Avodah Mailing List

Volume 15 : Number 014

Monday, May 16 2005

• sfira lecha dodi tune
• Re: The Extraordinary Number of Stars
• RE: authority of poskim in the realm of hashkafa - corrected typo!
• Re: wearing tzitzis out
• Re: beli reishis beli sachlis [was: Rambam and miracles]
• Re: beli reishis beli sachlis [was: Rambam and miracles]
• Re: Yom HaAtzmaut
• kofrim who say tehillim
• sfira lecha dodi tune
• Re; Reality of the Universe
• Psak and Hashkafa
• haskafa
• psak and haskafa
• Re: psak and haskafa
• paskeing hashkafa
• haskafa
• Wearing Tzitzis out
• Re: Machchish magidaeha
• RE: authority of poskim in the realm of hashkafa
• Re: sfira lecha dodi tune
• Re: Erev Pesach on Shabbat (5765): A Short Guide
• Re: YGB: Bava Basra Halachah l'Ma'aseh

This supplements my earlier posting to Areivim regarding the Lecha
Dodi for Sefira and specifically responds to Saul Z. Newman's question,
"has anyone seen this minhag of sad melody for sefira?" (This is posted
to Avodah in accordance with the apparent instruction from the Areivim
Moderators: "repost to avodah".)

The Luach for 5765 published by Rav Binyamin Shlomo Hamburger of Bnei
Brak, Minhagei Beit ha-K'nesset Livnei Ashkenaz (Machon Moreshes
Ashkenaz), states at the paragraph for Parashat Kedoshim (p. 28;
my translation from the Hebrew) that "Lecha Dodi is said in the usual
Shabbat tunes [b'niggunei Shabbatot regillot] and not in the Sefira tune
[v'lo niggun sefira]."

However, under the heading "Iyar" and "Tekufat ha-Avelut", the Luach
states (p. 29; again in translation), "On the Shabbatot between Rosh
Chodesh Iyar and Shavuot Lecha Dodi is said to the special tune for the
Sefira period [b'niggun hameyuchad liymei hasefirah]."

As noted in my earlier posting, part of the Lecha Dodi in
an Ashkenazic melody for Sefira, sung by Chazzan David Ulman
(accompanied by a rather restrained organ), may be heard at
<http://www.piyut.org.il/tradition/346.html?currPerformance=395>

    Joseph I. Lauer
    Brooklyn, New York

The Gamara Brachos 32b is even more extraordinary than I'd first imagined.

The number itself is amazing (10^18). This is (cosmically speaking) pretty
darn close to the current estimate of 10^22. What I cannot figure out is
which assumptions the astronomers are making that could be tweaked in
order to make the numbers match better. The simplest would be to lower
the number of stars in an average galaxy to 10^4. But that seems awfully
small. Any thoughts?

By the way ­ the wording of the passage is curious ­ Reish Lakish doesnıt
have the vocabulary to state such a big number so he talks in terms of
what we would call galaxies and galactic clusters.

Avg galaxy ("gastara") = about 4x10^9 stars
Avg local cluster ("karton") = 30 galaxies
Avg supercluster ("rahaton") = 30 clusters

It goes on to say that superclusters are grouped into clusters of about
30 (megasuperclusters?) and that these are in turn grouped into an even
bigger pattern of about 30 (hypermegasuperclusters?) of which the universe
has a total of (about) 365.

Whatıs the significance of the number 30? I cannot find any
spiritual/religious reason for choosing that number and so it comes
across as a conscientious oral transmission of a received tradition,
rather than simply one person's guestimate.

Whatıs remarkable is the recent discovery of galactic clusters and
superclusters. Our local cluster ­ by consensus ­ contains 30 galaxies!

Moreover ­ from my amateurish research ­ it seems that one of the
prevailing theories of cosmic structure is that it is fractal ­ and
is not the calculation of Berachot 32a an example of fractal structure
(4billionx30x30x30x30x360)?

The 4 billion can be explained by the standard theory of galaxy formation.
The 365 perhaps could be explained by inflation.

