Avodah Mailing List

Volume 01 : Number 048

Tuesday, September 15 1998

• Re: Yeridas HaDoros
• Davar Sheh-bikdusha
• halachah and science
• Re: halachah and science
• Re: Avodah V1 #47
• Re: Wedding Innovation!
• Re: Yeridas HaDoros
• Re: Yeridas HaDoros
• Re:R Aharon's slant on science, sevara
• Beracha L'vatala
• Rishonim:Disputing
• Authority of Talmud
• Sevora is not logic
• "Min"

<< What does popular CURRent thimking mean, the gemar shabbos 112b "if the
 early generations are angels then we are mere humans, and if they are
 humans we are donkeys...." it would seem that this principle has always
 been known. >>

And yet, we find that the gmara states that from one particular amora and
onward, the halacha follows the LATTER opinion, thus arguing AGAIBST any
yerida.

RYGB writes:

<<
I think leyning is actually Talmud Torah d'Rabbim, not a davar
she'b'kedusha.
>>

Seems to be a mchlokes.  Look at Mishna Brura, 55, sk 2, where he lists
different d'varim sheh-bikdusha, and adds k'rias haTorah, but with a footnote
as to a source.

Several recent posts have touched on the question of authority of earlier
p'sak when advances in scientific knowledge contradict the factual
assumptions on which the p'sak rested.  The classic example of this
problem is the sugya kinah eina para v'rava in Shabbat 107b.  A related
but distinct thread has explored the authority of earlier p'sak relative to
subsequent authorities and whether the principle of yeridat ha'dorot has
any halachic traction.

These and other very basic questions about the nature of Torah
she'ba'al peh were the topic of the hakdamah to the commentary Dor
Revi'i on Hulin written by my great-grandfather R. Moshe Shmuel Glasner
(1856-1924).  The book is unfortunately out of print and difficult to get
hold of, but an abridged translation was published in Tradition by
Professor Y. Elman (Spring 1991, pp. 63-69).  I tried to summarize his
position on Torah She'ba'al peh and provide a general introduction to his
life and thought in an essay published in the Winter 1998 Tradition.  And
when the procreation issue came up a few years ago in Mail Jewish I
tried to summarize the Dor Revi'i's position, which led to an interesting
and (for me) helpful interchange with Chana Luntz that helped me to
better understand the sugya in Shabbat.  I'll try not to repeat myself
excessively.

The fundamental point to recognize is that the Torah in Devarim gives the
judges "that will be in those days" (almost?) absolute authority to decide
what the halachah is.  This authority does not depend on the moral or
intellectual capacity of the judges.  Yitfah b'doro k'Shmuel b'doro.  And
the Rambam so codifies in Mamrim 2:1 that the Sanhedrin of a later
generation may overturn the decision of an earlier Sanhedrin based on
an alterantive derivation of the Biblical text.  The requirement that the later
Sanhedrin be greater in wisdom and numbers is mentioned only in
connection with changing a takanah or gezeira of an earlier Sanhedrin. 
But in the area of pure p'sak the contemporary Sanhedrin is not
governed by the principle of stare decisis.  The Dor Revi'i took it as
obvious that if the Sanhedrin could differ with the p'sak of its
predecessor based on an alternative drasha from a pasuk it could also
do so based on a different understanding of the nature of reality, e.g., do
kinim procreate or are they spontaneously generated.  So if an earlier
Sanhedrin ruled that kinim may be killed on the Sabbath because they do
not procreate, a later one that rejected that factual premise could revise
the halachah accordingly.  
	
