Avodah Mailing List

Volume 17 : Number 089

Tuesday, July 18 2006

• Re: How do Achronim become Rishonim?
• avos
• Re: Capital punishment
• Kash v'teven
• Re: Yoma Daf 29 - What is Parsa, Mil, Ama?
• Re: historical contingency and brachos
• RE: death penalty
• RE: How do Achronim become Rishonim?
• Re: Israeli News on NY Erev Shabbos
• Re: death penalty
• Re: Capital punishment
• Re: Capital punishment
• Re: Capital punishment
• ROY
• Re: Israeli News on NY Erev Shabbos
• Distance from Y'm to Yericho
• Re: Kash v'teven (from areivim)

R' Moshe Yehuda Gluck wrote:
> was writing the Mishneh Berurah on the Laws of Sukkah - [R' Leibowitz
> recounted - MYG] his [the Chofetz Chaim's - MYG] practice was that they
> would clarify a Halachah and he would then write it. When he wrote
> a certain Halachah, R' Dovid pointed out the possibility of it being
> misinterpreted. The Chofetz Chaim Z"L immediately fixed it, and told him,
> "Mei'Hashem ma'aneh lashon. This is why every author needs mercy from
> heaven so that he shouldn't write something in which others will read
> into his words what never entered his mind."

> The money quote, of course, is the part about being M'dayek in the MB
> as one does in the Rishonim.

Or that this was his intention but sometimes he didn't manage. Was there
always a test reader like R' Dovid?

ELPhM

>> RSBY answered: You deserve Malkus - 39 lashings for bad-mouthing
>>Yaakov! How dare you believe what Esav said and ignore what the Torah
>>says, that Yaakov is the epitome of honesty: Yaakov Ish Tam and Titen
>>Emes leYaakov.

> Food for thought, when using psukim to discredit the Avos haKedoshim

He doesn't address the issue really, he only says that you shouldn't
say such a thing. But the question remains. It seems.

cbk

On 7/16/06, Zev Sero <zev@sero.name> wrote:
>> 2)Why did the Sanhedrin leave the Lishkas HaGazis because there were
>> too many capital cases, as is commonly learned?

> Precisely because of that. There were a lot of murderers who had to be
> executed, and the Romans wouldn't let them do so; their only choice was
> to remove the obligation.

It seems to me that Beis Din felt guilty as well, for their inability
to prevent the murders from happening as well, because otherwise why
would they punish themselves by going into galus?


[Email #2. -mi]

On 7/11/06, Jacob Farkas <jfarkas@compufar.com> wrote:
> Furthermore, MBB is not exclusive to violent crimes. Hilul Shabbos is
> punishable by MBB. The "broken windows" theory can curb violence, but
> how would it prevent haOseh Shtei Batei Nirin?

Improving education, emphasizing the chomer of keeping Shabbos, and
strictly enforcing derabanans would definitely reduce all aspects of
Chilul Shabbos.

-Shmuel

On areivim, RZSero wrote about the oft-cited din in SA OC 329 that one
may be mechalel Shabbat to defend a border town even if the attackers
are attacking for money (iskei kash v'teven) that this has nothing to do
with EY and its kedusha, and would apply to any area with an autonomous
Jewish authority; it's a straightforward din in pikuach nefesh, which
applies both in EY and outside it. He noted that this din was formulated
in Nahardeah; the gemara does not explicitly apply it to EY.

Intrigued by this thesis, I looked up the corresponding din in the Rambam
(Shabbat 2:23) in the Frankel edition. The only source cited in the
back (Sefer HaMafteach) on this din was that of the Tzafnat Paneach
(the Rogochover) who says this halacha is "mishum kibush v'lo mishum
pikuach nefesh". I take this to mean that what is doche Shabbat in this
case is the mitzva of maintaining kibush EY, which would be endangered
by an attack on a border town, and not pikuach nefesh (which does not
apply to an attack for monetary gain). This is of course how this din
is commonly understood.