I donıt know what Iım talking about but my intuition is that there is
a very close match here. As a previous post noted, the most you can
see with the naked eye is about 9000 -- therefore Chazal's accuracy is
all the more stunning. (as a side point Reish Lakish in whose name the
Gamara brings the number had a reputation for being impeccably honest;
it is highly unlikely that he would have made up such a number or guessed
without telling us so.)

By the way, I queried approximately 10 leading cosmologists whether
or not they had heard of any other ancient people who had a number
anywhere in the ballpark of Chazal's. All responded in the negative -- 
my question was even posted on the history of astronomy listproc (and
therein viciously attacked by an Israeli astronomer -- natch).

++++++++++++++++++++++++++++++++++++++++++++++++
Rabbi Alexander Seinfeld
The Art of Amazement: Judaismıs Forgotten Spirituality
The new Tarcher/Penguin edition is due May 26!
++++++++++++++++++++++++++++++++++++++++++++++++

Distinction must be made between:
1. Deios
2. Machashavah
3. Hashkofos

Deios are certainly subject to psak; they include Ikkarei Emunah and
certain allied areas.

Machashavah is specifically the profound understanding of Tanach and
Chazal in and of themselves. I am not sure psak is relevant to this area -
although there are certainly "right" and "wrong" approaches.

Hashkafah is the subsequent stringing together of several understandings
(either inductively or deductively) to produce a weltanschaaung. It
is here that we find many darchei avodah, which can be right or wrong
"for me" yet legitimate as one of the many panim la'Torah.

When RSZA stated that his advice that I go to Baltimore and to college
rather than stay in EY and learn was a "psak," he taught that certain
life decisions that relate to halachos (such as kibbud av va'em OTOH
and Talmud Torah OTOH) are also deios.

YGB

On the subject of wearing tzitzis out that has risen again on the list,
I think all interested should refer to the definitive posting on the
subject posted to Avodah a few years ago by Reb Seth Mandel and the
comments and additions that followed.

If requested, I'll search my computer. I'm sure I saved something so
valuable.

k"t,
David 

Old  TK:
>: I think you're playing with words rather than grappling with any  actual
>: concept. "Infinite" -- when applied to G-d -- is just the human  way of
>: saying "not on the time line."

In Avodah V15 #13 dated 5/16/2005  RMB writes:
> I believe that there's a very real difference between "everywhen" and
> "has no 'when'".

> But even if it were a semantic game, the words in question are a
> nevu'ah (Ata hu..) and a piyut, each of which are said daily! And rishon,
> acharon, beli reishis and beli sachlis are not as vague as "infinite". So
> we need to understand what we're saying!

Correct, the words "beli reishis beli sachlis" are less vague, i.e., more
clear, than the word "infinite" in clearly implying NOT ON THE TIME LINE.

However, that is true only from G-d's perspective. We, creatures of
time, are not able to visualize such a thing as "not in time at all"
and therefore from our perspective in a world that goes from the past
to the future, He is before it all began and also after it all ends.

 -Toby  Katz
=============

On Mon, May 16, 2005 at 10:34:47AM -0400, T613K@aol.com wrote:
: Correct, the words "beli reishis beli sachlis" are less vague, i.e., more
: clear, than the word "infinite" in clearly implying NOT ON THE TIME LINE.

As I said, there are rishonim on "atah Hu Rishon". They need to comment
because of this very problem. And one mehalekh is as you write, another
that "Rishon" is that He is First Cause, "Acharon", that he is Final
Purpose. That the sequence isn't temporal, but logical. Everything exists
because of events He set into motion in order to accomplish His purposes.

: However, that is true only from G-d's perspective. We, creatures of
: time, are not able to visualize such a thing as "not in time at all"
: and therefore from our perspective in a world that goes from the past
: to the future, He is before it all began and also after it all ends.

If we can't picture the real thing, then don't picture anything. Your
final statement is as false as saying that the RSO has infinite mass.

I gave a metaphor that I feel is closer to the truth, that the time
experienced by the imaginary people represented on a timeline in
a history book isn't experienced by the book's publisher. Yes, the
publisher experiences a different concept of time, whereas the RSO does
not. However, if we stick to just that part of the mashal, it's more
accurate than treating Hashem as if He were temporal, even infinitely so.

