Avodah Mailing List

Volume 02 : Number 089

Saturday, December 26 1998

• nigla vs. nistar
• menorahs
• Bounced Mail
• RYEmden , Sabbateanism and Lubavitch
• Re: Avodah V2 #88
• Ben Ish Chai-Chida
• Kollel
• Written historical Sources
• Sharp words in Shas
• Re: RYEmden , Sabbateanism and Lubavitch
• Re: nigla vs. nistar
• Historian as frum yid
• Re: Avodah V2 #88
• Re: m'nora
• Sheer Curiousity!
• Re: Cases from the daf
• What 'Rebbe' or 'Rov'?
• Chida:Rambam poskened from Bas Kol

Micha Berger writes:

<<<
In v2n80, David Glasner <DGLASNER@FTC.GOV> writes:
:                                    It is precisely because nistar
: considerations cannot be criticized that they don't count halachically.

I'm curious to know why you assume halachah must stand up to scientific
criteria. In the scientific method, if something can't be falsifiable, then
there is no experiment to test it with. Therefore, there is no way one would
gain confidence in a hypothesis by seeing its predictions met -- since there
is no way it could be otherwise.

But why must this be true for halachah, which is generated by a different
process?
>>>

I'm glad you asked me that question because it indicates that I did not
articulate my 
point clearly enough.  Let me try again.  My point about the weightlessness of
nistar considerations in halachah is not that nistar considerations are
unfalisfiable in an empirical sense.  You are correct to observe that halachah
is itself unfalsifiable.  But unfalsifiability is not the same as immunity from
criticism.  Any standard halachic argument involves certain basic premises
which are either explicit or, if implicit, can be made explicit as necessary. 
There is then some reasoning process, not necessarily strictly logical, that
arives at a conclusion from the given premises.  The premises and the
reasoning process that generate a halachic conclusion are subject to
criticism and analysis.  Nothing is hidden.  Thus, one can offer alternative
premises or an alternative reasoning process and it is possible to choose
between alternatives.  The halacha-generating process is not completely
determined a priori, so that it is possible to reach differing halachic
conclusions that are potentially valid based on alternative premises and
alternative chains of reasoning.  Nevertheless it is possible to critically
evaluate the alternative outcomes based on a large number of halachically
relevant criteria and the moreh hora'ah can reach a conclusion based on all
the alternative premises and reasoning process at his disposal.  And others
can critically evaluate the conclusion of the moreh hora'ah and offer reasons
for against his conclusion.  

That is what I mean by criticism.  It is a completely different process of
reaching a halachic conclusion than a process based on nistar
considerations because neither the premises nor the chain of reasoning
that leads from premises to halachic conclusion are articulated.  If
they are not articulated they cannot be evaluated in terms of any generally
accepted halachic criteria.  This is precisely the idea of sod Hashem el
yireiav.  And my contention is that the idea of sod Hashem el yireiav may be a
reason that some would accept a particular halachic conclusion, but it is not
a reason that can (or should) compel any one else who has arrived at a
different conclusion to accept the putatively Divine one.  This halachic
concept is embodied in the Gemara (I'm sorry but I forget the citation as I
write this) which states the the rabbis did not establish the halachah in
accord with the opinion of R. Meir in all cases even though he enlightened
the eyes of the wise, because they could not fathom the depth of his
reasoning ("sh'lo yardu l'sof da'ato").  

I would just make a further comment concerning Bat Kol.  The Bat Kol that
decided the halachah in accord with the opinion of R. Eliezer was not
followed because the halachah had been decided by the Sanhedrin in
accord with the opinion of R. Joshua.  A Bat Kol has no authority to overerule
the halachah that has been established by the Sanhedrin.  Thus, the
members of the Sanhedrin were under no obligation to change their ruling
about what the halachah should be. The Bat Kol that announced the
halachah followed the opinion of Beit Hillel confirmed that the halachah
followed the opinion of Beit Hillel as the Sanhedrin had ruled.  Beit Shamai
however refused to accept the authority of the Sanhedrin because they
maintained that, because of their greater wisdom, their opinion should prevail.
 Because of the Bat Kol, Beit Shamai acknowledged that the halachah
l'ma'aseh did follow the opinion of Beit Hillel.  The Bat Kol carried no halachic
weight it merely induced Beit Shamai to acknowledge that the halachah
l'ma'aseh did in fact accord with the opinion of Beit Hillel, as had already
been decided, even though the decision remained controversial.  After the
Bat Kol, it ceased to be controversial. 

