Avodah Mailing List

Volume 26: Number 121

Mon, 22 Jun 2009

• 1. Re: bribes (Yitzchok Zirkind)
• 2. Re: bribes (Yitzchok Zirkind)
• 3. Re: bribes (Yitzchok Zirkind)
• 4. Re: Halachic Methodology (rabbirichwol...@gmail.com)
• 5. Re: Ein lo dmus hagguf... (rabbirichwol...@gmail.com)
• 6. Re: bribes (Yitzhak Grossman)
• 7. Re: bribes (Zev Sero)
• 8. Re: Halachic Methodology (Rich, Joel)
• 9. Re: Halachic Methodology (Michael Makovi)
• 10. Re: Halachic Methodology (rabbirichwol...@gmail.com)
• 11. shinuy on Shabbos (David Riceman)
• 12. Re: shinuy on Shabbos (Ben Waxman)
• 13. Re: bribes (Yitzchok Zirkind)
• 14. Text vs. Practice (Rich, Joel)
• 15. Re: R Tzadok-TSBP (Michael Makovi)

On Fri, Jun 19, 2009 at 7:03 AM, Zev Sero <z...@sero.name> wrote:

> .  I think
> it obvious that if a person believes that without a bribe the judge
> will rule against him despite his case's merits, then lifnei iver is
> moot


Why? Judging false and taking bribes are 2 seperate issues. Are you
suggesting that this is a case where we would be permitted to be Oiver a Lav
and cause another Jew to be Oveir a Lav, in order to save the judge from
judging wrong.  (Of course all this is where one is 100% sure that his bribe
will only effect Lizkos Es haZakai)

Kol Tuv,
Yitzchok Zirkind
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On Fri, Jun 19, 2009 at 7:13 AM, Zev Sero <z...@sero.name> wrote:

>   Where do you get this distinction from, if the Dayon is not allowed to
>> take your not allowed to give.
>>  Find a Dayon Hogun.
>>
>
> In general, that is not up to a person, is it?  A person doesn't get to
> pick the judge that will handle his case.  Nor does he necessarily
> get to pick the court.  Remember 1) we're not just talking about batei
> din yisrael;


I was talking only about (jewish) Dayonim, (in a case of BN much can be
discussed see Minchas Chinuch Mitzvah 23).


> 2) even in BD, a BD kavua (which would be the normal case)
> can compel jurisdiction;

3) without a BD kavua generally one party has
> the right to pick the BD, and the other party must go along with it;
> 4) even in ZaBLA, a person signs a shtar borerut on the understandable
> assumption that the dayanim are honest - what is he to do once he
> realises that that is not the case?


IOW the question is can someone be Oiver a Lav to save himself money? or can
he be Oiver a Lav to save the other side from Gezel?

Kol Tuv,
Yitzchok Zirkind
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On Fri, Jun 19, 2009 at 7:03 AM, Zev Sero <z...@sero.name> wrote:

>
> Isn't that exactly what the Rambam quoted by RYZ is saying?
>
> No. The Rambam is saying that the dayan may not receive such a bribe.
> He does *not* say that a person may not pay such a bribe.


In Hil. Sanhedrin 23:2 he says just that.
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Joel Rich:
> When they see conflict between sources, they generally endeavor to reduce
> the tension as much as possible, sometimes by successfully harmonizing
> sources, and where that is impossible, reducing the intellectual distance
> between the opposing viewpoints as much as possible. Does the chevra
> agree with this analysis of halachists approach? Is there a specific
> source for the approach? 

I believed I blogged on this and I believe I forwarded the link to avodah

Bekitzur the Rema in Ch M paskens we harmonize differences in edus as
much as possible

It follows that rabbanim are witnesses to the TSBP tradition and should
be harmonized when feasible - perhaps because they may be describing
the same phenomenon from a different perspective

Good Shabbos
RRW
Sent via BlackBerry from T-Mobile

> You can't understand H. Yesodei HaTorah without the MN!
> David Riceman

How about vice versa? :-). (Viz. Can you understand Moreh w/o Yesodei
Hatorah?)

Your point begs the question:  didn't Rambam have different audiences in mind for the 2 works?

