Avodah Mailing List

Volume 27: Number 125

Thu, 27 May 2010

• 1. Re: everyone is a liar (Zev Sero)
• 2. Re: everyone is a liar (Daniel Israel)
• 3. fish (Saul.Z.New...@kp.org)
• 4. Re: fish (Gershon Dubin)
• 5. Re: Pinui kevarim (Zev Sero)
• 6. Re: shavuot and YK (Zev Sero)
• 7. Re: everyone is a liar (Chana Luntz)
• 8. Re: is there morality outside of the Torah? (T6...@aol.com)
• 9. Re: everyone is a liar (Zev Sero)
• 10. Kavua and Monty Hall (Yosef Gavriel Bechhofer)
• 11. Re: Pinui kevarim (Micha Berger)
• 12. Re: Kavua and Monty Hall (Micha Berger)
• 13. Re: shavuot and YK (Micha Berger)

Chana Luntz wrote:
> RZs says:
> 
>> If a road is built, and then a grave is found on or near it, so that it is
>> now damaging the public it may be moved;

> I may be misunderstanding the metzius here, but that is precisely the
> situation as I understand it.  A hospital was built, and in is use by the
> public, and then, when they wanted to expand the hospital, they dug up just
> near it and found graves.

But that's just it.  How do you make the leap from the existing facility
to a plan to expand it?   What we have from the sources is permission to
move a grave that is damaging an existing road.  You would have it that
the same would apply if it will be in the way of a plan to expand that
road; but how do you know this?  Where in the source is this implied?
Perhaps a plan to widen a road is just like a plan to build a road in the
first place; where do you see them distinguished?


> Ie this is not a case where they public
> identified a greenfields site and decided to built a hospital, only to find
> graves before the hospital was in existence.  Rather it is a case where
> there is an existing hospital, and it turns out there are graves that are
> samuch to it.

But not samuch enough to damage it.  Let's return to the case of the
road.  Let's suppose that a grave within four amot of the road damages the
road and must be moved.  But a grave five amot away does not, and should
be left alone.  Here we have a grave five amot away, and then the public
decides to widen the road, thus bringing the grave within four amot of
the proposed new edge.  Where do you see permission to do so?  Perhaps
the law is that the widening must happen only on the other side of the
road, or must be cancelled.

I would note that the case cited by the Chavot Yair was *not* (as has
been claimed) one of expanding or refurbishing a shul, but of rebuilding
an old shul that had collapsed.  There's no hint that the new shul was
going to be any bigger than the old one.  These graves had always been
under the old shul, but nobody knew about them.  Now they found out, and
had to know what to do; must the shul move, and if so where?  Even today
moving an established shul is not such a simple matter; one can only
imagine what it was like when "yad akum takifa" and shuls existed only
at the mercy of the goyim, who might not consent to grant another site
just because the Jews decided that the old site was no longer suitable.



>> how does that apply to a grave that is sitting quietly by itself, minding
> its own business, until the public proposes
>> to put a road over it? How can you possibly imagine that this law allows
>> the public to move the grave and build the road? 
>> On the contrary, I can prove that it is not so: if such a thing were
>> permitted, then why doesn't the gemara (and ultimately the SA) say so,
>> and we would know kal vachomer that if the road was already built the
>> grave may be moved? Why does it choose to speak of a grave that was
>> found after the road was long-established, instead of straightforwardly
>> stating "mefanin et hakever la'asot derech larabim"?
> 
> Not that I think this is the issue here, as we have an existing, built
> hospital, but there are even more gradations than you are suggesting.
> In any form of public road planning and building there is the stage of
> proposal of the location (the first stage).  Once that is determined,
> then there is the stage of acquiring and building (a second stage), and
> then there is the stage of already built (the third stage).  A halacha
> that allowed  Mefanin et hakever l'aasot derech larabim would clearly
> permit even the first stage.

I don't know how roads were made in Chazal's day, but this division into
stages seems artificial.  In fact I think the usual way roads came about
in those days was not through planning at all, but by public usage.
People simply started going a particular way, over hefker land or over
private land whose owner failed to protest and thus forfeited his rights,
and thus it could easily happen that nobody realised there was a grave
nearby until after the road was long-established and it was too late to
move it.  And in that process there is indeed discussion about when it's
not yet a road and there is still time to complain about it, and when it
has become an established road ("hecheziku bah rabim") and it's too late.
Presumably the same rules would apply when a grave is found.