David Glasner
dglasner@ftc.gov

Hi All,

I recently stumbled on a thesis written by one Jennifer Reiss on the
menorah on the arch of Titus vs. traditional sources on what it should
look like.  I skimmed it and it seems to be thorough and interesting. 
If anyone is interested - check out
http://www.gidon.com/jennifer/old/thesis.html

Take care,

Joel
-- 

Joel
Margolies                                                                           
margol@ms.com	
W-212-761-1404

For some reason, this bounced back to me - if it did go out to you all
already, my apologies!

YGB

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


---------- Forwarded message ----------
Subject: Re: Menorah

On Thu, 24 Dec 1998 Yzkd@aol.com wrote: 

> If not that we had testimony of indisputable integrity we would not have
> entertained that in the Beis Hamikdosh they relied on Bdieved, so why 
> rely on unsubstantiated claims according to Torah to say that they did 
> other then the original Menorah, (if we are going to start using such 
> proof then how many other cockroaches will come out of the woodwork).  
>

Nope.

Still not convinced. (But keep trying!)

I believe Titus's arch vis a vis the shape of the menorah has a geder of
akum mei'si'ach lefi tumo (it might even be a geder of kefeila arama'a!).

> IIn our case there is the additional Rashi that Vchein Taasu Ldoros.
> 

Yes, but not necessarily in this prat, that is not explicit in Chumash!

YGB

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

>As  a Lubavitcher Schliach who has gone on the public record on this =
>issue let me clarify a few points.

Baruch Hashem! I have been waiting to hear from a responsible Lubavitcher 
regarding this controversy.

>The institutional and Rabbinical leadership  of Lubavitch  has spoken =
>out strongly on this issue.

Apparently, not strong enough. Our local Lubavitch Shaliach is a 
meshichist. If shelichim are meshichistim,  either 1) they do not listen to 
the leadership, or 2) have their own leadership. The shlichim are the 
Lubavitch front line; how could a shaliach buck his own leadership?  If a 
Lakewood Kollel out-of-town had promulgated heretical views, you could be 
sure that the Lakewood Yeshiva would immediately sever all connection with 
it.

I am sure that to the meshichists,  the Lubavitch leadership are really 
closet meshichists.

>A Gadol from the outside, in particular one =
>with a poor track record on Lubavitch would only serve to give the =
>Mishchistim  what to be excited about. Basically it is a theology of =
>slogans lookiing for  a raison de etre. A theology that is losing support 
=
>when it has no agenda. A challenge from the outside will only give it =
>new impetus. Also what is poorly understood by others is that Moshiach =
>is a cover for other internal issues that have nothing to do with =
>Moshiach.

This is very intriguing. I cannot respond since the "internal issues" are 
not described. I personally believe that a strong challenge from outside 
would galvanize the "institutional and rabbinic leadership" into a public 
repudiation of the meshichists, a repudiation which would then allow me and 
many more like me to feel comfortable once again davening in a Lubavitcher 
minyan.

>We are dealing with this painful issue in a wide variety of ways.  Those =
>outside of Lubavitch who are truly concerned-not those who have nothing =
>but criticism for  years and have now found a new issue-are aware of =
>intense efforts to remedy this situation.=20

These intense efforts must become public if Lubavitch wants to restore it's 
now nonexistent credibility in the wider Orthodox community - right wing 
and centrist alike.

