

> How do you know which of the current young rabbonim will turn out to be
> those 'equivalents'?
R' Eli Turkel:
Better question than I have an answer. Basically the first sefer we dont
know but after a while they establish a reputation. Others start with
at least an important position, ie head of an important bet din.
-------------


photocopy from microfilm:
http://select.nytimes.com/gst/abstract.html?res=F20F13F93E5D137B93
C7A9178ED8
5F418785F9&scp=1&sq=responsa+the+law+as+seen+by+rabbis+for&st=p) May 5,
1975, quoting R' Moshe Feinstein: "You can't wake up in the morning and
decide you're an expert on answers," he said recently as disciples clustered
round. "If people see that one answer is good, and another answer is good,
gradually you will be accepted."

KT,
MYG

 
> Not that I think this is the issue here, as we have an existing, built
> hospital, but there are even more gradations than you are suggesting.
> In any form of public road planning and building there is the stage of
> proposal of the location (the first stage).  Once that is determined,
> then there is the stage of acquiring and building (a second stage), and
> then there is the stage of already built (the third stage).  A halacha
> that allowed  Mefanin et hakever l'aasot derech larabim would clearly
> permit even the first stage.

I don't know how roads were made in Chazal's day, but this division into
stages seems artificial.  In fact I think the usual way roads came about
in those days was not through planning at all, but by public usage.
People simply started going a particular way, over hefker land or over
private land whose owner failed to protest and thus forfeited his rights,
and thus it could easily happen that nobody realised there was a grave
nearby until after the road was long-established and it was too late to
move it.  
================================

The matter of roads in the time of Chazal is far more complex.  There were
two types of roads: the 1st type are planned roads, national/international
roads build by various kings for the purpose of moving troops during
conquest (which happened a  lot at the time).

The 2nd type is indeed roads built by people's feet - or as brought in the
midrash IIRC about a child who talks to an adult about a road - and the
child notes that many "thieves" such as you have "built" this road... Of
course, not every such road took over private land.

BTW, I found an interesting reference to the fact that the Assyrians (Ashur)
used to pile bodies next to public roads as a warning/testament to their
prowess.

So, to summarize, there are many different means by which a kever can be
discovered by a road, pre-building, during building or after building the
road.

Shoshana L. Boublil

From: Eli Turkel <elitur...@gmail.com>
> As an aside I am giving shiurim now on electricity and "dud shemesh"
> The responsa that allow things go into great detail.
[del]
> There is a relatively new set of seforim on shabbat - Orchot Shabbat-
> in discussing electrical appliances on shabbat he basically ignores
> the opinion of RSZA and brings shitot that one cannot add the use of
> electricity on shabbat as a derabban as one part of a heter

If you want a completely different, in-depth discussion of the issues
of electricity on Shabbat - see Chemda Genuza: shu"t by Rav David Shlush
(Chief Rabbi of Netanya).

He has a fascinating view of the issues.

Shoshana L. Boublil

The dispute between R.ZS and myself [see below] boils down to how to read
the teshuva of R. Akiva Eiger (siman 45). To quote my translation of this
teshuva again: 
*With respect to disinterring graves, it is obvious (hadavar pashut), as
his honour [the Nesivos] wrote, that there is no greater mazik rabim than
this. Even if it were already a public cemetery and with public consent
(midaas rabbim), nevertheless it is permitted to disinter [the graves] for
the needs of the public (l?tzorech horabim), as HaGaon R. Dovid Oppenheim
zt'l wrote in his teshuva, which is printed in Responsa Chavos Yair*
 
R.ZS, if I understand him correctly, is arguing that since we don?t know
the nature of the case RAE and the Nesivos were discussing, we can?t
conclude from it that it is permitted to disinter graves l?tzorech
horabbim, as opposed to graves that are mazik the rabbim, which is stated
explicity in the SA.  R.ZS thinks I am misattributing opinions to
authorities by reading the teshuva otherwise.  He thinks that R. Yisrael
Rosen and R. Shaul Yisraeli zt"l have similarly misinterpreted the words of
RAE to create a heter which doesn?t exist.  Since then, I have seen that R.
Chaim Anselm also favours my reading of the teshuva (see http://www.kiss
e-r.co.il/articlet.asp?type=mamar&;i=63).  Of course, no-one is
obliged to follow their, or my, reading of the teshuva.
 
