Avodah Mailing List

Volume 06 : Number 082

Wednesday, December 27 2000

• RE: Sei'ar beIshah
• RE: Sei'ar beIshah
• Re: full uncovering of hair as a das moshe or das yehudis
• Re: Covering hair
• RE: Sei'ar beIshah
• Haircovering
• RE: menorah lighting
• Re: menorah lighting
• menorah lighting
• Re: Dor Revi'i and the TSBP
• Re: Dor Revi'i and TSBP

Dear Moshe,
	When the Aruch says that Kapaltin means a wig in lashon Romi, it 
may be saying that Kapaltin means a wig in Greek, inasmuch as the
Eastern Roman Empire, which survived until 1453, was Greek-speaking, and 
yet was known as the Roman Empire.  Greek was widely spoken in Italy at
the time of the Aruch.  The word for head in Greek is kephale, which is
pretty close to kapaltin.  On the other hand, Petronius in the first
century and Suetonius at the beginning of the second century, writing in 
Latin, use the word capillamentum in referring to a wig.  However, they
introduce Greek words from time to time into Latin; and scholars have
also found Aramaic words in Petronius.
Best wishes.
Aby
On Wed, 27 Dec 2000, Feldman, Mark
wrote:

> From: Chana/Heather Luntz [mailto:Chana/Heather@luntz.demon.co.uk]
> > >From: "Moshe Feldman" <MFeldman@CM-P.COM>
> > >) BTW, I believe #2 and that is how I explain the phenomenon 
> > of sheitels
> > >) today.  I believe that R Ovadia Yosef proves pretty 
> > convincingly that
> > >) sheitels violated daas yehudis in the time of the 
> > gemara--the Aruch says
> > >) that Kapaltin (the word used in the Yerushalmi instead of 
> > Kalsa, used by the
> > >) Bavli) means a wig in Latin (lashon Romi).
> > 
> > Although note that when the gemorra in Nazir 28b wanted to explicitly
> > refer to a wig, it has a different term "pe'ah nochris".
> 
> But note that the lashon haYerushalmi is often different from the Bavli
> (different dialects of Aramaic).  Moreover, as the Palestinian Amoraim were
> living in an area where Greek & Latin was still spoken (among the goyim), it
> is not surprising that a Latin word would creep into Palestinian Aramaic.
> In fact, my father (prof. of Classical Languages at YU) told me that when
> Rav Shlomo Goren set out to study the Yerushalmi, he first studied Greek.
>  
> > >(My father told me that
> > >) capilitium means little hair, or something like that.)  The Shiltei
> > >) Hagiborim is shver (and I've read lots of the 
> > tshuvos--both pro and con
> > >) dealing with the SHG).
> > 
> > >) My chiddush on what ROY says is that because sheitels are 
> > in the realm of
> > >) daas yehudis, society can decide to be meikel against the gemara's
> > >) standards.  See my previous post about R. Willig's 
> > position re Shok b'isha
> > >) erva.
> > 
> > And earlier:
> > >Yet R. M Willig claims that the gemara of "shok b'isha erva"
> > >refers to the bottom of the foot (compare to hilchos sh'chita),
> > 
> > I am somewhat mystified by this discussion being based on hilchos
> > sh'chita.  Hilchos sh'chita is a discussion about behamos.  
> > Now I could
> > understand it if the term shok were used only in these two 
> > contexts, a)
> > shok b'isha erva and b) by references to behamos, you might perforce
> > have to learn one from the other.  But the shok in a human being is
> > discussed elsewhere eg Mishna Oholos 1:8 on listing the 
> > different bones
> > in the human body which are metamei and Nazir 52b which brings the
> > tosephta that rov binyan (one of the tests for tumas ohel) is m'shnei
> > shokiim v'yerech echad.
> > 
> > Surely that is enough data to have the machlokus about what 
> > constitutes
> > the shok without needing to resort to discussions about cows?
> 
> But the fact remains that there is a machlokes of latter-day achronim what
> "shok" means.  Obviously, there was not a clear tradition what shok means in
> the context of the human body (that makes sense, because this is an issue of
> mimeticism--women covered certain parts of their bodies but didn't have a
> mesorah whether this was absolutely required by the halacha or just tznius).
> In contrast, there was a clearer mesorah with regard to animals & hilchos
> shchitah, which is why R. Willig brought the r'ayah.
> 
> Kol tuv,
> Moshe
> 
> 
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From: Chana/Heather Luntz [mailto:Chana/Heather@luntz.demon.co.uk]
>> the Aruch says that Kapaltin (the word used in the Yerushalmi instead of 
>> Kalsa, used by the Bavli) means a wig in Latin (lashon Romi).

> Although note that when the gemorra in Nazir 28b wanted to explicitly
> refer to a wig, it has a different term "pe'ah nochris".