-mi

-- 
Micha Berger             Today is the 22nd day, which is
micha@aishdas.org        3 weeks and 1 day in/toward the omer.
http://www.aishdas.org   Chesed sheb'Netzach: Do I take control of the
Fax: (270) 514-1507                 situation for the benefit of others?

According to Rav Gedaliah Dov Schwartz, Av Bet Din, cRc and RCA,
one does not say tachanun at Mincha the day before Yom HaAtzmaut. As
shaliach tzibbur for that mincha at the local Religious Zionist/B'nai
Akiva community gathering, I wasn't sure, so I had someone ask him on
the spot. He said, "no."

 -Avi

As far as I know every shul in my town encourages and abets saying
tehillim for people who are seriously ill. The Rambam (AZ 11:12) rules
that people who do that are kofrim.

Admittedly the Tur and Shulhan Aruch are mattir in the case of someone
who is in danger of dying, but I think they have to be understood as
disagreeing with, rather than interpreting, the Rambam, since the Rambam
holds that saying tehillim doesn't help, and the heter of pikuah nefesh
applies only to doing helpful activities, not useless activities.

So, according to the Rambam all the shuls in my town are staffed and
populated by kofrim. What's a good Maimonidean to do?

David Riceman 

In my recent "supplemental posting" I wrote, among other things, that Rav
Hamburger's Luach for 5765, Minhagei Beit ha-K'nesset Livnei Ashkenaz,
states under the heading "Iyar" and "Tekufat ha-Avelut" (p. 29; in
translation), "On the Shabbatot between Rosh Chodesh Iyar and Shavuot
Lecha Dodi is said to the special tune for the Sefira period [b'niggun
hameyuchad liymei hasefirah]."

Unfortunately, I failed to note that the Luach also states under the
heading "Rosh Chodesh Iyar" (p. 29): "In the Sh'liach Tzibbur's repetition
of [the] Mussaf[Amidah], the Sh'liach Tzibbur says the portion from
'l'sasson u'l'simcha' until 'avon' in the tune of 'Lecha Dodi' of the
Sefira period." (For Rosh Chodesh Sivan (p. 30), he says that portion
to the tune of the beginning of Akdamus.)

    Joseph I. Lauer
    Brooklyn, New York 

WRT to the discussionbetween RZL and RMB on the meaning of the existence
of the universe, the issue (IMHO) is semantic about the meaning of real.
The rambam's terms is that hashem is the only being whose existence
is not contingent on something else - and therefore hs to exist.
Everything else is contingent - it could or could not exist. That is
the simple pshat of the text.

Whether a contingent being "really" exists is a semantic issue - one that
(IMHO) is not really addressed in the text - a contingent existence
is subtantially different than a noncontingent difference - but once
existing, it still "really" exists

Meir Shinnar 

Please note the subject line in this message should have been Psak and 
Hashkafa and Psak and Halacha.

I cannot help but read with irony some of the comments on Avodah regarding 
the issue raised about Psak and Hashkafa. Most of the posts refer to the 
RAMBAM. I recall seeing a statement made by the Vilna Gaon regarding the 
Rambam. The statement was, "That cursed (Aristotelian) philosophy led him 
astray."  I also recall reading in one of the Nineteen Letters a statement 
by RSRH strongly criticizing the Rambam for his reliance on Aristotle.

The Rambam himself was criticized for his Hashkafa and now proofs are 
brought from him to bolster this or that view!

The Rambam's view on Korbonos at the time of Acharis Hayomim (he writes in 
Moreh Nevuchim that since Korbonos where merely a Jewish response to pagan 
sacrifice, there won't be any in the 3rd Bais HaMikdash) was rejected by 
the Ramban in Parshas Noach. The Olam joins the Ramban in saying that that 
piece in Moreh Nevuchim is not the accepted view, and there's supposedly a 
Mesorah that at the end of his life the Rambam regretted writing what he 
did about Korbonos in the 3rd Bais HaMikdash. So we don't hold like the 
Rambam on a major Hashkafa Inyan, but we use the Rambam to determine our 
criteria for Hashkafa guidelines? ... very confusing...

Most disappointing for me is the lack of real proofs to separate Hashkafa 
from Halacha. IMHO a poor job has been done in trying to show why the two 
are distinct - just lots of "you must be intellectually honest" Svaras, but 
no sources to back things up.