But in the case of planned roads (e.g. derech hamelech, which is built by
the king seizing land and breaking fences and declaring the resulting path
to be a road), one must indeed wonder at what point the road is considered
a fait accompli which must be accommodated, and at what point it's not yet
a road but merely a plan for a road, however advanced, which can and must
be changed if a problem is found.



> Now it is interesting that the Shulchan Aruch does specifically note,
> based on the Yerushalmi, that the permission to dig up a grave found
> near a road is even if the road was built after the grave was buried.
> Now why should this be?  Fine if somebody went and buried a body when
> there was an already existing road there, they should not be able to
> cause problems for the public by their act.  But why the other way
> around?  Surely it was the responsibility of the public in building
> the road to check carefully enough to ensure there were no graves under
> or near the road when they built it.

Perhaps it was, but the fact is they didn't do so, and now the road is
a fact.



> And if they didn't do their due diligence carefully enough, then they
> should suffer the consequences.  But that does not seem to be the din.

The status quo is that the public are walking down it, and it now
transpires that there's a source of tum'ah along it.  Now there are only
two options: either the grave must go, or the public most go.  And the
psak is that the grave moves and the public stays.  But what authority
do we have to extend that to a situation where the public has not yet
arrived?


> In which case it is not so easy to see why there should be a difference
> between the situation where the public had already expended the money
> on purchasing the land and paying for the construction and the builders
> had gone in onto the land and started digging, to the minute the first
> person puts their foot onto the road to use it for its public purpose.

Surely the difference is one of chazakah.  What is the status quo?  Is it
"hecheziku bah rabbim" or not?  All these various stages of the
construction are before the rabbim got there, and I'm not sure how we can
show that the mere expenditure of money and effort is the issue.


> And one does need to ask that in the case of a grave that is just near,
> rather than under, a road surely one could almost always provide other
> solutions.   One could shift the road or add an additional portion of
> it to the other side away from the grave; or one could build walls and
> cavities preventing the tumah escaping on to the road etc etc.  Yes
> these might be a bit more expensive but why should all these options
> not be exhausted first before uprooting the grave?  But the Shulchan
> Aruch does not say to do that.

You're assuming that the issue is the expense and inconvenience of moving
the road.  As I see it the main issue is not how hard it would be, but
that the public has no obligation to give up what it has, even if it
should not have had it in the first place.   For one thing, the "rabbim"
is not one entity, it's not the state or the community but the masses,
and they're walking where they're walking, and no one individual can
speak for all of them, or decide on their behalf to move the road.




> So while I agree with you that nezek harabbim would seem to be different
> from tzorchei tzibbur,  given the nezek that is being discussed here, most
> cases of tzorchei tzibbur of would seem to be a lot stronger.  And indeed we
> not infrequently push aside d'rabbanans for tzorchei tzibbur, so I can
> understand why some people might well it out learn out as a kal v'chomer.
> If we push aside the d'rabbanan of moving graves for the form of nezek
> harabbim caused to the cohanim in the graves by the road case, then surely
> we would push aside the d'rabbanan of moving graves for a genuine tzorchei
> tzibbur. 

Maybe so, but if it's a kal vachomer it's not muchrach.  And it's a far
cry from the claims that have been made that this is explicit in the
gemara and Shulchan Aruch, or in the poskim.


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

Quoting Chana Luntz <Ch...@Kolsassoon.org.uk>:
> Now it is interesting that the Shulchan Aruch does specifically note, based
> on the Yerushalmi, that the permission to dig up a grave found near a road
> is even if the road was built after the grave was buried.  Now why should
> this be?  Fine if somebody went and buried a body when there was an already
> existing road there, they should not be able to cause problems for the
> public by their act.  But why the other way around?  Surely it was the
> responsibility of the public in building the road to check carefully enough
> to ensure there were no graves under or near the road when they built it.
> And if they didn't do their due diligence carefully enough, then they should
> suffer the consequences.  But that does not seem to be the din.  In which
> case it is not so easy to see why there should be a difference between the
> situation where the public had already expended the money on purchasing the
> land and paying for the construction and the builders had gone in onto the
> land and started digging, to the minute the first person puts their foot
> onto the road to use it for its public purpose.

