Avodah Mailing List

Volume 41: Number 80

Wed, 15 Nov 2023

• 1. Re: The Halakhos of Humanitarian Pauses (Joel Rich)
• 2. Re: The Halakhos of Humanitarian Pauses (Micha Berger)
• 3. Re: Does the psak of bet din evidence the ratzon hashem? (Zvi Lampel)
• 4. Anan Sahadei (Joel Rich)
• 5. Rav Nissim Gaon on Bas Kol's place in Pesak (Was: Re: Does the psak of bet din evidence the ratzon Hashem?) (Zvi Lampel)
• 6. wishing things were different (Joel Rich)

?
> 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?
> 
> -______________

From the various shiurim I?ve listened to on the topic the general
consensus was that, even if you have to leave one side open for escape,
that?s only before the war. Once you?ve given them the opportunity to leave
and they choose not to it?s not required, although you might find it
tactically a good idea to do so anyway. 
Bsorot tovot 
Joel Rivh

On Fri, Nov 10, 2023 at 3:24pm EST, U asked:
> So, are these "Humanitarian Pauses" obligatory?

R Ari Zivotofky sent me notes of a shiur by R Asher Weiss, which I put
in Avodah's collection* at
<https://www.aishdas.org/avodah/faxes/Noach_HilkhotMilchamah.pdf>
Question alif is the one I asked.

He also mentions the Sifri (#199), and adds Rashi (Devarim 10:12) as among
those who cite it lahalakhah.

But then he quotes a contradictory Sifri (#200), which instead of "velo"
says "ve'af"!` He uses Rashi to be machria like the first Sifri.

Lemasqanah, RAW holds this din is only when conquering a city to add
land to Israel. And not when laying seige as part of a greater war.

And I see R Gil Student covered the topic, and my sources were among
R Goren's. Seea any of a number of American Jewish newspapers, or
<https://www.torahmusings.com/2023/10/the-siege-of-gaza-in-halakhah>

In that article we find counter-arguments. R Shaul Yisraeli holds that's
only in a milkhemes reshus. He notes the Rambam gives the context of
surrounding a city to conqeur it, impllying that this is a case of conquering
new land -- milkhemes reshus.

Personally, I don't see the implication from either RSY's formulation
or RAW's. The Rambam doesn't say it's about conquering for land, and
there are are other reasons to conquer. Like nidon didan... Tzahal
determined a need to conquer a city for milkhemes mitzvah reasons. It's
not laying seige in order to fight combatants within it, it's claiming --
or in this case, reclaiming -- a city to force a regime change. So where
do we know that the Rambam was limiting himself to territory gains? If
he only meant milkhemes reshus, I would think iqar chaseir min hasefer.

All I can say is that this isn't causing soldiers to die for the
milchamah, but to limit it. I woud therefore think piquach nefesh would
be docheh such a din either way. So perhaps de facto it wouldn't come up
in a milkhemes mitzvah (aside from 7 Amim or Amaleiq) that often anyway.

RSY also cites the the Mechekh Chokhmah (Bamidbar 31:7), who notes the
Rambam doesn't count this among the lavin of Seifer haMitzvos, but the
Ramban does (after asei #5). From this he suggests that leaving open a
siege may be -- in the Rambam's opinion -- a strategic suggestion from
the Almighty. Not to force them to fight to the last man. And not a
din at all.

Here too I am unconvinced. After all, it does appear in Hilkhos Melakhim
6:7. So it would seem to be a din of one of the 613, eve if the Rambam
does not count it as a lav in-and-of itself.

RGS's presentation also quotes the MC noting that the maqor for leaving an
escape route open is in instructions for the war with Midian! Which gets
RGS and RSY into a machloqes about whether the dinim of milkhemes mitzvah
could ever apply outside of EY. Which is not an issue WRG Azza, but would
get you into a debate about the halachic borders of Israel bizman hazeh with
some other targets. How much if any of Lebanon included?

Both RAW and RSGoren link this mitzvah to that of calling for peace first.
A linkage R Shaul Yisraeli questions.

I highly recommend seeing both inside, rather than sticking to just the
parts that most intrigued me.

Tir'u baTov!
-Micha

(*A sign of age... The collection of PDFs and images for Avodah is named
"faxes", because in our early years, scanning and attaching to an email
wasn't a thing yet. People didn't have that kind of bandwidth.)

Cc: RAZZ, RGS

-- 
Micha Berger                 Life isn't about finding yourself
http://www.aishdas.org/asp   Life is about creating yourself.
Author: Widen Your Tent                   - Bernard Shaw
- https://amzn.to/2JRxnDF

On Wed, Nov 8, 2023 at 4:29?PM Micha Berger <mi...@aishdas.org> wrote:

> 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.
>

ZL: Some background for the reader: RMB and I have a long-standing
disagreement over the meaning of "Eilu v'Eilu Divrei Elokim Chaim." He
endorses what he refers here to a reading of the sources that "to me would
more literally say that any of the valid shitos are Retzon haBorei," and
attributes to them the idea that the verdicts of both sides of a machlokes
of Chazal are true, despite being contradictory.

