Avodah Mailing List

Volume 27: Number 15

Mon, 11 Jan 2010

• 1. John Locke and Tzedaqa (Dov Kaiser)
• 2. Why are beards considered so choshuv? (Dov Kaiser)
• 3. Re: burning bush (Rich, Joel)
• 4. Re: electricity on shabbat (David Riceman)
• 5. Re: electricity on shabbat (Micha Berger)
• 6. Re: Why are beards considered so choshuv? (Micha Berger)
• 7. Re: John Locke and Tzedaqa (Rich, Joel)
• 8. Re: John Locke and Tzedaqa (Micha Berger)
• 9. Misleading Paraphrase of Jacobellis v. Ohio, 378 U.S. 184 at 197 (Jay F Shachter)
• 10. Re: burning bush (Danny Schoemann)
• 11. Re: John Locke and Tzedaqa (Zev Sero)
• 12. Re: The Dynamic of Post-Talmudic Brachos (Micha Berger)
• 13. Re: John Locke and Tzedaqa (Micha Berger)

R. Michael Makovi wrote: 
<<For how Judaism and democracy interact in a modern society and
nation, we'd have to study both the halakhah and John Locke much more
deeply, and study the words of Rabbis Haim Hirschensohn, Benzion Uziel,
Yitzhak Herzog, and anyone else who's written on the subject. Tzarikh `iyun
gadol me'od.
 
Interestingly, however, I just saw that Moshe Feiglin advocates the
revitalization of localized communities in Israel, precisely because he
believes it will lead to a resurgence of Jewishness and Judaism in Israel.
In his article "Judaism and Democracy for Israel" (http://www.jewishisrael.org/eng_contents/articles/article7020.html),&g
t;>

----------------------------------------------



R, Nachum Eliezer Rabinovitch (RY at Maale Adumim and author of Yad
Peshuta), in his Darkah Shel Torah, deals fairly comprehensively with his
conception of government, based on Tanach, Chazal and the Rambam.  IIRC, he
finds a form of social contract theory in these sources.  Like Moshe
Feiglin, R. Rabinovitch holds that Torah's conception of democracy (yes, he
believes it has one) requires direct elections, not proportional
representation.

 

On a tangent and by way of well intended advice, I know that you are fond
of Rabbis Hirschenson, Uziel, Herzog and Berkovits, and that is your right.
 However, by constantly referencing a narrow slice of Jewish thinkers, the
appeal of your arguments to others who may not share your fondness suffers.
 It is like a Lubavitcher who only ever quotes the works of the Rebbes, Rav
Kooknik who only quotes Rav Kook, or American Modern Orthodox type who only
quotes the Rav.  We have all met these types, and discussion with them
becomes tedious and futile.  I am not accusing you of this and hope that
you excuse the chutzpah of my criticism, but I think your argument could
benefit frmo being fleshed out by other thinkers, particularly those from
Chazal and Rishonim.

 

You prefaced your discussion on this topic with the Talmudic rule that
sevara is deoraita.  Of course, sevara is sometimes used in the Talmud to
derive binding halakha (e.g. Yoma 82b - who says that your blood is redder
than mine?),   However, your use of the expression in this context gives
the impression that you are asserting the incontrovertibility of your
arguments because they are so logical!	Rn. T. Katz has already taken you
to task based, I think, on this (mis)understanding of your words (in a
stronger tone than I think was called for - moderators, where are you when
we need you?).	I am sure that this is not what you were saying, but you
open the way for attacks like those by RTK by using expressions such as
*sevara deoraita* out of context.  

 

Kol tuv
Dov Kaiser
                                          
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R.RWolpoe wrote:
 
<<Litvisher bachurim traditionally had long sideburns [think of some civil war pictures].>>
 
What is your source for this statement?  In all of the photographs I have
seen of pre-War Litvisher bochurim, they have short sideburns.	For
example, see R. Y. Levine's website at http://pers
onal.stevens.edu/~llevine/young_gedolim.html.   Long sideburns (not
sidelocks) are popular in contemporary Litvisher yeshivos, but I think this
is new trend. 
 