Upon rereading the teshuva, I still think my reading is preferable.  It
does not seem that the gravity of the case RAE was discussing is the
relevant point.  If it were, why would RAE need to state in his second
sentence that *it is permitted l?tzorech horabbim*?  RAE is stating the
general rule, of which his specific case was a particular example; there is
no hint that it was the extraordinary nature of the case he was dealing
with that justified his decision.    Why even mention l?tzorech horabbim,
when that expression is much weaker in force than hezek horabbim, which is
the expression used in the Gemara and SA?  It seems to me that RAE
understands that a genuine tzorech horabbim is equivalent to, or a subset
of, hezek rabbim.
 
R. Yisraeli's proof from Bava Metzia is persuasive in my eyes, but is certainly equivocal, so I will not bother arguing about it.
 
I apologize to R.ZS for accusing him of ignoring Acharonim or being anyway
unorthodox, as he clearly honestly thinks that his reading of RAE?s teshuva
is preferable to mine, and R. Shaul Yisraeli?s, and R. Rosen?s, and R.
Anselm?s.  The tone and language of my post was prompted by his attack on
R. Eli Turkel and his question *How can you possibly imagine that this law
allows the public to move the grave and build the road?*, as if anyone
claiming such a thing must be either stupid or disingenuous.  Stupid I may
be, but I do think my reading of the teshuva is preferable, and I think
that even my detractors would have to agree that it is tenable, in which
case accusations of *false claims* about what Acharonim held are out of
place.	We are both trying to understand the truth, so there is no room for
accusations.  
 
Putting aside what RAE did or did not mean, the more general point here is
that made by R. Anselm.  We are dealing with an issur derabbanan here (see
the slew of authorities he quotes in his article to substantiate this).  We
have the opinion of the Noda BiYehudah that the issur does not apply to
bones without flesh. We have the pagan artefacts which archaeologists have
extracted from the site (unless they were placed there to test our faith?).
 And we have the fact that mumchim claim that this cheder miun will save
lives and interference with the project will have the opposite effect.	In
those circumstances, I maintain that the violent opponents of the pinui who
had to be dragged away from the site have an agenda which is not simply
dictated by the requirements of shas and poskim.
 
Kol tuv
Dov Kaiser
 


 
 
Dov Kaiser wrote:
 
>> Surely you are not expecting anyone to accept that "mazik et harabim" 
>> and "tzorchei rabim" are in some way synonymous, or even remotely similar!
 
> Well, R. Akiva Eiger and the Nesivos thought so. In a teshuva to the 
> Nesivos (Psakim, 45), R. Akiva Eiger he wrote:
>
> *with respect to disinterring graves, it is obvious (hadavar pashut), as 
> his honour [the Nesivos] wrote, that there is no greater mazik rabim 
> than this. Even if it were already a public cemetery and with public 
> consent (midaas rabbim), nevertheless it is permitted to disinter [the 
> graves] for the needs of the public (l?tzorech horabim), as HaGaon R. 
> Dovid Oppenheim zt'l wrote in his teshuva, which is printed in Responsa 
> Chavos Yair*. 
> 
> Unfortunately, we do not know the details of the case at hand.
 
Exactly. We know nothing of the circumstances, and therefore we can
learn nothing from the case. The only thing we do know about the case
they were discussing is that it was an extreme one: "ein lecha hezek
harabim gadol mizeh". One can speculate all kinds of emergencies that
would justify such language, but the desire to expand a road (or a shul
or a hospital) is not one of them. On the contrary, the fact that RAE
says it's an extreme case, which is justified by kal vachomer from what
we already know, means that we can't expand it beyond what we already
know. Dayo leva min hadin lihyot kenidon. RAE's case was one in which
the heter was *more* obvious than in the Chavot Yair's case, not less
obvious.
 
 
> But as 
> R. Rosen points out in the article I have already cited on Areivim (see 
> http://www.zomet.org.il/?CategoryID=263&;ArticleID=597 ), it is clear 
> from this teshuva that both R. Akiva Eiger and the Nesivos held that 
> *hezek rabbim* in YD 364:5 encompasses *tzorchei rabbim*, and therefore 
> one may disinter graves, even of a public cemetery, in order to enlarge 
> a road or some other public need (not just if the road was there already 
> and the graves were discovered later).
 