Saul Mashbaum

From: "galsaba" <galsaba@aol.com>
> This is too short to describe 40 Parsa. So may be earth distance.
> Checking few sources, depends on the road you chose it is 12 to 17 miles.
> All too short even according to the convrsion table of Harav Benish.

What comes immediately to mind is that there might have been a longer
ground route at the time of Chazal.

 -Shmuel

I just read through this thread, and have a few hearos.

When eating bread you feel a different type of satiation than when eating
cake or crackers.

The Torah does give a special status to bread on Pesach. If something does
not become chametz, then it is not bread. The way I understand the Shalosh
Regalim, on Pesach you change the food you eat, on Shavuos you change the
way you think, and on Succos, the way you live. What comes out of this is
that bread having a special status is built into the Halachos of Pesach.

The Rav where I daven is of the opinion that the status of Pizza has
changed over time. It used to be than people would not normally be
koveia seudah on Pizza and therefore it would get a mezonos unless you
specifically ate a shiur kevius seudah. But now since most people are
koveiah seudah on it, then it becomes like Matzah and you have to wash
and bench on a Kezayis.

 -Shmuel

MYG:
> RMF has a teshuvah in IM against the death penalty. Apparently then
> Governor Rockefeller asked his opinion regarding New York State.

R'n TK:
> Is that true? I'd like to see it. Very, very surprising.

Igros Moshe, Choshen Mishpat vol. 2, #68. RDE in his English Yad
Moshe (has it been reprinted yet?) labels the Teshuva as being to the
President. IIRC, I heard it was to Governor Rockefeller, and the last
line of the Teshuva also implies that it wasn't to the President.

I posted from memory that the Teshuva was against the death penalty.
Rereading it, I'm not so sure. Please draw your own conclusions, and
let us all know!

KT,
MYG

R' ELPhM:
> R' Moshe Yehuda Gluck wrote:
>> was writing the Mishneh Berurah on the Laws of Sukkah - [R' Leibowitz
>> recounted - MYG] his [the Chofetz Chaim's - MYG] practice was that they
>> would clarify a Halachah and he would then write it. When he wrote
>> a certain Halachah, R' Dovid pointed out the possibility of it being
>> misinterpreted....

> Or that this was his intention but sometimes he didn't manage. Was there
> always a test reader like R' Dovid?

R' Ya'akov Kamenetsky clearly said that one can be m'dakdek in the MB
as in a Rishon, as I quoted earlier, "And I said, that the author of
the Chofetz Chaim Z"L, merited as a reward for guarding his speech that
his Mishneh Berurah is so nuanced in its language that it is possible to
infer from it as one does in the works of the Rishonim. This is Middah
K'neged Middah."

KT,
MYG 

From: Micha Berger <micha@aishdas.org>
> I asked if maybe the poitician is permitted to give the interview, as
> hasbarah to the US could have real piqu'ach nefesh implications...

> This raised a general question: If someone holds that piqu'ach nefesh
> is dokheh (as opposed to matir) Shabbos, may you get ancillary hana'ah
> from side effects?
...
> Is the issur han'ah tied to the action being a melakhah, or to it
> being assur?

I find it almost impossible to imagine hasbara being doche shabbos. 

Your question is exactly the question of hutra or dchuya and it is usually
phrased as whether a healthy person can eat from food that was cooked
for a sick person on Shabbos. That's your ancillary benefit question.

Moshe Yehuda Gluck wrote:
> Igros Moshe, Choshen Mishpat vol. 2, #68. RDE in his English Yad
> Moshe (has it been reprinted yet?) labels the Teshuva as being to the
> President. IIRC, I heard it was to Governor Rockefeller, and the last
> line of the Teshuva also implies that it wasn't to the President.

