Avodah Mailing List

Volume 08 : Number 093

Wednesday, January 16 2002

• Re: Daas Torah
• Re: Chalav Yisrael was CY police
• Re: CY- a very misunderstood psak in IM, MM topics
• Re: reproducibility
• Re: RAK and the Manhattan eruv, Real mechitzos vs Tzuras hapesach
• Eruvin in America - reconsidered
• IMPORTANT - PLEASE READ
• Re: CY police
• Re: CY police - corrections and clarifications
• Re: halachik methodology
• Re: halachic reasoning [note change in spelling]
• Re: halachic reasoning [note change in spelling]
• Re: RHS and predicatability in psak

Shlomoh Taitelbaum wrote:
>: I see da'as torah as coming to fill in the Litvishe need for a Rebbe...
>:          What qualifies a Litvishe gadol (another term being discussed)
>: to make decisions, since they shy away from quasi-mystic ruh"k? Answer:
>: Da'as Torah! (and a gadol is one who possess da'as torah, which leads
>: me to believe the "gadol phenomena" started with the mussar movement
>: when R"Y Salanter introduced the concept of da'as torah).

and R Micha
> You assert that there is a "need for a rebbe" but do not explain why.
> My "why" doesn't fully explain the need.

By "why" I was thinking more in terms of a emotional need, not a
chiyuv. Of course this just gets back to the question does one need to
have a mentor, and in all aspects of his life. Which gives me an idea
which really should get a new subject name.

Ramchal in Mesillas Yesharim does not mention the idea of a mentor at all
(not a Rav nor a Rebbe). In the introduction to his Ma'amar haVikuach he
writes how the understanding of sifrei kabbalah cannot be gotten from the
sefarim themselves, requiring "mipi sofrim vlo mipi sefarim"; however, due
to all those who tried to learn only from sefarim there aren't many sofrim
around and therefore he is writing his sefer "eis la'asos laHashem."

He clearly is saying that his sefer is to replace the sofrim, and seems
to be saying in addition that the need for sofrim is as "mefarshim"
and not (much) more than that.

Judging from what and how he wrote his other sefarim, would I be wrong to
suggest that his Messilas Yesharim bypasses the need for a moreh derech
in avodas Hashem?

Shlomoh

Arie Folger wrote:
>There are two types of mashgia'h requirements in kashrut: liverurei milta 
>and 'hatnut. Thus, we are prohibited from enjoying pat ba'al habayit akum 
>lest we excessively socialize with him and eventually assimilate.

A further chakirah is whether this was a gezeirah that requires minyan
acher lehatiro or not. If this was mipnei chasnus, then it was certainly
a gezeirah. If it was livrurei milsa, then maybe yes and maybe no.

The Rambam write in Hilchos Ma'achalos Assuros 3:13

"Therefore, the law is that any milk that is in a gentile's possession is
forbidden because he may have mixed into it milk from a forbidden animal.
A gentile's cheese is permissible because milk from a forbidden animal
cannot congeal. However, in the time of the sages of the Mishnah they
decreed against gentiles' cheese and prohibited it..."

I heard from R' Mordechai Marcus that the contrast between chalav akum
and gevinas akum strongly implies that chalav akum WAS NOT a gezeirah
and is only due to the chashash that there is non-kosher milk mixed in.
Therefore, when there is no chashah, according to the Rambam chalav akum
(and not just chalav hacompanies) is mutar. I heard from R. Hershel
Schachter that the Sdei Chemed quotes Geonim who say the same but I
never looked it up inside.

Gil Student

In IM, RMF states that CY is required for Baalei Nefesh and in schools for
chinuch reasons. RMF relies on the Pro Chadash and other Acharonim that
we can rely upon governmental inspections . The issue is then whether
the heter spelled out by RMF is an across the board lchatchila, or a
more limited one that is limited to circumstances such as travel and the
like. I would suggest that all who have raised this teshuva as a source
of a chumra/kulla reread it and try to think how would the teshiva been
discussed for different contexts and locations ( i.e. NY vs out of town)
without resorting to pejoratives and the like.

