Volume 34: Number 126
Sun, 09 Oct 2016
Subjects Discussed In This Issue:
Message: 1
From: jay
Date: Thu, 6 Oct 2016 13:23:26 -0600 (CDT)
Subject: [Avodah] Piquax Nefesh When Someone Endangers His Own Life
> .... He gave the example of someone in mortal danger who refuses to
> eat [on Yom Kippur] unless a minyan of Jews eats along with him. In
> this situation the entire minyan is allowed to eat.
Allowed to eat, or required to eat? And we are talking about eating
more than the shi`ur that triggers the issur kareth, yes?
Even if it is only "allowed", it is a problematic halakha. If a man
refuses to eat, to the point where he is near death, unless a woman
has sexual relations with him -- and the doctors agree that he will
die unless she complies -- she is not allowed to have sexual relations
with him outside of marriage; she is not even required to speak to him
from behind a wall. We say, Let him die. How do we understand the
difference between these two rulings? Eating on Yom Kipper is an
issur kareth; sexual intercourse outside of marriage, if the laws of
Nidda are observed, is at worst an issur lav, and, according to many
Rishonim, not even that. Clearly, despite our talk about the infinite
value of human life, there are other considerations at work here.
Jay F. ("Yaakov") Shachter
j...@m5.chicago.il.us
http://m5.chicago.il.us
"Quidquid latine dictum sit, altum videtur"
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Message: 2
From: Micha Berger
Date: Thu, 6 Oct 2016 15:47:46 -0400
Subject: Re: [Avodah] N'kom L'aynaynu
On Thu, Oct 06, 2016 at 09:06:39PM +0300, Lisa Liel wrote:
:> It does appear that a wise person doesn't think anything is worth
:> neqamah.
: WADR, I don't see how that Rambam is relevant at all to n'kom
: l'eineinu. Rambam raui lo *l'adam*. That it's good midot for an
: individual to let things go...
Ma'vir al midosav -- "letting things go" means not needing Hashem to
enact revenge on my behalf either, no?
: it's assur not to. But we're talking about the tzibbur. And when
: our tzibbur is oppressed, that calls for vengeance. Public
: vengeance. Because it's a chillul Hashem for His people to be
: oppressed, so it requires a public vengeance to repair it.
As I put it it: no revenge qua revenge, but to show the world yeish din,
veyeish Dayan. And thus... "neqom *le'eineinu*".
There's isn't a similar notion of an iqur emunah that "yeish Noqeim".
And as the Rambam said, wanting neqamah may be permissible, but it's
petty and we should aim higher, when we can.
GCT!
-Micha
--
Micha Berger What we do for ourselves dies with us.
mi...@aishdas.org What we do for others and the world,
http://www.aishdas.org remains and is immortal.
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Message: 3
From: Micha Berger
Date: Thu, 6 Oct 2016 16:32:49 -0400
Subject: Re: [Avodah] Geonim, Rambam and Other Rishonim on Mesorah and
The Rambam, on when halakhah can be overturned, from Mamrim 2:
2:1- A law made by derashah, ANY later beis din can overturn. "veDan
kefi mah shenir'eh be'einav."
2:2- A gezeirah, zaqanah or minhag requires a beis din hagadol mimnu
bechokhmah uveminyan.
3:2- A siyag cannot be overturned at all.
The contrast betwen halakhah 1 vs 2 & 2 is due to the Rambam's
Accumulative model. Legislation is a matter of legal authority of the BD
that made the new law. But interpretation of existing law is a matter of
correctly understanding the Torah or the legislating BD. So, whatever the
"shofeit asher yihyeh beyamim haheim" thinks is the truth is din.
Which I presume is because he holds like BB 130b-131a.
ROY (intro to Halikhos Olam) cites R' Chaim Volozhiner (shu"t Chut
haMeshulash #9, Ruach haChaim on Avos 4:4) as invoking this gemara to
explain why RCV didn't follow all of the Gra's pesaqim.
This (2:1) stands in contrast to (eg) the Tur and Beis Yoseif CM 25,
who limit even overturning a ga'on's rulingt "ela bequshya mefursemes,
vezehu davar she'enah nimtzah". The Tur (citing the Rosh) considers
overturning pisqei ge'onim to be to'eh bidvar mitzvah.
See also the Mechaber, in Kesef Mishnah on 2:1.
R Chaim Brisker, who holds that later eras are in theory empowered to
overturn earlier pesaqim, but we refuse to excercise that power out
of kavod, would apparently hold like the Rambam. (No surprise, there.)
On Tue, Sep 27, 2016 at 04:26:21PM -0400, H Lampel via Avodah wrote:
: If I understand you correctly, you are saying that it is only Rambam's
: acceptance of an "Accumulative" view, that allowed him to maintain that
: a Beis Din Gadol could second-guess the drash of a former one, but the
: Ramban's and Ran's view does not provide that power.
: But RMH himself wrote,
:
: ...it is the court that constitutes this meaning out of the
: multiplicity of given options. It comes as no surprise, then, that in
: the Constitutive View generational gaps are in theory not crucial.
: Indeed, the Ran continues to say:"Permission has been granted to
: the rabbis of each generation to resolve disputes raised by the
: Sages as they see fit, even if their predecessors were greater or
: more numerous. And we have been commanded to accept their decisions,
: whether they correspond to the truth or to its opposite.
This is not an example of overturning a conclusion, but closing a question
they left open. As he translates the Ran "to resolve disputes raised by
the sages".
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.
