Avodah Mailing List

Volume 06 : Number 084

Thursday, December 28 2000

• Re: Chanukah--Al haNisim
• RE: Toras Imecha
• Re: Toras Imecha
• Re: Covering hair
• RE: Haircovering
• dat Yehudit
• Re: Tzelem Elokim
• Re: Tzelem Elokim
• Re: Tamar and Aishes Potifar
• Re: Toras Imecha and tallis
• Re: Dor Revi'i and TSBP

Noah Witty wrote on 25 Dec 2000: <The Rama writes that if one forgot
Al Hanisim in either Shmo-ne Esray or in Bentching, that he should
say a Yehi Ratzon or Harachaman ya'aseh lanu nisim, etc. kmo she-'asa
la-avoseinu. Rav Hershel Schachter would usually point out that this is
problematic because one should not ask Hashem for a miracle because one
must pay for it with ze-chuyos (along the lines of the several stories
found in Maseches Ta'anis). In a conversation that had nothing to do with
the above, Rav Yosef Scheinberger of Yerushalayim and Boro Park pointed
out to me that the Mahrsha on Kiddushin 40a (?) staes that if one davens
for a miracle the gemara in Maseches Ta'anis does not apply. This would
seem to be in opposition to the previous paragraph.>

Actually, you don't need to go to the Maharsha. The nusah of 'al hannissim
used to include a baqqosho for miracles -- in ALL communities. (Excuse
the transliteration; I'll use sefaradi pronunciation because more people
are used to reading it.)

R. 'Amrom Gaon: "v'qav'u sh'mona yamim b'hallel uv'hoda'a l'shimkha;
k'shem she'asita 'immahem nes, ken 'ase 'immanu Hashem Elokenu nissim
v'nifla'ot ba'et hazzot."

R. Sa'adyo Gaon: "v'qav'u sh'monat y'mei hanukka 'elu l'hodot ul'hallel
l'shimkha haggadol; k'shem she'asita lahem nissin ug'vurot bayyamim
hahem bazz'man hazze, ken 'ase 'immanu Hashem Elokenu pele v'nissim
ba'et hazzot."

Roqeah: "v'qav'u sh'monat yamim hallel v'hoda'a l'shimkha; k'shem
she'asita nissin larishonim, kakh ta'ase la'aharonim v'toshi'enu
bayyamim ha'elu k'vayyamim hahem."

Rambam:"ul'amm'kha Yisra'el 'asita pele v'nissim; k'shem she'asita
'immahem nissim ug'vurot, kakh 'ase 'immanu nissim ug'vurot ba'et
uva'ona hazzot."

With unanimity like this and the similarity of the nusha'ot in the
earliest sources it is almost incontrovertible that this was part of
the original nusah.

Well, you will say, but the fact that Ashkenazim and Sefaradim today do
not say it must prove that we pasken that you may not ask for nissim? No,
that is not the reason. Tosfot Megilla 4b says that the reason that some
people don't say it is because "lo yish'al 'adam tz'rakhav lo b'shalosh
rishonot v'lo b'shalosh 'aharonot." Tosfot reject that because they say
it was only asur "lamitpallel b'lashon yahid, 'aval bishvil hatzzibbur
shari." The Tur (O.H. 682) brings both opinions mentioned in Tosfot,
and says that his father the Rosh skipped it. The SA (682:4), true to
his principle of paskening like the triumvirate of poskim, says you
don't say it (because the Rosh was the only one to address the issue
specifically and he said not to say it).

At any rate, it is clear that the objection to asking for nissim was
because of its location in modim, not because there is an objection
to asking for nissim. And to solve R. Schachter's objection we can
use the s'voro of Tosfot (brought by the other rishonim) that it might
only be problematic for a yahid to ask for a nes for himself, but for
the tzibbur it is certainly permitted. (Maybe R. Schachter said this,
and was just objecting to an individual asking in his private benching?)

[further: remember that the hakhomim asked Honi Hama'gal to ask for
rain, although you can argue that he was not asking for a miracle.]
In light of the above, and in light of the situation in Eretz Yisrael,
I would recommend that people say one of the nusha'ot brought above;
but you can say it in sh'ma' qolenu rather than in modim.