BTW, excellent choice of speakers and topics for the MM. 

Steve Brizel
Zeliglaw@aol.com

>I understood the condition "in exactly the same circumstances" to mean that 
>RHS was excluding the possibility you (and someone else, I forget who) 
>suggested. Any other suggestions?

I had such a ma'aseh with R. Hershel Schachter. The situation in the
YU dorms, at least in my day, was that we were not allowed to light
chanukah candles in our rooms or in the halls. We had to either light
downstairs in what was then an untraveled area or in the cafeteria.

I asked RHS what to do and he told me not to stay in the dorms for
Chanukah.

He said that if I lit in my dorm room I would not be yotzei. My chavrusah
asked RHS and he told him to light in his dorm room. Some talmidim after
shiur asked RHS what to do and he gave them a third answer - I think to
light in the untraveled area.

All this happened within two days. When I pointed this out to one of the
older talmidim, he told me that RHS was just like RYBS in this respect.

Gil Student

>I heard once from RHS that if Manhattan had proper mechitzos, that he would 
>have no hesitation to use it.

A few years ago, maybe 7, R. Marc Penner told me that he was putting up an 
eiruv in Manhattan under the guidance of R. Hershel Schachter.  He said that 
he had received permission from the city to put up "Curb Your Dog" signs 
wherever he needed it for a tzuras hapesach.  I'm not sure whatever became 
of his effort.

Gil Student

It is well known that RAS vociferously opposed any Eruv in Chicago for
many years. RYBS was quoted in Mpineni Harav as also being against eruvim
as well . As to RAK and RMF, it appears that RAK also opposed all eruvin
and that RMF appeared more willing to discuss their feasibility. BTW,
KGH has the zchus of being the only eruv that RMF approved in IM. I
would suspect that part of the opposition to eruvim stemmed also from
the fact that Shemiras Shabbos in the 1950s and 1960s was far from
a given phenomemnon as it is today and that an eruv was not seen as
important as a shul with a kosher mechitza, Shemiras Shabbos and building
yeshivos. Once we won the battle of the mechitza and built what I call
the superstructure of a community such as schools, mikvaos, shuls and
shopping under reliable hashgacha, then where permissibile, the presence
of lots of infants warranted a reconsideration of a policy like reluctance
to build eruvim . IOW, the shita of not relying upon a tzuras hapesach
in the MB/BH became a nice chumra which was not imposed upon the tzibbur
and the CI shita of defining mechitzos as city walls, etc became the
norm. IIRC, even Chicago and Boston eventually erected eruvim . The
development of eruvim in the US may just be one additional factor in why
Torah observance became more popular and required less mesiras nefesh
with the use of Shabbos key chains, etc. While many Bnei Torah refrain
from using the eruv because of this shita in the MB/BH. I wonder how many
of their wifes also follow this shita , especially if they are invited
out for a meal. In R Teller's neautiful bio of RSZA, he records that
RSZA was not fond of this practice. This is not meant as a critique ,
but solely as an observation.

Anyone here think that wearing a talis on Yom Tov in a community is
yehorah ? RYK was reported to have felt so .

Steve Brizel
Zeliglaw@aol.com

Chevra,

One of the advantages of having a chevra like this is that we are supposed
to act as a built in support group for each other in times of need. When
one of our chaverim is b'tzaar, we can ask the others to daven for them.

As many of you may remember, our chaveira, Rebbetzin Chana Luntz gave
birth to a baby boy, David Yechiel N"Y, last summer. David Yechiel is
lagging developmentally R"L, and without getting into a lot of details,
his doctors are expressing concern about his long-term prospects.

Having been through a medical situation myself, I know how much chizuk
it can give a parent to know that friends are davening for their
child. Therefore, I ask all of you to please daven for David Yechiel
ben Chana.

May all of our tefillos go up before the Kisei HaKavod and be answered
for David Yechiel and R"L for anyone else among us and among Klal Yisrael
who may need them.

-- Carl

There are two debates going on that to my under informed ear sound like
arguments over wording, not substance.