In general, I am not convinced by RZS's position on this issue, in  
metzius if not in din, but I would say you haven't fully made your  
case here.  Even if you read the SA to be allowing moving the grave in  
a case where the builder of the road didn't do his due diligence, it  
does not necessarily imply that l'chatchilah it was okay to build a  
road here.  Perhaps the builder should have checked, and should have  
not built the road here, but now that the road has been built, the  
entire community does not need to bear the trouble and expense of  
correcting the builder's error.

-- 
Daniel M. Israel
d...@cornell.edu

as pointed out , the OU has its own psak  with is increasingly turning 
into a daas yachid.  it will be interesting to see how long it takes  the 
situation evolves [and  i have no doubt this will happen] from a yesh al 
mi lismoch  to all those within  the Pale learning to live the fish- free 
life...


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Has anyone read the letter from Rav Moshe Vaye?  I sent a letter to the fish man at the OU asking about his reaction to the fish conference, but haven't hear 

Gershon
gershon.du...@juno.com

---------- Original Message ----------
From: Saul.Z.New...@kp.org
To: avo...@aishdas.org
Subject: [Avodah] fish
Date: Wed, 26 May 2010 13:24:14 -0700


as pointed out , the OU has its own psak  with is increasingly turning into
a daas yachid.	it will be interesting to see how long it takes  the
situation evolves [and	i have no doubt this will happen] from a yesh al mi
lismoch  to all those within  the Pale learning to live the fish- free
life...


____________________________________________________________
Penny Stock Jumping 2000%
Sign up to the #1 voted penny stock newsletter for free today!
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Dov Kaiser wrote:

>> Surely you are not expecting anyone to accept that "mazik et harabim" 
>> and "tzorchei rabim" are in some way synonymous, or even remotely similar!

> Well, R. Akiva Eiger and the Nesivos thought so.  In a teshuva to the 
> Nesivos (Psakim, 45), R. Akiva Eiger he wrote:
>
> *with respect to disinterring graves, it is obvious (hadavar pashut), as 
> his honour [the Nesivos] wrote, that there is no greater mazik rabim 
> than this.  Even if it were already a public cemetery and with public 
> consent (midaas rabbim), nevertheless it is permitted to disinter [the 
> graves] for the needs of the public (l?tzorech horabim), as HaGaon R. 
> Dovid Oppenheim zt'l wrote in his teshuva, which is printed in Responsa 
> Chavos Yair*.  
> 
> Unfortunately, we do not know the details of the case at hand.

Exactly. We know nothing of the circumstances, and therefore we can
learn nothing from the case.  The only thing we do know about the case
they were discussing is that it was an extreme one: "ein lecha hezek
harabim gadol mizeh".  One can speculate all kinds of emergencies that
would justify such language, but the desire to expand a road (or a shul
or a hospital) is not one of them.  On the contrary, the fact that RAE
says it's an extreme case, which is justified by kal vachomer from what
we already know, means that we can't expand it beyond what we already
know.  Dayo leva min hadin lihyot kenidon.  RAE's case was one in which
the heter was *more* obvious than in the Chavot Yair's case, not less
obvious.


>  But as 
> R. Rosen points out in the article I have already cited on Areivim (see 
> http://www.zomet.org.il/?CategoryID=263&;ArticleID=597 ), it is clear 
> from this teshuva that both R. Akiva Eiger and the Nesivos held that 
> *hezek rabbim* in YD 364:5 encompasses *tzorchei rabbim*, and therefore 
> one may disinter graves, even of a public cemetery, in order to enlarge 
> a road or some other public need (not just if the road was there already 
> and the graves were discovered later).