I maintain otherwise: That the rishonim and acharonim hold that in any
given case, Hashem has one verdict in mind. It is Chazal's goal and
obligation to discover it through human reason. And with virtually no
exceptions, their final decision, upon following the rules of pesak,
successfully identifies that verdict. The rishonim and acharonim maintain
that contradictions cannot both be true, and explain "Eilu v'Eilu"
accordingly. They say the adage means to attribute values other than truth
to the words of all proponents of the machlokes, such as that they
represent sincere attempts to analyze the Torah. And/or that all the
factors/considerations (panim) that the proponents base their conclusions
on in a given case are valid, albeit that some point to one conclusion and
some to an opposite conclusion. For, in each case, there is one ratzon
Hashem based upon which factors are the overriding ones in number and
strength.

RMB:

> 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
>

ZL: "at our peril"?

Here's another pertinent source. Rebbi Yochanan (Sanhedrin 34a) teaches
that when tallying the votes of the Sanhedrin, if two dayanim darshan the
same point of reasoning (ta'am) from two different pesukim, it is tallied
as one vote, not two. Why? Abbaye explains: Because Hashem assigned each of
His ta'amim to one drash alone. Whereas one [feature of a] posuk can
produce many ta'amim, multiple pesukim were not designed to teach the same
one ta'am. Rashi elaborates: we only count the vote as one because one of
those pesukim is not meant to support this [ta'am], for we have it as well
established that two mikraos were not written for one ta'am; therefore one
of the dayanim is /in error./ (D'chad me'hanach kra'ei lav l'hachi assa,
d'kayma lan lo nich't'vu shnei mikra'os l'ta'am echad, /hilkach chad
mi'nayhu m'ta'a ta'i/.)

In other words, Hashem had exclusive meanings in mind when he devised the
posuk, and any other meanings are not His intended meanings of that posuk.
And therefore, if two disagree over the posuk's meaning--even if they agree
to the halachic outcomes--one of those dayanim is necessarily wrong.

RMB:

> 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?
>

 ZL: Tosafos Shantz, too, on Eiduyos 1:5 (early 13th century) cites the
idea in the name of the French Rabbanim, and Tosafos Rabbeynu Peretz of
Corbiel (late 13th century) cites it in the name of his rebbi, Rav Yechiel
of Paris, but expresses dissatisfaction with it.

RMB:

>    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!


ZL: Megillah 19b, has a similar passage, which indeed states "/sheh'har'a'
hu HKBH/  l"Moshe,'' that HKBH showed them to Moshe, with "them" referring
to all future dikdukay Torah, v'dikdukay Soferim, u'mah sheh'Soferim asidim
l'chadesh, although it does not explicitly refer to machlokos, to the 49
panim behind each of the opposing halachic conclusions,  or to "eilu
v'eilu."

However, the Drashos HaRan interprets "dikdukei Soferim'' as the future
machlokos of Chazal (although still not mentioning the 49 panim to each
side concept). Rashi interprets "dikdukei Soferim'' differently, as the
inferences the "acharonim" made from the mishna of the "rishonim.")

In the introduction to his Mishnah commentary, Tosafos Yom Tov (1579-1654)
emphasizes that Megillah 19b does /not/ say that HKBH ``taught" or
"handed over" to Moshe all future dikdukay Torah and dikdukei Soferim, but
only sheh'har'a'hu  /showed/ them to him, without allowing him to hand them
over to the people. (Although "hora'ah" indicates a halachic teaching,
"her'u" is "He showed." )

In Drasha #3, the Ran cites another teaching of Chazal and says they
darshaned that "even the words of he who /did not reach the emes/," were
all told to Moshe b'Sinai." (Still without mentioning the concept of 49
panim to each side, and not being as clear as the Tosefos Yom Tov about
whether Moshe transmitted this information to the people.) Explicitly
working with the premises that (a) In any given case there is one true
halachic reality, and contradictory halachos cannot exist, and (b) Hashem
would not state that a falsehood is true; and evidently assuming the
premises that (c) It was not "they" but Hashem by Whom both the emes shita
and the sheker shita were told to Moshe, and (d) Hashem did not identify
the false shittos as such, the Ran proposes that  although Hashem revealed
the future machlokos to Moshe, He did not reveal which shita was the emes.