This is the first:

At 10:40 AM 1/15/02 -0500, Arie Folger wrote:
: >Here is a quick overview of the issues. Nobody in his right mind consumes
: >'halav akum when thre is a choice. The question is about the nature of
: >the gezeirah.

On Tue, Jan 15, 2002 at 04:42:57PM -0500, RYGB wrote:
> Not true, unfortunately. I have a classmate who is now one of the most
> distinguished YU musmachim, cited, in another context, not long ago,
> on this very list, who b'shitta - given the choice at YU for the same
> price and same availability - drank ChC.

I think RAF would say your former classmate is drinking CY leshitaso.

In the same sense that most of the people labeled today as tinoqos
shenishe'u were never kidnapped. Nor a giyores who converted at age 4
is an actual zonah -- despite the gemara's term for someone who can't
marry a kohein.

If ChC is mutar, it would only be because the technical term "CY"
includes it.

: >At this point, the question is whether the takkanah was merely to have
: >above habitual supervision or davkah Yisrael roeh? This is the crux of
: >the CY ChC debate. Problem is, if you need davka Yisrael roeh, why did
: >Ramo permit butter? It seems Ramo hined at ChC.

: Nope again - the crux is gezeirah (a la cS) or hashgocho (a la RMF).

How are these two chiluqim different?

RAF is suggesting a requirement for chasnus, which would be a gezeirah
made on milk; vs a requirement for birur, which is what RYGB is calling
hashgachah?

Am I missing something in my ignorance, or is this simply two people
talking across each othewr because their terminology differs?

: >Rav Aryeh Ralbag told me that the explicit (as opposed to claiming that
: >Ramo's position makes implicitly the heter obvious) ChC heter came from
: >the Pnei Yehoshuah. I doubt he had any high quality FDA-like body in his
: >neck of the woods, but he considered at least the theoretical question,
: >and considered it muttar. All others merely followed in his footsteps.

: He is probably confusing the PY with the Pri Chodosh.

(With all due respect to RAF, it is more likely he misremembered what
he heard from RAR than RAR confused his sources.)

: >Yotzeh mikol mah shekatavti that NOBODY consumes 'halav akum. Reb
: >Vekara-shemo-beYisrael-MoneyChest's (as he doesn't like to sign his posts
: >;-)) worry about timtum halev is a non issue for those who believe the
: >hetter. The question is merely whether ChC is 'halav Yisrael or not.

: No again, according to the CS it is "kosher," but not CY.

Exactly. He's the "or not".

What RYGB seems to be saying is not in disagreement, but beyond RAF's
claim. RAF said the ChC drinker isn't ignoring timtum. RYGB says "not
only that, but even the non-drinker wouldn't assert his chaveir is r"l
causing his leiv some timtum.

: >As for the anecdotal disdain of some CY-onlies for ChC-consumers...

: Incorrect again (do you really take those of us who are machmir for such 
: utter - udder :-) - fools?!). According to the CS u'd'immei there is no 
: Ma'acholos Assuros issue, but rather a pure, simple gezeirah, no 
: qualifications allowed.

He writes an anecdote about the hamon am, you reply with the position
of the intelligensia.

: BTW, we have not touched on the critical controversy of 5754, a collateral 
: but pertinent issue. To quote an acquaintance on another list:
: >It is now well known that a certain percentage of cows undergo a surgical
: >procedure for a condition known as displaced obamasum. This procedure
: >renders the cow treifo. In many instances the percentage is so high that
: >there is definitely not shishim of the non-treifo milk.

I have heard no claim from the CY dairies that they do not do this
surgery, or that they sell the cow to a non-CY after relieving its tza'ar.

: >In addition (and I am shocked at the fact that I have not found this
: >discussed) there is a considerable amount of cows (I believe more than
: >15%) which give birth through c section, which again renders the cow
: >treifo....

I do not recall seeing this when I stayed at a dairy farm in Lancaster.
And I saw a calving pretty much every other day. (The kids insisted well
after I found it boring.)