FWIW:
I am doing the Touger commentary who frequently quotes the Moreh and ShM

In fact I wanted to start a thread proposing that there should be a
encyclopeida Maimonidit that would collate at least 4 of the Rambam's
works on any topic -particularly in machshava
Viz.
Moreh
Mishneh torah - Yad
Peirush mishna (esp. 8 p'raqim)
And sefer hamitzvos

BH Touger does a bit of that. But I am talking about something more
comprehensive

At least the mitzvos in the Yad should
Be hyperlinked :-) to the Sefer Hamitzvos! I did this myself once for
Hilchos Hametz Umatza which is but 8 mitzvos.

KT
RRW
Sent via BlackBerry from T-Mobile

On Fri, 19 Jun 2009 13:28:55 -0400
Yitzchok Zirkind <y...@aol.com> wrote:

...

> I was talking only about (jewish) Dayonim, (in a case of BN much can be
> discussed see Minchas Chinuch Mitzvah 23).

Pis'he Teshuvah HM 9:3.

Yitzhak
--
Bein Din Ledin - http://bdl.freehostia.com
A discussion of Hoshen Mishpat, Even Ha'Ezer and other matters

Yitzchok Zirkind wrote:
> 
> 
> On Fri, Jun 19, 2009 at 7:03 AM, Zev Sero <z...@sero.name 
> <mailto:z...@sero.name>> wrote:
> 
>> I think
>> it obvious that if a person believes that without a bribe the judge
>> will rule against him despite his case's merits, then lifnei iver is
>> moot 
  
> Why? Judging false and taking bribes are 2 seperate issues.

Because he's not an iver.


> Are you 
> suggesting that this is a case where we would be permitted to be Oiver a 
> Lav and cause another Jew to be Oveir a Lav, in order to save the judge 
> from judging wrong.

I hadn't even thought of that, but now that you mention it, yes.
How is the lav of taking shochad worse than the lav of deliberately
giving a false judgement?  And if the two are equal, then how is the
giver doing any lav at all?


>  (Of course all this is where one is 100% sure that 
> his bribe will only effect Lizkos Es haZakai)

Every person believes that his case is right.  And when the judge
solicits money in order to rule his way, that would tend to reinforce
that belief.  A person can only act on what he believes to be true;
ein lo ledayan ela ma she'enav ro'os applies equally to everyone.


> I was talking only about (jewish) Dayonim

But the original question wasn't only about them.   Most cases of
bribery are not in courts at all, let alone in BD.


> (in a case of BN much can be discussed see Minchas Chinuch Mitzvah 23).

> IOW the question is can someone be Oiver a Lav to save himself money?
> or can he be Oiver a Lav to save the other side from Gezel?

In general, I would say no.  But here the only lav in question is lifnei
iver, and I don't believe it applies.  In fact I think the very idea is
ridiculous.  If an armed robber holds you up, must you refuse to give
him the money, in order not to be over on lifnei iver, or mesayea`?!
On the contrary, hal'itehu larasha veyamos.  How is this case different?


>>> Isn't that exactly what the Rambam quoted by RYZ is saying?

>> No. The Rambam is saying that the dayan may not receive such a bribe.
>> He does *not* say that a person may not pay such a bribe. 
 
> In Hil. Sanhedrin 23:2 he says just that.

And that is exactly my point.  There is *no* issur on giving shochad.
The only issue is lifnei iver/mesayea` and that is *as always* a
highly circumstance-dependant question.


Speaking of the Rambam, look at Hil' Talmud Torah 1:10 (1:7 in most
editions).  It is forbidden to charge money for teaching TShBP.  But
the only teachers a person can find refuse to work for free, he must
pay one of them to teach him.  According to you, how could he do this?
Surely he is transgressing lifnei iver!  This is "two sides of a river":
if he would only stand his ground and refuse to pay, the teacher would
not be able to sin.  And yet he is not only allowed but required to
pay.  Why?  To me the answer is obvious: because he has no choice.
The teacher is wrong, but what can you do if this is what he demands?


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

 


Bekitzur the Rema in Ch M paskens we harmonize differences in edus as
much as possible

It follows that rabbanim are witnesses to the TSBP tradition and should
be harmonized when feasible - perhaps because they may be describing the
same phenomenon from a different perspective

Good Shabbos
RRW
----------------
That's quite a "it follows", especially if one views them as partial
creators of the tradition.