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Message: 4
From: Micha Berger
Date: Thu, 6 Oct 2016 17:11:31 -0400
Subject: Re: [Avodah] Chronology: Aruch Hashulchan and Mishne Brurah
On Wed, Oct 05, 2016 at 10:37:09PM -0400, Akiva Miller via Avodah wrote:
: My reason for citing all this is as follows: RMB claims that "the MB was
: written before AhS OC", but that is not accurate. The list does prove that
: the AhS on Hilchos Shabbos was written after the MB on Hilchos Shabbos.
MB publication dates (acc "The Chafetz Chaim", pg 603, by R Moshe M
Yoshor):
vol 4: 1884
vol 1: 1886
vol 2: 1891
vol 3: 1898
vol 5: 1902
vol 6: 1906 (19 Marcheshvan 5667, 7 Nov)
So, that would give the AhS a 22 year window in which to complete
OC while still finishing first.
The AhS was published qunterus by qunterus, and collected into
book-length volumes by his daughter. The qunterusin came out from
1884-1893.
So, some of the AhS did come out after the MB. Perhaps even some of
its OC.
RYH cited himself (Benei Banim 2:8) in an earlier iteration. He said
his grandfather RYEHenkin held the AhS was the more authoritative seifer
of pesaq, giving a number of reasons. One was that nearly all of the AhS
post-dates the MB.
Which is really all I meant. I just didn't bother with the "nearly all"
for what was a tangent.
BTW, RYEH's other reasons:
2- The AhS will cite the MB before giving his own pesaq when he knows he
is being choleiq.
3- It covers the entire SA. (Again, "nearly all".)
4- He takes accepted practice into account.
5- RYME was a practicing rav, who had a qehillah and more hands-on
experience in halakhah lemaaseh.
(Interestingly, he does not cite RSMandel's reason: The MB tells you what
it's for -- to help posqim who might not own all the latest acharonim.
The CC doesn't say he is out to provide pesaq itself.)
GCT!
-Micha
--
Micha Berger You will never "find" time for anything.
mi...@aishdas.org If you want time, you must make it.
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Message: 5
From: Micha Berger
Date: Thu, 6 Oct 2016 16:38:26 -0400
Subject: Re: [Avodah] workers right
On Wed, Sep 28, 2016 at 04:15:22PM +0300, Eli Turkel via Avodah wrote:
: The Chofetz Chaim wrote many different seforim. I once heard that he said
: that if can only buy one
: of his seforim it should be "ahavas chesed" . Neverthless this sefer seems
: to be "ignored" by many. While of course the MB is popular there are groups
: to learn shmirat halashon. Are there any groups to study ahavas chesed?
Is this a call to start one?
GCT!
-Micha
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Message: 6
From: Eli Turkel
Date: Fri, 7 Oct 2016 13:12:42 +0300
Subject: [Avodah] 2 days RH
We keep today 2 days RH even in EY basically for historical reasons of
doubt in the past. In fact the Baal Hamaor claims that there were periods
of time in the early middle ages where only day of RH was kept in EY since
we now have a permanent calendar
Rav Dessler asks that if so the 2nd day of RH is not the "real" RH. If so
how we can say in our prayers that today we are being judged, today is the
day the world conceived (hayom haras olam), today the books of life are
opened etc.
I was not clear about his answer. Assuming the two days are for different
types of "din" what happened before the institution of a 2 day RH and
during the period the Baal Hamaor describes.
Are people from EY and chutz la-aretz judged on different days.
Basically the question boils down to the question of how a takanah of the
rabbis can effect heavenly judgement
--
Eli Turkel
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Message: 7
From: Micha Berger
Date: Fri, 7 Oct 2016 11:03:09 -0400
Subject: Re: [Avodah] workers righs
On Sun, Oct 02, 2016 at 05:35:26AM -0400, Akiva Miller via Avodah wrote:
: From this tiny snippet, I can only guess what the CC's reasoning might have
: been, and that guess is along the lines of "It is better to be a m'tzuveh
: v'oseh, but if you pay before the wages are due then you'll be merely an
: aino m'tzuveh v'oseh."
Well, I don't think it's an eino metzuveh ve'osah, even. If one pays
immediately after the job is completed, one is fulfilling both the
mitzvah of keeping one's word (hin / "hein" tzedeq) and lo salin. If
one pays before then, even if that's the contract, one loses lo salin.
But of course, if that is the contract, hein tzedeq would trump the
creating an opportunity to fulfill lo salin.
I assume you are also concerned with the worker who really needs the
money. In which case, I don't know if the CC would also recommend creating
an opportunity to fulfill lo salin trumps giving tzedaqah when the guy
really needs it.
I too need to see inside; my inclination is to deminish the implication
to "all else being equal" situations.
: While this logic may be valid technically, it is hard for me to imagine
: that the Chofetz Chaim would advise us to do a mitzvah in a way that gives
: the employer more s'char, rather than doing it in the way that the employee
: prefers.
I dunno... I think it's leshitaso. The CC has a very deontological
(morality as rule-obedience) view of morality, and you're thinking
consequentialist. Remember, we're talking about the first rav who
thought it necessary to pin down hilkhos shemiras halashon into a
codified format. Until then, we were apparently happy enough with a
moral do-what's-obviously-right approach.
Remember also his pesaq (CC part I, 4:12) WRT asking mechilah for
something the person doesn't know you spoke LH about him, and will be
hurt by finding out. The CC held he should; RYS was so against this 1
pesaq, he wouldn't give a hasqamah to the entire book!
GCT and :-)@@ii!
-Micha
--
Micha Berger If you won't be better tomorrow
mi...@aishdas.org than you were today,
http://www.aishdas.org then what need do you have for tomorrow?