By the way, on the topic of beards, R. AY Kook in his Iggeros refers to a
Gemara in Shabbos that *hadras panim - zkan*, and R. Kook endorses the
kabbalistic view that the beard should not be cut.  This is now catching on
in the chardal world in Israel, where beards and peyot are all the rage.
 
Others have referred to the fact that the Italian kabbalists shaved. See
the following article: 
http://seforim.blogspot.com/2006/08/jews-beards-and-portraits.html.  He
points out that the evidence all hinges on a disagreement as to whether
Rama MiFano kept a full beard, although one of the comments also refers to
a contemporary accusation made against the Ramchal that he trimmed or
shaved his beard.  Fascinating stuff.
 
Kol tuv
Dov Kaiser                                        
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>
> If someone were near Moshe when he came to the burning burn:
> 1. Would he also have seen it was burning but not consumed 2. Would he
> have heard G-d talking to Moshe Rabbenu rl would have thought Moshe is
> talking to a bush
=========
IIRC the gemara mentions a case where 2 tannaim (amoraim) were sitting
together and one heard a voice telling him to return to the beit medrash
(where he became R"Y) and the other didn't.
KT
Joel Rich


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Me:
> : If I correctly understand Rabbi Auerbach's description of Rabbi 
> : Karelitz's opinion (which I sincerely doubt I do) it is that electric 
> : current induces a qualitative change in the wire it flows through.  I 
> : don't see how the current being drawn from a battery would affect that.
>   
RMB:
> I thought that was the "bishul" argument.
No it's metakken mana, which is a tolada of binyan.
>  In any case, most batteries to
> not push 120v, and therefore what it does to the wire is less signific<a>ant
> -- barring wires designed for it, like a flashlight bulb filament.
>   
But Rabbi Karelitz understands this to be a qualitative change, not a 
quantitative change, so "less significant" is irrelevant.  He maintains 
that any current which makes a circuit changes the wire into something 
else.  As I said before, I don't understand his opinion (and IIUC Rabbi 
Auerbach also claimed not to understand it), but that is the plain sense 
of his words.  Reinterpreting them to fit your understand of the 
physical reality is virtuous, but it's not convincing.

David Riceman

On Mon, Jan 11, 2010 at 08:53:54AM -0500, David Riceman wrote:
: > In any case, most batteries to
: >not push 120v, and therefore what it does to the wire is less signific<a>ant
: >-- barring wires designed for it, like a flashlight bulb filament.

: But Rabbi Karelitz understands this to be a qualitative change, not a 
: quantitative change, so "less significant" is irrelevant....

Unless it's not longer a pesiq reishei that the change to the wire will
cross the observable threshold, which was where my head was. Or is the
CI saying that *temporarily* being a "current carrying wire" is a tiqun?

Tir'u baTov!
-Micha

-- 
Micha Berger             You will never "find" time for anything.
mi...@aishdas.org        If you want time, you must make it.
http://www.aishdas.org                     - Charles Buxton
Fax: (270) 514-1507

On Mon, Jan 11, 2010 at 12:52:57PM +0000, Dov Kaiser wrote:
: What is your source for this statement? In all of the
: photographs I have seen of pre-War Litvisher bochurim, they
: have short sideburns...

Rav Dovid's peiyos can be seen here:
<http://upload.wikimedia.org/wikipedia/en/d/d6/Rav_Dovid_Lifshitz.jpg>
Notice that he did not have long sideburns, although RDL did grow these
blocks of hair at each temple which he swept back above his ears. (Not
the more long and narrow style now in vogue among many yeshivish that
can be wrapped behind the curve of the ear.)

I had always addumed that RDL's blocks-of-hair "lange payos" preceded
his beard, althoug I must confess I never asked.


All that said, we should be well aware of the difference between pre-WWI
Eastern Europe and how Jews behaved inter-war. Along with the simple
march of time, another impact was greater exposure to German Orthodoxy
during WWI. RYL's photo collection is after WWI, and may not represent
what was done in the Litvisher yeshivos eg in Volozhin's day.