Seth Mandel

Micha Berger:
>: Q: Is painting the cloud as in Kitor hakivshan wrt to mahapeichas Sdom
>: as looking like a nuclear muhshroom cloud qualitatively different?

> It too is not a model. However, they differ in a more basic respect. One
> is an illustration of an idea. The other, as you originally presented it,
> was asserting a new concept: that the neis was actually a nuclear explosure.
> Not that it looks like one. (Even the latter isn't necessarily in evidence
> from the pasuk.)

> What you are saying with S'dom is closer to asserting (which no one does)
> that one does atifah that way because there is a purpose in looking Arabic.
> Not that one happens to look Arabic.

With all due respect both are illustrations of concepts despite attempts
to obscure the parallels by dubious distinctions <smile>

I challenge anyone to cite a soure ruling that one may not use non-Jewish
models to illustrate a concept.

And fwiw a nuclear bomb is not non-Jewish per se, it's neutral, while
Yishmaeilim is clearly non-Jewish.

Shalom
Rich 

On Thu, Dec 28, 2000 at 09:14:35AM -0500, Wolpoe, Richard wrote:
: With all due respect both are illustrations of concepts despite attempts
: to obscure the parallels by dubious distinctions <smile>

I believe you are conflating two of our long standing disagreements.

Using a non-Jewish model is a problem, one that the Rambam was condemned
for. One can't cast the Torah into the Aristotilian mold. The Rambam
clearly had a more limited notion of what the halachic problem covered
than his detractors.

Using a non-Jewish example as an illustration is not a problem. For
example, comparing atifah to the style of Yishma'eilim -- which I now
have to check where I got that idea from.

My problem with comparing S'dom to a nuclear explosion isn't in the
comparison, but in the assumptions it makes about what S'dom was like.
A totally unrelated issue. It's one thing to say they were similar,
it's another to say that since it was /like/ a nuclear bomb, it must
have therefore been the same processes of teva involved. And from
that conclude things about the nature of neis in general.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

Daniel Eidensohn wrote:
> I don't understand how this tshuva #53 can be understood to mean that he 
> permitted women to go without any headcovering - "permits uncovered hair" if 
> most act that way? My brief perusal of his discussion indicates that he is not
> permitting the head to be uncovered but only braids or hair sticking out of a 
> head covering. 

I reread the teshuvah of the Maharatz Chajes very carefully last night and have 
come to the conclusion that I had previously misunderstood it.  The MC quotes 
the Maharam Alashkar extensively and then summarizes it.  I misread the summary 
as the MC's own opinion.  It is not and he does not give an opinion on this 
matter because it was not the question asked of him.

I thank R' Eidensohn for pointing out my error and apologize to the chevra and 
the Maharatz Chajes for my mistake.

Gil Student

Yosef Gavriel and Shoshanah M. Bechhofer:
>>I do not think that the nidah cases are similiar to the das yehudis cases,
>>as matters of das yehudis are by there very structure and definition,
>>dependent on the local custom and practice of [observent] Jewish women...

> I am not sure the I quite understand the distinction. Why bother codifying a 
> "pure" custom?

Answer:  There are two levels of erva, objective and subjective

What becomes customary to cover is deemed subjective erva and poskim
want to avoid a pirtzas geder, ESPECIALLY in a case where the intrinsic
issur might be lackking.

Shalom and Regards,
Rich Wolpoe
Richard_Wolpoe@ibi.com

From time to time one of my friends or colleagues comes up with a
revolutionary chiddush in Halacha which amounts to claiming that all
the achronim didn't know what they were talking about on some salient
issue. As opposed to working through the system, such as producing new
evidence from rishonim that, had the achronim seen it, would have caused
them to change what they wrote-I and others do this all the time-this
approach assumes that the achronim simply erred and overlooked or
misunderstood basic texts that were before them.

Such claims almost invariably are a result of a fundamental misreading
of the sources by the claimant. One example is a widely-read article by
R. Saul Berman on kol isha that ignores the central Talmudic discussion
of the issue, and consequently misconstrues the rishonim and reaches
the erroneous conclusion that kol isha has nothing to do with sexual
stimulation(!) I dealt with this in chapter eight of my English book
"Equality Lost" (1999, Urim Publications), currently being reprinted.