But note that the lashon haYerushalmi is often different from the Bavli
(different dialects of Aramaic).  Moreover, as the Palestinian Amoraim were
living in an area where Greek & Latin was still spoken (among the goyim), it
is not surprising that a Latin word would creep into Palestinian Aramaic.
In fact, my father (prof. of Classical Languages at YU) told me that when
Rav Shlomo Goren set out to study the Yerushalmi, he first studied Greek.

> >Yet R. M Willig claims that the gemara of "shok b'isha erva"
> >refers to the bottom of the foot (compare to hilchos sh'chita),

> I am somewhat mystified by this discussion being based on hilchos
> sh'chita....
> Surely that is enough data to have the machlokus about what constitutes
> the shok without needing to resort to discussions about cows?

But the fact remains that there is a machlokes of latter-day achronim what
"shok" means.  Obviously, there was not a clear tradition what shok means in
the context of the human body (that makes sense, because this is an issue of
mimeticism--women covered certain parts of their bodies but didn't have a
mesorah whether this was absolutely required by the halacha or just tznius).
In contrast, there was a clearer mesorah with regard to animals & hilchos
shchitah, which is why R. Willig brought the r'ayah.

Kol tuv,
Moshe

At 08:09 PM 12/26/00 -0500, Michael J Broyde wrote:

>it), but it presents a very very very strong limud zichut for married
>women not to cover their hair generally in a society where such
>uncovering is not immodest.  Maybe that -- being a simple shulchan
>aruch jew -- was what motivated the conduct of those vast communities
>where many married women did not uncover.
>
>Michael Broyde

I know only a little, perhaps, how to learn, but this much is apparent to me:

1. This is not "a very very very strong" limud zechus. It is a more of a 
kaneh ratzutz. I am curious if my good friend (and he knows I mean that in 
all sincerity, milchamata shel Torah aside) RMJB would be meikel on some of 
the "Bnos Yisroel hechmeeru al atzman" statements in Hilchos Nidda?

2. A limud zechus is a notch lower than b'di'eved, which is itself a notch 
lower than b'she'as ha'dechak, which is a notch lower than l'chatchila. 
Does RMJB indeed mean a limud zechus - and, of course, we should always be 
melamed zechus on Am Yisroel - or does he mean something else?

3. A "Simple SA Jew" (interesting term! We could probably spend quite some 
time on the definition of that term in and of itself!) would be one that 
seeks to fulfill the dictates of the SA, no? As such, he or she should not 
be looking towards SA EH 115, which actually is discussing the finer 
details, minutiae, and obscurities of divorce and grounds for divorce 
(which is the only context in which Das Moshe or Das Yehudis is relevant), 
but to the simanim in which the SA lays out the guidelines for proper 
living - i.e., SA EH 21:1.

There are no ambiguities, no DM nor DY there, just straightforward, simple 
Shulchan Aruch.


KT,
YGB

ygb@aishdas.org      http://www.aishdas.org/rygb

At 02:38 AM 12/27/00 +0200, Daniel Eidensohn wrote:
>I don't understand how this tshuva #53 can be understood to mean that he
>permitted women to go without any headcovering - "permits uncovered hair" if
>most act that way? My brief perusal of his discussion indicates that he is
>not permitting the head to be uncovered but only braids or hair sticking out
>of a head covering....

My cursory glance at the teshuva is in agreement with RDE - the MC 
certainly cannot be construed as providing basis for full headuncovering.

KT,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

> 	When the Aruch says that Kapaltin means a wig in lashon Romi, it 
> may be saying that Kapaltin means a wig in Greek, inasmuch as the
> Eastern Roman Empire...

Yes.  But I think the Aruch lived in Italy, where they spoke Latin.

Moshe

At 10:58 AM 12/27/00 -0500, Michael J Broyde wrote:
>I do not think that the nidah cases are similiar to the das yehudis cases,
>as matters of das yehudis are by there very structure and definition,
>dependent on the local custom and practice of [observent] Jewish women
>(see enclycolpediua talmudit, das yehudis), whereas the 7 clean days of
>benos yisrael was a takanat hakahal.  The concept of das yehudis was
>designed by the talmudic sages to reflect some of the concepts of modesty
>and sexual norms found in one's own society. More on this in paragraph 3.

I am not sure the I quite understand the distinction. Why bother codifying a 
"pure" custom? There have certainly been Arab countries in which Jewish 
women wore veils. I believe the Maharam Alshakar quoted by the Maharatz 
Chiyus alludes to this custom, and notes that it cannot be codified as 
Jewish practice. Similarly, there are certainly cultures in which the heel 
of a woman's foot has customarily been covered, yet this has not been 
codified. It seems that the SA very carefully selected the minhagim that 
*do* represent the universal benchmark of acceptance that *all* Jewish 
women must strive to maintain - the lack of which may be grounds for 
divorce. In this sense, I see no clearcut distinction of one being "takanas 
ha'kohol" (this, BTW, does not seem to be one of the takkanos ha'kohol 
noted in the first perek of Bava Basra! From whence stems this definition?) 
and one not. Aderaba.