R Rosen does not "point this out", he merely asserts it without any
argument to support him.  It is not clear at all that 'hezek rabbim'
"encompasses" 'tzorchei rabbim', whatever that means.  It is *certainly*
not clear, in fact it's not at all implied, that one may do any thing.
This is what lawyers call "conclusory".  I do not believe that you can
demonstrate the logic to get from A to B.  Without knowing what RAE was
talking about, how can you possibly get to the conclusion that he was
talking about expanding a road, or that his psak would apply to such a
purpose?



> You are certainly entitled to read the Gemara and SA differently from
> R. Dovid Oppenheim, the Nesivos and R. Akiva Eiger

No, I am not.  But you are not entitled to put your own ideas into their
mouths and adopt their authority for whatever you like to say.  We know
what the Chavot Yair's case was, and we know that RAE's case was even
more obvious than that.  Neither case was in any way comparable with
expanding a road, or any other generic "tzorchei rabbim".


> especially when it emanates from such greats as R. Akiva Eiger.

It doesn't.  The claim that it does is insupportable.


>  And even if you think it is a legitimate 
> approach to disregard Acharonim in formulating halacha

I am *not* the one disregarding Acharonim here.  To the best of my
knowledge *no* Acharon says anything like what you are claiming.


> you certainly can?t accuse those who follow the mainstream approach
> of making things up.

What mainstream approach?  Who is this "mainstream" that takes this
approach?



>  Language such as *How can you possibly imagine that this law allows 
> the public to move the grave and build the road?* appears just a bit 
> over the top when great Acharonim imagined just such a thing.

Then perhaps you can name a few, *and* show why you think they did so.
I categorically deny that either the CY or RAE wrote any such thing,
and it's not exactly kavod to them to falsely claim that they did.


> Also, as 
> I have pointed out before in this forum, I think this sort of language 
> on A/A creates more heat than light, to use a cliche, and lowers the 
> tone of discussion.

I think misattributing opinions to authorities who never held them
lowers the discussion a whole lot more.


> Getting back to the substantive argument, I concede that the original 
> teshuva of R. Dovid Oppenheim is arguably distinguishable from our case. 
>  In that case, a shul had collapsed, and bones of nochri corpses were 
> found in the ground during rebuilding works.  You could argue that the 
> rebuilding of a shul is a bigger tzorech horabbim than the building of 
> an emergency room in Ashkelon.

"Tzorech harabbim" is not the issue.  The issue is "hezek harabbim",
and in the case of an existing shul the hezek is there, while in the
case of a *non*-existing ER it is not.   If this were merely a
proposed shul, or even a proposed expansion of an existing shul, you
have no basis for assuming it would be permitted.



> On the other hand, you could also argue 
> the other way.  R. Rosen quotes a teshuva of R. Shaul Yisraeli, who 
> refers to Bava Metzia 24b, which permits lopping a tree next to a city, 
> even if the tree was there first.

However the city is there now, and it is assur to have a tree within
its migrash.  Therefore the tree must go.  And of course there's no
issur in doing so, since it doesn't belong there.



>  Rashi there explains *sheyesh noi 
> l?ihr k?sheyesh merchav panui lefaneha.*  R. Yisraeli uses this to show 
> that even something which aimpinges on the aesthetic quality of a city 
> is a hezek d?rabbim.

And his conclusion is so radical that even R Rosen isn't ready to
accept it.  Well, now we're no longer discussing Acharonim.  Nobody
today is required to accept RSY's logic or psakim.


> I feel obliged to restate on Avodah something which I already posted on 
> Areivim.  The issue of pinui kevarim has become one of those *red rag to 
> a bull* issues which, like heter mechira, has left the realm of 
> civilized halachic discourse (at least for some ? and I am not referring 
> to R.ZS here) and become a catalyst for machlokes of a different kind.

Perhaps it's the other way around, and some people's dedication to the
zionist project makes them refuse to listen to any argument in favour of
leaving kevarim alone.  Perhaps this is what leads them to misrepresent
authorities in their support.   As for me, my only agenda is a close and
careful reading of the sources, and not reading into them more than they
say.  I have no skin whatsoever in the specific issue.  Perhaps moving
the graves is indeed permitted, and if so I would have no objection; all
I've ever maintained is that such permission can't confidently be derived
from the sources cited.  If it is permitted, then that permission must
be derived from other sources.