>As for the threat of the Moshistim. They are not a threat to Klal =
>Yisroel but to the legacy of the Rebbe. Their distortion of his =
>teachings and goals has tainted his accomplishments. They are  Yidden =
>shomer Torah and Mitzvos to the highest degree. Any effort to compare =
>them to others of two hundred years ago who moved away from normative =
>Yiddiskiet is absurd.

I disagree strongly. They are a major threat to Yahadus today. Shabsai 
Tzvi's followers were also "shomer Torah and Mitzvos to the highest 
degree". They moved away from normative Yiddishkeit because people like 
Rabbi Yaakov Emden promulgated the view that they were a deviant sect. 
Meshichists are no less deviant, and until I can tell the difference betwen 
responsible Lubavitchers such as yourself and the meshichists, I will not 
allow my son to step foot into a Lubavitcher school, shul, or Renaissance 
Fair.

>When  one looses a parent many react to that loss in  different ways. =
>Gimmel Tammuz, the day of Rebbe's T"ZL  was  an personal and spiritual =
>earthquake of over  10 on the Richter scale. Still the prophets of doom =
>and gloom have not had their visions fulfilled. Despite the pain, and =
>loss we are recovering. And we have the moral and spiritual courage to =
>deal with our challenges, internally and externally.=20

Boruch Hashem. This is the first time I have ever seen a Lubavitcher append 
zt'l to the Rebbe's name. Kain Yirbu.

I maintain, however, that Lubavitch has become so insular that it's leaders 
have misapprehended the profound alienation that many if not most of us now 
feel when we encounter the movement. Until the leadership publically 
repudiates the meshichists, and stops implying that the existence of the 
meshichists are "none of our business", this alienation will continue, c  
ulminating in a "passuling" of Lubavitch a la Dr. Melech Press.


>Excuse me for me harsh tone. This was not meant to be confrontational =
>only honest.


>Dovid Eliezrie

I welcome the tone and your response.

Arnie Lustiger

In a message dated 98-12-24 16:23:20 EST, you write:

<< I'm off to Israel to plan weddings, so I don't have time for more than a
 brief note (and i haven't seen any of this inside) - but I believe that
 the Ben Ish Chai poskened that women should say brochas over mitzvos
 oseh she hazman gramman (against the position of the Shulchan Aruch) on
 the basis of a dream quoted by the Chida, in which the relevant talmid
 chacham (I don't think it was the Chida himself)  asked Hashem (directly
 or indirectly, I don't know) on the subject and was told that they
 should >>
I believe that dream quoted by the Chida and the consequent bracha was only on
lulav, not other mitzvot aseh shehazman grama. R. Ellinson quotes this in his
HaIsha vehaMitzvot. This is immaterial, however, to R. Ovadia Yosef, who not
only doesn't allow brachot, but even discourages certain mitzvot altogether,
such as lulal and etrog.
Brigitte Dayan

Dear All,
A small clarification to Chana Luntz's piece.  The Chida (Birkei Yosef
Orach Chaim 654 note 2)ruled that women should make a bracha when
performing some mitzvot aseh she hazman grama (lulav, shofar) based on a
sefer Shaalos U'Tshuvos Min Hashamaim written by Rav Yaakov from Marvege
(see Baalei Tosphos page 150).  This work clearly is based on being told
the halacha by a heavenly source.  The Ben Ish Chai and Rav Uziel accept
this p'sak.  Rav Ovadya Yosef in Yabea Omer rejects using this source
because lo bashamaim he.
Sincerely,
Yosef Blau

I think there is some confusion between H. Maryles and M. Press concerning
the types of tests contemplated. I think HM meant to test kollel people just
like we have tests in college and graduate school.

For some reason, MP took it to mean that there should be some sort of
predicting type of test (along the lines of LSAT, MCAT, GRE, etc.) to
determine *in advance* whether the person will be successful in a kollel.

