Avodah Mailing List

Volume 01 : Number 051

Thursday, September 17 1998

• Authority of the Mishna
• Disputing previous generations and the Conservaitve Movement.
• Re: Talmud tora kneged kulam
• Re: Avodah V1 #50
• Re: Avodah V1 #50
• Re: Avodah V1 #50
• RE: Aloi ReGel
• Re: cherem
• Re: Writing the Mishna
• Re: Methodology of Psak, was Avodah V1 #50
• Re: Disputing previous generations and the Conservaitve Movement.
• Re: Disputing previous generations and the Conservative Movement.
• RE: Aloi ReGel
• Re: Avodah V1 #50
• Re: cherem
• Re: cherem
• More on Sheva Berakhot
• Re: More on Sheva Berakhot
• Re: Methodology of Psak, was Avodah V1 #50
• Re: Avodah V1 #50

David Glasner wrote:

> Daniel Eidenshohn writes:
> Bottom line. I don't see any source justifying the assertion that the mere
> writing down of the Mishna or the gemora created an authority that could not be
> argued with by subsequent generations.>>
>
> Clearly not.  But then where are the sources for the alternatives?
> Everyone is simply advancing some more or less plausible explanation
> here.  Obviously, as my learned friend Mechy might observe, my humble
> opinion is not totally unbiased here, but the Dor Revi'i's explanation
> seems a lot more plausible to me than do any of the alternatives.

The Dor Revi'i (Introduction to Chulin) notes with amazement that Rashi apparently
did not agree with him!. He cites Rashi (Shavuos 4a s.v. U'Mishna) and Bava Metzia
(33a) as believing that the Mishna was only written down many years after Rebbe. He
cites the R'shash (Shavuos 4a) who also understands Rashi that way. This together
with the fact I mentioned before - that the Amoraim [especially Rav and Rav Chiya]
could and did argue with Tannaic sources makes the Dor Revi'i's suggested source of
authority less plausible then the others. As he notes in his criticism of the Kesef
Mishna's concept of Kabbala - "We need to note that if it is as the Kesef Mishna
writes - How could it be that there is no mention of this awesome and critical thing
in all of the Bavli and Yerushalmi - that which is the [purported] foundation of
Hora'ah that they accepted on themselves not to argue with the Mishna and later they
accepted not to argue with with Gemora - to all of this there apparently no trace or
basis...".

                             Daniel Eidensohn

David Glasner wrote:

>  Moreover, we do know of
> instances in which new interpretations of p'sukim were advanced to
> change the accepted halachah.  The one that comes to mind immediately
> is "Moavi v'lo Moavit" to allow Boaz to marry Ruth.  I think that it would be
> quite a stretch to argue that the halachah had not previously been to
> prohibit marriage to a Moabite woman and that the drasha in question
> was not newly advanced to support a change in the halachah.  There
> may be other examples, but I would have to look at the Dor Revi'i to find
> them.

I don't know why you feel that this is such a stretch in drush.  It has 
always seemed like quite a plausable interpretation of the pasuk to me. 
Furthermore, this implies that, in order to prevent Boaz from violating 
a clear D'oraisa, Chazal changed a halacha post facto to allow Boaz a 
Moabitess!  If anything, THAT is the stretch and a somewhat ludicrous 
one at that. Obviously, this drasha ("Moavi v'lo Moavit")must have been 
Halacha L'Moshe MiSinai and known all along.

One of the dangers in accepting that later generations are allowed to 
change interpretations in halacha is that the Conservative movement is 
claiming the ability to do exactly that. They claim to believe in Chazal 
and the Shulchan Aruch just the same as the Orthodox do... only they are 
loose consructionists and the Orthodox are strict constructionists. They 
say that they can interpret halacha on the same level as Chazal, perhaps 
better because, A) they are just as smart, and B) they are standing on 
the shoulders of Giants.  That is, they not only know what chazal knew 
(by studying their texts) but they have the benifit of Rishonim and 
Achronim's shoulders to stand on so they can "see" farther, and can 
therefore interpret better for today.  I think one can easily see that 
with this type of thinking one can alter the state of Judaism to almost 
any state they want.  With that type of dynamic, Judaism can be so 
radically altered that it would almost cease to exist.