Another example is a recent posting on the Avodah internet list by
R. Michael Broyde, which bases itself on the observation that-unlike the
Rambam-the Tur and Shulchan Aruch nowhere list a woman's going bareheaded
in public as a violation of dat Moshe, but only as a violation of dat
Yehudit. Since dat Yehudit is only a matter of custom, as Rambam writes,
R. Broyde concludes that according to the Tur, wearing any head-covering
at all is only a matter of custom and not of Torah law.

But this is based on Rashi and the Rambam's definition of dat Moshe as
Torah law (or at least an asmachta for a rabbinic decree) as opposed
to dat Yehudit which originates in custom. According to them, going
completely bareheaded is dat Moshe, while going partially or inadequately
covered is only dat Yehudit.

The Semak, Rosh, and Tur, however, have a completely different
understanding of dat Moshe and dat Yehudit. Nowhere do they mention
minhag in connection with dat Yehudit. Their approach is that dat Moshe
refers to cases where the wife actively caused her husband to violate a
prohibition, such as by feeding him untithed produce, while dat Yehudit
refers to brazen behaviour which creates a presumption that she may be
promiscuous (chatzifuta vechashad znut), such as by going bare-headed. Dat
Yehudit, according to this, can mean the wife's violation of even Torah
prohibitions. See the language of Semak 184, copied by the Rosh in
Ketuvot 72.

R. Broyde's mistake lies in assuming that Semak, Rosh and Tur accepted
the Rambam's, et al, definition of dat Moshe and dat Yehudit, rather
than noting what they themselves wrote. The one point in his favor
is that the Shulchan Aruch (but not the Tur!) uses both language from
the Tur and from the Rambam; this presents a difficulty (tzarich iyun)
in the Shulchan Aruch, but does not demonstrate that anyone among the
rishonim ever contemplated the possibility that going bare-headed is
only a question of custom, which would be in direct contradiction of
the gemara which explicitly labels it "de'oraita."

I discussed this in Resp. Bnei Banim vol. 3, no. 22, in reply to a
rabbi who made the same proposal then as does R. Broyde now, and in
which I explained what in the sugya prompted Semak and Rosh to disagree
with the Rambam. This is one of four teshuvot dealing with women's head
covering, nos. 21-24. In my opinion, no one can conduct an intelligent
discussion of the Halachic parameters of women's head-covering today,
without reference to these teshuvot.

-- Yehuda-Herzl Henkin

At 02:39 PM 12/27/00 +0200, janet rosenbaum wrote:
>my understanding is that rav kook speaks of jews as being distinguished as 
>a group beyond their individual limits.  i have never understood him to 
>discuss non-jews in any way as individuals, but perhaps i am wrong.

I do not know. If necessary I might look it up, but there must surely be 
greater experts in RAYHK than myself here.

>i had always understood the chassidische view (in tanya) that non-jews 
>lack bechira and nefesh elokit (pardon, elokis), which is a great deal 
>stronger than your definition of TE.

Where does the Tanya exclude non-Jews from Bechira?

KT,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

RYGB received an email that said, in part:
:                                  the question was whether non-Jews (e.g., 
: Arabs) have TE. He said (and seemed ready to quote lots of Chabad sources 
: starting with the Alter Rebbe) that Adam, Hava, and all Jews are made in 
: TE, but nobody else, more or less....

It would appear from the 2nd perek of Tanya that all Jews (regardless
of tzidkus or lack thereof) and all chassidei umos ha'olam have a nefesh
Elokis. In my huge ignorance of Chabad chassidus, I am reluctant to argue
with a rav who lives it. However, I do not see how Chabad actually does
teach what the correspondant's rav said it did.

In RYGB's response he writes:
: The dichotomy is between the Kabbalists, who view TE as a mystical thing, 
: and hold that after Mattan Torah goyim no longer possess it (i.e., the 
: mystical capacity to have Godlike impact upon supernal spheres and thus on 
: the physical universe as well), and this applies to the Nefesh Ha'Chayim et 
: al as well, vs. the rationalist philosophers who hold it is the intellect 
: and higher power of reasoning and functioning that constitute TE.

That suggests a possible interpretation of the mal'ach's statement when
renaming Ya'akov. That the name "Yisra'el", "ki sarisa", describes the
observation that Ya'akov was able to reach those olamos. (As can every
Jew since.)