>> 2. A limud zechus is a notch lower than b'di'eved...
>> Does RMJB indeed mean a limud zechus - and, of course, we should always be
>> melamed zechus on Am Yisroel - or does he mean something else?

>Not sure myself, to be honest.  In a place where something is the well
>establish custom, and there was a logical limid zechut that made sense in
>the context of overall halacha, I do not know how I would respond...

Umm, could we be a tad more definitive on this point, please?

>> 3. A "Simple SA Jew" ...                                would be one that
>> seeks to fulfill the dictates of the SA, no? As such, he or she should not
>> be looking towards SA EH 115, which actually is discussing the finer
>> details, minutiae, and obscurities of divorce and grounds for divorce...
>> but to the simanim in which the SA lays out the guidelines for proper
>> living - i.e., SA EH 21:1. There are no ambiguities, no DM nor DY there,
>> just straightforward, simple  Shulchan Aruch.

>This paragraph is one that I find hardest to understand.  Even Haezer 21
>is the general siman for conduct that governs laws of improper sexual or
>immodest conduct. 21:2 states that "A Jewish woman should not go with her
>hair uncovered [=parua] in the marketplace whether she be married or
>single (=penuya)."...                     EH 21 cannot really be the clear
>source for an immutable non-time bound and objective prohibition which
>obligates women to cover their hair no matter what the norms of society
>might be.  It should be subject to the same limitations of the rest of
>even haezer 21.

Nope.

Again, aderaba.

SA EH 21 is the final word on modesty.

As the well known Kitzur Tokfo Kohen 123-124, cited by the perhaps somewhat 
less well known Bigdei Shesh on BB Siman 1 Agada states, the SA and Remo 
represent the final word on psak din. It is clear that for us the 
definition extends to "SA plus Nosei Keilim". Thus, EH 21 is a set piece, 
and that is what, together with the BS and CM etc., most of which are 
located conveniently (by Hashgocho Protis, no doubt), on the page of the 
SA, constitutes final halacha for Tefutzos Yisroel, with the possible 
exception of the Yemenites.

I am somewhat surprised by my colleague's reference, in this context, to 
the Ritva. Leaving She'eilas Shalom aside, and I suspect that I am not as 
meikel in this as RMJB might surmise, we are not talking now about the 
aspects of interaction, which are individual specific (according to that 
Ritva), but of objective standards of tzeni'us. Surely RMJB would not use 
the Ritva to allow miniskirts and halter tops where those are the norms? 
Yet, essentially, he is deploying, in the preceding paragraph, the Ritva in 
precisly such an argument.

>Thus, I completely do not understand Rabbi Bechhoffer's reference to even
>haezer 21 as the locus of this prohibition of hair covering, as if that is
>the location, then four ready questions come to mind:

>         1.      Why should married women's hair be different than
>divorced/widowed women's hair (as it clearly is noted to be by Rav Moshe,
>and many others).

I believe R' Moshe deals with that question in his teshuva, no?

>         2.      Why should hair be any different than any other part of a
>women's body which can be revealed when modesty concerns are utterly not
>applicable....

I do not understand your argument here. How *is* hair any different?

>         3.      Why should hair not be governed by the same rules as all
>the other modesty related prohibitions in EH 21 and be subject to the
>limitations of the pitchai teshuva 21:3?

Explained above.

>         4.      What is the relavence of the distinction between partial
>and full covering (since both das yehudis and das moshe lose the ketubah
>anyway), except to not one can change and one does not?

I understand as a purely lomdishe distinction - although I think RMF in the 
aforementioned teshuva on divorcees and widows does find, IIRC (I have not 
looked it up upon this writing today) some practical nafka mina. Otherwise, 
there, is, indeed, as I said earlier in this conversation, no difference 
halacha l'ma'aseh for a currently married woman. There is, actually, 
another nafka mina, see below.

>Thus, I think Rabbi Bechhoffer's answer cannot really be correct.  Rather,
>the immutable and unchangable prohibition to cover hair is found in
>ketubot 72a, codified in Ramban Ishut 24:11-12 and Beish Shmuel 115:9.  In
>this view, full uncovering is an issur asah (from uparah in bamidbar 5:18)
>and partial uncovering is a minhag tzinuyut of das yehudis which can
>change (nothing showing, tefach, less than half, a pony tail and so on).
>Torah obligations do not change, das yehudis obligations can and do.
>(Rabbi Bechhoffer:  Do you agree that das yehudis obligations can change?)