In any case, what do the CY farms do? Let their cows suffer? Do the C
section and sell the cow?

: >treifo. With various procedures changing, there is a very strong
: >likelihood that we will one day be faced with a situation (if we are not
: >yet) that there be a rubo dminkar of treifo cows on non Cholov Yisroel
: >farms.

I think this is a real problem, but expevt the price of CY to increase
GREATLY if they are to make themselves free of this issue.

-mi

-- 
Micha Berger                 A cheerful disposition is an inestimable treasure.
micha@aishdas.org            It preserves health, promotes convalescence,
http://www.aishdas.org       and helps us cope with adversity.
Fax: (413) 403-9905                - R' SR Hirsch, "From the Wisdom of Mishlei"

RYGB wrote:
> >Here is a quick overview of the issues. Nobody in his right mind consumes
> >'halav akum when thre is a choice. The question is about the nature of
> >the gezeirah.

> Not true, unfortunately. I have a classmate who is now one of the most
> distinguished YU musmachim, cited, in another context, not long ago,
> on this very list, who b'shitta - given the choice at YU for the same
> price and same availability - drank ChC.

This was a reference to the points ahead. I did not say nobody prefers
ChC over CY, I merely hinted at the fact that those who consume ChC
maintain it is CY, because nobody in his right mind is discussing the
abrogation of the gezeirah .

>> There are two types of mashgia'h requirements in kashrut: liverurei milta
>> and 'hatnut. ...

>> The $64k question is what is the nature of the requirement for CY? If it
>> is merely liverurei milta, why make a gezeirah at all, we'll apply the
>> usual criteria of when we need hashga'hah (Talmud says milk of temeiah
>> is "green", so visual inspection should be OK)? OTOH, milk is a strange
>> vehicle for anti assimilationist takanot.

> And yet the Chasam Sofer held that is precisely the case.

When I say "strange" I don't mean definitely not. I am 'halilah not taking 
away the CS's right to intepret CY gezeirah as an issue of 'hatnut. And even 
if I wanted to do just that, would CS care? I am unfortunately many 
lightyears away from his league of gedolim.

>> Ramo states that butter, in Europe [where there are no camels] needs no
>> hashga'hah, because can't make butter from hog's or horse's milk. This
>> shows that the issue is not 'hatnut, but birurei milta, and the reason
>> for the takkanah is that in a mixture, the visual inspection method
>> breaks down, so we need superior supervision for milk.

> Nope. It shows that the gezeirah was on liquid milk, not butter (or cream,
> for that matter). Rabbeinu Tam's heter on chlav he'asui l'gabbein is based
> on the same premise.

There is disagreement on the interpretation of the Ramo. I may stand
corrected on the real motif of the Ramo as I didn't check the DM. Also,
in defense of the ChC!~CY, not everybody accepted this Ramo. Ironically,
there are many Sefardim who accept it, while 'hassiedim don't. I should
have written "this seems to show" or "this possibly shows" rather than
"this shows" which sounds too conclusive.

Note that my interpretation seems more warranted considering that Ramo
makes a difference between midinot shelanu where there is no 'halav tamei
capable of making butter, and other medinot. If Ramo really mereely
was following raben Tam, he would not have distinguished between the
various lands.

Also, rabenu Tam is the reason why the Israeli chief rabbinate will not
allow ChC, but will allow straight out 'halav 'akum made milk powder, as
they hold that the latter is not under the gezeirah. Kakh sham'ati. Can
anyone confirm/deny?

>> At this point, the question is whether the takkanah was merely to have
>> above habitual supervision or davkah Yisrael roeh? This is the crux of
>> the CY ChC debate. Problem is, if you need davka Yisrael roeh, why did
>> Ramo permit butter? It seems Ramo hined at ChC.

> Nope again - the crux is gezeirah (a la cS) or hashgocho (a la RMF).

I stand corrected. I meant to write "assuming the above interpretation of the 
Ramo/issue of CY is correct, ..."