Of course this idea has pretty radical implications for halachah and the
Beis Yosef queries the Rambam's codification in Mamrim 2:1 by asking
how it could be reconciled with the first principle of halachic p'sak that
the opinion of a Tana trumps that of an Amora.  The Beis Yosef's
answer is that the theoretical halachah codified by the Rambam is
modified by the agreement of the generation at the time of R. Judah
haNasi never to differ with the opinion of a Tana.  The Dor Revi'i is not
satisfied with this answer because this acceptance of Tanaitic
supremecy is nowhere mentioned in any source, it is just taken for
granted as an implicit principle of p'sak by the Talmud.  The Dor Revi'i's
answer is that until the redaction of the Mishnah there was no
authoritative written text of the oral law.  As long as there was no
authoritative written text in which the halacha was recorded, the
halachah was changeable in principle.  But such a state of flux in the
halacha was tenable only as long as there was a supreme court (the
Sanhedrin) that could authoritatively determine the halacha is at any
moment.  Rebi understood that the alternative to a written authoritative
text was that the Torah she ba'al peh would be lost, as it could not be
preserved when the Jewish community became increasingly dispersed
with no final halachic decision making authority.  Because writing down
-- thereby fixing in canonical form -- the inherently dynamic Torah she
ba'al peh changed its very nature, Rebi had to justify his momentous
decision by invoking the verse eit la'asot la'hashem heifeiru toratecha. 
Why did writing down the Torah she'ba'al peh (which of course had
happened all along, but never in the form of a text from which people
would be taught and which would be cited as an authority) if doing so
did not change the Torah in some very radical way?  Thus, the
"agreement" referred to by the Beis Yosef was inherent in the redaction
of the Mishnah.  And a similar "agreement" was imposed on us by the
redaction of the Gemara by Ravina and Rav Ashi.  Whether any such
agreement not to argue on the opinion of a Rishon ever occurred is by no
means clear, if for no other reason than there is no clear line of
demarcation between Rishonim and Aharonim.  Thus, the Rambam in
Mamrim 2:1 is codifying the pure halachah that would apply after
reestablishment of the Sanhedrin, and is not applicable in our own days
when the Talmud takes the place of the Sanhedrin.

Under this interpretation, the halachah about kinim on Shabbat could be
changed in light of a change in scientific knowledge, but if the halachah
is decided in the Talmud we have no authority to change it.  This may
have been the comment attributed to R. A. Soloveitchik about
excommunicating the Pachad Yitzchak for saying that it was forbidden to
kill kinim on Shabbat.  To challenge a p'sak recorded in the Talmud would
seem to make one a zaken mamre, so that one would be inviting the
punishment visited on R. Eliezer in the episode of tanur achnai. 
Interestingly, R. Eliezer is the opinion recorded in Shabbat 107b for the
position that kinah para v'rava so that according to R. Eliezer the
halachah is indeed that killing kinim is prohibited on Shabbat.  On the other
hand, the Talmud does not reach a decision itself on the halachah.  That
killing kinim is allowed is becasue we follow the usual convention in p'sak
and codify the opinion of the Chachamim against a da'at yachid (and
certainly that of R. Eliezer).  But in the amoraic discussion in the Gemara
the issue remained open.  So it is not clear that if one challenges the
accepted p'sak one would actually be challenging a p'sak of the Talmud. 
Rather one would be challenging the p'sak of Rishonim.  This may
depend on the status of the rules for determining halachah, like halachah
k'stam Mishnah and halachah k'Rebi Akiva mi'haveiro v'lo mi'haveirav.  In
that case, there would be more room for maneuver.  Suppose that the
G'ra had concluded that the underlying science was wrong.  He might
well have been willing to reverse the p'sak codified by the Rishonim.  It's
not clear to me that a well-supported p'sak against the decision of the
Rishonim is invalid in the way that an amoraic opinion contradicted by a
tanaitic opinion is invalid.  See the sugya makom hinichu li avotai l'hitgader
bo in Hullin 6b-7a.

There are two further comments to make about the sugya.  One is that
the flow of the sugya is extremely obscure and difficult to follow.  The
reason is that the supposed opinion of the Chachamim in opposition to R.
Eliezer is not derived from any source but is inferred by the Gemara from
the fact that R. Eliezer's opinion is recorded in his name rather than
anonymously.  Moreover, the rationale for R. Eliezer's opinion and that of
the presumed opinion of the Chachamim is a pure hypothesis suggested
by the Gemara without any textual basis in the statement of R. Eliezer
much less the non-existent statement of the positiion of the Chachamim. 
It is also clear from the flow of the Gemara that the idea that kinim do not
procreate did not go down at all well with the b'nei hayeshiva.
Second, it is clear from the sugya that there is no basis for the
suggestion quoted in the name of R. Dovid Lipshutz, z.l., that the
halachah that kinim may be killed on Shabbat does not depend on
whether kinim procreate but follows because their eggs are too small to
be seen with the naked eye.  The Gemara rejects a contradiction to the
supposed permissibility of killing kinim from the prohibition against hunting
a parush, which the gemara is confident does procreate.  If you try to
explain the permissibility of kinim on some sort of de minimis grounds,
how can you then explain the prohibition against killing parushim whose
eggs are surely no more visible than those of a kina?

