Avodah Mailing List

Volume 02 : Number 167

Thursday, February 18 1999

• Zohar
• Ho'omeir Behsim Omro
• Edah Conference
• BD Seiruv
• Re: Mishenichnas Adar Marbim Torah
• Re: Zohar
• Re: Edah Conference
• ho'Omeir Besheim Omro
• BD & Agunot
• Zohar and Halachah
• Magein Avos
• Re: Goedelian contraints
• Re: job of Beis Din
• Heicho Kedusho Sources
• BD adn objectivity
• Re: ho'Omeir Besheim Omro
• BD Clarification
• Re: Zohar
• Re: Zohar
• Re: job of Beis Din
• Purim - Tisho b'Av Parallels
• musaf piyutim

There is a discussion concerning the use of the Zohar.  A point is missing
that seems to me quite important.  The issue is "what is one using the
Zohar for."

1.	One school of thought uses the Zohar as a talmudic source.

2.	One school of thought uses it as a rishon.

3.	One school of thought uses it as a source of minhagim.

It is much more important to determine what it is used for, than to
determine how many times it is used.  It is my view that except for one
famouse use in the BY (EH 25) all the uses are in category 2.  Magen
Avraham uses them as a category 3.  Some of the discussion about tefellin
on chol hamoad use them as a category 1.

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

Joel Rich: >> No real surprise-R' Schachter points out that we all know the 
gemora says- kol ...bshem omro meyve geula lolam.  Why geula rather than another
'reward'? <<

this is a mishno/braiso in the 6th Perek Mishno 6 of Avos.

AND irony of ironies this Mishno itself is anonymous!

Rich Wolpoe

So, any news from or reaction to the Edah conference?

I am not eager to start a debate (for a change!) and welcome private
responses!

YGB

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

I said:>>> Question:  do you think THAT landlord - based upon THAT perception - 
was > motivated to use the local beis din in a dispute with his tenants?<<

Zvi Weiss===> If he cannot verify that the perception was accurate, then I would
say he was NOT justified to go to a different B"D.<<

OK, how would YOU behave if you were summoned to a BD that you KNEW to be 
unfair?

Rich Wolpoe

In a message dated 2/16/99 1:38:46 PM EST, Joelirich@aol.com writes:

> the gemora says- kol
>  ...bshem omro meyve geula lolam.  Why geula rather than another 'reward'? 
> The
>  quote the gemora uses(I'm not home so this is all from memory)

It is in the Breisoh of Kinyan Torah, Avos 6:6.

Kol Tuv

Yitzchok Zirkind

In a message dated 2/17/99 12:43:33 PM Eastern Standard Time,
mbroyde@emory.edu writes:

<< There is a discussion concerning the use of the Zohar.  A point is missing
 that seems to me quite important.  The issue is "what is one using the
 Zohar for."
 
 1.	One school of thought uses the Zohar as a talmudic source.
 
 2.	One school of thought uses it as a rishon.
 
 3.	One school of thought uses it as a source of minhagim.
 
 It is much more important to determine what it is used for, than to
 determine how many times it is used.  It is my view that except for one
 famouse use in the BY (EH 25) all the uses are in category 2.  Magen
 Avraham uses them as a category 3.  Some of the discussion about tefellin
 on chol hamoad use them as a category 1.
 
 Michael J. Broyde
 Emory University School of Law
 Atlanta, GA 30322
 Voice: 404 727-7546; Fax 404 727-3374
 
 
  >>
Dear R' Broyde,
What would the logic be for 2?

Kol Tuv,
Joel Rich

In a message dated 2/17/99 2:14:02 PM Eastern Standard Time,
sbechhof@casbah.acns.nwu.edu writes:

<< So, any news from or reaction to the Edah conference?
 
 I am not eager to start a debate (for a change!) and welcome private
 responses!
 
 YGB
 
 Yosef Gavriel Bechhofer
 Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
 ygb@aishdas.org, http://www.aishdas.org/baistefila
 
 
 
  >>
Dear R'YGB,
A friend of mine(really-it wasn't me , I promise:-)) attended and has a few
tapes from the opening session and a few others- I'll report back (bli neder)
as soon as I hear them ; unless there's a real attendee reporting.

Kol Tuv,
Joel Rich

Joel Rich:>>No real surprise-R' Schachter points out that we all know the gemora
says- kol
...bshem omro meyve geula lolam.  <<

This is a mishno braiso in Perek 6 Mishno 6.

Irony or ironies, this Mishno is itself is anonymous!

Rich Wolpoe

I said:> 
> I'll concede the Aguna case following the shoaa as a horoas sho'o. And
> their the
> perpetrator was AH YS.