>> Rav Aryeh Ralbag told me that the explicit (as opposed to claiming that
>> Ramo's position makes implicitly the heter obvious) ChC heter came from
>> the Pnei Yehoshuah. I doubt he had any high quality FDA-like body in his
>> neck of the woods, but he considered at least the theoretical question,
>> and considered it muttar. All others merely followed in his footsteps.

> He is probably confusing the PY with the Pri Chodosh.

This was 6 years ago, so my memory may be to blame.

>> Yotzeh mikol mah shekatavti that NOBODY consumes 'halav akum. Reb
>> Vekara-shemo-beYisrael-MoneyChest's (as he doesn't like to sign his posts
>> ;-)) worry about timtum halev is a non issue for those who believe the
>> hetter. The question is merely whether ChC is 'halav Yisrael or not.

> No again, according to the CS it is "kosher," but not CY.

I didn't say the issue is whether it may contain 'halav tamei or not,
I wrote whether it is CY or not. There may be 2 reasons to make ChC into
nonCY, the gezeirah is lo plug (see below) or 'hatnut.

<snip>
>> Are you prepared to say that there is a real
>> 'hashash of maakhalot assurot in ChC?" I then give them the option of
>> saying they don't know but rely on their rebbi, and then tell them, if
>> you believe there is a real 'hashash and that is why you stay away from
>> ChC, ashrekhah, otherwise, you are not allowed, not allowed, acc. to
>> the above sources, to keep such a 'humrah.

> Incorrect again (do you really take those of us who are machmir for such
> utter - udder :-) - fools?!). 

'Halilah. I have udder respect for those who feel they are 'hoshesh that
ChC is not CY. I do not have udder respect for those who argue that the
meikilim are consuming 'halav 'akum. I would accept "are consuming 'halav
'akum according to some interpretations which we hold very dear".

I must, however, refine what I wrote. The actual argument I gave to some
people was longer than the (snipped) post, and I ask them whether they
really are 'hoshesh that the definition of CY may be either 'hatnut
(unlikely, but then again, so says CS) or a lo plug gezeirah, as I
explain below. Thus, I really do give them more room to claim that their
'humrah is very legitimate.

BTW, I don't pick on all CY-onlies, only on those who switched without
a good reason, and those who follow the pack in spite of the fact that
they don't feel there is a 'hashash the way I explained it (corrections
included).


Now about the gezeirah. There is another way to require a Jewish
mashgia'h. I explained in my originalpost that may be 'Hazal instituted a
special gezeirah for milk because it is difficult to recognize mixtures
of 'halav tahor and tamei. Now, we may wonder how 'hazal worded the
gezeirah. Was it to require superlative hashga'hah, more than on other
products, in whoch case we may trust the FDA, or was it to have a Jew
watching davka.

Remember that in 'Hazal's days there likely was not much of a reason
to distinguish between the two, as the FDA in their days was known to
be corrupt and staffed with Arabist Romans who had previously worked at
Ceasar's state department. ;-)

> Indeed, RMF's teshuva in and of itself is difficult, for in the final
> analysis there is no FDA piku'ach on individual farmes, and the companies
> do not generally check the product they receive from the farms for tameh
> content. RMF has to come on to a pretty big chiddush to resolve this one,
> and an individual who sees RMF as the sole basis for leniency and has the
> halachic acumen to read the teshuvos inside better think again.

This is interesting. Can you elaborate? Even according to my coverage of
the hetter, it is obvious that milk requires a higher level of supervision
than other products. What does FDA rely on if they avoid individual farms?

Finally, a quip in favour of CY based on nonhalakhik requirements:
we always favour 'halav New Square over any ChC (and over the other CY
brand) because it tastes better. Boduk umenusseh!

Kol Tuv,
Arie Folger

In a message dated 1/15/02 2:18:28pm EST, erics@radix.net writes:
> OK.  Your hypothesis is consistent with the facts I presented.  But I must
> express surprise at the hypothesis!  I mean, the Geonim sat in the same
> buildings, the same walls!, as the Amoraim, didn't they?  I would think
> that their mesora is so much stronger than rishonim of western Europe.