David Glasner
dglasner@ftc.gov

David Glasner writes:
> Second, it is clear from the sugya that there is no basis for the
> suggestion quoted in the name of R. Dovid Lipshutz, z.l., that the
> halachah that kinim may be killed on Shabbat does not depend on
> whether kinim procreate but follows because their eggs are too small to
> be seen with the naked eye

My recollection about R' Dovid's words was WRT the kashrus of kinim found in
the middle of a piece of meat, not hilchos Shabbos. By kashrus, one doesn't
even get into a question of whether piryah virivyah is relevent, as you do with
tzad. The kashrus of kinim is based on the idea that they can't be any more
treif than the meat that spawned them.

Second, his question wasn't whether the gemara thought they had microscopic
eggs, but whether the halachah would change now that /we/ know.

IOW, perhaps by Shabbos, where the question is whether a kinah performs
"piryah virivyah", as opposed to identifying the goreim for the bug which is
assur, R' Dovid would say the halachah had changed. I don't know.

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 5921 days!
micha@aishdas.org                         (11-Jun-82 - 14-Sep-98)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

mi wrote:
>R' YGB, I think I found a tarta disasrei. A while back, you related the issur
>of b'rachah livatalah to that of sheim Hashem lashav. Now, 
>you are
>entertaining the idea of an English b'rachah livatalah. Saying "G-d" (even
>with an "o" :-) wouldn't be sheim Hashem lashav, would it?
>

YGB responded:
>It is, as stated by one of the few Chayei Adam's I know, >Klal 6.

I don't have a Chayei Adam handy but this is definitely not the Rambam's
view.The Rambam says (Hil. Shvuos 12:11) that HSSL is assur for "sheimos
hameyuchadin" which for the Rambam means the seven names which can't be
erased (Hil. Krias Shema 3:5). Berachah levatalah is compared to shvuas
shav (Hil. Berachos 1:15) which is assur also with a kinuy (Hil. Shvuos
2:2). Since God's names in other languages are considered kinuyim (Hil.
Sanhedrin 26:3), R. Akiva Eiger says that berachah levatalah is assur also
in other languages. This would also apply to mekalel which is assur with a
kinuy (Hil. Sanhedrin, ibid.) but not to HSSL (see above) or to saying a
name of God in the bathroom which is also not assur with a kinuy (Hil.
Krias Shema, ibid.).
It may be that in the context of a berachah levatalah or a kelalah, HSSL is
activated even for a kinuy (with regard to berachah levatala see Hil.
Berachos 4:10 and with regard to mekalel see Temurah 3b "ka'avid tarti...")
but this is not the case in general. So at least as far as the Rambam is
concerned mi's "tarta disasrei" isn't one.

Moish

We considered doing this at our wedding (women repeating translations
of the sheva brachot at the chuppah).  R' Haskel Lookstein told us that
a) he does this at weddings where he officiates, and b) if we do it
(we didn't, but that's another story), we should make sure to drink
the wine before the women make the translations, so that there should
not be a hefsek between the bracha and the wine, or between the brachot. 
This was in the spring of 1991, so it's not a new-new thing.

How he justified it in terms of bracha levatalah, I don't know.

Hmm.  What exactly are the wedding brachot?  They're not like the
usual brachot, 1) over food, which has to be samuch to the eating,
2) over mitzvah actions, which are generally phrased "asher kidshanu
bemitzvotav..." or "al X" or "al mitzvat Y", 3) birchot hanehenin
which describe the phenomenon, or some symbolism of the phenomenon
(zocher habrit on the rainbow), but which cannot generally be said 
repeatedly (every 30 days, etc.).  I suppose they might be closer to
the latter, since they describe the symbolism of marriage, but they
are said repeatedly during the first week.  Are they brachot of a
tefillah, like Shmoneh Esreh?  In which case, perhaps saying them
extra times in a minyan situation (they do require a minyan, no?)
might be like a tefillat nedavah.  Or, saying them in translation
might count as chinuch, since many people at weddings I've been to
don't know Hebrew, so they can't follow along very well.

Just trying to think of post-facto rationalizations.