I think that testing (a/k/a "educational stress") should be considered as a
winnowing-out process of those who are apparently not sufficiently
gifted-by-God or otherwise talented to retain what they have learned.  If
they want to, those who test less successfully, may either retest at some
later date or choose to spend their time differently; the key point--as
posters have noted--is that with the limited funds available, the Jewish
public should have a right to be more selective in whom it supports.

NW

Reb DE wrote " As Professor Moshe Idel noted in his criticism of G.
Scholem. If your are an academic and your  sources are what is  written -
there
is an inherent distortion from reality. Much important if not critically
important material is not contained in the written sources. Furthermore - as
our discussion regarding how to understand Tosfos on Bas Kol  - intelligent
people looking at the same words - see different things because of what they
assume to be the context.  If you are looking for the smoking gun - it is
doubtful whether you are  going to find it. This is discussed in details in a
book called Historians' Fallacies which was required reading when I was in
graduate school - highly recommended. I would also recommend the
dissertation."

I'm not sure what you are suggesting, does this mean that a historian
shouldn't look at written sources?  Obviously, everyone knows that we can
never find out the entire, complete truth about anything, even if it is
about an event that it happening in the present, certainly not if it
happened several hundred years ago.  However, does this mean that we should
not try to verify to the best of our ability whatever we can?  Even what we
see with our own eyes is subject to varying interpretations, does this mean
that if I see something I shouldn't believe what I see?  Of course I am
obligated to be dan es kol adam lekaf zechus, and I must be careful not to
be over the aveirah of lashon harah, but a  truthful inquiry into the lives
of gedolei torah should be a lesson to us on how to lead our lives, and I
don't think that we should be afraid of an inquiry into an event that we
can learn from.  I understand however, the dilemma of Rabbi Schachter, that
such an inquiry also may lead to unnecessary lashon harah, this is indeed
the quandry in which he finds himself, and I must admit that I do not know
how to get around this difficult problem.  If I sound like I just
contradicted myself it is because I did, that is the whole point, I'm not
quite as sure as you are that we should leave this issue "undiscussed," but
I agree that there may lurk some dangerous unknown problems in such an
inquiry.
Shaul Weinreb

Joel Margolies wrote:

.."Then the gemorrah asks "eini - but rav bar cheva once went by Ravina on a
day
that a yachid is not gomer the hallel and he wasn't posek for him (to
greet ravina).  The gemorrah answers that he didn't think ravinah was
chashuv.  My question is  - why did that have to be included in the
gemorrah.  Isn't it just lashon horah?  What does one learning the
gemorrah gain from this maaseh - that rav bar shva didn't think Ravina
was chashuv?  "


Most editions of Sefer Chofetz Chaim have reprints of Chavos Ya-ir,
responsum #152, addressing the question of sharp language in the gemara.

As for your text question, without iyun on my part, it appears from how you
describe the gemora, that the gemara had a question from a ma'aseh rav
which, if followed, would have generated acertain psak.  The reponse is: no,
there is nothing to be learned from the ma'aseh rav (or whatever you think
you can learn, it's actually the exact oppposite) and this is the reason,
etc. Now, the reason is not lashon hara, I think, not on the reader of
Hallel, because he merely did not know who the person was or that he
assessed him as such at that time. It certainly is not lashon hara about the
Ravina because the gemara does not say that he was in fact *not* chashuv,
just that he wa not recognized by another as such.

NW

On Thu, 24 Dec 1998, Arnold Lustiger wrote:

> This is very intriguing. I cannot respond since the "internal issues"
> are not described. I personally believe that a strong challenge from
> outside would galvanize the "institutional and rabbinic leadership" into
> a public repudiation of the meshichists, a repudiation which would then
> allow me and many more like me to feel comfortable once again davening
> in a Lubavitcher minyan. 