HM

100 talmidim are shipwrecked on an island with no hope of rescue. They have
with them a complete set of sforim etc.  They have the resources to get one
question to you and receive one answer.  Their question is: We have analyzed
the situation and know that we can survive at a minimum level if either: 1)
All 100 of us work 90% of the time and learn 10% of the time or 2) 90 of us
work 100% of the time and 10 of us learn full time (or some solution in
between). Assume no other time savers etc. and that they all have equal desire
to learn. 

What do you advise them, what are the halachic sources and if the answer is
not 1), how do you determine who gets to learn more?Would your answer differ
if they all did not want to learn equally?

ktiva vchatima tova 
Joel Rich

A number of people have emailed requesting an elaboration on the points
that I made in my brief note of yesterday about methodology.  It seems to
me that the methodologicial issues are important here, and I will address
them independent of the particular issue under discussion (namely women as
panim chadashot).

The first issue involves what to do when a small number of rishonim
address a topic, most rishonim are silent, and alternative possitions are
possible.  A prototype of that case is the international date line, where
a small number of rishonim address this issue -- they all say one opinion
-- but other views are quite logical.  This is the subject of the famous
dispute between the Chazon Ish and all of his contemporaries.  CI insists
that we must defer to the view of those rishonim who voice an opinion; Rav
Herzog, Rav Tukachinsky and others did not agree.  They felt that
contemporary poskim could argue with other than the great rishonim when
the Shulchan Aruch is silent.  Rav Moshe Feinstein seems to add that one
needs clear proofs to do this.

The second case is when nearly all the rishonim speak about a topic, give
a multiplicy of reasons and rationales, but do not specifically address
the arguements of each other that make it clear that the group which
advances arguement (A) disagrees with arguement (B).  To me, there is a
role of logic here.  When one rishon advances arguement A, and other
rishon advances arguement B, aware of the fact that arguement A is out
there, and not citing it, that means that this rishon rejects that
arguement, and considers it wrong.  Thus, when Tosafot explains a sugya
differently that Rashi, he is rejecting Rashi's approach, even if he never
explictly states that. In my view that is a machloket rishonim.  In such a
case, one has to examine the various arguements of the various rishonim to
see who argues with who by inference, as frequently rishonim do not state
that they are explictly rejecting the arguements advanced by another.
That is, in my opinion, exactly what happened in the case of women as
panim chadashot.  A small number of rishonim advanc the explict arguement
that women may not be panim chadashot; no one explictly argues.  However,
many implictly argue by advancing lines of reasoning different from those
advanced by these two rishonim for who may be part of panim chadashot.
(Counting rishonim in this type of case is very hard, as one has to
undertake a very careful survey of the analysis used to make sure that a
real dispute is present.)

The third case involves a head to head dispute, with each of the rishonim
quoting the other view, and explictly noting their disagreement with it.
An exelent example of this is is the view of the Aruch that a psik resha
delo necha lay is mutar on shabbat.  The rishonim cite, quote AND DISAGREE
with the Aruch.



Michael J. Broyde
Emory University School of Law
Atlanta, GA 30322
Voice: 404 727-7546; Fax 404 727-3374

     
     ------------------------------
     
     >Date: Tue, 15 Sep 98 20:14:50 EDT
     >From: Alan Davidson <DAVIDSON@UCONNVM.UCONN.EDU> 
     >Subject: Minhag Chabad and Selichos
     
     >A few years back someone asked this question on mail-Jewish -- the answer 
     >was the following:  in Tanya, there are two expressions of fear of Hashem 
     >and two corresponding levels of teshuvah -- one is "lower" teshuvah out of 
     >fear of punishment;  the second is "higher" teshuvah -- returning to 
     >Hashem
     >out of love of Hashem.  The period prior to Rosh Hashannah is 
     >characterized
     >by "lower" teshuvah;  the period after Rosh Hashannah is characterized by 
     >"higher" teshuvah.  As Selichos pertains primarily to "lower" teshuvah 
     >Selichos
     >is only said prior to Rosh Hashannah.  Selichos is said on Tzom Gedaliah 
     >b/c of the Taanis and is said in the davenning as part of Tachanun versus 
     >beforehand.
     