Yitzchok Levine

> Why are sources necessary? What distinction is there between halachah
> and hashkafah that would make one think that a gadol baTorah could
> only pasken on one and not the other? In fact, the Rambam put all his
> "hashkafic" views right in the beginning of the Yad, a halacha sefer.

Does that mean that someone who paskens like Rambam has to believe that
the stars are living creatures or anything else about eating styles etc
in the beginning of Yad Chazakah?

Note that most gemarot that discuss segulot do not appear in SA though
they frequently do appear in Shulchan Arukh HaRav. Hence, R, Caro
obviously did not equate aggadah (inluding segulot) and halakhah

 -- 
Eli Turkel

On Sat, 14 May 2005 Emesliameto@aol.com wrote:
> Subject: psak and haskafa
> Many others such as Rambam himself (guide 3:14) clearly held
> that Chazal could be mistaken in scientific statements made in Aggados.

Can you give me any examples of the Rambam arguing on Chazal in Halachah
due to his perception that they erred in the science leading up to their
maskana? If you cannot, I propose to you that although the Rambam may have
felt that when it comes to astronomical calculations, he was in possession
of more advanced information than Chazal, this fact is immaterial as he
would still never argue on them thus making Chazal, practically speaking
(or as one would say in Yeshivish speak, l'maaseh l'maaseh) infallible.

It is interesting to note that the ma'amar Chazal that the Rambam
disagrees with in the Moreh does not have to be taken literally and the
Gra doesn't take it so. In any case, the Rambam's understanding of the
distance to mazel Shabtai ended up being wrong too so if anything, both
Chazal and the Rambam are wrong. (I personally follow the idea that the
five hundred years between each of the seven heavenly bodies discussed
in Chazal is not referring to space time thus they were not wrong)

[Email #2. -mi]

On Sun, 15 May 2005 Micha Berger wrote:
> But our discussion is about a third category of maamarim: neither halakhah
> nor aggadita. I believe he's asking about their fallibility on scientific
> matters.

This may be true but if Chazal used science to come to certain conclusions
in Halachah, then what you are saying is that Chazal would then be fallible
in Torah matters too, right?

> That is why it's so relevent that the Rambam, who (as far as
> we can tell) coined the term makchish magideha, did question not only
> their science but even halachic conclusions based on that science to
> pasqen lequla!

Can you give me any examples of your above (latter) statement? I may be
wearing my heart on my sleeve with the following statement but I would
actually be shocked if you could illustrate a case where Chazal paskened
l'chumra on a Halacha and the Rambam negated their pesak and paskened
l'kula due to his estimation of Chazal's inferior scientific grasp. It
flies in the face of what the Rambam states openly in his hakdama to
the Yad.

Simcha Coffer

On Mon, May 16, 2005 at 01:51:34PM -0400, S & R Coffer wrote:
:> That is why it's so relevent that the Rambam, who (as far as
:> we can tell) coined the term makchish magideha, did question not only
:> their science but even halachic conclusions based on that science to
:> pasqen lequla!

: Can you give me any examples of your above (latter) statement? ...

The Rambam permits cooking and eating fish with meat.

RGS once posted to the list (v9n77) a pointer to a draft that got folded
into his review of R' Marc Shapiro's book. I suggest the chevrah take a
look at <http://www.aishdas.org/articles/crossroads.htm> and that area
of the archive before we start this iteration of the topic further behind
than we ended the last one.

As a one-liner, the line isn't between halakhah and aggadita, but whether
there's a nafqa minah lemaaseh. It would seem that RGS's sevarah would
allow new pesaq in defining apiqoreis, min or kofeir, as these categories
have lemaaseh impact.

The draft's footnotes should address the need for primary sources about
where there is a concept of pasqening [other] issues of aggadita. This
issue is also discussed in the essays by RHS on "eily ve'ilu" and by
RAC that were reffered to a few monrth ago. Neither believe that there
is a concept of pesaq on most aggadic questions.

Tangent: Would this mean that statements made during the unavailablility
of techeiles about how to tie it, how many strings are blue, etc... should
not be treated as pesaq?

