Avodah Mailing List

Volume 08 : Number 095

Saturday, January 19 2002

• CY police
• Re: Question - 'Hullin 20a&b
• Re: CY police
• Re: Flatbush and BP eruv
• Re: CY police
• eruv
• Administrivia: Melaveh Malka RSVP
• Re: Question - 'Hullin 20a&b
• Re: Question - 'Hullin 20a&b
• Re: Daas Torah
• Re: eruv
• Re: SICHOT62 -15: Parashat Bo
• Re: Halachik methodology - Minhag
• Re: CY police
• Re: shabbat clocks
• Re: CY police
• CY Cesareans
• Eid Mipi Eid BeIssurim
• Kaddish
• Re: reproducility
• Re: SICHOT62 -15: Parashat Bo
• Re: ayin tachath ayin
• Re: ayin tachath ayin
• Re: Mussar and chassidus
• Re: Tosafos and Pilpul
• Re: ayin tachath ayin - LONG

From: Micha Berger <micha@aishdas.org>
> I have heard no claim from the CY dairies that they do not do this
> surgery, or that they sell the cow to a non-CY after relieving its 
> tza'ar.

I heard a shiur from Rabbi Yisrael Belsky on the topic when the
controversy arose. He said explicitly that the CY dairies do not use
these cows and that it is another reason to prefer CY.

> In any case, what do the CY farms do? Let their cows suffer? Do the 
> C section and sell the cow?

I don't believe there ARE CY farms; just farms with a CY operation.
The cows who've had the procedure are simply not used for the CY.

Gershon
gershon.dubin@juno.com

In a message dated 1/12/02 10:30:17pm EST, afolger@ymail.yu.edu writes:
> PROBLEM: Rami bar Ye'hezkel holds (acc. to Bavli!, not even a rishon's
> diyuk) she'hitah of birds is biblical, and permits ikkur. Tosefta holds
> ikkur is assur, but since Rashi explains the disagreement in terms of
> the disagreement whether she'hitah of birds is biblical, it follows that
> tosefta holds she'hitah of birds is rabbinic, and hence so is the psul
> of ikkur. SO, it really is a disagreement on a rabbinic prohibition,
> and whay does Rashi say beshel Torah ...? It should be muttar because
> bederabanan, halokh a'har hamekil?

> NB: this is also interesting for the halakhik methodology thread. Can
> Rashi disagree on Bavli and say that RbY holds she'hitah of birds is
> really rabbinic and it is the tosefta that holds it is biblical?

See the Rosh Yosef (from the Pri Mgodim) who says that Rashi holds that
since the Gemara has not ruled either like Rav Acha or like Rav Ashi
(Who says Ifcha Mistavra) that Bdoireisa Halch Achar Hamachmir, and we
except Lchmra Shitas Rav Acha, however OTOH see the Chidushei Rabi Akiva
Eiger how he learns this Rashi.

Kol Tuv, 
Yitzchok Zirkind

At 09:00 PM 1/16/02 +0000, Micha Berger wrote:
>I think RAF would say your former classmate is drinking CY leshitaso.

I understood that and find it glib - kol od there are significant shittos 
out there, whom I have identified with the CS, but include many, many more 
Poskim Gedolim v'Atzumim asher ketanam oveh me'mosneinu that hold CY as a 
blanket gezeirah, for whatever reason, the terminology is not correct.

>:> At this point, the question is whether the takkanah was merely to have
>:> above habitual supervision or davkah Yisrael roeh? This is the crux of
>:> the CY ChC debate. Problem is, if you need davka Yisrael roeh, why did
>:> Ramo permit butter? It seems Ramo hined at ChC.

>: Nope again - the crux is gezeirah (a la cS) or hashgocho (a la RMF).

>How are these two chiluqim different?

RAF understood my complaint very well:His "davka Yisroel ro'eh" is too
narrow - and, of course, therefore far more readily refutable - than the
"Blanket Gezeirah" approach.

>He writes an anecdote about the hamon am, you reply with the position
>of the intelligensia.

Do we disparage "Hamon Am" that are following those Poskim Gedolim v'Atzumim?

>I have heard no claim from the CY dairies that they do not do this
>surgery, or that they sell the cow to a non-CY after relieving its tza'ar.

You may not have heard it, but this is indeed the case.

>In any case, what do the CY farms do? Let their cows suffer? Do the C
>section and sell the cow?

Perhaps they do classic C-sections, as opposed to ones that go through the 
abdomen or stomach - it is those new-fangled C-sections that generate the 
treifus problem.