Zvi Weiss says:===> I think that it is not difficult to make a similar arguement
in our time.<<

Indeed one can.  Just realize that if a ball is MIA due to a war or a pogroma 
it's one thing.  A recalcitrant husband feels justified based upon some motive. 
I am saying, it is WRONG to prejudge that motive, because we are no privy to all
the facts of the case. Period.  In a holocaust there is the lieklihood that no 
ball is alive to be injured.

Re: Assault and batter, are you syain BD is going to prevent this?  I believe 
the possuk distinguishes between SHOFTIM and SHOTRIM. 

Chzazl tell us that Pinchos could be mekane when he saw the chillul Hashem in 
action.  BUT doing the same act to Zimri a day later (even an hour later) would 
have been shefichus domim.

So Please udnerstand me.  Unless we SEE the Baal beating his wife, we cannot lay
a hand on him without "due process"; otherwise we have vigilanti'ism.

I accept your premise that the DB is objective; I just want everyone to realize 
the potential harm if the DB is not PERCEIVED as objective.  RYGB's comments re:
a so-called BD are exactly the point; a BD that is not perceived as on the up 
and up will be dismissed.  No matter how reliable the sources are that they 
cite, lack of objectivity will create 'ir'ur.

Rich Wolpoe

My first reaction was that aggadah has no role in halachah by definition of the
word aggadah. This would mean that our discussion is about whether or not the
Zohar is entirely aggadic.

Then I realized there are actually a couple of ways aggadah can affect
halachah, without being directly halachic:

1- It can be the basis of minhagim that are lifnim mishuras hadin. And then,
   such a minhag can become minhag yisrael, and thereby k'din.

My feeling is that most halachos based on the Zohar are actually such minhagei
yisrael.

2- Determining p'sak when all within the halachic system is equal.

I'm not even sure this is real, or just something I made up. Certainly in the
realm of nusach hat'filah choices are often made based entirely on a s'varah
about which version makes more sense.

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 6092 days!
micha@aishdas.org                         (11-Jun-82 - 17-Feb-99)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

What defines "aroi" WRT skipping "Magein Avos" on Friday night? The minyan
I attend is weekly, however, the location rotates between houses. Different
members of the minyan got conflicting piskei halachah, but sof-kol-sof we
do not say "Magein Avos".

Anyone have m'koros?

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 6092 days!
micha@aishdas.org                         (11-Jun-82 - 17-Feb-99)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

In v2n164, David Riceman <driceman@WORLDNET.ATT.NET> writes:
: That would be an elegant explanation for why there are halachoth
: l'moshe misinai - those would be the propositions that are true
: but not provable.

I disagree. The number of halachos liMosheh miSinai is finite. The Rambam
provides what he holds to be a complete list. But even if not, the fact that
the list is finite just means there are more base-line axioms to the system.
Add that to the Torah sheBichsav, and you would still have a closed formal
system.

: OTOH I don't think Godel's proof could be extended to a language as
: complicated as halachic dialectic - can you compose a diophantine
: equation determining whether a word is myutar and can be used as a
: ribuy?

You don't have to show that halachah itself qualifies. "All" you have to do is
show that if some subset of halachah were not so limited, neither would
a formal presentation of mathematics. IIRC, it would be sufficient to show
that some subset of halachah maps to predicate calculus, since Peano will take
us from a formal representation of PC to one of mathematics as a whole.

I have a feeling some part of hilchos p'sak bimakom safeik (eg s'feik s'feika)
qualifies.

However, Goedel assumes the system is consistant -- i.e. he relies on the
inadmissability of a formal system that contains a proof of both A and not-A.
However, we've discussed at length on this list hashkafos about halachah that
assume that halachic theory (divrei Elokim Chaim) includes such opposites.

And, practical p'sak is not a closed system, so it's unplagued as well. New
piskei halachah choose between these opposites all the time.

-mi

-- 
Micha Berger (973) 916-0287    Help free Yehuda Katz, held by Syria 6092 days!
micha@aishdas.org                         (11-Jun-82 - 17-Feb-99)
For a mitzvah is a lamp, and the Torah its light.
http://www.aishdas.org -- Orthodox Judaism: Torah, Avodah, Chessed

In message , EDTeitz@aol.com writes
><<
>I'm not sure I agree with this.  It is not Beis Din's job to go out and right
>the wrongs of the world.  A Beis Din is a court, a formal institution, and its
>job is to wait for a claimant to come.

The idea of a court being a passive institution is one that is deeply
inbedded in the common law system (that is, the system based on English
law adopted around the English Speaking world, such as the US, Canada,
Australia etc).  However, it is not necessarily true that a court need
always function like that.  In fact, the other "competing" world system
of law, the civil law system, does not function like this.  Civil law
system judges have much greater powers of interogation and control of
their cases, including roles which we from the common law system would
generally identify as being those of the public prosecutor (DA in
American).  Check and see, for example, the precise title of the spanish
person who pursued the extradition order for General Pinochet.  