Fax: (270) 514-1507 - Rebbe Nachman of Breslov
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Message: 8
From: Micha Berger
Date: Fri, 7 Oct 2016 10:46:51 -0400
Subject: Re: [Avodah] 2 days RH
On Fri, Oct 07, 2016 at 01:12:42PM +0300, Eli Turkel via Avodah wrote:
: Rav Dessler asks that if so the 2nd day of RH is not the "real" RH...
: I was not clear about his answer. Assuming the two days are for different
: types of "din" what happened before the institution of a 2 day RH and
: during the period the Baal Hamaor describes.
A strict rationalist would say that any time set of teshuvah is inherently
a time for judgment. Rather than the other way around. After all, a
person who knows that these 10 days are "the right time" for teshuvah
and doesn't use it, or *how* he choose to use it, says much about where
he is and where he is going. Much more than the rest of the year.
: Basically the question boils down to the question of how a takanah of the
: rabbis can effect heavenly judgement
Well, that last question is true for the first day too. After all, it's
up to the Jewish People to decide when rosh chodesh is, when the year
is me'uberes, etc... So even the judgment of the first day is timed by
taqanos of the rabbis.
This same question comes up WRT shemittah -- does shemittah derabbanan
come with a berakhah in the 6th and 8th years? And the CI's teshuvah
prohibiting heter mechirah assumes it does.
We have discussed this repeatedly. And see also
http://www.aishdas.org/asp/safeiq-derabbanan
Or WRT whether chicken parmesan causes timtum haleiv. The Meshech Chokhmah
says no -- only deOraisos reflect how the universe was made. Which is why
we can say safeiq derabbanan lehaqeil. R Elchanan Wasseman disagrees.
And the SA haRav has a position more like your context. He says that YT
sheini shel galios is a connection to the very same supernal and lemaalah
min hazeman of the holiday as the first day is. It's the nature of the
connection to the metaphysical reality that differs, not what is being
connected to.
REED (MmE 2:74-77) appears to be saying something similar. That in EY
and at certain times, we have less need to connect to dina rafuya, and so
we only have the dina qushya of the first day. After all, dina rafuya is
more necessary when one stands in judgment as a yachid. If the needs the
services of a condemnded man, he will be brought back from the gallows.
But Jewish society in EY places one firmly within the tzibbur, both
current and historical.
GCT and :-)@@ii!
-Micha
--
Micha Berger Between stimulus & response, there is a space.
mi...@aishdas.org In that space is our power to choose our
http://www.aishdas.org response. In our response lies our growth
Fax: (270) 514-1507 and our freedom. - Victor Frankl, (MSfM)
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Message: 9
From: Micha Berger
Date: Fri, 7 Oct 2016 10:50:39 -0400
Subject: Re: [Avodah] KeViAs Seudah, MeZonos HaMotzi
On Tue, Sep 27, 2016 at 09:25:50PM -0400, Akiva Miller via Avodah wrote:
: For example, let's take a look at the middle of MB 639:46: <<< The minhag
: of the whole world follows those poskim who hold that we never say Layshev
: except when eating. Even if they sit in the sukkah for an hour before
: eating, they don't say Layshev, because they hold that it is all covered by
: the bracha that they'll say later on, when eating, because that's the ikar
: and it covers the sleeping and the relaxing and the learning, which are all
: tafel to it. >>>
I am reminded on RYBS's explanation of the Brisker shitah of sitting for
havdalah. They see the 3 se'udos and havdalah as one extended shulchan
Shabbos. And since one sits for qiddush (Vayekhulu aside), it closes
with one being seated as well.
Perhaps the whole Sukkos is one trip to the Sukkah, just as there is one
Shabbos table. With the se'udos being highlights.
GCT and :-)@@ii!
-Micha
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Message: 10
From: Micha Berger
Date: Fri, 7 Oct 2016 13:51:09 -0400
Subject: Re: [Avodah] Rav Melamed on Metal Pots
On Wed, Oct 05, 2016 at 11:37:42PM -0400, Akiva Miller via Avodah wrote:
: R' Micha Berger and I keep writing in this thread, but there seems to be a
: communications problem...
We therefore took the conversation off-list for a bit. Judging from RAM's
response to my last email, I think I figured out how to formulate what
I am trying to say in a way that is comprehensible. So, I would like to
share it here.
Kefeilah alone is an insufficient criterion to determine whether or
not a keli has a ta'am. There is also shishim. Machloqes rishonim,
about what the rule of kefeilah means:
1- BY, based on the Ramban: There is no bitul beshishim if the kefeilah
can taste it. So, you need both ratio and taste.
2- Rashi: Bitul beshishim is only if the kefeilah can taste it or if
there are none available. You need ratio, confirm with taste when you can.
3- Ri, Rambam: There is bitul even if the proportion is greater than 1:60
if the kefeilah cannot taste it. So you need either ratio or taste. (The
AhS explains that what a chef might taste of a 1:60 minority is so
weakened, it's not real ta'am.)
(The above is from earlier in this self-same thread -- but all the way
back on Sep 12th. http://www.aishdas.org/avodah/vol34/v34n112.shtml#11 )
So the idea of kefeilah, lekhol hadei'os, is not that ta'am means
biological taste. Every shitah has a role for bitul beshishim. And since
biological taste is part of psychological ta'am, this combination of
ratio and experiment fits psychology more than biology.
[RAM, offlist,] wrote something about middos vs halakhah. FWIW, you're
talking to someone who believes that the iqar of halakhah is to be a
set of mussar exercises. To quote R' Shimon:
Yisbarakh HaBorei, Veyis'alah haYotzeir [note the rashei teivos]
who created us in His "Image" and in the likeness of His "Structure"
vechayei olam nata besocheinu
so that our greatest desire would be to benefit others
individuals and the community
now and in the future
in the likeness of the Borei, kaveyachol
"Vechayei olam nata besocheinu" -- i.e. gave us the Torah (c.f. Birkhas
haTorah), "so that our greatest desire would be to benefi others" --
mussar, no?