     
     
     Re: The Higher Teshuvo and Lower Teshuvo.
     
     This Sevoro makes sense on a certain level.
     I'd like to twist it a bit in terms of the timing.
     
     The Teshuvo of Tisho B'ov is a lower level as articulated by 
     Hashiveinu Hashem Eilecho ... Ki im Maos Meastonu...
     
     While the Teshuvo of Rosh Hasono is on a higher level following the 
     shov dechemto:
     
     Sos ossis baShem...  implying Techsuvo from joy.
     
     The 7 haftoros are progessively more joyous and bring us from a sense 
     of devastation to a sense of elation.  We actually accomplishm a 
     rapproachement with hashem and then follow it up with Shuvo Yisroel.
     
     Shono Tova
     
     R. Wolpoe    

In a message dated 98-09-17 09:28:29 EDT, you write:

<< 
 The first issue involves what to do when a small number of rishonim
 address a topic, most rishonim are silent, and alternative possitions are
 possible.  A prototype of that case is the international date line, where
 a small number of rishonim address this issue -- they all say one opinion
 -- but other views are quite logical.  This is the subject of the famous
 dispute between the Chazon Ish and all of his contemporaries.  CI insists
 that we must defer to the view of those rishonim who voice an opinion; Rav
 Herzog, Rav Tukachinsky and others did not agree.  They felt that
 contemporary poskim could argue with other than the great rishonim when
 the Shulchan Aruch is silent.  Rav Moshe Feinstein seems to add that one
 needs clear proofs to do this.


Michael J. Broyde
Emory University School of Law
Atlanta, GA 30322
Voice: 404 727-7546; Fax 404 727-3374

  >>
Is this related at all to the rule that when tannaim argue in a mishneh, the
assumption is that if one tanna states a position on a particular point and
the other is silent that we assume the 2nd tanna agrees with the first.
Would there be a difference if the case were one which might not have been
nogea(eg dateline in the time of the gemora) versus a daily situation(eg time
of tzait hacochavim) so that in the former case silence is less likely to mean
consent to those who may have voiced an opinion?

ktiva vchatima tova
Joel Rich

"Three times a year all your males are to appear before Hashem your G-D in
the place He shall choose. On the Festival of Matzos on the Festival of
Shavous and on the Festival of Succos".

It appears that our Yomim Tovim are NOT family festivals. Rather that men
and women celebrated the festival in their own and separate ways. The men
going to Yerushaliem and the women staying at home with the children. Even
the men living in Jerushaliem would have to separate from their wives in
order to be able to enter the Bais Hamikdosh BeKadoshou. And not have the
problem of a Tavul Yom entering the Azura.

Perhaps this is the Makor of Hassidim leaving their families and joining
their Rebbes for Yom Tov. A Zecher LaMikdosh.

I find this a disturbing revelation as I've always considered Yomim Tovim
to be a family affair. Perhaps you can help me understand this better.

Another associated question is was there a Mitzvah of Aliah Regel when the
Bais Hamikdosh was in Nov VaGivon and in Shiloh?

A Casivah VaChasima ToVah
mendel

> As a related question, is there any halachic problem in opening up
someone
else's mail (regular mail) outside of the cherem? <
Consider me ignorant for being unaware of such a chairem; in any event,
I've been told it's against US law to open up someone else's letter [w/out
permission], in which case dina d'malchusa dina should apply.