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

Simon Wanderer wrote:

> I recall the suggestion that Shavuos principally celebrates TSBP ? SA 
> HaRav says of staying up Shavuos night ?ikar ha?eisek yihye b?TSBP?.

That is not the reason.  The source for the SAhR is Zohar 3:98a,
which is reprinted in the Tikkun Leil Shavuos:
"And the learning of Torah in which he ought to occupy himself on
this night is TSBP, in order that they be cleansed in (alt reading:
that he adhere to) the Spring of the Deep Stream.  Later on this
day let the TSBK come and be united with it (alt: them) and they
will be found as one, in one union Above."
http://hebrewbooks.org/pdfpager.aspx?req=14354&;pgnum=190

In other words, it's not that Shavuos principally celebrates TSBP,
but on the contrary, that learning TSBP in the night is a preparation
for receiving TSBK in the morning.

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

RDI writes:

> In general, I am not convinced by RZS's position on this issue, in
> metzius if not in din, but I would say you haven't fully made your
> case here.  Even if you read the SA to be allowing moving the grave in
> a case where the builder of the road didn't do his due diligence, it
> does not necessarily imply that l'chatchilah it was okay to build a
> road here.  Perhaps the builder should have checked, and should have
> not built the road here, but now that the road has been built, the
> entire community does not need to bear the trouble and expense of
> correcting the builder's error.

I obviously wasn't clear as I totally agree with this.  That is, I was not
suggesting that it was necessarily OK l'chatchila to build a road here,
assuming we are talking about what is called in the trade, a greenfields
site - ie a totally new construction.  In fact I suspect that RZS is right,
that l'chatchila the planners of the road (probably different from the
builder, the builder signs a construction contract to build what the
planners, ie the public officers, tell him to) should have checked and
should have not  built the road here.

What I was trying to point out is that in any construction, even of a
greenfields site, there are not just two stages (planning and completed
road), but three.  The planning stage, when feasibility studies are carried
out, construction contracts are negotiated etc; the construction stage, when
the land has been acquired by the public, the construction company has gone
in with its diggers/shovels etc, and the stage of a completed road in use.

Even if you do hold that l'chatchila the planners should have checked, and
should not have built a road here, once one gets to stage two, the public is
already liable for considerable expense, both of land purchase and of paying
the construction company, much of which is not recoverable if you then
switch to an alternative site.  If the argument is, as you articulate, that
"the entire community does not need to bear the trouble and expense of
correcting the builder's error" then that applies from stage two, not just
from stage three.  It is only if you believe there is some reason why the
fact that the public is now using the road for the purpose that was intended
(ie that what is needed is a chazaka on public use, not just an established
public ownership and expense) is what triggers the obligation, would you
limit it to stage three.  It is possible to argue this position, but it is
much more difficult to see it in the language of the Shulchan Aruch.

In addition, I was trying to point out that there is a clear differentiation
between a greenfields site and where it is not.  The analogous situation is
where one already has a road, but it is carrying too much traffic and needs
widening.  Any planner is much more constrained in terms of what he can or
cannot do when discussing widening an existing road, rather than choosing a
route for a new road.  And this particular issue does appear to me to be
directly addressed by the meforshim and the Shulchan Aruch.  Because while
it is not clear from the gemora itself whether the grave needs to be found
on the road, (ie where the cohanim would inevitably become tamei if walking
on it), or just next to it, the meforshim all use the word samuch.  Now if
there is a grave that is just samuch to a road, there is always going to be
some solution, whether more or less expensive, to protect the cohanim -
ranging from requiring them to wrap themselves in special boxes or box off
the grave or shift the road a bit or whatever.  And what the Shulchan Aruch
or the meforshim do not say, is that we can only move the grave if we cannot
find a workable solution to protect the cohanim.  If they had, then first we
would have needed to look at potential solutions, and only in the (extremely
rare) cases where one of these was not feasible, would one be allowed to
move the grave.   But the blanket statement of the Shulchan Aruch is that if
there is a grave samuch to a road, even if the grave was there first, then
it can be moved.  Ie without requiring the public to go to any more trouble
and expense than is involved in moving the grave and reburying.