KT
Joel Rich
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> Halachists, of course, do not approach text this way. Neither do ninth
> graders with serious gemara background. When they see conflict between
> sources, they generally endeavor to reduce the tension as much as
> possible, ...Does the chevra agree with this analysis of halachists approach?  Is
there a specific source for the approach?

>
> R' Rich Joel quoting Cross Currents

Certainly, this approach seems valid and true. But all the same,
sometimes, you have to call a spade a spade and declare a machloket.
As I recently said, for example, I was delighted when I saw Rabbi
Howard Levine declare a machloket between Rav Hirsch and Mesilat
Yesharim on the purpose of life, because I've been saying the same for
some time.

I don't know enough about the sources on giyur to declare anything
definitely, but there's obviously something going on. Rabbi Shmelkes,
and those following him, declare unequivocally that giyur without
comittment to observance is invalid, totally and completely.

But then, on the contrary, we see:

--- Rabbi Shlomo Kluger (quoted in Rabbi Henkin's recently article in
Hakira) says kabbalat mitzvot is a machshir d'rabanan, and I saw Rabbi
Berkovits saying the same (Professor Shapiro, in a footnote in his
book on Rabbi Weinberg, says Rabbi Berkovits is following Rabbi
Weinberg here, but I forget the details, and I don't have the book on
hand)
--- Rabbi Uziel follows his shita,
--- Rabbi D. Z. Hoffmann permits a non-observant person to be
converted for the sake of marriage. He never explicitly says the
person is nonobservant, but he does say that her motivation is for the
sake of marriage and not spiritual, and he does say her coming to the
beit din for conversion shows some sort of concern for Orthodoxy's
opinion, legitimizing her conversion. The invocation of such an
argument, however - viz. that her coming to the beit din at all shows
some commitment to halakhah -  implies she is not ritually observant,
because then, the argument given would be irrelevant. I would add that
in 19th century Germany, I doubt Rabbi Hoffmann could take it for
granted that the woman would be observant; Rabbi Herzog's argument
that in times of old, everyone could be naturally assumed to be
observant, certainly is not applicable to Germany! Rabbi Hoffmann
implies strongly that she is nonobservant, and he never gives the
slightest indication that she intends to keep halakhah. I am relying
on a translation I found of his YD 83, where he says, "We can derive
the principle that whether to convert such candidates or not depends
on the judgment of the court." This sounds remarkably like Rabbi Hayim
David Halevi, who said that the laws of giyur are vague and inchoate
so as to allow the judges of every generation to be as lenient or
strict as they desire.
--- Professor Shapiro, at
http://seforim.traditiononl
ine.org/index.cfm/2008/8/29/Responses-to-Comments-and-Elaborations-of-Previ
ous-Posts-III
lists many teshuvot of various rabbis performing conversions for
nonobservant spouses of Jews. In one case, the Aderet questioned the
propriety of converting nonobservant gentile spouses, not on grounds
of kabbalat mitzvot, but on grounds of michshol, causing this
non-observant candidate to be a sinning Jew, violating niddah and
Shabbat and kashrut. Apparently, the Aderet assumes that
nothwithstanding kabbalat mitzvot, the conversion is valid anyway, and
thus, the convert will be sinning egregiously. (According to Rabbi
Shmelkes, this is all false; the convert, according to him, is still a
stam gentile, and so there is no issue at all of violating kashrut and
niddah and shabbat.)
--- Professor Zvi Zohar, at
http://www.jewishideas.org/responsa/halakhic-conversion-of
-non-religious-candidates,
quotes:
1) Rabbi Moshe haCohen, a leading rabbi in Jerba and later a dayan in
Teverya: "[A]ccepting the commandments does not mean that he must
commit himself to observe all the commandments. Rather, it means that
he accepts all the commandments of the Torah in the sense that, if he
transgresses, he will be liable for such punishment as he deserves...
And if so, we do not care if at the time he accepts the commandments
he intends to transgress a particular commandment and accept the
punishment. This is not considered a flaw in his acceptance of the
commandments."
2) Rabbi Raphael Aaron b. Simeon, Chief Rabbi of Cairo: "We overlook
this [lack of committment to be observant] and accept them... and this
is what we do in such cases. We make a condition and explain to the
woman proselyte that her intention must be that even if her husband
does not wish to marry her after this, and abandons her, she
voluntarily accepts the religion, and that the reason for her giyyur
is not contingent upon her [interest in] marriage to him. And she says
'yes'. And although we know what is in her heart, we are not very
meticulous." One of the questions the beit din asks her, according to
Rabbi Raphael, is "Do you willingly accept punishment for
transgressing the lenient and harsher commandments we have explained
to you when you accepted the religion of Israel?" They do also ask her
whether she is converting lishma, but we already saw him say that in
truth, they are not makpid on her answer to this question. Apparently,
like Rabbi Moshe haCohen (op. cit.), Rabbi Raphael considers
acceptance of onesh as a sufficient kabbalat mitzvot.