                                         Michael

Richard Wolpoe <richard_wolpoe@ibi.com> expressed uncertainty about the power
of Sanhedrin outside of the lishkas hagazis.

Note that before Hillel and Shammai, the number of unresolved machlokesin were
negligable. In their time, there were all of three unresolved machlokesin.
Their talmidim, however, who lived while the Sanhedrin was in galus, had
roughly 168 machlokesin (as counted by R SR Hirsch, he notes, though, that
it's non-trivial to actually determine in some cases whether a machlokes
occurred). And the resolution of many of these machlokesin happened when the
two schools were able to get together for a head count. (Nimnu vigamru).

While the gemara explains the explosion in the number of machlokesin (shelo
shimshu es rabosam), it does not explain why so many were left unresolved
until the bas kol, and why those that were resolved were done so in someone's
attic and not by the Sanhedrin.

It would appear to me, therefore, that outside of the lishkas hagazis,
Sanhedrin lost its unique authoritative power to paskin.


A different question:

When is an unresolved issue a machlokes, and not just two differing viable
alternatives. From archeological research, people were content wearing both
Rashi and Rabbeinu Tam style tephillin (as well as a third parasha order) as
far back as the Chashmonaim. Why did it suddenly become necessary in the days
of the Rishonim for communities to establish a single correct choice?

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 5924 days!
micha@aishdas.org                         (11-Jun-82 - 17-Sep-98)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

Since R' Michael's post pre-empts one I had intended to write after phone
conversations I had with him and R' Eli Clark yesterday evening, I feel I
should respond quickly!

First, however, let me publicly apologize for a flippant remark as to a
respected member of our group "rishoning." It was meant to be
light-hearted but came off as obnoxious and not sufficienlty explained,
and I regret it, and hope it doesn't come up before a grand jury :-).

L'gufo shel inyan:

1. The Ritva and Nimukei Yosef are the Rishonim that explicitly preclude
women from serving as Ponim Chadashos.

2. R' Yonna uses the language of "anashim." Now, I am perefectly willing
to forgo this questionable diyyuk in this, and any other Rishon, who may
use such language - but, then, I believe, one cannot be medayyek either
the ambiguous language of "bnei adam" that other Rishonim employ.

3. Which, leads to the next point, that is that I am convinced that the
ambiguity of the other Rishonim is because the issue was not one they felt
compelled to deal with, because, lo ala al hada'as - until the
extraordinary Chassam Sofer that R' Aryeh Frimer cited (who, btw, does not
require even "isha chashuva" - a kattan suffices as well, so long as there
is heightened simcha) - to count women as panim chadashos. While I hope
others can comment on this more knowledgably, seeing how desperate we are
for ponim chadashos with relatively high frequency, were there such an
opinion that had been ala al hada'as, it would have come down through the
ages.

(Let me make clear that I am not using the "historical" point as a
decisive argument against women as panim chadashos - one is entitled to
reopen an issue even hundreds of years later - but as the rationale for
other Rishonim - especially those who are primarily parshanim, not poskim
- to suffice with ambiguity. 

4. I do regard as a valid he'ara - just as it is in the IDL issue, that we
all discussed last night - that the Tur, BY, SA & RMA did not cite a Ritva
and Nimmukei Yosef - halo davar hu, in a work of psak, to omit a
significant psak explicitly mentioned by the Rishonim.

But - that is an he'ara, a curiousity. Here, in fact, I think that even
RTP Frank and RMM Kasher, who make the case that the IDL is such a
critical issue that were there to be a definitve psak it must have been
noted in SA, would agree that common practice made the issue here moot and
that omission is not evidentiary.

I freely admit that this was my thought process until seeing the Chassam
Sofer. I do not know what to do with his opinion. If you do not snicker, I
will raise the obvious, that he meant it b'derech shakla v'tarya, v'lo
l'halacha. Nevertheless, a Chassam Sofer of any kind require serious
consideration.