Perhaps - but only in the context of grounds for divorce, the topic of SA 
EH 115, not in the area of the proper behavior for a Bas Yisroel, the topic 
of SA EH 21. Which may well be your long sought answer for the question you 
feel, in the next paragraph, that I have not answered adequately until now. 
Now, I think that I have.

>This, of course, leaves open my initial question of why did the
>Tur and Shulchan Aruch leave out the immutable obligation to cover...
>More on these rishonim latter.

KT,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb

> RSZA explains that, when we light our menorahs, we are not doing so
> because of the neis that the oil lasted for eight days, but rather
> as a form of hallel for the miraculous victory over the yavanim.
> This approach solves several questions:

Don't understand why you can't solve the questions without that chiddush:

> 1) how come women aren't chayiv to say hallel on Chanuka because of
> "af hain hayu b'oso haneis?

Acc. to the Rishonim who hold that they had to cause the nes, the neither
caused the victory in battle or the finding of the oil. Acc. to the
Rishonim who hold that they just have to be part of the nes, then weren't
they beneficieries of the military victory as well?

> 2) why do we light the menorah on the night of the 25th; l'choirah, we
> found the oil sometime on the day of the 25th (after winning the battle
> [chanu...chof hei...], and the menorah was first lit on the night of
> the 26th.

This kashe is raised by the Ohr Gadol in Yoma. Acc. to the Meiri in
the victory was on the 24th - the O.G. is meyashev the Rambam b'arichus.

> 3) we never find that chazal were mesaken a yom tov or a new mitzva
> "merely" because a miracle occured that enabled us to keep a specific
> mitzva.

Hmm...it is hard to say that Chazal weren't metakein Y"T for nisim because
there aren't many others to choose from - but anyway, see the Kedushas
Levi who explains why the nes Chanukah warrented a takkanah while other
nissim did not (it had a lasting effect l'doros).

> 4) why do we say a bracha when we light the menorah in shul; this
> lighting is only a minhag

Machlokes R"T and Rambam, we pasken you do say a beracha (chatzi Hallel).

Micha Berger:
> There is a machlokes rishonim as to why we light menorah in shul. The
> Ritva says (1) that it's betzibur, and therefore the usual pirsumei nisa
> applies. But other possibilities exist...

In any case, presumably there was a takanah to light in shul.  There was no
takanah to have a public menorah.

And how is a public menorah different from my case of using an electric
menorah in addition to oil?

Kt
Moshe

From: "Leon Manel" <leonmanel@hotmail.com>
>> Whats the halachic basis to make a Brochoh at the public menorahs Chabad 
>> puts up. Maybe RY'Z can comment

From: "Stein, Aryeh E." <aes@ll-f.com>
> In Halichos Shlomo (IIRC, p. 352), RSZA explains that, when we light our
> menorahs, we are not doing so because of the neis that the oil lasted for
> eight days, but rather as a form of hallel for the miraculous victory over
> the yavanim.  This approach solves several questions:

Except it may not mesh with historical reality completely. (not to
detract from RSZA's proof, but I just thought this was interesting).

> 	2) why do we light the menorah on the night of the 25th; l'choirah,
> we found the oil sometime on the day of the 25th (after winning the battle
> [chanu...chof hei...], and the menorah was first lit on the night of the
> 26th.  Therefore, the first candle should be lit on the night of the 26th?

Two points:

1) there are plenty of explanations for why 8 days not 7; but you're
asking a different question, aren't you - assuming 8 days, why not start
on the 26th? Which leads to my next point...

2) There is real evidence that there were two hadlakot that are
commemorated on Chanukah. The first, the miracle of the oil, occurred
several weeks earlier, sometime in Cheshvan. The Jews won the battle,
rushed into the BHM"K, found it a shambles, and set up a temporary
menorah with their swords (which doubled as lampholders in camp, following
contemporary Greek military practice) The 8 days of oil happened then.
They then spent a month and a half making new keilim for avodah in the
BHM"K, and had the rededication (chanukat habayit) on the 25th of Kislev,
following the date for the rededication on the return from Bavel.

So they celebrated Chanukah on the 25th because that's when the real
Menorah was relit. There wasn't a delay until nightfall. Isn't the
Menorah lit during the afternoon?

> But, once we say that the menorah (together with saying "Haneiros
> Hallalu...") is a form of hallel, all of these questions are answered:

> 2)  The menorah is really for the miraculous victory which happened on the
> 25th, so we light on the 25th

See above.

> 3)  The mitzva of neiros chanuka is really for the victory, not so much
> because of the fact that we were able to find enough oil for eight days.