Thus there is no intrinsic reason why a court need play the passive role
found in the common law system (the increasing dominance of the common
law system over the civil law system is based on two completely
unrelated factors a) the increasing dominance of the English language in
the world of business, and hence the need for courts who are comfortable
in that language, and b) the fact that the common law systems are
regarded as being (and are) more creditor friendly that the various
civil law systems.  As Banks, in general, dictate as part of their loan
conditions the legal system to govern the contract, most international
loans today are governed by either English or US law - even where it is,
for example, a German bank lending to a Korean developer to build a
hotel in South America).

While the halachic system is, of course, different again, in this regard
it appears closer to the civil law systems than the common law ones (for
example in the interrogation of witnesses, which is assumed tobe done by
the dayanim themselves, not by cross examination of the other side's
lawyer).

Now your argument might be stronger for the case of the Sanhedrin or the
traditional beis din, ie those powers and requirements set out in siman
1 of SA Choshen mishpat.  However, our beitei din does not act on the
basis of those powers, which can only be exercised in Eretz Yisroel, by
somebody with real smicha (ie the kind that has been lost) etc etc.

The powers of our current beitei din are based on siman 2 of SA Choshen
Mishpat entitled Beis Din machin v'onshin l'zorech hasha'a - which
states that any beis din, even if they do not have smicha and are not
sitting in Eretz Yisroel, if they see that the people "prutzim b'averos"
they can judge bein b'misa bein b'mammon bein kol dinei onesh. 

Certainly these powers are restricted and the details expanded upon in
the following simanim (ie the fact that the beis din operates l'zorech
hasha'a does not mean that a dayan can take bribes (siman 9)).

But it does indicated that the primary function of a beis din today is
to prevent the people being prutzim b'averos - which strikes me very
much as a statement that they are to go out and right the social wrongs
(assuming such social wrongs are in fact halachic wrongs) of the world,
and not wait for the litigants to come to them.

With regard to the general discussion about what attitude the beis din
should have towards litigants that come before them, the halacha is
pretty clear - it should regard them both as rashaim (Siman 17 s'if 10)
- If there come before him him ba'alei din, one kasher and one rasha, he
shouldn't say, this one is a rasha and established in sheker, and this
one is not, I will turn the din against the rasha, but rather, the two
ba'alei din should always be in his eyes like rashaim and the chazka is
that each one of them is pleading falsely, and he should judge according
to that which it seems to him from their words.

Of course this solves the problem about being prejudiced against the
husband - yes, the beis din assumes that the husband is a rasha, it also
presumably assumes that the wife is a rasha. But because the halacha
does not hold that two wrongs make a right - it will then be able to
judge with tzedek and emes between them.
>
>Eliyahu Teitz
>Jewish Educational Center
>Elizabeth, NJ
>

Regards

Chana

-- 
Chana/Heather Luntz

The Rambam the SA, the Rav mentione model #1 i.e. together with the Chazan.
Remo hints at Model #2 when he states one (or more?) shouldd say omein
The Kaf haChayimt mentions both models of Heicho kedusho is in simon 124 Se'if 
Koton 10.

Question: if miktzas do Model #1 and Kiktzas Model #2 and ther aren't at elast 
10 doing each, are they yotzei Tefillo beTzibbur?

I said:> Let me tell you a story.  A landlord in a certain community told me the
> REPUTATION (lav davko the reality) of the local Beis Din was to favor
> tennats in
> their litigations with landlords.

Ziv Weiss says ==>Maybe that is because the reality is that the landlords really
WERE in the wrong.  Historically, it is not a secret that Rabbonim were forced 
from their communities when they "stood up" against the "rich and
powerful" who just happened not to be in the halachic "right".  I would 
actually draw the opposite conclusion from the above story -- that the 
landloreds are so corrupt that the B"D is actually PROTECTING the ones who 
rent. <<

Well Put. I think this is great illustration of a prejudice that serves to 
justify WHY some landlords are mesareiv.  I.E. they see their side being 
re-interpreted to portray them as the villains -   So why bother to go to a 
Beis Din that will only stereotype them anyway?

Rich Wolpoe

In a message dated 2/17/99 2:52:48 PM Eastern Standard Time,
richard_wolpoe@ibi.com writes:

<< oel Rich:>>No real surprise-R' Schachter points out that we all know the
gemora
 says- kol
 ..bshem omro meyve geula lolam.  <<
 
 This is a mishno braiso in Perek 6 Mishno 6.
 
 Irony or ironies, this Mishno is itself is anonymous!
 