It requires serious mysticism to believe the mitzvos work through a
means other than their impact on experience. And even within mysticism,
according to the Nefesh haChaim (this is a big part of cheileq 1),
their impact in higher olamos is via the impact on experience and the
soul of the person doing them. After all, it's only the human soul that
is betzelem E-lokim and combines kochos from all the olamos; it's the
only conduit from actions in this world to higher ones.
And given that central role of experience, then we can continue using
Aristo's common-sensical Natural Philosophy even thought our brains know
that experiments and science describe objective reality better. Because
even practiced baseball players in the field run to get under the ball,
and then slowly correct for the parabolic trajectory the ball actually
follows.
And if most people will talk themselves into tasting something that
doesn't really have a taste, then it has ta'am. As long as the psyche
connects the pot to meat, or halakhah believes that someone with the
right sensitivities would.
GCT and :-)@@ii!
-Micha
--
Micha Berger Life is complex.
mi...@aishdas.org Decisions are complex.
http://www.aishdas.org The Torah is complex.
Fax: (270) 514-1507 - R' Binyamin Hecht
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Message: 11
From: Micha Berger
Date: Fri, 7 Oct 2016 14:34:06 -0400
Subject: Re: [Avodah] Are "Hashem" and "Elokaynu" valid Shaymos?
On Tue, Oct 04, 2016 at 11:14:24PM -0400, Akiva Miller via Avodah wrote:
: 1) Mechaber 583:1 says that when eating the rubia on RH night, one says <
: YH"R sheyirbu zechuyosaynu. >
:
: 2) Mishneh Berurah 583:2 cites "Beis Yosef and other poskim", that the full
: text is < Yehi ratzon milfanecha D' EV"A sheyirbu zechuyosaynu. >
And skipping ahead a bit:
: After writing the above, I looked at the Beis Yosef that the Mishne Brurah
: had referred to. It is in siman 583, "Umah shekasav Rubia". It is
: interesting to note that (in my edition) he uses a different abbreviation
: than the Mishne Brurah used, namely: < YRM"Y EV"A > One could argue that
: the Mishna Brurah's use of a Dalet suggests that indeed one might say the
: two-syllable "Hashem", but it is pretty obvious to me that the Beis Yosef's
: use of a Yud refers to the three-syllable "Ado---".
And in between:
: I thought that this Mishne Brurah was clear evidence that the shaymos
: should be pronounced properly, but he was not convinced, and pointed to the
: Mishneh Brurah's use of the abbreviations as ambiguous.
All three purport to be the position of the same person. I would therefore
assume that the publisher's choice of "Yehi Ratzon milfanekha D' EV"A"
in the MB means the same thing as the Tur publisher's choice of "YRM"Y
EV"A". And I would assume the publisher of the SA really meant "YH"R
... sheyirbu zekhuyoseinu". Like the way other places in the SA have
"Barukh ... asher qidishanu bemitzvosav" and leave the insertion of
sheim Hashem implied.
Which is only possible if the SA's and MB's publishers were actually
avoiding a real sheim. The only likely road (the only 1 managed to find)
breaking your ambiguity.
So I would conclude that the mechaber actually expected use of the sheim,
as per the MB.
Touching on the actual RH question for a moment... I could see making a
distinction between the Yehi ratzon on a siman that dates back to Chazal,
and that made on a later siman -- apple-n-honey, carrots,
or lettuce - half-a-raisin - celeray.
...
: I perceive a Catch-22, and I'd like comments on it. On the one hand, if one
: says "Hashem" and "Elokaynu" to avoid saying it the correct way, doesn't
: that make a farce of the whole minhag? And on the other hand, if one argues
: that "Hashem" and "Elokaynu" ARE valid Shaymos, then what is gained by
: pronouncing them that way?
There are really three categories: the official sheimos used in Tanakh,
other names of G-d, and kinuyim.
Didn't this happen historically? First there was the three yud kinui, in
a triangle, which (in response to abuse by trinitarians) became two yuds.
Then two yuds became too much like a sheim rather than a kinui, so we
switched to using H' or 4'.
Kinui inflation.
In the days of rishonim (the 2"y" era), "hasheim" refered to G-d's
reputation, not G-d himself. E.g. in the Rambam, you'll find "qiddush
hasheim" and "chillul hasheim", but never /Hei-shin-mem/ to refer to G-d.
One of the writers for Kollel Iyun haDaf writes "Hash-m" (or is it
"HaSh-m"?). Strikes me as "too much". OTOH, I grew up writing "G-d",
which is actually a name of the Creator that was borrowed from the
title of the Trinitarian Deity! Whereas RYBS famously held "God" was
perfectly appropriate. (See personal recollection by R/Dr Josh Backon
at <http://www.aishdas.org/avodah/vol06/v06n045.shtml#10>.)
I ended up deciding that while writing "G-d" may indeed be unnecessary,
investing effort to unlearn the habit was lese-Majeste.
That could be wrong. I am just reporting what feels like kibud to me.
But if it is valid, perhaps we could say the same. "Hashem" goes from
being a kinui to a Judeo-English name of G-d when usual practice is
to write "Hash-m" rather than write it out. You know poeople are using
it like a name when it feels more natural to treat it like one. And if
people need to place effort into treating it like a kinui, they shouldn't.
But again, no meqoros to that; just what feels right from first
principles.
BTW, if it wouldn't look even weirder than my qufs, I would translaterate
it as "<Hashem>" like "<Ploni> ben <Ploni>". After all, it's really an
instruction to the reader or listener, "<name>" like <insert the Creator's
name here>.