RSRH doesn't discuss an inherent difference between Jews and non-Jews,
but he does discuss a difference in mission that parallels the distinction
attributed to kabbalists here. That Jews alone have a mission to deal
with issues beyond this world. Eight, the number beyond the shiv'as yimei
bereishis, represents to him the particular mission of the Jew. Which
is why it figures in the mitzvos of tzitzis, milah, and Shemini Atzeres.

Or, to use a quote of R' Dr Isaac Levi (inserted into RSRH's commentary on
Bamidbar 16:41) that I have on file:
> So that there are three elements in us. (a) our material sensuous
> bodies, like the rest of the created visible world = 6; (b) the breath
> of free will, invisible, coming from the Invisible One = 7; (c) the
> calling of Jew, coming from the historical choice of Israel = 8.

RYGB:
: Rav Kook and the Rav, if they address the point, would likely address it from 
: different angle depending which of the two perspectives (both of which are 
: not mutually exclusive) they were speaking from at the moment.

LAD, RYBS is pretty clear -- he defines tzelem E-lokim as the ability
to create. This is one of the central themes of Ish haHalachah.

But neither this nor the "impact on the supernal spheres" necessarily
define tzelem E-lokim. A being with such a tzelem has the kisharon to
move the olamos ha'elyonim because the tzelem provides him with a bridge
to them. However, we still don't know what the bridge is.

Does RYBS mean to refer to all the elements that go into creation --
bechirah chafshi, imagination, binah, etc...? I might argue that bechirah
is the only necessary kisharon in order to create. With less ability,
one would create less impressive things. But without bechirah, man's
actions are only consequences of external events, not his own creations.
If man isn't starting a chain of causality, in what sense is the effect
/his/ creation?



Which brings us to R' Gil Student's survey on the subject. I'm citing his
web page at <http://www.angelfire.com/mt/talmud/image.html>, which I can
email anyone who doesn't have or want access to a browser. Although I end
up summarizing a good chunk of it, it is very k'dai to read the original.

The first two opinions he cites, that of R' Saadia in Emunos viDei'os
and of the Rashbam and Ibn Ezra, do not define "tzelem E-lokim" as being
"in image of G-d". Note that this avoids making an attribute of Hashem
out of "tzelem".

IMHO, they might acheive an idea pretty close to tzelem E-lokim from
"vayipach bi'apav", as per the Zohar (that "neshamah" is the breath when
still within the One blowing).

In general, I think we're more concerned with identifying in what way
each sees godliness in man than whether or not that G-dliness is Tzelem
E-lokim. While this essay is useful toward our goal, it's not aimed at
it. The original sho'el was concerned with saying that non-Jews were
inherently less like HKBH than we are. Not the term itself.

Shitah #4 on RGS's list of people who do define TE to be "the image
of G-d" is the Ramban. He identifies the TE with the ru'ach, but
without knowing what the ru'ach is and does, it only shifts RGS's
question. However, this means that goyim do have a TE, whatever a TE is.

Similarly, R' Saadia on the chumash (5) identifies TE with the kisharon
by which "urdu bidgas hayom ubi'of hashamayim..." Is this some kind of
charisma? Our superior intellect? Again, I think this is to vague to be
usable as a definition.

Rambam (item #1) speaks of "independence of thought". I understood
Abarbanel's first suggestion (6) identically. The Abarbanel's fourth
aspect is the one the Rambam discusses in the Moreh.

The Sifsei Chaim, Tif'eres Yisrael and Meshech Chachmah (3) speak
of bechirah chafshi. LAD, hainu hach -- the ability to have thoughts
that aren't merely sensory reactions is what gives freedom to bechirah.
The Ramban also seizes the idea of bechirah chafshi, but considers that
to be d'mus E-lokim, not tzelem. As I said above, the distinction doesn't
affect our sho'el.

Bechirah is technically somewhat broader, in that it includes not only
free thought, but the ability to act on that thought. But I'm not sure
these latter acharonim were being so technical about it.

The Ramchal and Abarbanel's 2nd opinion (7) certainly focuses on man's
ability to realize the choices he makes. As they take "tzelem" to mean
that man's body represent the world and how it relates to (is impacted by)
HKBH. Apparantly they are resolving the problem of assigning tzelem as
an attribute of Hashem differently than everyone else did. They make it
a perception, an attribute of how Hashem's actions appear to the beri'ah.