Tir'u baTov!
-Micha

-- 
Micha Berger             I slept and dreamt that life was joy.
mi...@aishdas.org        I awoke and found that life was duty.
http://www.aishdas.org   I worked and, behold -- duty is joy.
Fax: (270) 514-1507                        - Rabindranath Tagore

R, Nachum Eliezer Rabinovitch (RY at Maale Adumim and author of Yad
Peshuta), in his Darkah Shel Torah, deals fairly comprehensively with his
conception of government, based on Tanach, Chazal and the Rambam.  IIRC, he
finds a form of social contract theory in these sources.  Like Moshe
Feiglin, R. Rabinovitch holds that Torah's conception of democracy (yes, he
believes it has one) requires direct elections, not proportional
representation.

On a tangent and by way of well intended advice, I know that you are fond
of Rabbis Hirschenson, Uziel, Herzog and Berkovits, and that is your right.
 However, by constantly referencing a narrow slice of Jewish thinkers, the
appeal of your arguments to others who may not share your fondness suffers.
 It is like a Lubavitcher who only ever quotes the works of the Rebbes, Rav
Kooknik who only quotes Rav Kook, or American Modern Orthodox type who only
quotes the Rav.  We have all met these types, and discussion with them
becomes tedious and futile.  I am not accusing you of this and hope that
you excuse the chutzpah of my criticism, but I think your argument could
benefit frmo being fleshed out by other thinkers, particularly those from
Chazal and Rishonim.

You prefaced your discussion on this topic with the Talmudic rule that
sevara is deoraita.  Of course, sevara is sometimes used in the Talmud to
derive binding halakha (e.g. Yoma 82b - who says that your blood is redder
than mine?),   However, your use of the expression in this context gives
the impression that you are asserting the incontrovertibility of your
arguments because they are so logical!	Rn. T. Katz has already taken you
to task based, I think, on this (mis)understanding of your words (in a
stronger tone than I think was called for - moderators, where are you when
we need you?).	I am sure that this is not what you were saying, but you
open the way for attacks like those by RTK by using expressions such as
*sevara deoraita* out of context.

Kol tuv
Dov Kaiser

________________________________
 It was  my general impression when researching dina dmalchuta, that there
 were interesting parallels to popular political thought of the time and
 that of Jewish commentators.

BTW Dov there is an imho amazing comment ( I think it was the kesef mishna
but am not home) on sumak tfei where he posits that it may have been a
mesorah that retzicha is yehareg vaal yaavor and chazal just used this
logic to support what they already knew was the din (I said amazing because
I had always used this as the classic example of sevara-of course there are
many where the gemara says - I could say it's a pasuk or a sevara-which I
never really understood why.)

KT
Joel Rich

________________________________
In late February 2010, our NY Office is moving to:
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Here's where I see the basic difference in assumption:

1- RnTK addressed this first point, but I want to present a different
angle on it.

On Thu, Jan 07, 2010 at 11:15:30AM +0200, Michael Makovi wrote:
: And as I said, I'm sure that everything I've said so far is utterly
: foreign to the Tanakh, Gemara, Rambam, etc. If I started speaking
: about social contract theory to them, and my right to revolt against
: the government when I am not pleased with it, they'd think I'm crazy.
: Nevertheless, the Tanakh tells us that the PEOPLE choose a king. I
: feel quite confident that the basic roots of democracy are in the
: Tanakh, and indeed, it is from the Tanakh that John Locke derived his
: ideas.?And as I said, a sevara is d'oraita. Everything I've said so
: far, sounds perfectly logical on paper.

Your reisha disproved your seifa. If the categories and first principles
are alien, who said the conclusion reached from them -- no matter how
sound the logic -- are not equally alien to Torah? This is something
that would require proving, rather than assuming that synthesis is
possible and interpreting Torah to fit.