You are correct that Rav Moshe was responding to the governor of New York
and not the president as I incorrectly stated in the original English
Yad Moshe.
The English Yad Moshe has in fact been reprinted in a revised and
expanded version which now also covers the 8th volume of Igros Moshe.

Daniel Eidensohn

> On 7/11/06, Jacob Farkas <jfarkas@compufar.com> wrote:
>> Furthermore, MBD is not exclusive to violent crimes. Hilul Shabbos is
>> punishable by MBD. The "broken windows" theory can curb violence, but
>> how would it prevent haOseh Shtei Batei Nirin?

R' Shmuel Weidberg wrote:
> Improving education, emphasizing the chomer of keeping Shabbos, and
> strictly enforcing derabanans would definitely reduce all aspects of
> Chilul Shabbos.

How could/would BD enforce Muqtzah?

The point I was trying to make was that BD is considered Hovlanis because
they couldn't find judicial loopholes to avoid applying Misas BD, R'
Zev Sero felt it was because they weren't strict with lesser crimes,
a la the "broken windows" theory that by punishing lesser crimes rather
than looking away, larger crimes are not committed.

My point was that had Misas BD been applied solely for violent crimes,
it would be possible to apply his S'vara that Hovlanis is because they
weren't protecting society properly be failing to be tough on lesser
crimes and thus avoid having people commit worse crimes, but as MBD
can be applied to non-criminal activities, such as Hilul Shabbos, and
should BD have killed 1 in 7 years it would considered Hovlanis, even
in an event that violent crimes were not committed at all, this proves
that Hovlanis is because BD was overly punitive and not creative enough
in finding ways to avoid punishing with death.

Jacob Farkas

Micha Berger <micha@aishdas.org> wrote:
>: Ein hachi nami, it's their fault too. Cf the KG's role in arei miklat.

> Actually, since the Sanhedrin has no such role, it would seem that it's
> his job possibly to the exclusion of theirs. Then there's the egla arufa,
> also not the ziqnei ha'ir.

I'm not sure what you mean here. "Ziknei ha'ir hahi" means the BD,
doesn't it? It seems that this strenghtens my point.

>>> 2)Why did the Sanhedrin leave the Lishkas HaGazis because there
>>> were too many capital cases, as is commonly learned?

>> Precisely because of that. There were a lot of murderers who had
>> to be executed, and the Romans wouldn't let them do so; their only
>> choice was to remove the obligation.

> But if they're supposed to carry it out, why would they connive to
> avoid it?  Rather, it looks like they had a moral imperative -- to
> minimize capital punishment -- that they couldn't carry out any
> other way.

On the contrary, the moral imperative was to carry it out; the physical
reality was that they couldn't, because the Romans didn't let them.
The gemara's language (AZ 8b) is "since they saw that the murderers were
increasing, and they were not able to judge them". Not that they didn't
want to, but that they were not able to. Now what prevented them from
doing so? Bear in mind that the gemara lists this as a stage in the
impact of Roman rule over EY. 140 years after EY became a client state
of Rome, this move became necessary.

Cf the New Testament, whose authors would surely have loved to have
claimed that the Jews had actually murdered their god, were such a
claim credible. It wasn't, because everyone at the time knew that the
Jews did not have the power to execute anyone.

NB: if the NT is correct that Jesus was 33 years old at his death, and if
the now-commonly-accepted year of his birth, 4 BCE, is also correct, then
he was executed in 30 CE. If the gemara's "40 years before the churban"
is meant precisely, then the move took place that same year, which raises
the possibility that it was this very incident that sparked the move.

The story of his trial before the Sanhedrin is obviously fabricated in
its details, but suppose the basic claim is true, that the Sanhedrin
did in fact try him, and sentence him to death, but could not carry
the sentence out. Now suppose that the Sanhedrin was in fact doing as
reasonable a job as it could under the circumstances, i.e. it was at
least trying not to be a chovlanit, and therefore that this was the
first capital case to come before it in several years, perhaps even
the first since the Romans forbade the batei din from executing people.
It would then be this incident that forced the Sanhedrin to confront its
new status, that it had a chiyuv de'oraita and no means of fulfilling it,
and come up with this solution to patter itself.