I do not know enough about the laws of giyur to be definitive on what
exactly is going on here. Indeed, Rabbi Broyde's review does
convincingly point out a few errors by Professor Zohar. (For example,
contra Zohar, you cannot derive from a tinok's conversion sans
kabbalat mitzvot, that an adult lacks this requirement as well, just
as you cannot derive from female converts that males do not require
milah.) But it is obvious that there IS a machloket, of some sort,
even if Professor Zohar does have some errors. Rabbis Moshe haCohen
and Raphael Aaron ben Shimon both declare that kabbalat mitzvot is
primarily acceptance of onesh, Rabbi Shlomo Kluger (and Rabbi
Berkovits, and perhaps Rabbi Yehiel Weinberg) says it is all d'rabanan
anyway, and Rabbi D. Z. Hoffmann also converted non-observant
intermarried gentile spouses. (Should we surprised if Rabbis Weinberg
and Hoffmann held the same shita here? This seems not unlikely.)
Should we assume that Professor Zohar forged the teshuvot of Rabbis
Hoffmann, haCohen, Raphael, Uziel, and Shlomo Kluger?

I don't know enough to say whose view has more textual validity. But
it is obvious that these sources - which Rabbi Michael Broyde failed
to answer definitively - indicate a view different than the normative
contemporary one. And it is obvious that Rabbi Uziel's opinion was not
exclusive to him, even if he was its most famous exponent.

It is for this reason that Rabbi Angel, following Rabbi Hayim David
Halevi. said that while one may be as personally strict as he desires,
he must nevertheless respect the lenient opinions. If one wants to be
strict, that is his prerogative. But others have the full right to
follow Rabbi Weinberg, Rabbi Hoffmann, Rabbi Uziel, Rabbi Moshe
haCohen and Rabbi Raphael Aaron ben Shimon, etc. No one today has any
right to declare these opinions invalid; he may choose them to eschew
them himself, but does he have a right to deny others use of these
shitot? (We might make a parallel to Beit Hillel and Beit Shammai on
mamzerut, but this example would prove the opposite of what I'm trying
to prove. I'll admit this. Tzarich iyun. I'll admit that I am very
troubled for what this precedent of Beit Hillel/Shammai would mean for
the minority view of giyur today.)

Michael Makovi

> That's quite a "it follows", especially if one views them as partial
> creators of the tradition.
> Joel Rich

The point is the presumption of hazakah. Two people describing the same
phenomenon are presumed to be in harmony. Of course a hazakkah is not
absolute when contradicted.

Tangentially:
The Rambam learns the first Mishnah of Yaddayim as referring to mayyim
sheni'I'm.
This is not the simple peshat

Rather the Rambam is basing himself upon the Tosefta. But the simple
read is that the first braisso is arguing with the first Mihsnah.

The Rambam is pre-supposing that the two texts are in harmony.

I know a colleague who is a passionate critic of this reconcilliation
process. Nevertheless it is well founded in Rabbinic literature.

See also Tosafos in Arachin re: women reading Megillah and his take on
the Tosefta, the Behag and the meimra of R Yehoshua ben Levi

KT
RRW
Sent via BlackBerry from T-Mobile

  Another question from my son.  We were talking about why the Rabbis 
proscribed doing melachos on Shabbos with a shinuy, and I suggested that 
once it became common practice it would no longer be a shinuy and would 
be Biblically prohibited.
  Are there any actual examples of something that was once a shinuy and 
is now standard practice in the context of hilchos Shabbos?

David Riceman

I believe that the definition of shinui is doing something in a way which is 
not only different, but less efficient. Therefore no one would use the 
"shinui" way of doing things if there is no reason to do so. Mixing 
something up with your finger is a lot less efficient than using a spoon.