> --
> Daniel M. Israel
> d...@cornell.edu

Regards

Chana

>> Without responding to anything specific that anyone has said on  this 
>> thread, I want to say one thing:
>> Derech eretz  kadmah laTorah.
>> [--old TK]

In a message dated 5/26/2010, some...@gmail.com writes [to Areivim]:
> This phrase  is constantly thrown around to "prove" any position that I 
> am trying to  prove.  What does it actually mean and what was it originally  
> referring to in the medrash?

"Derech eretz" has a number of overlapping meanings, somewhat depending
on context. It can mean civilization, ethics, morality, etiquette or
basic menshlichkeit. *Something* comes even before Torah and lays the
ground for it -- some basic feeling for human decency. Some innate human
sense of morality is certainly part of it. Evolutionists try to locate
the innate human sense of right and wrong in some evolutionary process,
"survival of the fittest" but to us it is obvious that Hashem created
human beings this way -- with a conscience, with a sense of right and
wrong. True, yetzer lev ha'adam ra min'urav -- that means the id is there
before the superego develops. Nevertheless the superego, conscience or
yetzer hatov is also innate, and its absence in any given human being
is the sign of a severely dysfunctional and defective human being.
This is true even in a pre-Torah or non-Torah society.

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

Chana Luntz wrote:

> It is only if you believe there is some reason why the fact that the
> public is now using the road for the purpose that was intended (ie that
> what is needed is a chazaka on public use, not just an established
> public ownership and expense) is what triggers the obligation, would you
> limit it to stage three.  It is possible to argue this position, but it is
> much more difficult to see it in the language of the Shulchan Aruch.

How so?  It doesn't say a word about the public's trouble or expense.
What makes you assume that is even in the SA's (or the gemara's) mind?
All it says is that the road is there, and that fact alone is assumed
to be enough to explain why there's a problem.

Now you ask why the road can't just be closed down or moved, and assume
that the answer is the public expense and inconvenience.  But the more
conservative answer is that it's simply not an option, because once the
public (i.e. the unorganised masses, not the state) has the right of way
it can never be relinquished.  And when reasoning from a source, when
there are two possible readings one must take the more conservative one;
that's simple logic.

In any case, as I wrote earlier, I think this division of road
construction into stages is artificial, and chazal had no notion of it;
it's imposing modern ideas onto ancient sources.  In Chazal's day a road
was a road, it came about long ago in a single event, and it would be a
road forever more. 


> In addition, I was trying to point out that there is a clear differentiation
> between a greenfields site and where it is not.  The analogous situation is
> where one already has a road, but it is carrying too much traffic and needs
> widening.  Any planner is much more constrained in terms of what he can or
> cannot do when discussing widening an existing road, rather than choosing a
> route for a new road.  And this particular issue does appear to me to be
> directly addressed by the meforshim and the Shulchan Aruch.

It's certainly not *directly* addressed by them.  They don't mention
widening at all.  The case they're discussing is a standard road, that
goes where it goes, is in use by the public, and there's not a hint
about any planned works on it.


>  Because while
> it is not clear from the gemora itself whether the grave needs to be found
> on the road, (ie where the cohanim would inevitably become tamei if walking
> on it), or just next to it, the meforshim all use the word samuch.  Now if
> there is a grave that is just samuch to a road, there is always going to be
> some solution, whether more or less expensive, to protect the cohanim -
> ranging from requiring them to wrap themselves in special boxes or box off
> the grave or shift the road a bit or whatever.

Most roads in those days weren't very wide.  The width of an ox-cart,
more or less.  We're talking cow paths, not super-highways.  A width of
16 amot was considered unusual, and was a condition for a reshut harabim
de'oraita.  The difference between a grave near the road and on it
wouldn't have been very much.


And as I mentioned above, I'm not sure shifting a road is even an option.
The standard road in those days was a "derech harabim" that existed by
right of long-standing usage, and people had no right to stray off it,
let alone to shift it.  Even if the area around was hefker, and people
started using the side opposite the grave, the side with the grave would
still be part of the road, because derech harabim can't be usurped.  The
road would just be a bit wider than it was, and the grave would still
endanger anyone who didn't know not to walk on that side.  There would
have been no entity representing the "rabim" who could sell off that
side of the road, or declare it no longer part of the road, etc.
A road belongs to all the travellers of the world, like a beit knesset
shel krakin, so nobody can give it up.  