I think the 8 days of rededication was linked to having missed out on
Sukkot that year.

I wrote:
> Yes, you are correct.  You could also have pointed to Ibn Ezra on Devarim 
> 12:32.

Sorry, I meant the Ramban. He says that "ka'asher tzivisicha" is
referring to korbanos and not an oral commandment.

Gil Student

Micha Berger wrote:
> On Fri, Dec 22, 2000 at 01:40:23PM -0500, David Glasner wrote:
>: Sanhedrin is not bound by the drashot of an earlier Sanhedrin
>: and is authorized to change the halakhah by changing the relevant
>: drashah.  Isn't that what happened when Ruth was allowed to marry
>: Boaz based on Moavi, v'lo Moavit?

> Actually, it's quite likely there was no p'sak on Moavis until Boaz's
> day. It would only come up if one of them wanted to convert. Or, they
> were omeid bisafeik and refrained from accepting a Moavis conver our
> of safeik, not p'sak.

Quite likely is in the eye of the beholder.  There were Canaanite converts
so why would there not have been Moabite converts, but for the prohibition?
What justifies an assumption that a Sanhedrin refused to resolve a doubt
when the explicit rationale provided for a Sanhedrin in parashat Shoftim is to 
resolve doubt?  Furthermore, it is clear that the anti-Davidic party attempted
to use David's Moabite lineage as a method of deligitimizing his claim to the
throne based on questions about the validity of the d'rash mo'avi v'lo mo'avit.

> However, I was talking about the resolution of machlokes without the
> use of pesukim. Like the way a poseik today uses sevarah to side like
> the Raavad instead of the Rambam. Or Rashi vs R' Tam tefillin.

I fail to see the basis for such a distinction.  If a Sanhedrin can reverse
the halakhah decided by a previous Sanhedrin by changing the relevant
drashah, concerning which the previous Sanhedrin, being closer to the
original authoritative interpretation, might seem to have a stronger claim
to deference, the later Sanhedrin would a fortiori have the right to reverse
the halakhah based on some other relevant consideration, e.g., a better
understanding of physical reality, or a desire to accomplish some 
humanitarian objective such as to take an example at random to provide
halakhic relief to agunot.

> Saying "his whole shitah flows from [Hil.] Mamrim 2:1" implies that this
> is the most logical way to understand the Rambam. So, I offered another,
> at least equally logical (LAD) one. That the Rambam is talking about
> resolving derashah in particular, which wouldn't apply to the majority
> of takanos nor piskei halachah. To my mind, this makes 2:1 fit with 2:2
> and 2:3 far better.

I am still at a loss to understand how you read 2:1. Let's read it
together. Beit Din ha-gadol she-darshu b'ahat min ha-midot k'phi mah
she-nirah b'eineihem she-ha-din kakh v'danu din. [This means that there
was a p'sak halakhah issued by the old Sanhedrin which was accepted by
klal Yisrael.] V'amad ahareihem beit din aheir v'nirah lo ta'am aheir
listor oto. [The Rambam does not say "d'rashah aheir," he says ta'am
aheir." So it seems clear to me that he is not restricting himself as
you suggest to a case where the halakhah is being changed based on a
different d'rashah. Of course depending on the exact circumstances, it
might or might not be necessary to change the d'rashah as well. But in
some cases it only be necessary to change the factual predicate. E.g.,
is a louse spontaneously generated or the result of a procreative act?]
Harei zeh soteir v'dan k'phi mah she-nirah b'einav. [The new Sanhedrin
may "demolish" the halakhah established by its predecessor and pasken
according to its own best judgment. Leit l'dayan ela mah she-einav
ro'ot.] She-ne-emar el ha-shofeit asher yihiyeh b'yamim ha-heim.
Einkha hayav la-lekhet ela ahar beit din she-b'dorekha. ad kan l'shono
ha-zahav. Please tell me how you read it differently.

>: So are you telling me that R. Yehoshua really wanted to listen to the bat
>: kol, and was all set to reverse the p'sak, but then suddenly remembered the

> R' Yehoshua paskened l'fi his sevarah. Clearly also he believed on could
> rely on bas kol, because he asked for nissim to prove his point. 

b'mihilat k'vod toratkha, I think you need to go back and check the 
dramatis personae.  R. Eliezer was the one who was invoking the aid of
Heaven in support of his losing cause inside the Sanhedrin.  R. Yehoshua
was the leader of majority that R. Eliezer was resisting.

> But I don't think he "suddenly remembered". Rather the chachamim paskened
> like the rov on two issues -- the tanur, and whether or not to follow
> the bas kol. Until RY heard "nitzchuni banai", after the vote and the
> p'sak, he may have been convinced he was right.