Ben
----- Original Message ----- 
From: "David Riceman" <drice...@att.net>
To: "A High-Level Torah Discussion Group" <avo...@lists.aishdas.org>
Sent: Sunday, June 21, 2009 8:34 PM
Subject: [Avodah] shinuy on Shabbos


>  Another question from my son.  We were talking about why the Rabbis 
> proscribed doing melachos on Shabbos with a shinuy, and I suggested that 
> once it became common practice it would no longer be a shinuy and would be 
> Biblically prohibited.
>  Are there any actual examples of something that was once a shinuy and is 
> now standard practice in the context of hilchos Shabbos?
>
> David Riceman
> _______________________________________________
> Avodah mailing list
> Avo...@lists.aishdas.org
> http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org 

On Sun, Jun 21, 2009 at 5:33 AM, Zev Sero <z...@sero.name> wrote:
>> Why? Judging false and taking bribes are 2 seperate issues.

> Because he's not an iver.

He is an Iver WRT Shochad. (we are not Doreish Taamei dKra)

> Are you suggesting that this is a case where we would be permitted to be
>> Oiver a Lav and cause another Jew to be Oveir a Lav, in order to save the
>> judge from judging wrong.

> I hadn't even thought of that, but now that you mention it, yes.
> How is the lav of taking shochad worse than the lav of deliberately
> giving a false judgement?  And if the two are equal, then how is the
> giver doing any lav at all?

You are being Doreish Taamei dKra there are 2 Issurim, a judge that took
Shochad and ruled wrong was Oveir 2 issurim not one even though both are
based on blindness.

>> (Of course all this is where one is 100% sure that his bribe will only
>> effect Lizkos Es haZakai)

> Every person believes that his case is right.  And when the judge
> solicits money in order to rule his way, that would tend to reinforce
> that belief.  A person can only act on what he believes to be true;
> ein lo ledayan ela ma she'enav ro'os applies equally to everyone.

Even the Chasam Sofer brought in the PT 9:3 (permitting) talking about
a non jew qualifies it more then just "if you don't believe me ask me".

Also I am not talking in a case where he is soliciting bribes as in that
case he is not an Iver. I am not aware of Dayonim doing such.

> I was talking only about (jewish) Dayonim

> But the original question wasn't only about them.   Most cases of
> bribery are not in courts at all, let alone in BD.

I only addressed part of the issue, RYG already addressed many of the other
points with his on mark MM to PT CM 9:1 an 9:3. Ayim Shom vTimtza Nachas.

>  In fact I think the very idea is
> ridiculous.  If an armed robber holds you up, must you refuse to give
> him the money, in order not to be over on lifnei iver, or mesayea`?!
> On the contrary, hal'itehu larasha veyamos.  How is this case different?

Because in the case of Jewish Dayonim there is recourse. A Dayon that Takes
Shochat is Possul.

> Surely he is transgressing lifnei iver!  This is "two sides of a river":
> if he would only stand his ground and refuse to pay, the teacher would
> not be able to sin.  And yet he is not only allowed but required to
> pay.  Why?  To me the answer is obvious: because he has no choice.
> The teacher is wrong, but what can you do if this is what he demands?

That is not one of the 365 Lo Saseh's, and we do have a special Limud as the
Rambam brings there, in any case "foon a kasha shtarbet men nisht" and
Shaarei Trirutzim Lo Ninalu.

[Email #2. -mi]

On Fri, Jun 19, 2009 at 3:49 PM, Yitzhak Grossman <cele...@gmail.com> wrote:
> On Fri, 19 Jun 2009 13:28:55 -0400 Yitzchok Zirkind <y...@aol.com> wrote:
> ...
>> I was talking only about (jewish) Dayonim, (in a case of BN much can be
>> discussed see Minchas Chinuch Mitzvah 23).

> Pis'he Teshuvah HM 9:3.

Yes you already mentioned this thanks.  However I brought this M"M to
support reasoning WRT Lizkos Es haZaki by BN.

[Email #3. -mi]]

On Sun, Jun 21, 2009 at 5:33 AM, Zev Sero <z...@sero.name> wrote:
>> (Of course all this is where one is 100% sure that his bribe will only
>> effect Lizkos Es haZakai)

> Every person believes that his case is right.  And when the judge
> solicits money in order to rule his way, that would tend to reinforce
> that belief.  A person can only act on what he believes to be true;
> ein lo ledayan ela ma she'enav ro'os applies equally to everyone.