RYBS's notion of creativity includes creating halachah; which, because
it brings man in partnership with the Torah's Author, is the loftiest
creativity possible. However, all this can happen without acting on the
thought. He might therefore be choleik with shitos (3) (SC, TY, MC) and
(7) (Ramchal, Abarbanel II).

Abarbanel III (8) seems to go against this whole trend. TE is the ability
to learn, and in particular, to learn how to think. This is a necessary
prerequisite for bechirah -- how can you meaningfully decide things with
the mind you had when you were a newborn? But it's not the same thing.
One could have the ability to recieve acquired intellect without the
ability to choose what to acquire and how central it should be.

To me the Abarbanel reads like he's describing it's the kisharon by which
the Rambam expects us to achieve "yichud hayodei'ah vihayadu'a". According
to the Rambam (and numerous mekubalim), da'as means having the tzurah of
the known in one's mind. Mekubalim would add that this unity is why da'as
- to know, share the same word as da'as in the romantic sense. The Rambam
therefore says that knowledge of HKBH is the key to nitzchiyus in olam
haba, as such nitzchiyus is part of the acquired tzurah. The Abarbanel
seems to say the same idea, but identifies this with a different set
of terms.

So, in short, I group RGS's list of shitos that define TE into (in causal
order):
1- Identifying TE with the ability to acquire intellect. (8)
2- TE is the ability to choose freely using that intellect. (1, 6, RYBS)
3- It's the ability to act on that choice. (3, 7)

I have no idea how to jump from this to the question of whether or not
non-Jews have TE. We can reduce the question, l'fi all three groups
of shitos, to asking if they have BC. But would we, as observers,
no the difference between free choices and not free ones? People who
work in artificial intelligence feel this question is unanswerable, and
therefore define their goal functionally. (The Turing Test, for those
who know what I'm referring to.) I don't intent to answer the question
here. I feel that RGS glossed over the issue in his essay.

One could argue, and it's possible the Rambam does, that if Par'oh lost
his bechirah when his heart was made massive and immobile (hibadti eis
leiv Par'oh) that Par'oh would otherwise have BC. This would imply that
a goy has TE. However, does this mean that most do, or only chassidei
umos ha'olam do? (Was this Par'oh ever among CUhO?)

In terms of lima'aseh, the halachah is defined without such
philosophical debate. We have areivus only to other Jews, only they are
achichah. However, "mah Ani af atah" and mishum eivah (and whichever of
those darchei Shalom maps to in this case) create chiyuvim between us
and non-Jews beyond those spelled out among the 613.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

On Sun, Dec 24, 2000 at 02:20:28AM +0200, Carl and Adina Sherer wrote:
: Rav Nebenzahl discusses this at length in his Sicha this week. He 
: says that the difference is the l'Shem Shamayim of Tamar and the 
: chisaron in the l'Shem Shamayim of Aishes Potiphar. 

Which he proves because the latter violated halachah. The majority of
the sichah is a discussion of instances where someone acted as though
there was a chiyuv to bring a nevu'ah to fruition even when it was
k'neged halachah. I missed how this is a lack of l'sheim Shamayim,
as the nevu'ah was also min haShamayim. It sounds more like a misplaced
priority.

A couple of the examples: Adam, when the medrash has him complain to HKBH
that he was set up to fail with the eitz hada'as. Yes, the plan was
for him to fail -- that doesn't make failure mutar. (I know I told that
poorly.)

Par'oh fulfilling the b'ris bein habesarim.

Dovid trying to produce an heir from Bat Sheva. This case was explicitly
described as lisheim Shamayim -- that was the whole reasoning for the
medrash adding that he was given a nevu'ah about who the heir would come
from.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

S Klagsbrun wrote to Areivim: <[A friend] mentioned that although he liked
the people in P[.] and in the shul in which the family davened he was
dismayed by the lack of mesorah here. It seemed to him that everyone was
putting on their tallaisim right out of the MB, and not out of memory.>
Micha: <Not "tallaisim", "tallisos" or "talliyos"!... There is one major
disadvantage to such mimeticism... Unexamined memory is by definition
mitzvos anashim milumadam.