-mi

-- 
Micha Berger             Today is the 22nd day, which is
micha@aishdas.org        3 weeks and 1 day in/toward the omer.
http://www.aishdas.org   Chesed sheb'Netzach: Do I take control of the
Fax: (270) 514-1507                 situation for the benefit of others?

Let's look at TuM as an example. If one chooses this Hashkafa over let's
say Chasidism has one violated Halacha? Or to use another example, if
a Chasid decides that TuM makes more sense to him than Chasidism has he
violated Halacha? And vice versa, If an adherent of TuM chooses Chasidus
has he violated Halacha. I think the clear answer is no.>

Following up with an older example. If one paskens like R. Akiva was one
required (then) to hold that Bar Kochva was Moshiach?
-- 
Eli Turkel

On May 16, 2005 Eli Turkel wrote:
> Does that mean that someone who paskens like Rambam has to
> believe that the stars are living creatures or anything else about
> eating styles etc in the beginning of Yad Chazakah?

No. Anything the Rambam took from Greek science and the like is not
obligatory on us whereas anything he took from Torah is. (unless another
Rishon argues etc.)

> Note that most gemarot that discuss segulot do not appear
> in SA though they frequently do appear in Shulchan Arukh HaRav.
> Hence, R, Caro obviously did not equate aggadah (inluding segulot) and
> halakhah

I'm not sure what you mean by "did not equate". If an aggadita Gemara
leads to a maaseh, sure he included it (e.g. hevey misgaber k'ari
etc). As far as sigulos, there are different shitos regarding their
efficacy and perhaps the michaber was of the opinion that they did not
have the same level of incumbency as Halacha. But if he did feel this
way, it is only because he felt that Chazal felt that way, not that he
was drawing a distinction between accepting Chazal's words in one realm
versus the other.

Simcha Coffer

In Areivim V15 # 41 R' Dov Kay Wrote:
>Rn'TK wrote:
>> My father zt'l was opposed to wearing tzitzis out because he thought
>> it looked sloppy and unkempt, and he also thought it was a new minhag,
>> not based on any mesorah or on the custom of bnai Torah in Europe.
>> Wearing tzitzis outside of the pants was bad enough, but it particularly
>> irritated him if the tzitzis hung so long that they were visible from
>> beneath a jacket.

> That surprises me, because I recall that when I was learning in
> Ohr Somayach, Jerusalem, in the summer of 1994, Rav Bulman zt'l gave
> a shiur and, owing to the extraordinary heat, removed his long coat.
> His short-sleaved shirt (that's another parsha) was tucked into his
> trousers. No tzitzis were visible. Obviously noticing that we had
> noticed this, he hurriedly pointed out that his practice was based on
> family custom (originating from the Arizal), but that we should all wear
> our tzitzis out. I approached him at the end of the shiur (of which,
> unfortunately, I remember nothing except this incident) and asked him to
> confirm that wearing tzitzis out was indeed in accordance with "minhag
> Ashkenaz", which he did.

> What surprises me all the more is that the minhag Arizal should be to
> keep tzitzis in, when the practice of chassidim (against the Magen
> Avraham) is to wear not just the tzitzis out, but the entire beged over
> the clothes.

> Kol tuv
> Dov Kay
> Manchester, England

The impression one gets when learning this MA is, that according to the
Ari z"l the Talis Katan should be all the way under the clothes, that
is under the shirt and jacket, therefore you may wonder why Chasidim
wear their TK over the shirt.

But if you'll look it up at the source, in Shaar Hakavanos Drushei
Tzitzis Drush 6, which is apparently the"Kesavim" the MA is referring
to, you'll find precisely the minhag of (most) Chasidim (excluding AFAIK
minhag Chabad).

Ve'zeh Leshono: HaTalis Katan huyo lovsho "lematah misha'ar malbushuv al
gabei chaluko" (which I would translate as "under the rest of his clothes,
on his shirt") shelo ke'osum hamisyaharim lelovsho al gabei begodov.

IOW what R' Chaim Vital negates, is wearing the talis katan on top of
all clothing, in plain sight, for one always wearing a jacket in public -
over the jacket, or for one who would walk on the street without a jacket,
over his shirt.