I should point out that this is a general problem I have with people who
describe MO in terms of the adoption of modern ethics. Yes, modernity
can cast light on ignored Torah values -- but it our values aren't from
Torah, what then does it mean to follow Torah? At best, we're saying we
follow Torah as well as something else; but then keep Torah out of the
something else rather than interpreting them harmoniously.

That's the difference between RYBS's dialectic and resorting to
compramise. RYBS doesn't expect his Torah to explain his mada. They
exist in tension, not harmony.


2- There are two principles of gov't spelled out in the chumash. The
first, which is part of the 7 mitzvos benei Noach, is counted from
HQBH's praise of Avraham, that he would teach them "veshameru derekh H',
laasos tzedaqah umisphat" (Ber' 18:19).

It appears to be a system for getting people to be just, and not "ish
es rei'eihu chaim bal'o".

Notice it's not a social contract between people to keep each other safe.
It's an obligation imposed by a Third Party to get people to imitate Him
(veshameru derekh Hashem).

The second is more complicated. Som tasim alekha melekh -- which brings
us to the whole machloqes rishonim about Shemu'el's reaction to their
asking for one, and whether a melekh is a good thing, a necessary evil,
or inevitable so HQBH tells us how to minimize the damage. But on a
more clearly positive note is parshas Yisro, the 70 zeqeinim, and "kol
asher yorukha" -- the courts and rabbinate. But this isn't a social
contract either.

For this bullet item, I'm just pointing out that civil law as the Torah
expects it from any nation and Torah gov't are two different constructs,
and attempting to extrapolate one from the other can't just be assumed.

Lemaaseh, the US's system is perhaps the best secular gov't in history
at preventing people from swallowing their neighbors (although far from
perfect). That doesn't mean that G-d is speaking about rights, even
implicitly. It's "just" an effective tool for getting the job done.

3- Contract isn't the right model. A beris is a covenant, not a
contract. By which I intend to make the following distinction:

contract: two parties enter an agreement in order to share the burden
    of getting both of their needs met. A can't accomplish his own goals
    without B's help, B similarly needs A, so they enter into a contract
    to work together to accomplish both's needs.

covenant: two parties anter into a unity in order to accomplish that
    union's common goals. A beris is like a marriage, which is why matan
    Torah is allegorized as a chupah, and teaching nachriim Torah compared
    to arayos.

I would propose that there are three models for legal imperative under
discussion:

- rights based law. As RMM notes, it has no room for tzedaqah.

- duties based law, which can be contractual or imposed. The problem
  here is that power corrupts, and handing someone the authority to
  impose duties can dangerously lead to oppression E.g. The US chose
  a rights based system because the founding fathers of this country
  felt that King Charles III crossed that line. And so they abandoned
  duties-based gov't altogether.

- covenental law. Here there is grounds to obligate tzedaqah, because a
  person is obligated to better the community, the covenental whole. The
  kehillah exists to serve its members, and the members exist to serve
  the community -- all in a common goal, to follow the Torah.

A side-effect of the rights vs duties issue is whether society trains the
individual to watch that others do not step on their toes, or to watch
that one does not step on the others'. There is a causal connection
between the US's rights-based approach and the current culture of
entitlement. "Entitlement" is simply rights run amok.

Related to the previous item (#2), the beris Noach is a covenant between
HQBH and the individual. Therefore, the nature of law isn't to produce a
mutual service society, but to protect individuals.

4- A consequence of the Jewish community being founded on covenant is "kol
Yisrael areivim zeh bazeh". This is diametrically opposed to the western
ethic (derived from a rights-based approach) of "live and let live".
"Let live" is honoring their rights. The beris Sinai, or perhaps more
accurately the beris made be'eiver haYardein, is that of areivus.

I think that that difference in fundamental value is where your entire
argument fails. Locke may be a solid and very effective foundation
for implementing the Noachide mitzvah of having a legal system, but it
entire misses the point of beris, of the nature of the Jewish community,
and areivus.