Or:
Blessed are you _______ our G-d...
(name)
GCT and :-)@@ii!
-Micha
--
Micha Berger "I hear, then I forget; I see, then I remember;
mi...@aishdas.org I do, then I understand." - Confucius
http://www.aishdas.org "Hearing doesn't compare to seeing." - Mechilta
Fax: (270) 514-1507 "We will do and we will listen." - Israelites
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Message: 12
From: Eli Turkel
Date: Sun, 9 Oct 2016 18:08:56 +0300
Subject: [Avodah] teshuva
I recently a quote from ROY that is based on the comparison of teshuva to a
mikvah. He argues that just like a mikvah if part of the body is outside
the water then nothing is purified so too with teshuva if a person isn't
willing to ask for forgiveness for one sin then G-d doesn't grant
forgiveness for all the other sins. He gives the xample of someone who is
not willing to give up shaving with a razor. Then G-d does not purify him
from his sins. Each sin is connected to a limb in the body and this person
is "missing" some sin and so he is not forgiven for his sins until he
accepts all mitzvot.
This goes against everything I have learned. I was always taught that the
ordinary person should work on improving himself in one area. Sure the
greatest level is when a person completely changes his personality.
However, that is too difficult for most people and therefore they should
strive to improve in one area of their lives, i.e. take on a "new years
resolution" that this year I will be more careful about saying brachot etc.
--
Eli Turkel
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Message: 13
From: H Lampel
Date: Sun, 9 Oct 2016 20:24:46 -0400
Subject: Re: [Avodah] Geonim, Rambam and Other Rishonim on Mesorah and
On 10/6/2016 4:32 PM, Micha Berger wrote:
> The Rambam, on when halakhah can be overturned, from Mamrim 2:
> 2:1- A law made by derashah, ANY later beis din can overturn. "veDan
> kefi mah shenir'eh be'einav."
> 2:2- A gezeirah, zaqanah or minhag requires a beis din hagadol mimnu
> bechokhmah uveminyan.
> 3:2- A siyag cannot be overturned at all.
> The contrast betwen halakhah 1 vs 2 & 2 is due to the Rambam's
> Accumulative model. Legislation is a matter of legal authority of the
> BD that made the new law. But interpretation of existing law is a
> matter of correctly understanding the Torah or the legislating BD.
> So, whatever the "shofeit asher yihyeh beyamim haheim" thinks is the
> truth is din.
> Which I presume is because he holds like BB 130b-131a.
--the mekor Rav Hai Gaon cites in advocating for this view.
> ... On Tue, Sep 27, 2016 at 04:26:21PM -0400, H Lampel via Avodah
> wrote:
[DIFFERING WITH A PREVIOUS BEIS DIN GADOL
At the end of your second response, you wrote,
> in a Constitutive system [attributed to Ritva, Ramban and Ran, vs
> Rambam who is said to hold the ''Accumulative'' system], whatever
> shitah he [Osniel ben Kenaz, in retrieving through his pilpul the
> forgotten laws supported by the 13 middos shehHaTorah nidreshess
> bahen--ZL] justifies would then be the version of divrei E-lokim
> Chaim that is the new din.
> With a HUGE resulting difference in the power of later authorities to
> second-guess those conclusions.]
> ZL:
>: If I understand you correctly, you are saying that it is only Rambam's
>: acceptance of an "Accumulative" view, that allowed him to maintain that
>: a Beis Din Gadol could second-guess the drash of a former one, but the
>: Ramban's and Ran's view does not provide that power.
And now I add, I don't see why holding that Hashem told Moshe to transmit
opposite verdicts, between which future sages were to choose, would
entail opposing the Rambam's view about the power of later authorities
to second-guess the conclusions of earlier ones. On the contrary: If,
as alleged, the Ran holds the decision is not based on anchorage to
an original intent, that would seem to give plenty leeway for sages to
disagree with the conclusions of an earlier generation.
> :ZL: ...RMH himself wrote, :...it is the court that
> constitutes this meaning out of the multiplicity of given
> options. It comes as no surprise, then, that in the
> Constitutive View generational gaps are in theory not crucial.
> Indeed, the Ran continues to say:"Permission has been granted to
> the rabbis of each generation to resolve disputes raised by the
> Sages as they see fit, even if their predecessors were greater or
> more numerous. And we have been commanded to accept their decisions,
> whether they correspond to the truth or to its opposite.
> RMB: This is not an example of overturning a conclusion, but closing
> a question they left open. As he translates the Ran "to resolve
> disputes raised by the sages".
Let me break up the Ran's wording into three parts:
And He transmitted to him a rule through which the truth will be
known, and that is, ''acharei rabbim l'hatos,'' and similarly, ''lo
sasur min hadavar asher yahid lach.'' And when machlokess increased
among the chachamim, if it was and individual against a multitude,
they would establish the halacha as the words of the majority; and a
multitude against a multitude, or an individual against an
individual, as seen by the sages of that generation. For the
decision was handed over to them, as it says, ''And you shall come
to...the judge that will be in those days...and they will tell you
the verdict,'' and similarly, "lo tasur."
Behold [this means] that He gave permission to the sages of the
generations to decide between opinions in machlokess of the sages
according to how it seems to them.
And even if those who preceded them were greater than them and
more numerous than them, for such it is that we were commanded to
follow that consensus of the sages of the generations who will agree
to the truth or otherwise, and this is made clear in many places.
It's true that in the first part he is specifically speaking of where
the sages are not opposing a past majority opinion. But, especially in
view of the third part, I see the second part as abstracting the
principal to broaden its application, acting as a segue to the last
part, which then expands it even further, to allow them to side againsta
majority of the past ''even if those who preceded them were greater than
them and more numerous than them, for such it is that we were commanded
to follow that consensus of the sages of the generations who will agree
to the truth or its opposite.''