	Ksivechsimetoiveh,
	Jonathan Baker
	jjbaker@panix.com

I was wondering when someone was going to mention the concept of
halachah k'basrai.  However, I believe, at least according to the
understanding of the maharik (I think) - this only applied during one
portion of history.  The earliest generations didn't have all of the
toseftas and braisos in front of them and each rebbe taught only the
braisos that he had a mesorah for.  This meant that each school really
didn't have all of the information necesary to make a psak.  As
technology and communication improved and the braisos and toseftas
became more well known (and I guess codified) giving everyone access to
all of the pertinent information on an issue - the concept of halacha
k'basrai came into effect as the later generations were better equipped
to pasken as they had access to a better collection of the previous
generation's literature and opinions.  However,  this concept does not
extend (at least according to the opinions I've seen) to current days.
(Lch'orah it should stop at a time that all pertinent information was
disseminated) As we clearly have heard from our rebbeim - you can't
argue with a rishon!  (unless you are taking another rishon's side, of
course)  Unfortunately I don't have the details that I'd like to give
over here at work, but bli neder I will try to look it up tonight.

While we're on the topic - what about the "standing on the shoulders of
giants" theory.  I have heard people give that as a rationale, today,
for arguing with rishonim and gaonim.  It's kind of similar to the
arguments above - except for the fact that you are contradicting someone
who had exactly the same information from primary sources that you did
and yet you are saying that you have a better understanding of these
sources.  I have always understood the concept of yeridas hadoros to be
in direct opposition to the shoulders theory.  Any other opinions?

Also, how does one like the Gra or the Besht, R' Akiva Eiger and in many
circles Rav YB Soloveitchik, become able to circumvent the rules and
disagree with rishonim and gaonim?  How de we as lay people in
comparison know that they have escaped the yeridah?  Clearly we can just
TELL that they are great - but to what extent?  Why do we accept the
gra's torah when it flies in the face of rishonim?  Isn't it ultimately
our own determination that is saying we like his torah or WE feel that
his Torah is greater that the rishon's?  How can we make that decision? 
Perhaps it conforms with Micha's yiras shomayim conection post(The gra
was on the same level yiras shomayim-

[ps - side point - there is a cool vordt on why we have two terms for
yiras shomayim (yiras hashem) and only one for avodas hashem (no avodas
shomayim) in pachad yitchak on shabbos maamer beis I believe - check it
out!] 

wise as the rishonim- that would be a possible understanding)  - but I'm
not so sure as the Yid HaKadosh maintained that the pintele Yid grows as
the dor is yored - wouldn't this imply a greater potential, at least,
for yiras shomayim (maybe that actually works - we have greater
potential - therefore we could bring moshioch and create a bais din that
is gadol bechachma u'bminyan - what a way to tie in all of the posts so
far!!!!!)


Hope I was clear and didn't ramble too much.

Take care,

Joel Margolies

PS I'll try to follow with better sources and info on the halacha
k'basrai bit.

> 
> And yet, we find that the gmara states that from one particular amora and
> onward, the halacha follows the LATTER opinion, thus arguing AGAIBST any
> yerida.

-- 

Joel
Margolies                                                                           
margol@ms.com	
W-212-762-2386

According to chasidus, the issue is more complicated, as the reson for
arichas hagolus is for the hisgolus Hazohar Hakadosh, kabbolas Ha'Ari,
and
the Baal Shem, (individual chasidusim will claim there own rebbes as well).
Reb Simcha Bunim of Psisicha said the reason why the Ibn Ezra said so many
strange pshatim was because unlike Chazal, he lived in a time which was
very far from Kabolas Hatorah and unlike us who live close to the coming
of moshiach.

> 
> P.S. You still owe me at least one source where the gemara utilizes a pasuk
> despite having a sevara.


The gemara utilizes a pasuk even with a sevara whenever it says that The
Torah troubles itself to write something that could be learned from a kal
vechomer. And even if you want to say that in this case we really aren't
using the pasuk in place of the sevara ,rather a long side the sevara, I
give you another case. Pesachim daf 23b. Shitas Rabbi Meir According to
Chizkia (see Rashi there) has a sevara to tell us that we give to a ger
before selling to a goi. never the less he learns this exclusively from a
pasuk. Now I'll turn the tables, Besides the gemara in Baba Kamma by
hamotze mchavero alav ha raeh where we say lama li kra sevara hu--is there
any other place in all of shas that we say this (this should be easy
enough to look up with a cd-rom)
Finally in reference to the statement in a recent post about the ibn
Ezra---does this mean that in the short time between Rashi and the ibn
Ezra we went from the "greatest Commentary" to A "STRANGE" commentary.
Did a Rav really say this???? (what about all the other rishonim who lived
at the same time as the ibn Ezra, Surely there must be another explanation
for the ibn Ezra the he lived at the furthest point from matan Torah and
mashiach
Elie Ginsparg