Tir'u baTov!
-Micha

-- 
Micha Berger             A pious Jew is not one who worries about his fellow
mi...@aishdas.org        man's soul and his own stomach; a pious Jew worries
http://www.aishdas.org   about his own soul and his fellow man's stomach.
Fax: (270) 514-1507                       - Rav Yisrael Salanter

The Avodah mailing list is currently hosting a discussion on the
interesting phenomenon that everyone knows that electricity is
forbidden on Shabbat and Yom Tov, but no one seems to know exactly
why.

In v27n14, rabbirichwol...@gmail.com contributed to this ongoing
discussion, and wrote, inter alia:

> 
> And we can punt to Potter Stewart's -- "I know it when I see it"
> thinking.
> 

Rabbirichwol...@gmail.com was trying to make the point that we can
know that something falls into a forbidden category, even if we cannot
define the forbidden category precisely.

This reflects a significant, and, I will allow myself to say,
pernicious, misunderstanding of what Justice Stewart was saying, in
his minority opinion.

Justice Stewart was not saying that he could recognize obscenity when
he saw it; he was speaking in the negative, saying that, at least in
the case before him, he could recognize that something was not
obscenity.  To make this distinction is more than pedantry: it is a
supremely important distinction.  To say that you cannot define a
crime, but you can recognize that the person before you is innocent of
it, is worlds apart from saying that you cannot define a crime, but
you can recognize when someone is guilty of it.  The latter is, alas,
generally what is meant by the people who misquote Justice Stewart,
but it would have been very, very frightening if a Justice of the
United States Supreme Court had ever actually expressed such a notion.


                        Jay F. ("Yaakov") Shachter
                        6424 N Whipple St
                        Chicago IL  60645-4111
                                (1-773)7613784
                                j...@m5.chicago.il.us
                                http://m5.chicago.il.us

                        "Quidquid latine dictum sit, altum videtur"

R' Eli Turkel  asked:

If someone were near Moshe when he came to the burning burn:
1. Would he also have seen it was burning but not consumed
2. Would he have heard G-d talking to Moshe Rabbenu rl would
have thought Moshe is talking to a bush

The Torah Shleimah (Shmos 3:2:[29]) says that we learn from "Eilav"
that only Moshe saw it. (Shmos Rabo 2:8) and that there were lots of
other shepherds with him at the time.

[66] When he realised that they didn't see it, he understood it was
for him only.

When hashem spoke "Eilav" it was only for Moshe - as we learn from the
Mishkan. Moshe heard it loud and clear, nobody else heard anything.

(So I guess they would have seen Moshe talking to a bush.)

See footnotes there for more sources.

- Danny

Micha Berger wrote:

> - duties based law, which can be contractual or imposed. The problem
>   here is that power corrupts, and handing someone the authority to
>   impose duties can dangerously lead to oppression E.g. The US chose
>   a rights based system because the founding fathers of this country
>   felt that King Charles III crossed that line. And so they abandoned
>   duties-based gov't altogether.

Bonnie Prince Charlie?!

Even correcting the name, this is very confused.  I don't really know
what you mean by "duties based law", but the legal system adopted by
the colonies was not at all different in principle from that which they
inherited from the UK.  The Glorious Revolution had already established
that Parliament, not the king, was sovereign; the American revolution
was against Parliament, not against George Hanover.  The principle that
people had rights which the sovereign could not legitimately infringe
goes back to Magna Carta and earlier than that, and was enshrined in
the Bill of Rights of 1689.  I thought at first that by referring to
"Charles III" you meant to hint at the Stuarts' claim to rule by Divine
Right, and their rejection of the principle that their subjects could
have rights against them; but that was not at all at issue in the US
revolution.

You do keep using this term "duties based law", and contrasting it with
"rights based law", but I don't think you've ever explained it, and I
really don't know what you mean by it.

-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

On Fri, Jan 08, 2010 at 04:31:57PM +0000, rabbirichwol...@gmail.com wrote:
: Micha:
:> According to the Rambam, shas is basically a BD; there is no room for
:> exceptions.