Take talleisim vs tallisos, since I raised that example. I'm sure, without
even knowing what it is, that one could find significant Torah in the
fact that this cheftzah shel mitzvah is named bilashon nekeivah. Perhaps
there is a whole world of meaning and kavanah hiding behind this little
grammatical quibble.>

R. Micha, please allow me to quibble with your quibble, but your
grammatical quibble lacks the firm support to warrant quibbling. As
I posted in Avodah on 26 Sep 2000, the oldest form of the word is
talles (or.tallet in Sefaradi pronunciation). There is no old source
for determining that the plural is tallisos or talliyos (rather than
tallesim), and the word is probably a foreign word, not Hebrew, and so
whether it is masculine or feminine could also be unclear; I discussed
then that all Ashkenaz rishonim treat the word as masculine.

S Klagsbrun: <(I still can't figure out why I do atifah the way I do.>

Micha: <I, OTOH, know why I do atifah the way I do. Because the Rambam
says that if done right, you end up wrapped like a Yishma'eli. So when
I do atifah I feel connected not to my elter zeide's atifah (which is
unkown to me), to R' Akiva's atifah, and Moshe Rabbeinu's -- people who
actually dressed in a manner that evolved into Arab attire. If only for
that one moment on one morning a month I'm not in too much of a hurry
to think anything.>

I sympathize with your desire to feel connected, but make sure your
facts are right. In this case, bimhila, they are not. The 'atifa of the
Yishm'elim is only mentioned in the gemara and by the Rambam in regard to
avelus (and the Rambam there never uses the expression yishm'elim, so you
must be thinking of someone else). It is pretty clear by comparing the
Rambam in hilkhos tzitzis to hilkhos avelus that he did not think that
there is any need to wrap the tallis/talles as avelim do; among other
things, in hilkhos avelus he only mentions sudar and not tallis. The
Mehabber, after discussing the issue (since there were Geonim who held
that you wrap like avelim), paskens that you do not wrap like yishm'elim,
and the Remo apparently agrees with him. I have testimony from my zaide
and from a few rabbonim from Europe that normal Ashkenazim did not wrap
themselves like the Yishm'elim, but just put it over their head. The
introduction of the current minhag is specifically attributed by the Mogen
Avrohom to the talmidim of the Ari (and was opposed by the Gra'). And
the way people do it now is not in accordance with the Ari's description
(which shows that he was careful to keep 2 tzitzis in front and 2 in back,
and did not cover his face). (R. Shternbukh among others has noted that
the Yishm'elim never covered their face and this is clearly not what
the Ari meant.) The current spread of the custom of wrapping with all
4 tzitzis thrown to the side and the tallis over the face comes from
hasidim and their interpretation of what the Ari did, and people assume
that that is what the MB refers to when he brings the custom. (Actually
the MB is just quoting the B'er Hetev and the Mogen Avrohom and it is
impossible to determine what he actually meant, much less whether he
himself did it that way. I was told by one person who learned in Radin
that the Hofetz Hayyim did not wrap that way, although I am not sure that
that is reliable. I knew several roshei yeshivos from Europe who wrapped
themselves like RYBS used to: just covered his head with the tallis.)

Bottom line: wrap as you like, but don't be so sure that R. Akiva (why him
specifically? It is Shmuel who is the source of the memra?) and the other
tanoim and amoraim did anything similar, except when they were in avelus.
And when they were, they covered their chins/cheeks/mouths with the tallis
from the bottom/side, not from the top of the head over the face. OTOH,
if I cover my face with the tallis during the entire davening, I will
never see people talking during hazoras hashatz and rushing to take off
their tefillin during ashrei, but staying to talk with friends for 15
minutes after davening. So maybe there's a segulla in it after all. And
maybe that's why our hats have brims. Jewish headgear in the time of the
rishonim mostly did not have brims, as far as we know (although some of
the tri-cornered and other hats they wore in Europe were rather big). But
the brim is very useful when you hold the hat in front of your face; it
shields you from seeing anything improper that other Jews might be doing!

Seth Mandel

R' David presented many good questions, some that I cannot answer.
However, I'm still looking into them and will let you know what I find.
Sorry for the long post.