Sorry, I was being ironic in writing the above.  My point was that the reason
that R. Yehoshua did not accept the bat kol was not because of the pasuk
"lo ba-shamayim hi."  He was using the pasuk to support a position that he
would have held even without the pasuk.  The importance of the pasuk is 
that it trumped the RShO.

>:> As R' Gil wrote, the halachic process was given to us
>:> to create halachah with. If that process includes the power of precedent,
>:> then we have to follow precedent in some cases.

>: Fine, but the halakhic system that you are talking about also tells us to
>: listen to the shofeit that will be in your days.  Yiftah b'doro k'Shmuel
>: b'doro.

> Lakol z'man va'eis. One must listen to the shofeit -- who in turn can only
> pasken according to the rules. Halachah kibasra'i also implies you point --
> if you don't take it to mean that the basra'i has a more limited range of
> things that he could pasken about, and in those cases, you can follow him.

Sorry, can't follow this.

> Vehara'ayah, most issues fall under Mamarim 2:2 and 2:3.

Or this.  And what is your calculation based on anyway.  There are many
dinei d'rabbanan that do not necessarily fall under the category of g'zeirot
and takanot or s'yagim, and it is not clear to me that they would not also
come under the purview of 2:1 rather than 2:2 or 3.

> If Yiftach bidoro means what you're saying, how come Yiftach couldn't
> overrule Sh'mu'el when it came to takanos?

Because the authority of Sanhedrin to declare what halakhah is cannot
be abridged. Since gezeirot, takanot and s'yagim are not purely
halakhic categories, the power of the Sanhedrin to repeal enactments
of predecessors may be limited. But the Torah is very explicit in its
grant of plenary power to the Sanhedrin on matters of pure halakhah.

>:                 how do you explain the existence of perek clal gadol in
>: masekhet Shabbat?  There were obviously extensive disputes 
>: concerning the definition of the avot m'lakhot and the conditions for
>: incurring liability for violating them.  According to you such disagreements
>: should never have existed.

> There is also a second grounds for doubt -- not only machlokesin but also
> forgetting. Or, never needing to formalize and study the precise definition
> of the each melachah until then.

I don't have it in front of me, but I suggest that you look up the Rambam's
introduction to zeraim where he discusses the reasons for disputes among
the Sages about halakhot and see what he says about the opinion that
disputes arose because over time they forgot the traditions that they 
received from Sinai.  I could be mistaken, of course, but I don't think that 
you can reconcile what he says there with what you say here.

>:> In hilchos mamrim 2:2, that Rambam is discussing dinim derabbanan.
>:> This all seems very clear to me.

>: Mamrim 2:2 is not, as Rabbi B. would say, nidon didan

> I disagree, since the overwhelming majority of machlokesin since the
> writing down of TSBP had nothing to do with derashos.

But they presume those drashot. If the drashot changed, the hilkhot
d'rabban would have to be adjusted somehow to reflect the change in
halakhot at a deeper level. At any rate, I assure you that the Dor Revi'i
did not stop reading after 2:1 and was perfectly well aware of 2:2 and 3.
If you are trying to understand his position, I think that you should
assume, if only for argument's sake, that he knew how to distinguish
between what was covered by 2:1 and what was covered by 2:2 and 3.

> BTW, when does the Dor Revi'i date the writing down of TSBP. We noted on
> Avodah a while back that according to a number of Rishonim (including
> the Rashbam and Tosafos), Rebbe's compilation of mishnayos may not have been 
> physically written down until the Savora'im.

This is an interesting question. In the hakdamah, he simply takes for
granted the conventional presumption that the Mishnah was written down
in the time of Rebi, and even asks a question on a Rashi somewhere that
seems to suggest otherwise. (I recall vaguely a lengthy discussion about
this with Daniel Eidensohn which may have been part of the thread that
you are referring to.) However, in his actual commentary on Hulin,
it becomes apparent that he was aware that the redaction process was
more complex than the conventional account suggests.

One of his major hiddushim on the m'sekhta is that all the mishnayot
in the first part of the m'shekhta dealing with shehita and treifot,
are aliba d'rebi akiva kodem hazarah referring to the Mishnah in the
second perek (around 32b I think) which records a mahloket between
R. Akiva and R. Yesheivav about the status of a p'sul in shehitah.
According to Yesheivav it is neveilah, but R. Akiva disagrees. But the
Mishnah concludes by saying that R. Akiva admitted that R. Yesheivav was
right. The Dor Revi'i argues that the concluding words of the Mishnah
were not in the original text and were only added at a much later date
(or perhaps there were conflicting editions or traditions) and it was
only well into the Amoraic period that the text was authoritatively
determined to include the hazarah of R. Akiva.