I have much problem with this approach, as this leaves the room for anyone
that sees that a DT is not going his way to justify bribing the judge, since
he believes he is right hence the judge must be saved from judging wrongly
(which is worse then taking Shochad etc.). And again I am not talking where
he solicits which in that case he should seek help from another BD.

Kol Tuv,
Yitzchok Zirkind

See here :www.vbm-torah.org/archive/mb/62mb.htm
<blocked::http://www.vbm-torah.org/archive/mb/62mb.htm>  re a favorite
avodah topic
 
In particular: 
            There is a general difference in approach among poskim
regarding how to weigh local custom against textual authority.  The
Tosafot in many places endeavor to reconcile the text with the custom
(see for excample, Shabbat 48a d.h. De-zeitim); other sages more readily
condemn custom on the authority of the plain sense of the text. 

            It seems that several factors bear on the relative
importance:

1. How universal is the custom?  Responsa frequently point out that the
reaction to a seldom-encountered situation can not be considered a
"custom" - merely a precedent.

2. Among whom is the custom widespread?  If we are certain that even
scholars and meticulous people conducted themselves in a certain way,
this has more weight than the behavior of the common people, pious
though they may be.

3. Are opinions opposing the custom recognized?  Sometimes we find
statements to the effect that if a community had been aware that a great
authority opposed their custom, they would not have adopted it.
Conversely, a custom may be defended by pointing out that it was upheld
even though opposing views were clearly known.

4. Perhaps in an area of halakha whose basis is in custom, though it
subsequently achieved the status of binding halakha, we should give
greater weight to custom.

 

KT

Joel Rich

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Thank you for this; I found it fascinating.

I am reminded of Rabbi Joseph Telushkin, in Jewish Wisdom, quoting
Hyam Maccoby regarding the tanur achnai, to the effect that G-d gave
us the Torah, but that like all fathers, He wants us to grow up and
develop the Torah ourselves.

Cf. Rabbi Jonathan Sacks in To Heal the World: G-d, like a parent,
wants us to learn ourselves, and so, like all parents, He doesn't tell
us everything He knows. G-d has His own secrets on high, but we are
not concerned with this; we are concerned with human justice here on
earth. Rabbi Sacks quotes Rabbi Nahum Eliezer Rabinovitch, that Moshe
didn't want to see G-d at the burning bush, because he didn't want to
see why the suffering deserve their punishment. G-d has His reasons
for the travails of the suffering, but this is not our concern; we are
here on earth, and our concern is with solving that suffering, not
understanding it and reconciling ourselves to it. In this way, Rabbi
Sacks refutes Marx that religion is the opiate of the masses; whereas
the Babylonians and others indeed said that social hierarchy reflects
G-d's will, the prophets of Israel were rather inspired by their
religion to combat injustice.

We often say that the meraglim preferred the ascetic lifestyle of food
direct from G-d over trying to infuse the real world with holiness in
Israel. Rabbi Tzadok's applying this to the Written Law (in the
desert, i.e. halakhah straight from G-d to Moshe) and the Oral Law is
fascinating.

My mother always taught me that G-d cut off prophecy from us, because
He wanted us to grow up and be able to survive without His constant
express guidance. (When I say that my becoming observant was the
direct and logical result of my mother's teachings, I mean it!) I was
then amazed to see that Rabbi Tzadok similarly says that in the Second
Temple, prophecy ceased because we were ready for the higher and
fuller and most authentic form of the Oral Law, finally cutting
ourselves off from express Divine guidance.

----------


(Tradition 31:3, Spring 1997), writes,
The story of the "oven of Aknai" (Bava Metsia 59b) teaches that as far
as Torah interpretations are concerned, original intent is not the
decisive factor. It is the conclusion of the sages which is central.
Even when God Himself reveals His intention, we do not listen to Him,
for it is God's will that after the  Torah was given, it be explained
through human intellect.