I.e. the Ran is saying that the principal behind the permission given to
the sages of each generation to follow their own reasoning to decide
between open questions, entails their ability to disagree even with the
conclusions reached by the majority of sages in the previous generation.
If the Ran was still speaking of merely deciding issues disputed by two
multitudes,why would the circumstance that the sages of either side were
greater or more numerous than they, require their being given permission
to resolve that question? And what would one think instead? That they
are not allowed to address and resolve the question?
Zvi Lampel
???? ?? ??? ??? ?? ???? ????, ???? ???? ???? ?????, ??? ?? ???? ?? ????
??? ????? ?? 96 ?. ?????? ???????? ??? ??????, ?? ??? ???? ??? ???? ???
?????? ???? ????? ???????, ??? ???? ??? ???? ?? ???? ??? ???? ??? ?????
????? ???? ????, ???? ????? ??? ??????. ????? 97 ?: ???? ?? ?????? ?????
?? ?? ????? ??? ???? ????? ??? ????? ?????? ?? ?? ?????, ??? ?? ????.
??? ???? ???? ????? ?????? ?????? ??????? ?????? ??? ????? ???, ??????
?? ???? ??????? ??? ?????? ??? ????? ???, ??? ??????? ???? ???? ?????
???? ?????? ??????? ???? ?? ?????, ??? ????? ????? ?????? 98 ??
[Email #2]
RMB: The difference between these two models is more whether:
1- G-d gave neither position at Sinai, and the poseiq's job is to
extrapolate and interpolate from what we have to created new positions
than then "Accumulate", or
2- Hashem gave both positions at Sinai and therefore it is the job of
the poseiq to decide which shitah should be "Constitute" the din.
IOW, how do we understand "peirush" -- is it a tool for posqim to use
> to invent new halakhah, or something inherent in the Torah for posqim > to discover?
ZL: To my mind this is not a matter of either/or. As I see it, all hold
that analysis of pesukim to reach a ''Peirush'' thereof is a tool for
poskim to use to discover ''new'' halachos that were inherent in the
Torah for them to discover. When Chazal-poskim did not have extant data
from predecessors sourced to Sinai that explicitly addressed a situation
(remember, Rambam begins his Mishnah commentary stating that Moshe
received and transmitted every detail of performance for every mitzva),
they looked to statements from them from which they could decipher the
correct halacha. They also utilized drashos of pesukim and a tool with
which to extract and thereby discover halachic details inherent in those
pesukim (because they were so encoded in them by Hashem, who also
provided the methods of drash).
> > : 1) Together with every mitzvah that HaKadosh Baruch Hu gave to >
Moshe : Rabbeynu, He gave its payrush... and everything included in >
the : posuk... This is the meaning of the statement, "The general >
principles, : the particulars, and the details of the entire Torah >
were spoken on : Sinai" (Sifra, Vayikra 25:1)," namely, that those >
matters which may : be extracted through the interpretive rule of > "the
general reference : written in the Torah followed by a > particular
reference," or through : any of the other interpretive > rules, "were
received by us through Moshe : [who received them from > God] on Sinai."
> > Rambam here tells you that by "peirush" he means the former -- we >
received through Moshe the interprative rules for creating the >
particulars.
Technically, in this passage (as opposed to the one in Shoresh Shayni of
Sefer HaMitzvos, about Osniel ben Kenaz) the Rambam is speaking of
drashos found to support already known details that were known to have
been explicated by Hashem. But if you merely mean to say by extension
that when these rules, having been given at Sinai, are used to generate
details no longer extant, the results have Hashem's imprimatur, then I
agree. But again I go a step further and say they were rightly
confident,successfully reconstructed the originally intended detail
accurately ( just as the sages were confident that Osniel ben Kenaz was
successful in accurately retrieving the new mitzva-details originally
generated while Moshe Rabbeynu was alive, but which became lost upon his
death).
> He could equally as well be saying the latter definition [of > "peirush" --... something inherent in the Torah for posqim to >
discover], except that this would require ignoring how the Rambam >
himself says machloqes works.
I don't see how Rambam's explanation of how machlokess works is at odds
with the fact that the sages saw the peirushim of pesukim as being
inherent in the Torah's pesukim.--even if you look at the ''anafim'' to
which the Rambam restricts machlokess, as new requirements in ideally
performing mitzvos, or in assigning halachic status to people or
objects. But anyway, machlokos are also about what the original way
mitzvos were meant to be performed, whose protagonists rally proofs from
pesukim not as to a preferable way to perform a mitzva, but as to the
only way.
Now, the latter case brings up a problem, a solution to which bears
seriously on the Rambam's shittah about loss of oral laws Hashem stated
at Sinai. There is a machlokess Tannaim over whether the minimum size of
a sukkah is 4 amos square or 6x6 tefachim or 7x7 tefachim. Yet the
Rambam says that Hashem told Moshe explicitly exactly how to perform
every single mitzva. (He uses Ayin Tachas Ayin never meaning anything
beyond monetary compensation as an example: that pri etz hadar meant an
esrog never was an optional matter. And in using Sukkah as an example,
he lists not only the laws that women, children, sick or travelers are
exempt, but also the minimum and maximum dimensions. And he states
categorically that one of the things Hashem told Moshe was that the
minimum area of a sukka is 7x7. Now, if it is a machlokess, how can the
Rambam assert that Hashem told Moshe the answer, and that this answer
was transmitted just as was the identity of pri etz haddar?