 Rich Wolpoe
  >>

> the gemora says- kol
>  ...bshem omro meyve geula lolam.  Why geula rather than another 'reward'? 
> The
>  quote the gemora uses(I'm not home so this is all from memory)

It is in the Breisoh of Kinyan Torah, Avos 6:6.

Kol Tuv

Yitzchok Zirkind

-------------------------------------------------------------
Dear Richard and Yitzchok,
I was thinking of the gemora in megilla(15a) which quotes the statement in the
name of R' Elazar in the name of R'Chanina.  Interesting that in the other
places that this appears  it is anonymously quoted. I wonder why???/

Kol Tuv,
Joel Rich

I had no specific BD in mind.  I was speaking purely hypothetically about single
purpose BD.
Rich Wolpoe

On Wed, 17 Feb 1999 Joelirich@aol.com wrote:

> In a message dated 2/17/99 12:43:33 PM Eastern Standard Time,
> mbroyde@emory.edu writes:
> 
> << There is a discussion concerning the use of the Zohar.  A point is missing
>  that seems to me quite important.  The issue is "what is one using the
>  Zohar for."
>  
>  1.	One school of thought uses the Zohar as a talmudic source.
>  
>  2.	One school of thought uses it as a rishon.
>  
>  3.	One school of thought uses it as a source of minhagim.
>  
>  It is much more important to determine what it is used for, than to
>  determine how many times it is used.  It is my view that except for one
>  famouse use in the BY (EH 25) all the uses are in category 2.  Magen
>  Avraham uses them as a category 3.  Some of the discussion about tefellin
>  on chol hamoad use them as a category 1.
>  
>  Michael J. Broyde
>  Emory University School of Law
>  Atlanta, GA 30322
>  Voice: 404 727-7546; Fax 404 727-3374
>  
>  
>   >>
> Dear R' Broyde,
> What would the logic be for 2?
> 
> Kol Tuv,
> Joel Rich
> 
 I agree with Joel's question, why number two. If we treat it as a Rishon
then we think its a forgery--that loses it's credibility. Furthermore, who
brings it down as a rishon, THe MIshna Brurah allows one to rely on the
Zohar even against a Mishna--this would be another Tannaic quality.
Finally, even if it's used for minhagim or chumras--why does that talke it
away from being Taanaic, why can't we simply say that we posken Halacha
like the Tannaim quoted in the gemara, yet the Zohar is still an important
Tannaic source which can be used for minhagim and Chumros.
Elie Ginsparg

In a message dated 2/17/99 11:48:47 PM Eastern Standard Time, C-
Maryles@neiu.edu writes:

<< I agree with Joel's question, why number two. If we treat it as a Rishon
 then we think its a forgery--that loses it's credibility. Furthermore, who
 brings it down as a rishon, THe MIshna Brurah allows one to rely on the
 Zohar even against a Mishna--this would be another Tannaic quality.
 Finally, even if it's used for minhagim or chumras--why does that talke it
 away from being Taanaic, why can't we simply say that we posken Halacha
 like the Tannaim quoted in the gemara, yet the Zohar is still an important
 Tannaic source which can be used for minhagim and Chumros. >>


Um, oh C'mon. The Zohar was not written at the time of the mishnah. That is
not to say that some of the material in it isn't very old, but we know it was
not compiled contemporaneously with the Mishnah.

Jordan

Chana having done her usual thorough job leaves me room for but one comment:

<<
 The powers of our current beitei din are based on siman 2 of SA Choshen
 Mishpat entitled Beis Din machin v'onshin l'zorech hasha'a - which
 states that any beis din, even if they do not have smicha and are not
 sitting in Eretz Yisroel, if they see that the people "prutzim b'averos"
 they can judge bein b'misa bein b'mammon bein kol dinei onesh.  
>>

To actually right social wrongs the Beis Din needs power to enforce its
decisions.  But the current Batei Din, outside of Israel, do not have the
power to enforce punishment, which throws their job back to one of waiting for
litigants, people who will accept their authority, to come to them.  

Eliyahu Teitz
Jewish Educational Center
Elizabeth, NJ

BTW, My theory re: the liturgical parallels is that Chazal structured the 
davening in both cases in order to accentuate the superlative aspects of the 
days.  I.E:
1) Purim is THE most joyous day of the year.
2) Tisha b'Av is THE saddest day of the year.

Kol Tuv,
Rich Wolpoe

in sefer yemei hapurim  ( r liberman 1997]     he brings the following note:
see sefer eliyaaahu raba siman 685  s''k 14 'tzarich taam lama lo tiknu
lmusaf zachor vepara and see haara 31 and 8.

as i don't have that sefer maybe someone could look it up.....

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


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