[I have a hard time figuring out what to do with a 10K long post. -mi]

RE: RAMBAM, HILCHOS MAMRIM 2:1

David Glasner wrote:
> I am still at a loss to understand how you read 2:1. Let's read it
> together. Beit Din ha-gadol she-darshu b'ahat min ha-midot k'phi mah
> she-nirah b'eineihem she-ha-din kakh v'danu din. [This means that there
> was a p'sak halakhah issued by the old Sanhedrin which was accepted by
> klal Yisrael.] 

And this pesak was based "achas min hamidos". I understand this as
referring to a new halachah based on a kal vechomer (or similar rule).

> V'amad ahareihem beit din aheir v'nirah lo ta'am aheir
> listor oto. [The Rambam does not say "d'rashah aheir," he says ta'am
> aheir." 

The latter beis din disputes the kal vechomer, which is very common in shas.

> Harei zeh soteir v'dan k'phi mah she-nirah b'einav. [The new Sanhedrin
> may "demolish" the halakhah established by its predecessor and pasken
> according to its own best judgment. Leit l'dayan ela mah she-einav
> ro'ot.] She-ne-emar el ha-shofeit asher yihiyeh b'yamim ha-heim.
> Einkha hayav la-lekhet ela ahar beit din she-b'dorekha. ad kan l'shono
> ha-zahav. Please tell me how you read it differently.

Again, only dealing with new halachahs.

RE: DINEI DERABBANAN

> There are many dinei d'rabbanan that do not necessarily fall under the 
> category of g'zeirot and takanot or s'yagim

Such as?

RE: FORGETTING HALACHOS

Micha Berger wrote:
> There is also a second grounds for doubt -- not only machlokesin but also
> forgetting. Or, never needing to formalize and study the precise definition
> of the each melachah until then.

David Glasner wrote:
> I don't have it in front of me, but I suggest that you look up the Rambam's
> introduction to zeraim where he discusses the reasons for disputes among
> the Sages about halakhot and see what he says about the opinion that
> disputes arose because over time they forgot the traditions that they 
> received from Sinai.  I could be mistaken, of course, but I don't think that 
> you can reconcile what he says there with what you say here.

The question posed to the Chavos Yair in teshuvah #192 states that the Rambam 
said that an halachah leMoshe miSinai cannot be forgotten and the Chavos Yair 
accepts that.  However, neither I nor the Maharatz Chajes could find where the 
Rambam says that.

RE: COMPILATION OF THE MISHNAH

Micha Berger wrote:
> BTW, when does the Dor Revi'i date the writing down of TSBP. We noted on
> Avodah a while back that according to a number of Rishonim (including
> the Rashbam and Tosafos), Rebbe's compilation of mishnayos may not have been 
> physically written down until the Savora'im.

David Glasner wrote:
> Although the hakdamah talks about writing down the Mishnah as the crucial
> break between the ideal TSBP in its pristine form when Mamrim 2:1 was
> still in force, and the form we have it now in which basic halakhot cannot
> be changed in the way that they could previously, I don't think that it
> is crucial to his position when the actual text was first written down.
> The point is that Rebi initiated a process of creating an authoritative
> text that would eventually be written down and it is the process that he
> initiated that created the rupture between the earlier halakhic system
> and the one under which we now operate.

I think Micha's question is very strong.  Everyone agrees that there were early 
stages of the Mishnah that took form well before Rebbi's time.  The Mishnah 
itself talks about the Mishnah Rishonah.  Some place the early forms of the 
Mishnah all the way back to the times of Anshei Kenesses HaGedolah while others 
place it at the time of Hillel and Shammai.  However, there is no question that 
there were full masechtos of Mishnayos that were memorized and transmitted 
verbatim long before Rebbi was born.  "All" Rebbi did was collect the Mishnayos 
from the different schools, decide which to include where, and convene a 
gathering of all the gedolim to accept this as the official Mishnah.  [See 
Toldos Tannaim VeAmoraim, sv. R. Yehudah HaNasi]  There were authoritative, 
albeit unwritten texts before Rebbi's time.  However, there may have been two or
three different texts on any given masechta.  For the Dor Revi'i's criteria, I'm
unconvinced that there has to be only one accepted text for the [oral] Torah to 
be considered written.  If there was a text from R. Akiva's school and another 
from R. Meir's school, does this mean that the [oral] Torah was unwritten?