There is no escaping the conclusion that the Rambam holds that 1. Hashem
told Moshe the minimum shiur; 2. That shiur was somehow lost; 3. the
darkei pesak are so efficient in discovering the original intent that by
applying them we can confidently conclude what the original intent was,
and 4.the way machlokess works is that whereas no one would question
whatever was extant from Sinai, the anafim over which there can be
machlokoss include facts that were told at Sinai but for whatever reason
were lost.
> Skipping ahead to where you address that: : One must strive to get a > complete picture of a Gaon's or rishon's : position, and not stop at
> some broadly-worded statements, ignoring further : qualifications...
> > Except here there are no further qualifications. You are arguing
from > example, not contrary explanation. [Frm email #2: You are arguing
> that rishon X couldn't mean what he actually said, because there are
> counter-examples in specific dinim.]
I had asked what I said that you're referring to, and I still don't have
an answer. Where or what is ''here,'' for which there are no further
qualifications? Please quote my words that are arguing from example vs
explanation, where I'm arguing that rishon X couldn't mean what he
actually said because there are counter-examples in specific dinim. What
I wrote immediately preceding "One must strive to get a complete picture
of a Gaon's or rishon's position, and not stop at some broadly-worded
statements, ignoring further qualifications..." was:
A complete reading of the Ramban (Devarim 17:11) and the Drashos HaRan
11 will show
that they held that the obligation to obey Beis Din rests in the supreme
confidence that in a given situation and time, the Beis Din is correctly
corresponding to the original intent.
The Ramban aon Devarim 17:11 and Drashos HaRan 11 are clearly
explanatory and over-arching, not examples in specific dinim.
If, on the other hand, you were skipping back to my citing of Rambam on
shofar, just one of four citations I brought to prove my point, let me
know, and I'll explain why even if the shofar citation were taken
independently of the other three citations, I believe your objection is
not valid.
> At most it would show that the broad statement might be a rule that > yet has exceptions. (Eg the cases where the SA doesn't follow his >
self-declared "beis din".)
There is also the possibility that what looks like an exception to the
rule is really an indication that one should reexamine the rule to see
if he possibly misunderstood it. He may then find that the rule
correctly understood works wonderfully without exceptions.
[email 2:Mashal:
> The Rambam holds a pesaq is a human invention. [It means t]hat G-d > giving the kelalei hapesaq (in grandfather form -- they too were >
subjevt to pesaq over the millenia!) does not mean He gave every >
conclusion, and therefore that both tzadadim could be right.
Not only the Rambam, but the rishonim (R. Nissim Gerondi in Drashos
HaRan and the Ritva) to whom the essay attributes the ''Constitutional
View'' as well, do not say that Moshe's not being directly told which
side of a machlokess to teach means that both sides are right. The Ran
is most explicit that only one side could be right, and the Ritva makes
no statement about correctness. Both explicitly reject the idea that
opposite conclusions can both be true. This does not contradict the fact
that all opinions formed during the process of striving to ascertain the
correct applications of the halachic factors to a given situation, even
those conclusions that are incorrect, form bona fide limud Torah, and in
that sense are divrei E-okim Chaim (a typical approach by rishonim and
acharonim to avoid the impossiblity that Hashem would have given Moshe
contradicting halachos).
> The Rambam couldn't hold that -- it defies Aristo's Logic. Or Boolean
> > Logic. <https://e
> n.wikipedia.org/wiki/Law_of_noncontradiction> > >
The majority of rishonim give HQBH "ownership" of all the > conclusions,
even though they contradict. Choosing not to > reinterpret the gemaros
-- "kulam nitnu miro'eh echad", "49 panim > tahor, 49 panim tamei",
"eilu va'eilu" etc... to fit the Law of > Non-Contradiction.
If it were true, this would be an argument from silence. But it's not
even true. Rashi, Tosefos, and the Ran (and later, Maharshal, Maharal,
R. Yisroel Salanter, R. Yitchak Hutner, R. Gedlaiah Schorr) qualify such
statements in ways that avoid transgressing the law of
non-contradiction. So who are the rov rishonim who do not?
...
> Therefore, according to the Rambam, there could be a solid proof that
> an earlier beis din erred, and then the law would change. Authority > is only an issue with dinim derabbanan (gezeiros and taqanos), and >
who can repeal a law, not with interpetation of existing law. > >
Whereas according to rov rishonim, it's a matter of which BD could >
give more authority to one valid shitah or the other.
I don't understand this sentence.
: to an opposing opinion (such as that of the Karaites) that entailed
: strongly-expressed verbiage...
> My real problem here is that you're calling for an esoteric > interpretation,that the rishonim quoted didn't really mean what they
> said.
Chas V'chalilah!!I utterly oppose that nonsense, and made that clear in
past posts. As you write,
> If the Rambam doesn't mean what the book says, we should just drop > any any attempt to determine what he really did hold. This ways lies
> non-O academic understandings of the Moreh and other such shtuyot; >
the methodology is useless. The esoteric interpretation claims that
Maimonides shrewdly said things he disbelieved. I'm advocating taking a
rishon at his word, and furthermore getting a thorough and complete
picture of a rishon's shittah, and against (a) focusing on one
broadly-sounding statement and ignoring others (broadly stated or
otherwise) that temper and clarify the rishon's position, and (b)
treating the rishon as if he is oblivious to reason and/or to talmudic
passages even if he may not mention them.
> > Jumping back for a bit: : 3) Temura states "1,700 kal vachomers and >
gezeyra shavvos and dikdukei : soferim became forgotten during the >
days of mourning for Moshe, but : even so, Othniel ben Kenaz > retrieved
them through his pilpul... > > The difference being, that in an
Accumulative system, Osniel ben > Kenaz could hypothetically have been
*wrong*; BH he wasn't. There > was a particular shitah that was made
din, and he managed to retrieve > it. Whereas in a Constitutive system,
whatever shitah he justifies > would then be the version of divrei
E-lokim Chaim that is the new > din.