And that's all assuming we can get the mass of road-users to do anything
at all, which is an iffy proposition.  More likely at least some of them
will ignore us and keep going where they've been going.  So moving the
grave is the only option available.


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

In a totally different note, it struck me yesterday that perhaps kol
kavua k'mechtza al mechtza dami has something to do with the "Monty
Hall Problem"
<http://en.wikipedia.org/wiki/Monty_Hall_problem>
<http://www.marilynvossavant.com/articles/gameshow_print.html?t=64>
- but I can't articulate it. Can you help me out by either explaining
why I'm right or why I'm wrong?

This may help (siman 47):
<http://www.he
brewbooks.org/pdfpager.aspx?req=15107&;hilite=d623c4b3-f194-43dd-bc1
0-b818c3f696e5&st=%D7%A7%D7%91%D7%95%D7%A2&pgnum=92>
or <http://bit.ly/aDQduJ>

Thanks!
KT,
YGB

On Wed, May 26, 2010 at 04:40:58PM -0400, Zev Sero wrote:
: Dov Kaiser wrote:
:> Unfortunately, we do not know the details of the case at hand.

: Exactly. We know nothing of the circumstances, and therefore we can
: learn nothing from the case...

I thought RDK was talking about the details of the "case at hand", ie the
Barzliai story stipped of political rhetoric, apologetics and polemics.

If we're really talking about the situation before us, we would need to
take into account the fact that the medical staff who would use the ER
feel there is a piquach nefesh risk to using a less convenient and more
distant location.

And if piquach nefesh is a real issue, then any discussion of other
details is pointless.

And then there's the AP story
<http://www.washingtonpost.com/wp-dyn/content/article/2010/
05/20/AR2010052002509.html>
complete with a picture of the pagan altar found in the cemetary in
question.

: "Tzorech harabbim" is not the issue.  The issue is "hezek harabbim",
: and in the case of an existing shul the hezek is there, while in the
: case of a *non*-existing ER it is not.   If this were merely a
: proposed shul, or even a proposed expansion of an existing shul, you
: have no basis for assuming it would be permitted.

To me it seem that this is the keystone to RZS's position. R' Rosen says
that RAE and the Nesivos apparently identify the two. But hitting the
Bar Ilan Shu"t system was in sufficient for me to identify any such
meqoros. (Searched for "qever" and "haqever" in the Nesivos, RAE on the
SA, and shu"t RAE.)

So, just thinking about the topic...
It would seem to me that avoiding hezeq is a tzorekh, so it is quite
plausible to think that hamaziq es rabim includes smaller hezeq, so that
any unmet tzorekh is sufficient damage. But plausible isn't the same as
actually being true.

SA YD 364:5 says that "samukh laderekh" is an example of "qever hamaziq
es harabbim". It's not like forcing kohanim off the road for a few amos
is that big of a deal. The assumption that our case would also be
included as sufficient lost opportunity to qualify as maziq es harabim
appears to me to be very comparable.

The question of which comes first only impacts the permissability of
getting hanaah from the place afterward. I'm not sure what the point
of "mutar lifnoso umeqomo tahor" if the Mechaber continues "ve'asur
behana'ah". If you can't use the land anyway, how is the path any better
off without the grave occupying it?

See R Yitzchok Breitowitz's article "The Desecration of Graves in Eretz
Yisrael: The Struggle to Honor the Dead and Preserve Our Historical
Legacy" at <http://www.jlaw.com/Articles/heritage.html>, in particular
"Halachic Problems", sec "A. The Prohibition of Excavating a Grave".
Note that there are other reasons to matir disenternment, which may
help give some scale as to the exact extent of the need.