Personal $0.02:

For the past eight plus years, since beginning to say Daf Yomi in a
Lubavitcher Shul here in Chicago - one that is still in the hub and
mainstream of Orthodox Chicago - although that may change now that the
long time Rabbi has become emeritus - I daven in, and, indeed, "run" the
post-shiur minyan. While I am not that uncomfortable davening with them,
and even being metzaref meshichisten to a minyan (no worse than the
non-frum, concerning whom we are generally maykel) I try as much as
possible to avoid giving grown men with gray beards that wear yechi
yarmulkes (a uniquely Lubavitcher phenomenon, along with the annoying
bumper stickers) aliyos.

YGB

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

David Glasner wrote:

> I would just make a further comment concerning Bat Kol. ....The Bat Kol carried no
> halachic
> weight it merely induced Beit Shamai to acknowledge that the halachah
> l'ma'aseh did in fact accord with the opinion of Beit Hillel, as had already
> been decided, even though the decision remained controversial.  After the
> Bat Kol, it ceased to be controversial.

This is where we started from a while back.  I think we can conclude two things 1) it
is possible to read the sources to the effect that Bas Kol does  have halachic weight
[though clearly the Rambam and others disagree strongly]  2) therefore there are
those like Rav Yonanason Eybeshuetz and Rav Sternbuch and the many authorities listed
by Rav R. Margolis (Shu"t min HaShamayim)  hold that Ruach HaKodesh et cetra can
decide or influence psak l'maasheh. It therefore is  *a* legitimate understanding of
lo Bashamayim.


                                             Daniel Eidensohn

Saul Weinreb wrote:

> I'm not sure what you are suggesting, does this mean that a historian
> shouldn't look at written sources?  Obviously, everyone knows that we can
> never find out the entire, complete truth about anything, even if it is
> about an event that it happening in the present, certainly not if it
> happened several hundred years ago.  However, does this mean that we should
> not try to verify to the best of our ability whatever we can?  Even what we
> see with our own eyes is subject to varying interpretations, does this mean
> that if I see something I shouldn't believe what I see?  Of course I am
> obligated to be dan es kol adam lekaf zechus, and I must be careful not to
> be over the aveirah of lashon harah, but a  truthful inquiry into the lives
> of gedolei torah should be a lesson to us on how to lead our lives, and I
> don't think that we should be afraid of an inquiry into an event that we
> can learn from.....

The key to understanding my point is that the values of a historian (secular
scholar) are not necessarily compatible with being a frum yid. [Psychologists and
doctors also run in to these problems]  Rabbi Schachter's dilemma is exactly that
a dilemma. I have nowhere advocated not reading the historical sources. I myself
have  studied them - including reading R' Schachter's dissertation. I have not
argued that the issues can not be discussed privately. The whole thread got
started when a public assertion was made that based upon the claims of Rav Emden
and the historical research of Scholem - Rav Emden was right. It was that public
accusation - in the face of the consensus of gedolim that I labeled as slander.

The work of the historian is not inherently a Torah consistent occupation. A frum
yid can't say - I know that I am violating serious laws of Lashon Harah - but I
must because I am a historian. No more that a Yid can say I don't have to keep
Shabbos because I am a Reform Jew. There is no such heter. The claim that since
Rav Emden made public accusations over 200 years ago - I can repeat those claims
publicly - despite the consensus of Rabbonim that they are false - because of
conclusions reached by secular scholars -  is not a Torah position. The claim
that I personally would like to understand what was going on - is legitimate If
someone is interested in reading the literature, discussing the issue with
rabbonim, historians etc I have no problems at all as long as it is not a public
activity .[ This list is a public arena.] This apparently is the stance of Dr.
Leiman  who has been described - by those who know him - as both a historian and
talmid chachom.

In sum, the prime value and standard for whether something is permitted or not is
HALACHA. Halacha is determined by contemporary poskim. If someone on this list
had said - the Rav or Rav Lichtenstein said it is permitted - I can live with
that. What has been consistently asserted is despite the acknowledged problem of
violating Halacha and slandering gedolei Torah - [to paraphrase] "*I* feel it is
important for Clall Yisroel to reopen this issue and resolve it once and for all.
That *I* feel that  there was a coverup and that *I* feel that that is no longer
needed. That* I* feel it is important to know whether the seforim of one these
gedolim is assur"
Find a gadol who will support such assertions position. The halachic principle -
is that the burden of proof is always on the one who wants to change the statuts
quo.