> mi wrote:
> R' YGB, I think I found a tarta disasrei. A while back, you related the issur
> of b'rachah livatalah to that of sheim Hashem lashav. Now,
> you are entertaining the idea of an English b'rachah livatalah. Saying "G-d"
> (even
> with an "o" :-) wouldn't be sheim Hashem lashav, would it?
>

Mishna Berura 215 (19) states that Beracha L'vatala applies also to non Hebrew
names."...if one pronounces the non Hebrew name l'vatala i.e. not in the manner of
praise and thanksgiving it is also prohibited"

                             Daniel Eidensohn

Micha Berger wrote:
>There are people considered to be known exceptions. No one takes issue whenthe
Gr"a or the >Besh"t (each in the appropriate circles) argue with Rishonim, but
would ask a question on the Igros >Moshe if it seemed like R' Moshe was doing the
same. (Without another Rishon in support, of >course.)

Rabbi Ephraim Greenblatt told me that Rav Moshe had no problem about arguing with
Rishonim. The only clear restriction is not to do it  if the position of the
rishonim was widely accepted. See Igros Moshe Y.D. I # 101 on page 186. "... we can
definitely argue with achronim and also on occassion on certain rishonim when there
is appropriate proofs - because a dayan only has what he sees and since the ruling
is not against the well known poskim of the shulchan aruch that have been accepted
everywhere...but one should not be arrogant in hora'ah and one should restrain
himself except in a case of great need..."

                                               Daniel Eidensohn

David Glasner wrote:

> the Rambam so codifies in Mamrim 2:1 that the Sanhedrin of a later
> generation may overturn the decision of an earlier Sanhedrin based on
> an alterantive derivation of the Biblical text.  The requirement that the later
> Sanhedrin be greater in wisdom and numbers is mentioned only in
> connection with changing a takanah or gezeira of an earlier Sanhedrin.

This view of the Rambam is not mentioned in chazal and I believe he is a das yachid
in making this distinction. Without the distinction between rabbinic and Torah
mitzvos the rest of the discussion based on the kesef mishna is irrelevant.

The idea expressed that the mere writing down of the Mishna and gemora imposed an
obligation not to argue with it is an interesting idea - but there seems to be no
source for this idea. Furthermore we have authorities such as the Rosh and Rav
Chaim Brisker who say than in principle an Amora could argue with a Tanna. The
gemora itself was not finalized with the actives of Ravina and Rav Ashi because the
Saboraim modified it and apparently the gaonim were not totally reluctant to
dispute it. In sum - the opinion that  the widespread acceptance of the Mishna and
Talmud is the source of authority  - is more in agreement with the facts than the
view that the writing down at a particular moment in history imposed its authority.

                                                         Daniel Eidensohn

Micha Berger wrote:

> I don't understand why Kal VaChomer is listed as a middah shehaTorah nidreshes
> bah, and not considered a form of s'varah.

I'd just like to note that the term sevora is generally translated as logic. This
is not totally  accurate. It is more correctly translated as commonsense or
something which is obvious or necessarily true. For example the Rosh states that
the need to follow majority rule in a community is a sevara - because otherwise
the community would not function. This is not inductive or deductive reasoning.
Furthermore the Kinas Sofrim (to Sefer HaMitzvos Shoresh II)  questions why we
can't  use the 13 midos today - since most of them (Tosfos Sukka 31a) are sevora
and don't require a specific mesora? He answers because sevora must be developed
by the appropirate mesora and Torah learning. He said they were originally applied
under the supervision of the Sanhedrin. With the passage of time - and the
consequent problem of forgetting because students didn't serve their rebbis
properly - sevora weakened as well as the general analytic ability...

                                             Daniel Eidensohn

Interesting tidbit that I never knew until yesterday. The Darchei Teshuva
says that the word Min - often censored out of Shas because it connotes
Christians - is an acronym:

*M*italmidei *Y*eshu Ha*N*otzri.

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

********************


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