: First where did the Rambam say it? He clearly says in haqdamah that the
: hilluq between talmud and post-Talmud is that Talmud was accepted by all
: of Israel. Now he may have stated otherwise elsewhere, but where is it?

Actually, he says that the common acceptance gives them the authority of
BD. I wrote "basically a BD", I should have said "effectively a BD"; but
in either case, I did not mean "literally". (Although Faur does believe
that the Rambam meant "sof hora'ah" was caused by the end of the actual
BD, that's not the position I'm espousing.)

See the haqdamah, #30, which opens: Ule'achar beis dino shel R' Ashi,
shechibeir hatalmud biymi beno vegamro... After R' Ashi's beis din,
BY spread out to the four corners of the earth and it was impossible to
follow one BD anymore.

: Second we can show dozens if. Not hundreds of exceptions to Rambam
: slavishly following Bavli.

There appears to be a rule to them. Rambam follows named opinions in
the Bavli, but follows the Y-mi or another source when they present a
named source which conflicts with the stam gemara.

Of course, if this is because he held that in those cases the stam
post-dates BDo shel R' Ashi, you have an easy explanation. Or perhaps
he held that you don't pasqen from lomdus (shaqla vetarya) when there
was halakhah pesuqah available. It would depend on how he defines
"hora'ah".

...
: as including:
:     Mishnah 
:     Tosefta 
:     Y-lmi
:     Sifra
:     Sifrei
: [Don't ask me where m'chilta went - also see Maran's haqdamah to SA]

"The" Mekhilta was devei R' Yishmael. There is a Mekhilta deRashby, but
I don't know anyone would just call it "mekhilta" without an adjective.
Sifra and Sifrei, at least those that still existed in the Rambam's day,
were devei R' Aqiva.

I think the exclusion of R' Yishmael's beis medrash's sefarim from the
Rambam's "canon" isn't coincidental, since it's R' Aqiva's beis medrash
that "won" when we accepted the mishnah.

...
:> I don't know if the parallel could be made between berakhos and all three
:> of the Rambam's categories.

: No anology is perfect.

Which is why I am afraid of relying on analogies. Heqesh and g"sh
require a mesorah for a reason. You can't tell when you created a bad
law by extending an analogy beyond its limits.


On a related note, but I just don't know the difference between this
thread and the one titled "New Brachos" to know if I'm really replying
to something said here...

There are multiple ways to define new berakhos:
a- A new matbei'ah said at an already accepted occasion for saying one.

b- Saying an existing berakhaha at a time what until now didn't call for
   one.

Of course, a berakhah could be an entirely new thing:
c- All of the above.

For example: If there was "always" a machloqes about saying berakhos on
minhagim (or about women making berakhos on mitzvos from which they are
peturos, which I think are aspects of one underlying machloqes) then
"al mitzvas tzitzis" would be in category a.

However, if the machloqes is due to some Ashk innocation, then saying
"lehadliq neir shel Chanukah" would be in category b.

Notice that my examples for these two cases are mutually exclusive --
depending upon the antiquity of the machloqes I have an example of (a)
or of (b). I can't think of an example of a totally new matbei'ah said
on a totally new occasion.

Is it possible that the kelal about berakhos that post-date Chazal
refers to either (a) or (b) in particular? In which case, these new
berakhos (of category (b) or (a) whichever remains) would be well within
the freedom we have to alter/personalize liturgy.


...
: Some say Tosafos went too far. In my experience I have only found about
: 3-6 cases where I would concede tosafos went too far. The MAHARAL
: [notice the moreinu!] felt otherwise

I think it's the Rambam who "went" anywhere. And that he underwent this
transition in how he understood the nature of mesorah in the time
between Peirush haMishnayos and the Yad.

In Iggeros haRambam (Shilat ed pg 647, 305), the Rambam laments
that he relied on the geonim's understanding rather than
looking at the sources from a clean slate. (Hat tip to RET in
v26n176.) There is some indication (cf R' Asher Buchman's article
in Hakira vol 8) that perhaps the Rambam intended to not-name the
Rif as the source of this "error".