                                                 Daniel Eidensohn

Melech Press wrote:

>  I nowhere suggested that  a Rosh Yeshiva can't assess whether his student 
> is learning, only whether he can predict whether he will become a gadol.  

I find this discussion strange. We are not talking about teenagers.
When someone is 20, 25 or even 30 it should be obvious to everyone
whether the person is capable of being a rosh yeshiva or not.
Of course there are always ambiguous cases but that is a small
number. If nothing else tests could be used - and test are rare in kollels.
In universities we are forever deciding whom to accept in graduate programs
give fellowships to etc.
I again stress than in Torah studies we can give someone the benefit.
However, there are many who are clearly not fit for such a lifestyle.
The Gemara tells us that Rav decided that one of his sons was not fit
for a rosh yeshiva and so taught him business. I have no doubt that
this son also received a good background before entering the business
world.

There are loads of people who learned in Lakewood for a few years and
then left and they established shuls that continue their learning.
That is a far cry from those in their late 30s and onwards who are still
publically supported.

As others have pointed out in Israel it is common to remain in kollel
for life. A major difference from America is that in the US money
is finite. Hence, a place like Lakewood can only support so many students.
Hence, to bring in new students the old ones need to leave.
In Israel one simply (not always so simple) asks the government for
more money. The pot of money is determined by politics and not the
number of students. Of course, there are many predictions that this can't
continue. But that is a matter for the future.

Eli Turkel

<<
The Rebbe in rejection of the Sevoroh that the Romans captured the Menoros
Shlomo, among his arguments is that for what reason would Shlomo make it
different then Moshe Rabbeinu, he also refers to Rashi (Shmos 25:9) D"H
V'chein Taasu, that the Menorohs that Shlomo made where like that of Moshe
Rabbeinu, the Rebbe concludes that in any case since the Menoroh that was made
by Moshe (and I'll add that HKB"H formed it) is the Ikar there is no reason to
reject that (when depicting the Menoroh) one which according to Rambam and
Rashi were diagnol, and replace it with a questionable one.
>>

And the other side of the machlokes would argue, just as convincingly, maybe
even moreso, that the m'nora depicted is the real one, and in fact was
identical to the one Moshe made, and that Moshe's also had curved arms.

The Lubavitcher's argument here does not prove anything about the shape of the
m'nora.

Eliyahu Teitz
Jewish Educational Center
Elizabeth, NJ

Now that he is in the news so much, does anyone know if Amnon
Lipkin-Shachak, possibly Israel's next PM, is a descendant of R' Yisroel
Salanter, whose last name was Lipkin?

YGB

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

Joel Rich writes:
"Does anyone have any insights into shkalim mishna bet on daf 8. where R'
Yishmael states that the kupot had alpha beta gamma in yivanit ?  The k"h
seems to say that they were ragil in yivanit due to yafyutei shel yefet(we
do
see elsewhere that yivanit was considered  a beautiful language)  but it
still
seems strange that it would supplant the hebrew(v'rommamtanu mkol lashon
etc.)"

Rav Mordecai Kornfeld (in his "Thoughts on the daily daf" reproduced at
www.dafyomi.co.il) supplements the general thrust of Korban HaEdah with a
distinction between Hellenist beauty for its own sake and the beauty of the
Beys Hamikdash, meant for the service of God.  He brings similar instances
from Horayos and Menachos in which the Greek letter "Chi" is used to denote
a preferred shape.