R Rosen does not "point this out", he merely asserts it without any
argument to support him. It is not clear at all that 'hezek rabbim'
"encompasses" 'tzorchei rabbim', whatever that means. It is *certainly*
not clear, in fact it's not at all implied, that one may do any thing.
This is what lawyers call "conclusory". I do not believe that you can
demonstrate the logic to get from A to B. Without knowing what RAE was
talking about, how can you possibly get to the conclusion that he was
talking about expanding a road, or that his psak would apply to such a
purpose?
 
 
 
> You are certainly entitled to read the Gemara and SA differently from
> R. Dovid Oppenheim, the Nesivos and R. Akiva Eiger
 
No, I am not. But you are not entitled to put your own ideas into their
mouths and adopt their authority for whatever you like to say. We know
what the Chavot Yair's case was, and we know that RAE's case was even
more obvious than that. Neither case was in any way comparable with
expanding a road, or any other generic "tzorchei rabbim".
 
 
> especially when it emanates from such greats as R. Akiva Eiger.
 
It doesn't. The claim that it does is insupportable.
 
 
> And even if you think it is a legitimate 
> approach to disregard Acharonim in formulating halacha
 
I am *not* the one disregarding Acharonim here. To the best of my
knowledge *no* Acharon says anything like what you are claiming.
 
 
> you certainly can?t accuse those who follow the mainstream approach
> of making things up.
 
What mainstream approach? Who is this "mainstream" that takes this
approach?
 
 
 
> Language such as *How can you possibly imagine that this law allows 
> the public to move the grave and build the road?* appears just a bit 
> over the top when great Acharonim imagined just such a thing.
 
Then perhaps you can name a few, *and* show why you think they did so.
I categorically deny that either the CY or RAE wrote any such thing,
and it's not exactly kavod to them to falsely claim that they did.
 
 
> Also, as 
> I have pointed out before in this forum, I think this sort of language 
> on A/A creates more heat than light, to use a cliche, and lowers the 
> tone of discussion.
 
I think misattributing opinions to authorities who never held them
lowers the discussion a whole lot more.
 
 
> Getting back to the substantive argument, I concede that the original 
> teshuva of R. Dovid Oppenheim is arguably distinguishable from our case. 
> In that case, a shul had collapsed, and bones of nochri corpses were 
> found in the ground during rebuilding works. You could argue that the 
> rebuilding of a shul is a bigger tzorech horabbim than the building of 
> an emergency room in Ashkelon.
 
"Tzorech harabbim" is not the issue. The issue is "hezek harabbim",
and in the case of an existing shul the hezek is there, while in the
case of a *non*-existing ER it is not. If this were merely a
proposed shul, or even a proposed expansion of an existing shul, you
have no basis for assuming it would be permitted.

 
> On the other hand, you could also argue 
> the other way. R. Rosen quotes a teshuva of R. Shaul Yisraeli, who 
> refers to Bava Metzia 24b, which permits lopping a tree next to a city, 
> even if the tree was there first.
 
However the city is there now, and it is assur to have a tree within
its migrash. Therefore the tree must go. And of course there's no
issur in doing so, since it doesn't belong there.
 
 
 
> Rashi there explains *sheyesh noi 
> l?ihr k?sheyesh merchav panui lefaneha.* R. Yisraeli uses this to show 
> that even something which aimpinges on the aesthetic quality of a city 
> is a hezek d?rabbim.
 
And his conclusion is so radical that even R Rosen isn't ready to
accept it. Well, now we're no longer discussing Acharonim. Nobody
today is required to accept RSY's logic or psakim.
 
 
> I feel obliged to restate on Avodah something which I already posted on 
> Areivim. The issue of pinui kevarim has become one of those *red rag to 
> a bull* issues which, like heter mechira, has left the realm of 
> civilized halachic discourse (at least for some ? and I am not referring 
> to R.ZS here) and become a catalyst for machlokes of a different kind.
 
Perhaps it's the other way around, and some people's dedication to the
zionist project makes them refuse to listen to any argument in favour of
leaving kevarim alone. Perhaps this is what leads them to misrepresent
authorities in their support. As for me, my only agenda is a close and
careful reading of the sources, and not reading into them more than they
say. I have no skin whatsoever in the specific issue. Perhaps moving
the graves is indeed permitted, and if so I would have no objection; all
I've ever maintained is that such permission can't confidently be derived
from the sources cited. If it is permitted, then that permission must
be derived from other sources. 
                                          
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