Avodah Mailing List

Volume 41: Number 79

Sun, 12 Nov 2023

• 1. Re: What Gezeyra is not a Seyag? (Micha Berger)
• 2. Re: Does the psak of bet din evidence the ratzon hashem? (Micha Berger)
• 3. Re: Amora Differing with Tanna (Micha Berger)
• 4. The Halakhos of Humanitarian Pauses (Micha Berger)

I am glad that helped you, but I didn't say anything that wasn't in
my notes from R Sacks' shiur.

(I mentioned this primarily for personal reasons: RZL and I live in
the same neighborhood as R Yonasan Sachs, and RZL might appreciate
attending more of his shiurim if he knew more about their quality.)


On Mon, Nov 06, 2023 at 09:03:29PM -0500, Zvi Lampel via Avodah wrote:
>> The invaluable Yad Peshuta commentary on Mishneh Torah (available on
>> AlHaTorah.org) by Rav Nachum Rabinowitz, zt"l, helped me with my problem.

>> Gezeyra is a general term for a rabbinical prohibition. A Gezeyra that is
>> a precaution against inadvertantly trespassing a Torah prohibition is a
>> Siyag kind of Gezeyra....

This is from the Tif'eres Yisrael, according to my notes.

>> However, there are also rabbinical prohibitions that are not precautions
>> against transgressing Torah prohibitions, but strategies to enhance Torah
>> life, or to prevent denigrating it. They are like Takanos...

R Sacks called these issurim and taqanos "Dinim deRabbanan", but otherwise
this maps straight to what he said.

See also his application to the distinction between dinim derabbanan
and taqanos to understanding shehiyah vs chazarah in bishul beShabbos.
My notes, after the list of categories, a note about dinim derabbanan
vs gezeiros:

   The distinction between the second and third categories is subtle. In
   order to be a din (or issur, or melakhah) deRabanan, the prohibited
   action is one that is similar in purpose to the permitted one.

   In contrast, a gezeira does not even require an action. In the example
   I gave, it was inaction, leaving the pot where it is, that is
   prohibited. Second, the category includes things that are similar in
   means to the prohibited act, and will therefore cause confusion about
   what is and what isn't okay; and things which will allow people to be
   caught up in habit, and forget about the prohibition.
   
   Only a gezeira may defy an actual Divine law (although a pesaq will
   often define one), and even so only under specific circumstances. All
   of the following must be satisfied:

     * The law being protected is more stringent than the one being
       violated. This determination isn't easy.

     * The law is being violated only through inaction. No one is being
       told to actively violate G-d's commandment.

     * According to the Ta"z, the law being violated will still be
       applicable in most situations. It still must exist in some form.
       (Not every acharon agrees with this requirement.)

   In another way, a gezeira is less powerful than a normal rabbinic law
   in that it cannot be compounded. One may not make a "fence" for the
   express purpose of protecting another "fence".

Tir'u baTov!
-Micha

-- 
Micha Berger                 Weeds are flowers too
http://www.aishdas.org/asp   once you get to know them.
Author: Widen Your Tent             - Eeyore ("Winnie-the-Pooh" by AA Milne)
- https://amzn.to/2JRxnDF

RZLampel deals with a number of texts in his sefer that to me
would more literally say that any of the valid shitos are Retzon haBorei.
In general discussion, we tend to repeat the same three, at our peril:
    - Tanur [shel] Akhnai
    - Eilu va'Eilu (Eiruvin 13b)
    - Kulam miRo'eh Echad nitnum

For example, the Ritva on Eilu vaEilu
<https://www.sefaria.org/Eruvin.13b.10?p2=Ritva_on_Eruvin.13b.2>:
   Eilu vaEilu divrei Elokim Chayim: The French Rabbanim z"l...

Interruption: This is a school of Baalei Tosafos, no?

   The French Rabbanim z"l asked: How is it possible that these and those
   are both DEC, and this one prohibits and this permits? And they answer,
   for when Moshe went up leMarom to recieve the Torah, they taught him...

Interruption: "Her'u"? "They taught him"? Not "He"? I thought the whole
revelation was directly from HQBH!

   [W]hen Moshe went up leMarom to recieve the Torah, they taught him
   49 panim (facets) to prohibit and 49 panim to permit.
   And he asked HQBH about this, and said, "This should be given to
   Chachmei Yisrael who are in every generation, and the hakhra'ah
   should be like them.

   This is correct according to the Derash, and in the Derekh haEmes
   there is a ta'am sod in the matter.

So the Ritva, on the level of the Derash, appears to be saying that
Retzon haBorei is for us to do as our Chakhamim pasqen. Not either
shitah specifically.

Also, "panim" is an interesting word. It tends to be mistranslated in
this context as though the word was "derakhim". "Panim" sounds *to me*
more like there are different ways of looking at it, and each way would
show a different facet / face. And Hashem wants us to pasqen based on
how we, as we exist in that generation, are looking at the topic.

On Thu, Sep 28, 2023 at 05:54:48PM -0400, Zvi Lampel via Avodah wrote:
> RMB:

Well, to be accurate, I said I was summarizing a list in Encyc. Talmudis
"Bas Qol". Which means that I didn't really get a chance to read the
sources BEFORE someone told me what they said, to form my own blank-slate
opinion.