For this to work, we would have to suppose that "nefishi" means not
that the number rose to 5 or 10 a year, let alone higher, but that it
rose from zero to one. We would also have to suppose that "rotzchin"
is inexact; perhaps the amoraim didn't like to say what they were really
talking about, or perhaps over the centuries until this was written down
the exact crime was forgotten. Or perhaps the crime for which he was
convicted *was* murder, and the authors of the NT conveniently forgot
to mention that little detail.

-- 
Zev Sero
zev@sero.name

Micha Berger <micha@aishdas.org> wrote:
> BTW, R' Yosef el-Qafeh's (Kapach's) edition, the Rambam reads "1,000
> on sequential days". RYeQ writes that the Rambam as we have it (even
> 1,000 in one day) would be in violation of the issur against trying two
> capital cases on the same day (mishnah, Sanhedrin 45b, which the Rambam
> himself has in Sanhedrin 14:10).

Yes, I mentioned that ("The Rambam clarifies that if a BD happens to
have 100 cases present themselves, one day after another, then they must
execute them all"), except that I misremembered 1000 as 100.

We should also bear in mind that this 7-year (or 70-year) limit is not
for all of EY, but for each BD, which has jurisdiction over one town.
What would have been the population of a typical town in EY with its own
BD of 23? For comparison, Texas, which is known as the state most ready
to use capital punishment, has executed 191 people over the past 7 years
(1999-2005), out a population of nearly 23 million, or one per 120,000.

We should also bear in mind that America has for centuries had an
abnormally high murder rate compared to most societies, and surely
compared to EY bizman habayit. (I don't know quite why this high murder
rate, but it has existed for centuries, so it must be unrelated to any
specific legal policy, since those have varied widely over that time.)

-- 
Zev Sero
zev@sero.name

R' Reuven Koss wrote:
>I understand that there are communities that use ROY in EY, but even
>leshitaso, that Maran is koveah in EY, that doesn't help in chu"l where
>Maran is not koveah.

Not entirely true.  ROY holds regarding sepharadim that "kibalnu 
horotav Maran."  That applies to all sepharadi communities both in EY 
and chu"l.  Maran being koveah in EY refers to the obligation on 
everyone (ashkenazim and sepharadim alike) to accept Maran by virtue 
of living in EY.

jacob 

Micha Berger <micha@aishdas.org> wrote:
> This raised a general question: If someone holds that piqu'ach nefesh
> is dokheh (as opposed to matir) Shabbos, may you get ancillary hana'ah
> from side effects?

Yes.  See Chulin 15b, and OC 318:2.

-- 
Zev Sero
zev@sero.name

"galsaba" <galsaba@aol.com> wrote:
> Yoma Daf 29 - What is Parsa, Mil, Ama?

I assume you mean either daf 20b or 39b.

> I know the conversion according to Hazon Ish, Harav Nae'e, and Harav
> Benish, but non of them explains the distance, mentioned in Yoma,
> between Jerusalem to Jericho. It said there that the distance is
> 40 parsa

You mean 10 parsa.

> It makes sense, that if they talk about sound, then the distance they
> refer to, is air distance.

But would Chazal have known the distance as the crow flies? More likely
they meant the distance by road.

>  I cheked. Air distance is 8. miles.

Measuring on a map, it looks to me like about 25 km, or 16 miles.
The distance by road would of course be longer, especially since it's
also a climb of about 1 km.

> This is too short to describe 40 Parsa. So may be earth distance.
> Checking few sources, depends on the road you chose it is 12 to
> 17 miles.  All too short even according to the convrsion table of
> Harav Benish.