But, in the absence of the Chassam Sofer, to me (certainly, as a great fan
of the Chazon Ish on the IDL), when two Rishonim are clear, and the others
are ambiguous for understandable reasons, the methodology of psak -
particularly in an area of safek bracha - must, perforce, require the
exclusion of women from serving as ponim chadashos.

In closing, as we approach RH, although I doubt this will be my last post
for the day, let alone the year, let me shepp some nachas over my role in
facilitating a list that allows a forum for such lofty deliberations, and
extend a great yasher koach to R' Micha for running it in an exemplary
manner, and, let me ask mechila b'lev shalem from anyone I might have
offended in any way, and, of course, I am mochel anyone fully and
completely as well.

Kesiva va'Chasima Tova,

YGB

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

>>>Furthermore, this implies that, in order to prevent Boaz from violating
a clear D'oraisa, Chazal changed a halacha post facto to allow Boaz a
Moabitess!  If anything, THAT is the stretch and a somewhat ludicrous one
at that. Obviously, this drasha ("Moavi v'lo Moavit")must have been Halacha
L'Moshe MiSinai and known all along.<<<

Chazal could not have *changed* the halacha to allow a Moavit, because the
halacha had never been fixed as prohibiting it!  What Chazal did was apply
a new derasha to resolve an old issue that had been a matter of debate.
Although the license to darshen and perhaps some of the rules (acc. to some
Rishonim) was given miSinai, it is difficult to assume all derashos were
known miSinai.  Don't you read in the haggadah that R' Eliezer could not
convince the Chachamin "ad shedarsha Ben Zoma" - an issue was debated till
a newly discovered derush led to its resolution?  Had the derasha been
given miSinai and known to all this would make no sense. Another example:
the numerous sugyos in shas in which Tanaim debate, each darshening pesukim
a different way, indicates that the methodology of derush/specific derashos
was not a clear cut kabbalah miSinai, but was developed and applied by
Chazal.

Obviously at some point in history the rules of derush as well as our right
to legislate through dersuh was lost.  The dangers from the Conservative
movement lay elsewhere.

-CB

What danger?

From a movement that has no longer has *any* scholarship to ground it and
follows the winds of current morality in determining its stances? 

The days of danger from the Conservative movement have passed, eternally,
into history.

YGB

On Thu, 17 Sep 1998 cbrown@bestware.com wrote:
 
> Obviously at some point in history the rules of derush as well as our right
> to legislate through dersuh was lost.  The dangers from the Conservative
> movement lay elsewhere.
> 
> -CB

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

>>>It appears that our Yomim Tovim are NOT family festivals. Rather that
men and women celebrated the festival in their own and separate ways. The
men going to Yerushaliem and the women staying at home with the children.
Even the men living in Jerushaliem would have to separate from their wives
in order to be able to enter the Bais Hamikdosh BeKadoshou. And not have
the problem of a Tavul Yom entering the Azura.<<<

If one assumes the mitzva of simcha applies to women, or even if one
assumes the mitzva is solely the man's obligation to be mesameach (see
Sha'agas Arye), the thrust remains the same - reglaim ARE family festivals,
e.g.a simple reading of Rama in Hil Sukka is that a man is patur from
sleeping in the sukkah because he will be alone without his wife! The tevul
yom problem must be considered, but that alone does not suffice to draw the
conclusion you made.

>>>Another associated question is was there a Mitzvah of Aliah Regel when
the Bais Hamikdosh was in Nov VaGivon and in Shiloh?<<<

The status of the ohel in the midbar, the mishkan etc. re: various mitzvot
is raised by Ramban al haTorah in a few places e.g. see last weeks parsha
regarding Bikkurim.  I don't have a chumash here, so I'll just encourage
you to look around.

-Chaim B.