Tir'u baTov!
-Micha

-- 
Micha Berger             "The worst thing that can happen to a
mi...@aishdas.org        person is to remain asleep and untamed."
http://www.aishdas.org          - Rabbi Simcha Zissel Ziv, Alter of Kelm
Fax: (270) 514-1507

On Thu, May 27, 2010 at 09:35:10AM -0400, Yosef Gavriel Bechhofer wrote:
: In a totally different note, it struck me yesterday that perhaps kol
: kavua k'mechtza al mechtza dami has something to do with the "Monty
: Hall Problem"
: <http://en.wikipedia.org/wiki/Monty_Hall_problem>
: <http://www.marilynvossavant.com/articles/gameshow_print.html?t=64>
: - but I can't articulate it. Can you help me out by either explaining
: why I'm right or why I'm wrong?

In the Monty Hall Problem, someone picks one out of three doors at the
game show To Make A Deal. The host of TMAD was Monty Hall. After you
make your choice, Monty would show you that behind one of the other
doors, that you did not choose, there was a donkey -- a losing choice.
He offers you a chance to stick to the door you have, or switch to the
remaining closed doors.

YOu might think that since there are two doors left, a winner and a
loser, and everything started out equal, they should remaing equal --
50:50.

Counterintuitively, your odds of winning if you stay with the current
door is 1/3, and your odds of winning if you switch is 2/3.

The description I find most useful to understand this lopsided result
is that it is caused by an assymetry in Monty Hall's choices. If you
picked a winning door, he could open either of the other two. But if
you picked a losing door, he could only pick the other losing door.
So while everything really did start out being equal, the setup didn't
stay that way.


As for RYGB's question:

The appearance that probability doesn't matter -- kemechtza al mechta
dami -- seems to be entirely in the number of doors. If you started out
with 4 doors, then sticking to your choice gives you a 1/4 chance of
winning, but switching to one of the two remaining doors increases it
to 3/8. (The remaining 3/4 split two ways.) The MHP has no connection
with ignoring odds.

Just as qavu'ah having no connection with someone who knows the emes
making different decisions based on that emes.


HOWEVER:

As you might recall, I built a whole philosophy about qavu'ah based on R'
Aqiva Eiger. It includes eidus, terei kemei'ah (also ignoring majority)
and migo as tolados of the same av, as well as chazaqa demei'ikara as
a first cousin. (Whereas rov and chazaqa disvara belong to a different
family of birur.) Literally a philosophy, as I use RAE's chaqira to
argue for the correctness of hashkafos that see mitzvos in terms of
cognitive changes -- whether as deveiqus or a definition of sheleimus.

Leshitas RAE, qavua isn't statistical because it's resolving a safeiq
in din. The metzi'us was once known -- that's why it's called qavu'ah
-- and at that time it had a definite din. The din exists, but we are
mesupaq as to what it is. Rov only works when pasqening where the safeiq
is in the metzi'us; the din is established about an unknown reality. A
different kind of birur.

Thus my connecting qavu'ah to eidus, which is also about the metzi'us once
being known. In a case of terei uterei, or terei kemei'ah, the question
is who correctly reports that metzi'us. And chazaqah demei'iqarah also
works off an established reality -- albeit a historical one.

The ideas were hammered out on mail-jewish and here, and since became
the following blog entries:
http://www.aishdas.org/asp/2009/03/halakhah-phenomenology-1.shtml
    Birkhas haChamah and microscopic bugs -- the gap between the
    experience and reality

http://http//www.aishdas.org/asp/2009/04/halakhah-phenomenology-2.shtml
    Birur of din (qavu'ah, eidus, etc..)

http://www.aishdas.org/asp/2009/04/halakhah-and-phenomenology-3.shtml
    Birur of metzi'us (rov, etc...)

http://www.aishdas.org/asp/2009/04/halakhah-and-phenomenology-4.shtml
    How the above rules play out in some otherwise-hard-to-explain
    cases.

So the mehalakh you're proposing isn't likely to appeal to me -- it
contradicts my "baby". I lack objectivity, having my own pet theory.

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

On Wed, May 26, 2010 at 12:14:38PM +0100, Simon Wanderer wrote:
: BTW, the aruch hashulchan offer a beautiful interpretation of the MA. He
: says that the Torah is of universal relevance and application. For this
: reason the Torah doesnt call Shavuos zman matan torah, as its not right
: to limit the Torah to one specific day...

As opposed to kaparah???

Tir'u baTov!
-Micha


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