> That is precisely the point of the Dor Revi'i. The famous question of
> the Keseph Mishnah on Mamrim 2:1 is why Amoraim cannot argue with Tannaim
> if Mamrim 2:1 is valid. His answer is that there was an agreement by the
> entire generation at the time of the redaction of the Mishnah that they
> would accept the halakhot as determined by the previous generations of
> Sages quoted in the Mishnah and other contemporaneous sources. The Dor
> Revi'i asks why there is no mention anywhere of such an agreement.
> And b'kitzur nimratz his answer is that there was no need for a separate
> agreement, because it was understood that the process of creating an
> authoritative text of the Mishnah would necessarily have the consequence
> of precluding disagreement with the drashot and halakhot contained in
> the authoritative text.

The Maharatz Chajes [Toras Nevi'im, Ma'amar Los Sasur, pp. 109-110] answers the 
above question differently.  He says that since the Mishnah was proclaimed by 
Rebbi and his beis din and it was accepted by kelal Yisrael, it falls under the 
issur of lo sasur.

The Maharatz Chajes [Ateres Tzvi, Mishpat HaHora'ah, pp. 385-386] later offered 
a different answer.  He says that once an halachah is argued amongst all the 
gedolei hador, and they all have the opportunity to convince each other with 
their arguments, the majority rule obligates even the minority to follow it and 
makes the halachah immutable.  In Rebbi's day, he convened a gathering of all of
the gedolim and they all had a chance to convinve each other.  Therefore, the 
Mishnah's conclusion is binding on everyone, even those who disagree.  See also 
R. Elchanan Wasserman, Kovetz Shiurim vol. 2, Kuntres Divrei Sofrim 2:6.

RE: TYPES OF HALACHOS

> I'm sorry, but I am getting more confused. What is the difference
> between a "tradition that determines the interpretation of a biblical
> verse" and a tradition that determines a halakhah?

There are three different categories of halachah leMoshe miSinai. 
1] A straight halachah in which no textual support is given e.g. heter nedarim 
(Chagigah 10a).
2] A halachah for which textual support has been found e.g. not eating on Yom 
Kippur (Yoma 74a).
3] An authoritative reading of an halachic verse.  In other words #2 but with 
the textual support also as part of the tradition from Sinai.  For example, ayin
tachas ayin.

> As for mi-pi ha-Shemua interpretations, the Rambam offers no
> means of identifying what is and what is not a mi-pi ha-Shemua interpretation
> other than that it is an interpretation about which there was never any 
> dispute.  The problems with using this as a criterion for identifying such
> interpretations are by now too obvious for me to mention.

I am sure that you know that this only means that the Rambam's position is 
unprovable, not disproven.  Suspiciously convenient?  Perhaps.  But not 
necessarily wrong.

> Sorry, that doesn't work here, because you and everyone else who cites
> the baraita of Rebi on ka'asher tzivitikha is referring to the specific
> halakhah l'Moshe mi-Sinai that Rebi cites there which is about the number
> of simanim that must be severed for shehitah to be effective.

No, it refers to shechitah on the neck about which there is no machlokes.

I wrote:
> Everyone agrees that there was a halachah leMoshe miSinai regarding how to
> slaughter (either for in the desert or for when they would reach the land of
> Israel).  The only question is whether that halachah can be based on the
> verse in Devarim.

David Glasner wrote:
> I don't think so.  R. Yishmael has no need for a halakha l'Moshe mi-Sinai.  
All
> the laws of shehitah can be derived without any halakha l'Moshe mi-Sinai.  He 
> does not hold that there is a minimum shiur required, he just holds that the 
> throat be slit sufficiently to cause death.  And unlike R. Akiva, he holds 
that
> shehitah is only effective at death, not when the simanim are severed.  

You are talking about R. Yishmael's opinion about what happened in the desert.  
However, R. Yishmael agrees that once the Jews entered the Land of Israel (or 7 
years later) they were required to slaughter and that slaughter was based on an 
halachah leMoshe miSinai which is based on Devarim 12:21.  Note that the 
previous verse is clear that it is referring to living in Eretz Yisrael.

Gil Student

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


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