    A poster wrote:

"  re: The writing of the Mishna

     When I studied under Rabbi Dr. M.S. Feldblum he pointed out that
     nowhere is it stated that Rebbe actually physically wrote a Mishno.
     what he did do is CODIFIED, editied or redacted the Mishno (pikc your
     favorite)..."

     This possibility, as well as a counter possibility, is discussed by
the Tiferes Yisroel in his perush on Pirkei Avos.  (I am at work, but I
think it's in Perek 2 Mishnah 1)

In a message dated 98-09-17 10:27:41 EDT, you write:

<< Consider me ignorant for being unaware of such a chairem; in any event,
 I've been told it's against US law to open up someone else's letter [w/out
 permission], in which case dina d'malchusa dina should apply.
 
                                          Michael
  >>
We've previously discussed dina dmalchuta but I had a related question.  The
reason I had learned for the tora giving both an azhara and onesh is to teach
us that one can't  halachically say, "I'll do the avera and accept the onesh
and we're all even" .  What about dina dmalchuta- other than the marit ayin
issues, can one say "I'll speed on the highway and accept the fine and we're
all even" or must one halachically not speed?

Ktiva vchatima tova
Joel Rich

I heard once - I believ from Rav Frand (on one of his tapes) that you
are chayav to do teshuvah for speeding over and above whatever the
police will allow (5-10% above the speed limit usually).  (I am not sure
that this necesarilly answers your question - however he did not mention
the "accept the fine" theory.

Take care,

Joel Margolies  

>  What about dina dmalchuta- other than the marit ayin
> issues, can one say "I'll speed on the highway and accept the fine and we're
> all even" or must one halachically not speed?
> 
> Ktiva vchatima tova
> Joel Rich

-- 

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

I wrote:

>>The question is, in a
>> situation where the requirements for reciting the berakhot are met
>> (huppah/minyan/panim hadashot, etc.), is there some reason, other than
>> minhag (and a limit on kibbudim!), that each berakha is recited only
>> once?

R. YGB asks:
>Explain to me why this is not a beracha she'eina tzericha!

How about in a case where one did not listen (intentionally or
unintentionally) to the berakhah?

Eli Clark

On Thu, 17 Sep 1998, Clark, Eli wrote:

> How about in a case where one did not listen (intentionally or
> unintentionally) to the berakhah?
> 
> Eli Clark
> 

If the Chosson, upon whom the chiyyuv is incumbent, was already yotzei, it
makes no difference.

As for the Sheva Berachos during the other Yemei Mishte, I assume the same
might apply to the panim chadashos.

Both are yotzei b'di'eved, with one bracha, so as long as they heard one
bracha, no repetition would be necessary.

YGB

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

On Thu, 17 Sep 1998 cbrown@bestware.com wrote:

> Perhaps you can clarify.  I'm not holding in the sugya, but the geder of
> panim chadashos  would seem to be very broad.  If memory is correct, acc.
> to Tos. Shabbos alone qualifies as panim chadashot.  If so, without knowing
> the Ritva I would have said certainly a women is included in  the
> definition.  Why then, if we dig up a single shittas Rishonim that
> disagrees and can concoct a lomdus to make sense of it, are we bound to
> follow that opinion to the exclusion of the gedarim that other rishonim
> seem to be working with?

That would be true, were the Nimmukei Yosef and Ritva not both to have
cited the Tosafos about Shabbos, approved of it, and then gone on to
disqualify women nonetheless! Thus, you are forced to find according to
these Rishonim a theory that explains the internal consistency of sevara
involved, which would eliminate, seemingly, any extrapolation l'kulla on
the basis of the leniency of Shabbos. 

> (feel free to post to list, and comment in a reply to me if it is private)

I felt free!

YGB

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

>Let me add that sheva berachot are obligatory when they are permitted,
>and thus to pass up on sheva berachot when most (vast majority, 
>actually) rule them to be mandated would seem to be in error.
	OTOH,  if there is a machlokes which is not clearly decided,  wouldn't
we have to say safek brachos le'hakel?

Gershon

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