This relates to my theory in
http://www.aishdas.org/asp/2009/08/postmodernism-and-mesorah.shtml
(developed here in response to an aside made by RMM):
    Mesorah is a living tradition of a development of ideas. The Oral
    Torah is oral, a dialog across the generations. If we see a quote in
    the gemara from Rav Yochanan, we might be curious about the historical
    intent of Rav Yochanan. But in terms of Torah, important to us than
    what R' Yochanan's original intent is what R' Ashi thought that
    intent was, which in turn can only be understood through the eyes
    of what the Rosh and the Rambam understood R' Ashi's meaning to be,
    which in turn can only be understood through the eyes of the Shaagas
    Aryeh and R' Chaim Brisker. That is the true meaning, in terms of
    Torah, of Rav Yoachanan's statement.

    Definitionally, talmud Torah is entering the stream. Not seeing a
    statement as a point to isolate in time and space, but as a being
    within current that runs through history from creation to redemption.
...
    Both the classical academic and the Deconstructionist share
    one thing in common -- they see themselves as encountering the
    text. The idea is that the material is "other", outside, to remain
    objectively studied. One looks for the context for which the text
    was written. The other looks for how the text can be understood [by
    the reader today] with minimal assumptions about [original] context.
...
    The academic's job is the objective study of the material. Trying
    to get to the truth by eliminating personal bias and hidden
    assumptions. Talmud Torah is about internalizing the lessons of
    the Torah. Rather than trying to be objective, the entire goal
    is subjectivity. If mesorah is a discussion down the generations,
    studying Torah is adding one's voice to the conversation.

I'm suggesting that what I wrote was the understanding of most rishonim,
but not the Rambam.

I even think this unique position of the older Rambam relates to his
emphasis on knowledge as the path to redemption. This makes Torah about
determining Hashem's truth, and thus emphasizes original intent.

Tir'u baTov!
-Micha

-- 
Micha Berger             It's nice to be smart,
mi...@aishdas.org        but it's smarter to be nice.
http://www.aishdas.org                   - R' Lazer Brody
Fax: (270) 514-1507

On Mon, Jan 11, 2010 at 02:23:10PM -0500, Zev Sero wrote:
: Even correcting the name, this is very confused.  I don't really know
: what you mean by "duties based law"...

So then how can you asses whether it's confused, if you didn't find me
clear on the basic chaqira?!

: what you mean by "duties based law", but the legal system adopted by
: the colonies was not at all different in principle from that which they
: inherited from the UK...

The US designed a constitution whose focus is on limiting powers.
Because the US's legal philosophy is about guaranteeing rights.

Monarchs order, and thus create duties.

There is little pragmatic difference between "right to property" and "do
not steal", but the first is rights-based, and the latter is duty based.
What does the gov't guarantee me vs what does the gov't demand of me.
They are philosophically and culturally very different.

RMM gave a good example... By definition, a rights-based law can't
order charity. You appear to have agreed, invoking the fact that our
relationship to G-d isn't based on an approach in a state of nature.
I believe you then added that the approach G-d expects between two Jews
is similarly not.

I would add that this is why "kol Yisrael areivim", and why the issur
of ribis (tarbit) is all about "akhikha".

I see these as covenental -- not duties in the sense of responsibility
to the other. The idea is that there isn't full other-hood.

The Torah's issur on geneivah could be viewed as duty-based, but because
the source of authority is a beris, the duty isn't to the other -- it's
to a whole that includes oneself.

There are a few halakhos that imply rights: gezel shinah and geneivas
daas presume the other owns an intangible related to getting their
sleep or knowing what's going on around them. But even they are phrased
as demands on my not broaching their rights, not my own sleep and daas
being protected. Because the basic legal philosophy isn't a constitution
guaranteeing rights, liberties and freedoms.

Tir'u baTov!
-Micha

-- 
Micha Berger             Nearly all men can stand adversity,
mi...@aishdas.org        but if you want to test a man's character,
http://www.aishdas.org   give him power.
Fax: (270) 514-1507                      -Abraham Lincoln


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