Although the hakdamah talks about writing down the Mishnah as the crucial
break between the ideal TSBP in its pristine form when Mamrim 2:1 was
still in force, and the form we have it now in which basic halakhot cannot
be changed in the way that they could previously, I don't think that it
is crucial to his position when the actual text was first written down.
The point is that Rebi initiated a process of creating an authoritative
text that would eventually be written down and it is the process that he
initiated that created the rupture between the earlier halakhic system
and the one under which we now operate.

> Since the Amoraim didn't create any new derashos, only presented disagreeing
> mesoros about pre-existing ones, Mamrim 2:1 would not have every applied
> during the period in question.

That is precisely the point of the Dor Revi'i. The famous question of
the Keseph Mishnah on Mamrim 2:1 is why Amoraim cannot argue with Tannaim
if Mamrim 2:1 is valid. His answer is that there was an agreement by the
entire generation at the time of the redaction of the Mishnah that they
would accept the halakhot as determined by the previous generations of
Sages quoted in the Mishnah and other contemporaneous sources. The Dor
Revi'i asks why there is no mention anywhere of such an agreement.
And b'kitzur nimratz his answer is that there was no need for a separate
agreement, because it was understood that the process of creating an
authoritative text of the Mishnah would necessarily have the consequence
of precluding disagreement with the drashot and halakhot contained in
the authoritative text.


David Glasner wrote:
>> I'm not following. If you are using the Rambam's classifactory system, which
>> you seem to be doing, halakhot l'Moshe mi-Sinai refer specifically to those
>> laws for which there is no Scriptural source at all.

Gil Student wrote:
> Yes, that is correct regarding the technical term "halachah leMoshe
> miSinai". However, the idea of a halachah that was taught to Moshe at
> Sinai is much more inclusive. It includes many of the halachos that
> were later justified by a derashah.

>> The Rambam postulates in some places the existence of certain mi-pi
>> ha-Shemua laws that could be proved using the hermeneutic rules, but
>> for which there is a Sinaitic tradition controlling the intepretation.

> This is what I would call a new halachah.  The Sinaitic rules of hermeneutics
> were used to derive new laws that have a status of de'oraisa.

I am still confused. Under your classificatory system, is "ayin tahat
ayin mamon" a "halakha l'Moshe mi-Sinai" or a "new halakhah"?

>> He cites such examples as the interpretation of pri eitz hadar and ayin tahat
>> ayin.

> I believe that this is a different concept. These are Sinaitic traditions
> that determine the interpretation of biblical verses. The tradition
> defines the interpretation and no one defies this tradition.

I'm sorry, but I am getting more confused. What is the difference
between a "tradition that determines the interpretation of a biblical
verse" and a tradition that determines a halakhah?

>> In the hakdamah, the Dor Revi'i takes issue with the Rambam on ayin
>> tahat ayin. He proves conclusively (though you may differ of course)
>> that on the Rambam's own criterion of a mi-pi ha-sh'mua interpretation,
>> ayin tahat ayin does not qualify because there clearly were Talmudic
>> disputes concerning the interpretation of ayin tahat ayin which the
>> Rambam maintains never happened in the case of a mi-pi ha-Shemua law.

> I believe, not on my own merit but based on others more worthy to
> disagree, that the Dor Revi'i is incorrect. Even as non-traditional a
> scholar as R. David Weiss Halivni (in his Mesoros uMekoros) claims that
> there is no dispute regarding ayin tachas ayin.

Well we know that there is a mahloket tannaim concerning whether one who
killed a person other than the one whom he intended to kill is put to
death, and that mahloket is contingent on the interpretation of nefesh
tahat nafesh. We also know that there is a dispute concerning whether the
sum of money paid in compensation for severing a limb corresponds to the
value of victim's limb or the value of the tort feasor's limb. The Dor
Revi'i has a third proof which is even better, but it is complicated
and I can never seem to keep it in my head for more than 24 hours at a
time without looking it up again. At any rate, if this was a tradition
from Sinai about which there was never, under the Rambam's criterion,
any dispute, how come the dispute?

>> On all this see siman 192 in Havot Yair who provides example after
>> example of arguments, which according to the Rambam never took place,
>> concerning halakhot l'Moshe mi-Sinai and mi-pi ha-Shemua interpretations.

> The Chavos Yair himself offers many different possible explanation but
> nevers puts them together systematically and is therefore dissatisfied
> with them. The Maharatz Chajes in his Toras Nevi'im does a masterful
> job in defending the Rambam.

Well, I admit that you trumped me with the Maharatz Chajes which I
haven't seen, and hope to read with the greatest interest. Until I do,
however, I shall remain skeptical that he has indeed rehabilitated the
Rambam's shita.

>> It is not clear to me whether the Dor Revi'i meant to deny that there
>> were any mi-pi ha-Shemua interpretations or, if there were, whether a
>> Sanhedrin would be allowed to change such an interpretation. He clearly
>> believed that there was no basis for saying that ayin tahat ayin was a mi-pi
>> ha-Shemua interpretation rather than a member of your next category.