Chasidim, you may have noticed, generally walk on the street with a (long)
jacket, based on the B'nei Yisaschar (Ma'amarei Tishrei ma'amar 10 os 7),
therefore they're perfectly in line with the minhag Ari.

I have also heard that the reason Chasidim usually wear a vest or a
waist coat called a "shpentzer" over the TK, is for the minhag Ari to
wear the TK under the begadim but over the shirt, and since the jacket
isn't worn 24/7, they therefore have another beged over the TK.

BTW what's obvious from the aforementioned Shaar Hakavanos is that the
Ari wore the whole beged over his shirt.

IIRC I have seen pictures of some Litvishe Gedolim in EY (mainly from
the Brisker cheder) wearing their Talis Katan over the shirt.

KT,

- Avigdor Feldstein

WRt to the thread of machchish magideha, one of the earliest sources we
have is rav hai gaon, who is recognized as a main source of the mesora,
and is closer to hazal (both in terms of the yeshivot of bavel having
oral traditions, and temporally closer) than any of the other sources
cited in this debate (I am not aware of any contemporary or earlier
source who is holek...)

Rav Hai Gaon is cited as the most radical position with respect to
drashot hazal - that they have no normative value, that they do not
reflect a mesora, but are merely the personal position of the person.
If one were to hold that machchish magideha applies to this issue,
it would seem that it should apply most to those people who reject rav
hai gaon.....

Meir Shinnar

S & R Coffer <rivkyc@sympatico.ca> wrote:
> On May 15, 2005 Harry Maryles wrote:
>> One does not have to be of the same Hashkafa as R Elyashiv to follow
>> his Psak. It is well known for example that RSZA was R. Aharon
>> Lichtenstein's Posek. But it is equally well known that their
>> Hashkafos were not the same.  To say that not follwing R Elyashiv's
>> Hashkafa means that you are rejecting his Psak is ridiculous, IMHO.

> Not ridiculous at all. RAL is a talmid chacham of repute both in halachah
> and hashkafa. He only approached RSZA in areas that he was misupak in. In
> hashkafa, he was not misupak and thus did not require RSZA "psak".

Good. Then we agree. If we have a Hashkafa that is different from
the Posek we ask our Shailos too, then we may do that, as did RAL
who differed Hashkafically with RSZA, his Posek for many years until
RSZA's P'Tirah. This is exactly the way I feel abour R. Elyashiv in
theory. (In practice he is not my Posek at all.) His Hashkafa is not
my Hashkafa. Putting it in your words... I am not misupak in Hashkafa
(as I have my sources in RYBS and RAS amongst others) and thus do not
require R. Elyashiv's "psak". But if I choose him as my Posek for all
else I may do so and retain my own Hashkafa. IOW I separate Hashkafa
from Halacha. They are not the same.

HM

Joseph I. Lauer wrote:
> [...] Rav Hamburger's Luach for 5765, Minhagei Beit ha-K'nesset
> Livnei Ashkenaz
> [...]
> the Luach also states under the heading "Rosh Chodesh Iyar" (p. 29): "In  
> the Sh'liach Tzibbur's repetitionof [the] Mussaf[Amidah], the Sh'liach  
> Tzibbur says the portion from 'l'sasson u'l'simcha' until 'avon' in the  
> tune of 'Lecha Dodi' of the Sefira period."

Astonishing. Must ask him about the mekourous. I thought the tune for
Iyer was Niggun haloche vetousfes (as when learning gemore), and that,
as with the other months, until "selo" of Ashrei.

Where I was this year, nobody warned me, and they sang it to something
resembling Dvo?™ak...

Lipman Phillip Minden

Yesterday I posted four different ways to avoid any safek that one's
HaMotzi will cover the meal on Shabbos Erev Pesach. A fifth aytzah is
for those people who accept the idea of eating matza ashira, but prefer
to make the HaMotzi on real challa.

The aytza is to make the HaMotzi on challa far from the table, and clean
themselves well of it, but since he'll eat matza ashira (or maybe even
if he doesn't eat it but allows it to be available for eating), which
is a legitimate form of pas (technically pas habaa b'kisnin, but pas
nevertheless) this will not invoke the problems of "mashach yadaim min
hapas" raised by the Mechaber 177:2.