Ad kan Harav Kornfeld's thoughts.  My suggestion (which is ahistorical
because I don't know the history) is that given a choice, non-Loshn-koydesh
letters are more appropriate to represent shapes qua shapes, since Hebrew
letters (according to the Zohar, etc., etc.) are not just letters but
emanations of creation.  R' Yishmael's remark might be interpreted to mean
that Aleph, Beys, Gimel might be misinterpreted to mean something beyond
the mere letters, while for Alpha, Beta, and Gamma, this would not be the
case.

Sholem Berger

>The Rebbe in rejection of the Sevoroh that the Romans captured the Menoros
 ^^^^^^^^^

I would like to request that people posting views of THEIR Rebbe or Rov, do so
by refering to him as MY Rebbe, or Rabbi X. MY REBBE has not made any comments
about this issue that I know of, and he did not consider any other person as
'THE' Rebbe.  I think we should be showing the proper respect for ALL gadolim.

-- 
Moshe Shulman mshulman@ix.netcom.com    718-436-7705
http://www.pobox.com/~chassidus         Chassidus Website

Rabbi Yosef Blau wrote:

>A small clarification to Chana Luntz's piece.  The Chida (Birkei Yosef
>Orach Chaim 654 note 2)ruled that women should make a bracha when
>performing some mitzvot aseh she hazman grama (lulav, shofar) based on a
>sefer Shaalos U'Tshuvos Min Hashamaim written by Rav Yaakov from Marvege
>(see Baalei Tosphos page 150).  This work clearly is based on being told
>the halacha by a heavenly source.  The Ben Ish Chai and Rav Uziel accept
>this p'sak.  Rav Ovadya Yosef in Yabea Omer rejects using this source
>because lo bashamaim he.

The Chida is apparently not just relying on Rav Yaakov HaChasid. In this
halacha he would seem to be paskening against both the Rambam and the
Mechaber - something rare for Sefardim. If you look at the Shem HaGedolim by
the Chida on the entry of Rav Yaakov HaChasid. He has a full discussion of
Lo Bashamayim. He notes that the Rambam strongly rejects any halachic
information from Shamayim. The Kesef Mishna emphasizes this strong rejection
of the Rambam - even of a sevora from Shamayim. The Chida acknowledges that
there are some like the Pri Chadash who view that the Bas Kol was only for
the Kavod of both Rabbi Eliezar and Beis Hillel and some like the Ramban and
Raavad who accept that the Bas Kol was *the* source of psak in the case of
Beis Hillel.  He says we could just say there is a dispute amongst the
rishonim whether Bas Kol can posken but he is puzzled by one anomaly. The
Kesef Mishna brings a source to one of the psakim (Goy being metamai) of the
Rambam from Eliyahu HaNavi. To resolve this problem he proposes that where
there is no way to resolve a halachic dispute by voting - it is appropriate
to rely on a psak from Heaven such as is found concerning Beis Hillel. Thus
he says that even the Rambam and Mechaber might have allowed an answer from
Heaven. The issues raised by Rabbi Yakov HaChasid in Shut MinHaShamayim are
such issues.


There is also an interesting comment of Rav Tzaddok (Dovair Tzedek 75b)on
why in the two cases of Bas Kol we have discussed - the halacha is not in
accord with the Rabbi Eliezar's Bas Kol but it is with Beis Hillel's Bas
Kol. The key is that only with Beis Hillel is the expression eilu v'eilu
used. He asserts that we poskin like Beis Hillel because he cites also Beis
Shammai while Beis Shammai never cites Beis Hillel. The Bas Kol for Rabbi
Eliezer was saying that in *Shamayim* the halacha is in fact like Rabbi
Eliezar. There is only one right answer in Shamayim and similarly Beis
Shammai also insists there is only one right answer. That derech is not for
halacha l'maaseh in this world. Beis Hillel's Bas Kol announced that since
Beis Hillel is willing to accept that from man's perspective there is more
than one correct answer - Beis Hillel is  in fact is to be halacha l'maaseh.
This is obviously in accord with the kabbalistic view that Beis Shammai will
be the halacha in the time of Moshiach.

                                          Daniel Eidensohn

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