RMB:

>    [W]hen Moshe went up leMarom to recieve the Torah,...
>

 ZL:  Rashi on Menachos 29b,--the passage that states that Moshe was
unaware of a halacha that Rabbi Akiva stated in his name--points out that
this occurred before it was told to Moshe. After all, the Gemara said this
happened "when Moshe went up leMarom /to receive/ the Torah." Here, too,
the malachim showing to Moshe all conflicting panim that exist in halachic
decisions is described as occurring "when Moshe went up leMarom /to
receive/ the Torah," so it follows that this occurred before Hashem taught
him the Torah,

RMB:

>  "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.
>

 ZL: I recognize your emphasis on "sounds *to me* more like..." But why not
defer to Rashi (Sanhedrin 93b) who defines it differently, namely as
"ra'yos," proofs or supports one presents for his halachic conclusions." In
other words, the various sevaros, arguments and considerations that are
pertinent, and must be weighed, to arrive at the correct ruling in a given
situation.


Maharal (Gur ryeh, Shmos 31:18 os 9)--on Rashi who comments, "Moshe heard
mipi haGevurah, and both of them together reviewed and taught the
halacha"--states,

This is a deep concept. Every single statement in the Torah's words /must
be so/...Hashem Himself would review the halachos with Moshe...to show how
it is necessary, based upon Hashem's wisdom. Therefore it says they learned
the halacha together [with Hashem convincing Moshe of the necessity of the
halacha].

This sounds to me more like that the halacha HKBH taught Moshe was one way
that "must be so" and not the other.

  See how this works (though not exclusive to my take) with Brachos 63b:

 "Hashem spoke to Moshe panim el panim as a man would speak to his friend"
(Shemos 33:11)--Said Rebbi Yitzchak, HKBH said to Moshe, "Moshe, I and you
will explain panim b'halacha." Some say, HKBH said to Moshe, "Moshe, just
as I explained panim to you, so shall you explain panim to Yisrael."


In his Hebrew translation of the Judeo-Arabic Mevo HaTalmud by Rav Shmuel
ben Chofni Gaon, S. Abramson (Sinai 85, pp. 193-218) renders, by the words
penn and panim, the author?s reference to scenarios or cases. So this would
mean that the angels, concerning each commandment in the Torah, showed
Moshe forty-nine scenarios that, because of the particular element in each
one, should be ruled permitted, and forty-nine scenarios each with a
particular element that effects prohibition. The different scenarios and
their rulings illustrated how different circumstances would affect
the pesak. This would be similar to how the Mishnah utilizes scenarios to
illustrate applications of halacha, from which the Gemora deduces the
implicit abstract principles.

 RMB:

> And Hashem wants us to pasqen based on how we, as we exist in that
> generation, are looking at the topic.
>

ZL: If this means that in different generations the correct halachic
conclusion may be different because there are different circumstances, I
agree. And if the chachamim disagree over which factors in the new
circumstances are the overriding ones, HKBH trusts that the majority will
discover the truth.

RMB:

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


Perhaps it is lav davka, and "they" means Hashem (after all, He is the
ultimate source of all). But if we are to take this davka, that t this time
it was not Hashem but only the (ministering) angels who did this, then the
teaching of the French Rabbanim (who of course must be consistent with the
Gemara) would either mean that Hashem repeated what the angels did, or that
what the angels did was different from what Hashem did. The most obvious
difference would be that while Hashem told Moshe the different conclusions
future chachamim would come to, only the angels told Moshe the 49 panim to
each side. And indeed, what the melachim did was not part of
the revelation, which was directly from HKBH. That leads me to an
interesting take on the French Rabbanim's concept.

We are familiar with Aggadtas that depict the ministering angels in the
role of contravening Hashem's desires with opposing viewpoints--objecting
to the creation of Man, wanting to say shira at krias Yam Suf, poskening in
Beis Din she'Lemalya differently from HKBH, etc. (Looking up the word
"mal'ach in the sefer Otzar Haggadah, I found 23 such Aggadta.)  One of the
best-known of these is the Aggadta that portrays the ministering angels as
objecting to giving the Torah to Moshe. I suggest that this is the
undercurrent theme of this account of the angels barraging Moshe with 49
reasons for the halacha to be one way and 49 reasons for it to be the other
way.

Moshe Rabbeynu and Klal Yisrael were anxiously anticipating
finally receiving a Toras Emes. The Avos, who were able to discern the
halacha through their own reasoning, were no longer with us. Finally,
Hashem was about to reveal to Moshe the absolute truth about the world and
how we are to behave in it.

The ministering angels, however, were against this. So when Moshe ascended
Sinai, before receiving the Torah, they tried to convince him that there is
no point in accepting it. They argued that even with the Torah and its
"textbook cases," truth will not be obtainable. "B'kol davar v'davar," in
real life, situations will arrive that are complicated. there still will be
unclarity--49 reasons to say mutar and 49 reasons to say assur.