Again, the Drashos HaRan (to whom is attributed the Constitutive system)
emphatically holds that as a rule the analysis produces the emes (Drash
11). And the Rambam (to whom is attributed the ''Accumulative'' system)
also holds that the conclusion of the Bes Din is the version of divrei
E-okim Chaim that is the new din. How do we know Osniel ben Kenaz wasn't
wrong? Because the nation and Chazal recognized as flawless the results
of the methodology, in the hands of experts such as he. (See above
regarding the minimum shiur of a sukkah.)
[Email #3]
RMH and ''Constitutional'' system vs. ''Accumulative'' system
RMH writes,
...unlike Maimonides who claimed that controversy begins with the
introduction of the human component in the creation of halakhah, both
Ritba and Nissim Gerondi describe controversy as rooted in the very
structure of revelation. The body of knowledge transmitted to Moses was
not complete and final ... but rather open-ended, including all future
controversies as well. Moses passed on this multifaceted body of
knowledge and left it to the court in each generation to constitute the
norm.
It is not clear that the Ran (R. Nissim Gerondi) holds that after Hashem
''showed'' him the future sages having their disputes, ''Moses passed on
this multifaceted body of knowledge'' in the sense of explicitly
transmitting opposing conclusions between which the future sages would
pick.
Here is part of the Drashos HaRan:
Since the words of those who declare something tameiand those who
declare it tahor are intrinsically contradictory, it is impossible for
both sides of the dispute to be conforming to the Truth. How then could
we say that they were both told to Moses by G-d? Does G-d have any
doubts as to what the Truth is?! ^But the answer is that G-d [Himself]
commanded us to follow the Sages .... [A]nd we must also believe that if
the Sages should agree to the opposite of the Truth-and we could know
this through a Bas Kol or a prophet-it is still improper to veer away
from their consensus (No. 5).
Now, this approach will satisfy those who hold that there are no reasons
behind the mitzvos at all and that they all simply follow the
[arbitrary] Will of G-d .... But we do not choose this approach. We
believe that everything the Torah warns us against is indeed
[intrinsically] harmful to us, and creates a negative imprint on our
souls, even though we may not know the mechanics behind that process.
Therefore, if the consensus of the Sages is that something [that is
tamei is] tahor, so what?! Won't it still harm us and produce its
natural effect, whatever it is? ? How could the nature of that thing
change itself just because of the Sages' consensus that it is permitted?
This is impossible short of a miracle. It would therefore seem that we
preferably /should/ follow the revelation of a prophet or Bas Kol, which
would tell us the true nature of the thing.
The Torah took means to prevent a misfortune that can always arise, and
that is the divergence of opinions and the creation of machlokess,
almost creating a situation of two Torahs. The Torah's remedy for this
ever-present danger was to hand over to each generation's Sages the
right to resolve halachic questions. For in the majority of cases this
will result in both a remedy [of the problem of machlokess] and the
correct decision.... And even though there is the extremely remote and
practically absurd possibility that they may make a mistake, the Torah did
not concern itself with that remote danger. The risk is worth taking for
the benefit accrued.
Furthermore, I feel that it is really impossible for any harm at all to
come to one's soul by following the Sanhedrins decision ... [F]or the
benefit which the soul receives through [its submissiveness to] the
Sages' decisions and decrees-that is the thing which is most beloved by
Hashem .... One's following their counsel and one's submission to their
words will remove from his soul all the harm produced by eating the
forbidden thing [which the Sages mistakenly permitted]. This is why the
Torah
commanded us, "You shall not turn aside from the thing they tell you,
right or left," [upon which the Tradition comments, even if they tell
you that Right is Left] (Drash 11).
The only difference between the Ran and the Rambam is that the Ran
speaks directly about the Gemora that states that Hashem showed Moshe
the future machlokos without explicitly telling him the correct pesak.
Rambam is silent on that passage. But whether the Rambam takes it
literally or as a poetic way of saying that Hashem left some matters to
be solved by applying the interpretation rules, he and the Ran are in
agreement as to the basics.
?Both the Ran and the Rambam begin their description of the appearance
of machlokess over mitzvah performance with the broad statement that
Hashem taught Moshe the entire oral law.
?Both the Ran and the Rambam then go on to relegate the issues of
machlokess to anafim or details that had to be defined in order to
address circumstances the extant information did not directly address.
?The Ran, even more explicitly than the Rambam, maintains that only one
side of future machlokos represents the truth and Hashem's original intent.
?Both the Ran and the Rambam maintain that the interpretation rules
Hashem gave Moshe, and which Moshe transmitted to the nation would, if
accurately applied, determine which side of future machlokosin is correct.
?Both the Ran and the Rambam agree that Hashem wants us to follow the
results of analysis using the methodologies he prescribed as can be
comprehended through human comprehension, even in the rare instances
where this may be at odds with what can be known through prophecy or bas
kol.
The Drashos HaRan (Drash 7) refers to the majority rule as a means to
uncover an originally intended true side of a machlokess. Regarding the
halakhic disputes and conflicting views held by the sages, he states,
Moses learned them all by divine word with no resolution, every
controversy in detail. But [God] gave him a rule /through which one
knows the truth/, 'Favor the majority opinion'...
The last sentence reads, in Hebrew,
/aval massar lo klall yivadda bo ha-emmess/.
This contradicts the idea that the Ran differs with the Rambam's view
that the sages were invested in recovering an original intent.
Zvi Lampel
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