Agreed.

That is how come a theory of "minhag Ashkenaz" developed. IOW it
is unreasonable and illogical to assume that West Eur. got the pshat in
the Bavli better than did the Gaonim.

Historians and Halachicists wrestled with this issue

One discovery was: West Eur. followed the minhaggim of Israel {EY} more
often. and that they preserved the litrugy of Israel - such as Kallir
.In fact, the Ashkenazic tradition is really not so Babylonian at all.

What set about the confusion?

Rashi and Tosfaos asserted the authority and superiority of the Bavli,
but with caveats.

Tosafos especially set out to make the Bavli authoritative but without
yielding Ashkenaizc practice.

There is a simple parallel to this. The Rema made the Shulchan Aruch
authoritative IN ASHKENAZ w/o giving in to R. Y Caro's psak completely.

AISI, Tosafos DID THE SAME for the Talmud Bavli. Tosfaos was often NOT
really giving pshat in the text so much as being meyasheiv the Minhag
with the text.

The big problem with this theory is that Tosfaos NEVER SAYS THIS!
The Rema OTOH DOES!

Nevertheless, I am convinced that Tosfaos and Ashkenaz were steeped
in a different Masorah than the Bavali {that is the maarava or Western
Tradition} and neverthless worked at fitting the text to the Minhag.

Please realize that this is not a 100% perfect map of reality. Sephardim
do not follow Baliv 100% either . Rif and Rambam take some psak straight
out of Yersuhalmi.

Also, over time, Ashkenazim became more in line with the Bavli AS WRITTEN
and less in line with the "minhag Ashkenaz".

There are many Rsihonim who presereved the old Minhaggim - Maharil
is foremost.

As far as scholars on this subject: Dr. Israel Ta Shma- Dr. E. Kanarfogel
{my local Rabbi} Dr. Chaim Soloviechik and R. Hamburger are some of the
"experts" on this.

My source is pimarliy my professor - Dr. Irving Agus. But little of
this mad sense to me until I lived in the Bruer Community and LIVED
with the Ashkenazic customs - as formualted by the Maharil et. al .-
first hand. in the Yehsiva world at large - this is not so understood.

Breuer's largely follows the Rishonim - especially of Ashkenaz bu the
Beis Yosef too at times.

It is my opinion that many Acharonim lost touch with this principle. That
is where the confusion set in. The Aruch Hashulchan is one of the few
Acharonic champioins and advocates for Minhag.

One of the big confusions in the Yehisva World - IMHO - evolved when
the Rambam became focal point for understanding the Bavli over Tosafos.
I would be the first to concede that the Rambam's version of the Bavli is
probablyh closer than is Tosafos - althouhg the Rambam himself rejected
many Gaonic material. The point is if you overlook the "burden" of
Tosafos in preserving Minhag than you must wonder why is Tosafos going
off on a tangent.

More posts to follow BEH

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

In a message dated 1/11/02 12:39:25pm EST, dr@insight.att.com writes:
> Let me give a practical example and then try to expound my differences
> with Rabbi Wolpoe. My impression is that it's much easier to understand
> the gemaras on hair covering if one adopts the Tur's position that
> it's required even for unmarried women. Nonetheless if someone asked
> me I would tell them that the clear halachic tradition is like Rashi,
> that the din applies only to married women. So far I believe that fits
> comfortably with RRW's paradigm.
> 
> The problem is this. Why didn't Rashi adopt RRW's opinion? Why didn't
> he explain the gemaras much more simply by applying them to all women,
> and then elsewhere (in halachic context) tell his students that that
> was lomdus, but al pi din we follow a different opinion?

Question: why doesn' Tosafos come out and say:
We don't pasken like this gmara because our Minhag shows that we do pasken 
otherwise - instead of pilupilistcally trying to make the Text fir the Minhag 
somehow?

Note: I don't have a really good answer.