So Moshe asked Hashem about this concern. And Hashem replied that the
angels are wrong. True, there will be innumerable scenarios that are not
explicitly addressed in the Torah, and there will be a plethora of valid
Torah reasons to say one way as well as the other. And indeed, initially
there will be some sages who say the halacha should be one way, and some
who say it should be the other way. But Hashem assured Moshe that the
Chachamim of every generation, through their careful analysis and weighing
the factors quantitatively and qualitatively, and through following the
majority opinion, will be able to discern the true  halacha He intended.

   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.
>

ZL:  Or, as I take it, because Hashem trusts the chachamim to accurately be
machria which of the angel-revealed factors/considerations are the
overriding ones in the particular case at hand, thereby determining His
actual ratzon.

Zvi Lampel
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Anan sahadei (we testify) generally appears in the gemara as an ironclad
presumption that defines an event (eg if a lender says to a borrower not to
pay back unless there are witnesses, he won?t pay back without witnesses)
or an intent (eg a seller making aliya intended to sell only if he made
aliyah).

Is anyone aware of anything on whether these are rebuttable presumptions? A
function of time and place? Are we encouraged to be mvarer when we can?

Hashem Oz Lamo Yiten Hashem Yvarech Et Amo Bashalom
????????? ???? ????????? ??????? ????????? ????????? ???????????
???????????:

Joel Rich
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>
>
> On Thu, Sep 28, 2023 at 05:54:48PM -0400, Zvi Lampel via Avodah wrote:
> > RMB:
>
> ...summarizing a list in Encyc. Talmudis
> ...
> >>    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.
> >>     ....
>
> ...
> ZL: > (Disagreeing with the Encyclopedia Talmudis' presentation of Rav
> Nissim Gaon's answers regarding the Bas Kol in the Tanur d'Bei Achnai
> account as summarized by RMB, that  "normally BQ would have halachic
> power," and "RNG gives authority to BQ to override halachic process":)


 ZL:  I don't think so. Rav Nissim Gaon explicitly explains that his
explanations are in response to the problem that the majority view was so
buttressed by proofs that R. Eliezer had no way of countering them (so how
could a bas kol disagree),

In the first answer the bas kol was not making a halachic statement at all.
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. "The Torah
of Hashem is complete, and already given to us at Sinai, and He let us know
that He would switch over not one statement of it. Our Torah lacks nothing
and has no doubts for which we would need a proof from Heaven.

In other words, according to RNG, the human halachic protocol discovers the
true intent of the Torah (read, the ratzon haSheim), and any bas kol
disagreeing with it is a miscontrance of its intent.


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

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.
>

 ZL: Yes, that's what I mean.

>
> RMB:

But this answer is saying the reason why we ignore the BQ is because
> its statement wasn't about the tanur!


ZL:  As I wrote, RNG's question was not why we ignore the Bas Kol, but just
the opposite: How could the Bas Kol ignore the Sages. Rav Nissim Gaon
explicitly explains that his explanations are in response to the problem of
how the Bas Kol could disagree with the majority view that was so
buttressed by proofs that R. Eliezer had no way of countering them. And
ultimately, RNG focuses on the impossibility that a Bas Kol could tell the
sages  to transgress acharei rabim l'hatos  So the answer is it wasn't
doing that.

And what does that imply about
> a situation where the BQ *did* give a pesaq in that case?
>

ZL: The answer was that no Bas Kol would do that. As the maskana of the
account makes clear, we don't pay attention to a bas kol that contradicts
what the majority of chachamim decided.

RMB:
> > 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....
>
> RMB: Are you saying that the tannaim in the beis medrash were fooled by a
> bas
> qol sheqer?

ZL: No. They passed the test. Led by Rebbi Yehoshua, refused to be swayed
by it.

RMB:

> 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.
>
.
ZL:  Right...unless it  was sent as a test--just like the miracles of a
navi sheker.

RMB:

> And therefore I understand the E[ncyclopedia] T[almudis]'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.
>
>   ... RNG gives authority to BQ to override halachic process, and
>    the Achnai story's bas qol is a special case for two different reasons.
>     ....
>

ZL: But my objection to that understanding of RNG remains. He strongly
opposes the idea that a Bas Kol plays a role in determining halacha. Again,
I quote RNG:

"The Torah of Hashem is complete, and already given to us at Sinai, and He
let us know that He would switch over not one statement of it. Our Torah
lacks nothing and has no doubts for which we would need a proof from
Heaven."
How does one get from that to "if the machloqes couldn't be resolved by
humans, we would follow the BQ"??

Zvi Lampel
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Is one permitted to wish the past were different (for self or community) or
must one believe it was as HKBH wanted and thus the best?
Hashem Oz Lamo Yiten Hashem Yvarech Et Amo Bashalom
????????? ???? ????????? ??????? ????????? ????????? ???????????
???????????:
Joel Rich
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