> Ah. This was the answer to my question. You are saying that it is
> possible that according to the DR there are two levels of Torah Shebe'al
> Peh. One level that was transmitted and is inviolable and another that
> is subject to change by Sanhedrins. This makes me less uncomfortable
> with his position.

That inviolable part of TSBP would include at least halakhot l'Moshe mi-Sinai
narrowly construed, subject, of course, to the inconvenient fact that Shas is
full of disputes concerning halakhot l'Moshe mi-Sinai (though I shall be happy
to retract that assertion if the Mahartz Chajes indeed can convince me 
otherwise.)  As for mi-pi ha-Shemua interpretations, the Rambam offers no
means of identifying what is and what is not a mi-pi ha-Shemua interpretation
other than that it is an interpretation about which there was never any 
dispute.  The problems with using this as a criterion for identifying such
interpretations are by now too obvious for me to mention.  Just to be clear,
however, let me point out that what I am saying now is not, so far as I 
know, specifically discussed by the Dor Revi'i.

> The Rambam in hilchos mamrim 2:1 is referring to halachos that are DERIVED
> through hermeneutics. A later beis din can change that. The first type
> of halachah, such as the 39 melachos of Shabbos, is unchangeable.

>> Oh really, then how do you explain the existence of perek clal gadol in
>> masekhet Shabbat?  There were obviously extensive disputes concerning the
>> definition of the avot m'lakhot and the conditions for incurring liability
>> for violating them.  According to you such disagreements should never have
>> existed.

> The Chavos Yair, 192 (Ramat Gan:1997) p. 559 suggests that there was a
> tradition about all of the details of the halachos but many of the details
> were forgotten while the general rules were not. In your example, that
> there were 49 melachos and what they were was not forgotten. However,
> the details of many of the melachos were forgotten and were derived
> through hermeneutics. See also the Maharatz Chajes in Kol Sifrei
> (Jerusalem:1958) pp. 115-116.

That's fine. I just want to point out, that the Rambam explicitly rejects
such an idea in his introduction to zeraim (though, I am writing from
memory now). That is why the Havot Yair is so dissatisfied with the
distinction between general rules that were remembered and details that
were forgotten, and that is why I am skeptical that the Mahartz Chajes
can overcome the problem.

>> I don't want to be overly critical, but your citation of the verse
>> v'zavakhta mi-tzonkha u-mi-b'karkha ka'asher tzivitikha provides much less
>> support for your position than you think. The halakha l'Moshe mi-Sinai
>> that you are referring to is to the specific requirement that shehitah
>> sever two simanim in cattle and one in foul.

> See above about general halachos and details.

Sorry, that doesn't work here, because you and everyone else who cites
the baraita of Rebi on ka'asher tzivitikha is referring to the specific
halakhah l'Moshe mi-Sinai that Rebi cites there which is about the number
of simanim that must be severed for shehitah to be effective.

>> But all this is itself a matter of extensive dispute in Hulin. According
>> to the way Rashi and all other m'forshim understand the verse, i.e.,
>> according to the opinion of R. Yishmael who held that b'sar ta'avah was
>> prohibited in the desert, the interpretation of ka'asher tsivitikha is
>> not a reference to a halakha l'Moshe mi-Sinai but a reference to the
>> commandment of sh'hitat kodshim, because the whole point in D'varim is
>> to permit the consumption of hulin after shehitah is performed as it
>> had been performed on kodshim.

> Everyone agrees that there was a halachah leMoshe miSinai regarding how to
> slaughter (either for in the desert or for when they would reach the land of
> Israel).  The only question is whether that halachah can be based on the
> verse in Devarim.

I don't think so.  R. Yishmael has no need for a halakha l'Moshe mi-Sinai.  All
the laws of shehitah can be derived without any halakha l'Moshe mi-Sinai.  He 
does not hold that there is a minimum shiur required, he just holds that the 
throat be slit sufficiently to cause death.  And unlike R. Akiva, he holds that
shehitah is only effective at death, not when the simanim are severed.  

>> Thus, the verse that you cite for the undoubted existence of an extensive
>> oral interpretation of the written law transmitted to Moshe with the
>> written law actually shows how precarious the basis in our own sources
>> is for the existence of such an extensive oral interpretation.

> Yes, you are correct.  You could also have pointed to [Ramban] on Devarim
> 12:32.

The Ramban at least understood that he was intepreting the pasuk according
to R. Yishmael (by the way shelo k'hilkhita since halakha k'rebi Akiva
mihaveiro) and not according to R. Akiva.

David Glasner
dglasner@ftc.gov

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


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