Professor Shapiro's article is largely concerned with the fact that
even though the Brisker method fails to explain what the historical
Rambam actually intended, the Brisker method nevertheless succeeds in
creating hiddushim that are authentic in their own right. Says
Professor Shapiro:
However, one must not conclude from this that because these hiddushim
are not historically correct explanations of Maimonides' view, that
they are not "true." They are indeed true and as much a part of Torah
study as are all other hiddushim. Presumably, R. Hayyim knew that his
hiddushim, even though they were consistentwith the words of
Maimonides, did not reflect the historically accurate position of the
latter. However, uncovering the historically accurate teaching of an
author is the work of an historian or a commentator who concentrates
on the peshat. It is not the realm of the interpreter, who, by all
available measures, produces hiddushim, however much he denies that
his interpretative endeavor should be characterized as such. Such an
expositor is only concerned that his ideas be consistent with the work
he is commenting on, the work he is using as a springboard for his
hiddushim. He is not interested in original intent. In his mind, a
book has a life of its own and can be interpreted on its own terms.

Last night, Rabbi David bar Hayim taught Rav Kook's hakdama to his Ein
Ayah. There, Rav Kook distinguishes between perush - the original
intent of the author - and biur - expository drash beyond what the
original author intended. Rabbi Bar Hayim says biur is perfectly
legitimate and true, as long as one realizes that one cannot claim the
original author's authority is attached to your drash. Similarly, says
Rabbi Aharon Lichtenstein, as quoted by Professor Shapiro, one cannot
claim that his Brisker-style hiddushim have the authority of the
Rambam himself behind them.

Professor Wyschogrod, reviewing Professor Marvin Fox on the Rambam, in
Tradition 28:2 (1994) says,
Contemporary French and German philosophy is particularly aware of the
complexity of the interpretive enterprise itself. Fox seems to think
that the criterion of a correct interpretation of Maimonides is
Maimonides' intention and almost nothing else. The author is the
sovereign owner of his work and the task of the interpreter is to try
to fathom, as best as he can, what the author meant when he wrote. But
once a work is written, it embarks on a life of its own. The author is
not a privileged interpreter because an author may be quite unaware of
significant issues lurking in the margins of his work. The midrashic
method is so interesting because it frees itself from searching for
"the" meaning of the text because it understands that interpretation
is an interplay between text and interpreter with the interpreter
sometimes playing a more important role than the author. The very
notion that a text is created by a sovereign author is itself
questionable. Often, the author is the instrument through whom complex
linguistic, structural and symbolic systems express themselves. The
simple search for the "intention" of the author is an unreflective
stage of interpretation.

Professor Shapiro (ibid.) notes,
Furthermore, it is possible that an author is not aware of all the
wisdom contained in his work. This idea is well established in
literary circles, which stress that the most reasonable interpretation
is not necessarily identical with the position of the author. Although
the notion that an author understands his words better than everyone
else would appear to be self-evident, and most intellectual historians
still operate in this fashion, modern literary and philosophical
thought argue that even the author does not recognize all that is
found in his work, both in terms of backround and motivation as well
as content.

Professor Haim Kreisel applies all this to the Kuzari:
http://hsf.bgu.ac.il/cjt/files/electures/kuzari1.htm
Similarly, Professor Adam Shear's book The Kuzari and the Shaping of
Jewish Identity, 1167?1900, says similarly in his introduction.

R' Rich Joel once ([Avodah] What is Midrash?
http://www.aishdas.org/avodah/vol25/v25n366.shtml#04) brought us
http://www.vbm-torah.org/archive/midrash69/01midrash.htm, saying:
Underlying all of these rabbinic reading strategies is a common
underlying assumption about the biblical texts, and perhaps texts in
general, that is quite different from modern conventional wisdom. We
tend to think of texts as containing specific meanings. The act of
reading a text is then the process of decoding this meaning and
revealing it to ourselves and others. The rabbis do not understand the
process of reading the Bible in this way. For them the text contains
only the potential for meaning. In their view, in reading the biblical
text we actually generate meaning from out of the raw material that is
the Bible. In principle any given verse can produce infinite meaning.
Indeed, Chazal tend to seek as much meaning as possible from each and
every verse. This does not of course mean that the biblical text may
mean anything we want it to. Quite the contrary, only rabbis who are
trained in the traditions and ways of Midrash know the proper way to
?grow? the meaning of the text.

Michael Makovi


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End of Avodah Digest, Vol 26, Issue 121
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