>>    1- Rav Nissim Gaon (Berachos 19a-b), opinion I: The bas qol said
>>    "halachah k'moso b'chol makom". As a general rule, the halachah is like
>>    R' Eliezer, but not here. The halachic conclusion does not contradict
>>    the bas qol, and it's even possible that the BQ caused them to reach
>>    their decision.

>>    2- Ibid, opinion II: The bas qol was only a test for the sages. Again,
>>    normally BQ would have halachic power.

>>     ... RNG gives authority to BQ to override halachic process, and
>>    the Achnai story's bas qol is a special case for two different reasons.
>>     ....

...
> In the first answer the bas kol was not making a halachic statement at all.

How is "halakhah kemoso bekhol maqom" not a halachic statement? As I
explained it, it's not a statement about the specific halakhah of
whether tanu akhnai is a keli when assembled. If that's what you mean,
I would agree.

But this answer is saying the reason why we ignore the BQ is because
its statement wasn't about the tanur! And what does that imply about
a situation where the BQ *did* give a pesaq in that case?

> In the second answer the bas kol was as illegitimate as a false prophet,
> because there is no place for a bas kol in the halachic process....

Are you saying that the tannaim in the beis medrash were fooled by a bas
qol sheqer? A navi sheqer is one you know is outright lying, because such
a nevu'ah couldn't be. And so I would take it that R Nissim Gaon is also
saying that such a BQ, one that pasqens agains the rabbim, couldn't be.

And therefore I understand the ET's reading of R Nissim Gaon, that both
answers are based on the idea that the BQ is not giving the halakhah
in this case. In the first answer, the BQ spoke up about the rest of R
Eliezer's pesaqim, for his kavod. In the second, the BQ was sent even
though it was false, to test the rabbim. But there too it wasn't really
meant as pesaq.

And RNG giving two ways in which the BQ wasn't paqening in order to
justify not following it, it would seem that if the machloqes couldn't
be resolved by humans, we would follow the BQ. As what happened with
eilu va'eilu.

Tir'u baTov!
-Micha

-- 
Micha Berger                 You will never "find" time for anything.
http://www.aishdas.org/asp   If you want time, you must make it.
Author: Widen Your Tent                        - Charles Buxton
- https://amzn.to/2JRxnDF

On Mon, Oct 16, 2023 at 11:19:30AM -0400, Zvi Lampel via Avodah wrote:
> On Mon, Oct 16, 2023 at 3:12AM Marty Bluke <marty.bl...@gmail.com> wrote:
>> The Kesef Mishna there gives a much simpler answer. He says that even
>> though technically they could argue they felt that they were on a lower
>> level and therefore agreed not to argue on the Tannaim.

> How then did the Amora Rebbi Yochanan argue with the Tanna Rebbi Oshiya?

According to the KM, the question isn't "how", because it was "merely" a
convention not to be choleiq. They always had the authority for such
machloqesin to be possible.

The question is more like "why?" Why did R Yochanan violate the convention?

Part of it could be that the convention was still new, and not necessarily
taken as seriously as it would be once it was the norm for decades
or generations.

For  more complete answer, see
https://daf-yomi.com/DYItemDetails.aspx?itemId=19981
I think the idea is that R Yochanan, while a "second generation amora",
was still a talmid of Rebbe, and not really entirely amora.

Which may just be another way of saying the above -- the rule had
exceptions in the transition era. The line between tanna and amora is
blurry, not crisp.


> BTW, whereas the Kessef Mishna proposes the Amoraim agreed not to argue on
> the Tannaim, he does not say it's because they felt they were on a lower
> level. That's the Chazon Ish's proposal.

True, one could argue that the point was to enforce the authority of
the Mishnah by declaring it the summarizing text at the end of an era.

As Talmud Bavli ended the Amora'im, and the Greater SA ended the Tannaim.
But there is no marker book ending the Ge'onim, and also no convention
among Rishonim to only be chaleiq with a Ga'on if one has another Ga'on
in support.

So the convention could have been adopted as part of the process of
codification.

Tir'u baTov!
-Micha

-- 
Micha Berger                 The true measure of a man
http://www.aishdas.org/asp   is how he treats someone
Author: Widen Your Tent      who can do him absolutely no good.
- https://amzn.to/2JRxnDF                 - Samuel Johnson

As PM Netanyahu (may the RBSO grant him, the rest of the government,
Tzahal, and our people the wisdom and foresight we need to get through
this mess) describes these humanitarian pauses as tactical and localized.
Still, this aids the enemy.

Obviously I didn't raise the topic to argue military strategy on Avodah.
The whole thing raised the halachic issue for me.

The Sifrei (Bamidbar 31:7) says that it is assur to fully enclose a city
when laying seige on it. One side must be left open to allow civilians
to escape.

The Rambam, Hil' Melahim 6:7, codified this lehalakhah. But the Chinukh
(527) and the Ramban on seifer hamitzvos (after asei #5) limit this to
a milkhemes reshus. And there is no greater milkhemes mitzvah than one
to save lives.

So, are these "Humanitarian Pauses" obligatory?

:-)BBii!
-Micha

-- 
Micha Berger                 One doesn't learn mussar to be a tzaddik,
http://www.aishdas.org/asp   but to become a tzaddik.
Author: Widen Your Tent                            - Rav Yisrael Salanter
- https://amzn.to/2JRxnDF


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