17 miles is about the shortest the road could possibly be, since that's
not much more than the crow-flight distance, and it may well have
been longer.

According to http://en.wikipedia.org/wiki/Parasang, the Greek geographer
Strabo wrote: "When I ascended the hills, the measures of these
schoeni were not everywhere uniform, so that the same number sometimes
designated a greater, sometimes a less actual extent of road, a variation
which dates from the earliest time and exists in our days." (Strabo XV,
I, II.) In other words, distances were estimated by travel time, and
would therefore vary depending on the terrain. I can imagine that a 1 km
climb or descent would be somewhat arduous, both for people and animals,
and therefore the "parsaot" on such a journey would be shorter than they
would be on flat ground.

This might also shed some interesting light on the Gemara Yoma 39b, which
also refers to the sound of the hinges going only 8 techumei shabbat,
i.e. 8 millin, or 2 parsaot. Tosafot goes into this, both on 39b and on
20b. But suppose these parsaot are much shorter than usual because of
the difficult terrain. Suppose also that "eight techumei shabbat" means
not 8 millin, but the techumin of eight people located 2 millin apart,
who could thus relay a message on Shabbat, i.e. a distance of 16 millin
rather than 8. If we suppose a mill to be about a mile then suddenly
we're close to the actual distance between the two cities. We can even
make the mill smaller by considering that Y'm and Yericho themselves have
bigger techumin because they're actual cities that cover some area, and
that there may have been some towns along the way with bigger techumin.
If all of this is supposed, then we have answered Tosafot's question,
or come close to doing so.

-- 
Zev Sero
zev@sero.name

saul mashbaum wrote:
> On areivim, RZSero wrote about the oft-cited din in SA OC 329 that
> one  may be mechalel Shabbat to defend a border town even if the
> attackers are attacking for money (iskei kash v'teven) that this
> has nothing to do  with EY and its kedusha, and would apply to any
> area with an autonomous Jewish authority

I don't even think an autonomous Jewish authority is necessary; it
seems to me that it's enough that it's an area of Jewish population
being attacked by a hostile force.

> it's a straightforward din in pikuach nefesh, which applies both
> in EY and outside it. He noted that this din was formulated 
> in Nahardeah;  the gemara does not explicitly apply it to EY.

Not only does it not explicitly apply it to EY, it *does* explicitly
apply it to Nehardea.

> Intrigued by this thesis, I looked up the corresponding din in the 
> Rambam (Shabbat 2:23) in the Frankel edition. The only source cited
> in the back (Sefer HaMafteach) on this din was that of the Tzafnat
> Paneach  (the Rogochover) who says this halacha is "mishum kibush
> v'lo mishum pikuach nefesh". I take this to mean that what is doche
> Shabbat in this case is the mitzva of maintaining kibush EY

Whoa there! You're inserting "EY", which the Tzofnat Paneach doesn't
say and doesn't mean. The concern here is that the country will be
conquered -- any country where Jews live (assuming that the invader
is not actually welcomed by the Jewish population, as many Jews did
to Napoleon). This din would justify breaking shabbos to defend the
USA from invasion, even if no Jewish lives were in immediate danger,
and there is no reason to suppose that the invader has any intention of
starting a holocaust ch"v. The mere fact that Jews live in peace in the
USA, and would rather not be ruled by China or Russia, is sufficient to
justify chilul shabbos in order to prevent such a conquest.

> which would be endangered by an attack on a border town, and not
> pikuach nefesh (which does not apply to an attack for monetary gain).

The main problem with your understanding is that if so how can the
gemara apply it to Nehardea? And it's not as if anyone thought that
Nehardea is somehow in even the greatest borders of EY. As Rashi says,
"it was close to nochrim on one side, and to cities where the *benei
golah* live on the second side".

> This is of course how this din is commonly understood.

By whom? I don't agree that it is commonly understood that way.

 -- 
Zev Sero
zev@sero.name

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


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