Akiva Miller

In message <6.2.0.14.0.20050514232846.02c333e0@localhost>, Yosef Gavriel 
& Shoshanah M. Bechhofer <ygb@aishdas.org> writes
>Rabbeinu Yonah there argues on the Rashbam and says the case cannot be 
>talking about a din between two Jews. I cannot cite the Hebrew on 
>Avodah, but I have copied it out of the Shittah (thanks to DBS!) at the 
>blog site.

>http://rygb.blogspot.com/2005/05/bava-basra-halachah-lmaaseh.html

Thanks for the cite.

However, as I said in my first post, to the extent that there is a
machlokus rishonim directly on point, why can't the neighbour who
asked the question argue kim li - since he is the one being asked to
take action?

But secondly, the Rabbanu Yona's position appears to be:

a) the stam laws of the king are only intended for his people not Yisroel
so it does not apply between Jew and Jew;

b) even if he did specifically intend to include Jews since a Jew is
able to force another Jew to judgement in front of beis din, and the
king is not able to force him to come to the secular courts, the king
does not fix the law on the Jews except when they come before his courts.

c) Rabbanu Yona learns from here that even things that are not a takana
for the benefit ("hana'a") of the king falls within the category of dina
d'malchusa dina.

Now in relation to a), while that may well have been the position and
intention of the Persian kings who gave the Rosh Galusa a lot of autonomy,
is there anybody who argues that that is the position of modern day states
(who intent is easily determinable in this regard and who pretty clearly
intend their statutes to cover Jews).

c) is interesting in that, whatever may have been the intention of
the Persian kings, the stated intent of the modern day law of adverse
possession, as it is classically explained to law students (who are
usually uncomfortable with the idea that you can lose ownership of
property in this manner) is that it is a law passed by the state/sovereign
because it is not in the interests of the state to have land within its
boundaries that is not being worked/used and is being neglected/run
down, and if somebody does not have sufficient interest in their
property to protest the usage by somebody else of their land for such
a significant period of time, the state has an interest in stepping in
and making sure the land is owned by somebody who will make better use
of it. Understanding adverse possession using that explanation, it would
seem to me, seems to put it reasonably clearly within the category of
providing benefit to the king and not the way Rabbanu Yona understood
the gemora's case.

But b) it seems to me, in the case of modern day land registration
systems, makes Rabbanu Yona's position even more difficult to maintain
than it was before. Under the traditional system of land ownership the way
to prove ownership was by proving a chain of title, and so an owner kept
each document showing the transfer from one previous owner to the next,
all the way back to the person given the original grant from the Crown
(or whoever), and so one could in theory turn up to beis din with one's
pile of documents and prove ownership, and if one did not bring that
pile of documents to the secular courts, it would be difficult for them
to establish ownership of a particular piece of land.

However today, the land registry system means that, whatever judgement
beis din may decide, the *only* way to establish title to a piece of
property is to then go to the land registry (which is an arm of the
state), ie come before the equivalent of the secular courts. And because
of the system, the courts are able to establish title regardless of the
co-operation (or lack of it) of any of the parties. So that, when we
bought and sold our first house, despite the fact that we bought it from
frum Jews, and subsequently sold it to frum Jews, and had frum Jewish
solicitors (lawyers in American) on all sides, it was still necessary for
our solicitors (when we bought) or our purchasers' solicitors (when we
sold) to register the sale at the land registry, and had we not done so,
we would not have had legal title, and there was no way of going to beis
din that would have rectified that. And I have certainly never heard
of anybody suggesting that we should have a shadow economy in which
properties never (under the secular law) change hands until the first
time in which somebody wishes to sell to a non-Jew or that we should not
comply with the obligations that the State places on us to register all
sales of property. And, since the State takes a whopping big tax (called
stamp duty) in this country on each land transfer, while the economics of
such a shadow economy might be attractive, the State would unquestionably
view it as a form of tax evasion. Hence I suspect that even Rabbanu Yona
would, today, view land transfer as something in which the State has a
serious and abiding interest and subject to dina d'malchusa dina.

Regards
Chana
-- 
Chana Luntz

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


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