I can tell you that Tosafos was out to make the Gmara authoritative AND to 
preserve minhaggim at the sema time.   A neat trick and not an easy one to 
pull off

But if you look at the hkdamah of the Rema on the SA you can get a clue

> I am suggesting that RRW is proposing a tremendous chiddush, that the
> gemara is no longer a primary legal text. Does he have a source for
> this chiddush?

Q1: What is YOUR source that the Bavli is he primarly legal text?
According to the Rambam - Mamrim 1:1 the primary source of TSBP is the Beis 
Din Hagadol?  So nu what happened?

Q2: How can the Bavli favor a Braisso over a Mishnah? Didn't Rebbe reject the 
Braisso and was not his work ratified by HIS Beis Din?bbrhan 

BTW, IMHO the Gmara is the primary legal text but we pasken kebasrai which 
means the LAST text counts NOT the first! --smile--

> Rabbi Zevin once suggested (in Ishim V'Sheetoth) that R. Chaim Soloveichik
> refused to pasken just to avoid this dilemma.

I think the case was about a real live Agunah and he could NOT have played 
this game in reality

But FWIW, The Sridei Eish played such games re: Shchita under the Nazi regime

BTW AIUI  few if any Solovichiks - other than MAYBE Dr. Chaim - would go 
along with these theories

> <<According to RRW he could
> just have viewed his study as theoretical and paskened based on precedent
> (admittedly RRW need not adopt RZ's view of Reb Chaim).>>

See above


BTW see Igros Moshe 2nd cheleck Orach Chaim tshuva 100 for a clue on this 
method.

Also see Taz on Orach Chaim 46 on S'eif  6 (iiirc  sk 12 or 13 ) re: hanosein 
layaef koach

Bottom line, The Bavli is the default ikkar text, but not always the final 
word - AIUI.

When it comes to academics we have a hierarchy
1) To understand Chumahs we start with Rashi.  But we don't necessarily stop 
there as Rashi having the last word

2) We learn Mihsnayos first But we realize that Mishnayos are subejct to 
being re-defined by the Bavli 

3) We learn Bavli. But we realize that psak might not go like the Bavli. See 
Eruvin 96 re: Michal bas Shaul and Tfillin and Tosfaos where Tosfos takes the 
psikta over the Bavli. 

See Tur ORach chaim 37, BY SA Mappah, lvush, Beiur hagra SA harav, Aruch 
Hashulchan, kaf Hachayyim

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

I started replying to RRW's email, and I got so lost in the details that
I stopped. Let me try to summarize what I think we're saying.

RRW has stated that he has two modes of Talmudic study: practical,
in which he interprets earlier sources in light of contemporary psak,
and theoretical, in which he freely innovates.

I suggested that theoretical study is a modern innovation. If it had
been customary it's too good an answer not to be used more often. I asked
whether RRW had evidence that traditional sources used this dichotomy.

If I understand him correctly RRW is expounding in his current email
about practical Talmudic study. What I want to hear, however, is about
theoretical study.

David Riceman

> WADR, I wasn't there . However, let's not think that halacha , as codified,
> works in the same manner as common law or judicial interpretation of
> statutes. First , of all, mesorah is not the same as just looking up a
> source and making a comparison. It involves a lot of determining which
> Gemaras, Rishonim, Acharonim , specially from those sefarim which have had
> an influence on the posek are actually applicable to the case.
> Steve Brizel
> Zeliglaw@ao.com

Here is a nitpick! --smile--

here is how I would rephrase your statement above:
WADR, . However, let's not think that halacha , as (codified) PASKENED,
works in the same manner as common law or judicial interpretation of
statutes.

IOW as codified in texts it DOES work a lot like Common Law
but Rabbonim have leeway to be leneint or strict ON AN AD HOC BASIS

That is why AISI
shchika sammamanin MUST remain codified
BUT
Rabbis have leeway to be leinent or strict based upon the needs of the 
individual

Suppoting source:
Look at Mishnayos Brachos and the leniencies Rabban Gamlieil {RG} gave 
himself!
RG did NOT change the code, RATHER he paskened to be leinient for himself 
base upon extenuating circumstances

AISI The theory stays {more or less} static the application thereof is more 
dynamic

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

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