At 09:38 PM 1/15/02 -0500, Arie Folger wrote:
>I wonder indeed, whether RYGB will enlighten us on this topic.

I have a book out on the topic... Might be worth reading... :-)

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

On Wed, Jan 16, 2002 at 10:16:51PM -0500, Yosef Gavriel and Shoshanah M. Bechhofer wrote:
: RAF understood my complaint very well:His "davka Yisroel ro'eh" is too
: narrow - and, of course, therefore far more readily refutable - than the
: "Blanket Gezeirah" approach.

How? You have to spell it out for some of us.

Yes, he implies the reason for the yisrael ro'eh could only be chasnus,
but that is true of the meqoros cited so far by us, and the CS's maqor.

Now that RYZ added in the SA haRav we also have the shitah that the
gezeurah is one of kashrus. Which would explain not eating off ChC
dishes -- as I understand most Lubavitchers do not. (Perhaps belief
about timtum haleiv as well.)

-mi

-- 
Micha Berger                 "The most prevalent illness of our generation is
micha@aishdas.org            excessive anxiety....  Emunah decreases anxiety:
http://www.aishdas.org       'The Almighty is my source of salvation;  I will
Fax: (413) 403-9905          trust and not be afraid.'" (Isa 12) -Shalhevesya

While many Bnei Torah refrain from using the eruv because of this shita
in the MB/BH. I wonder how many of their wifes also follow this shita ,
especially if they are invited out for a meal. In R Teller's beautiful
bio of RSZA, he records that RSZA was not fond of this practice. This
is not meant as a critique , but solely as an observation.

As noted it is common practice for yeshiva bochurim not to rely on an
eruv and see their wives push the carriages and shlep the kids.

-- 
Eli Turkel, turkel@colorado.edu on 1/16/2002

We are trying to get a handle on approximately how many people will
attend the Melaveh Malka on Jan 26th. If you are even considering
attending, please e-mail me offlist with a "maybe" or "yes". Your RSVP
is not legally binding and is only being used to get a ballpark figure,
so please respond.

Thank you,
Gil Student

I posted:
> PROBLEM: Rami bar Ye'hezkel holds (acc. to Bavli!, not even a rishon's
> diyuk) she'hitah of birds is biblical, and permits ikkur. Tosefta holds
> ikkur is assur, but since Rashi explains the disagreement in terms of
> the disagreement whether she'hitah of birds is biblical, it follows that
> tosefta holds she'hitah of birds is rabbinic, and hence so is the psul
> of ikkur. SO, it really is a disagreement on a rabbinic prohibition,
> and whay does Rashi say beshel Torah ...? It should be muttar because
> bederabanan, halokh a'har hamekil?

R' YZ answered:
> See the Rosh Yosef (from the Pri Mgodim) who says that Rashi holds that
> since the Gemara has not ruled either like Rav Acha or like Rav Ashi (Who
> says Ifcha Mistavra) that Bdoireisa Halch Achar Hamachmir, and we except
> Lchmra Shitas Rav Acha, however OTOH see the Chidushei Rabi Akiva Eiger how
> he learns this Rashi.

Thank you. I also have another answer I came up with. Basically, it is 
possible Rashi is saying that the gemarra did not rule whose interpretation 
of the beraita is correct, i.e. Ravin bar Kissi or R. Yermiya amar Shmuel. If 
Ravin bar Kissi is right, then even Rami bar Ye'hezkel holds that 'ikkur is 
assur deOrayta for a she'hitah (as opposed to a melikkah).

Arie

In a message dated 1/17/02 4:11:42pm EST, afolger@ymail.yu.edu writes:
> I also have another answer I came up with. Basically, it is 
> possible Rashi is saying that the gemarra did not rule whose interpretation 
> of the beraita is correct, i.e. Ravin bar Kissi or R. Yermiya amar Shmuel. 
> If Ravin bar Kissi is right, then even Rami bar Ye'hezkel holds that 'ikkur
> is assur deOrayta for a she'hitah (as opposed to a melikkah).

The reason I didn't write this is because (I think you even mentioned it
in your original question) that if so Rashi would not say "Vleis Hilchsa
K...Rami BY.

Kol Tuv, 
Yitzchok Zirkind

Shlomoh Taitelbaum wrote:
> Ramchal in Mesillas Yesharim does not mention the idea of a mentor at
> all(not a Rav nor a Rebbe)....Judging from what and how he wrote his
> other sefarim, would I be wrong to suggest that his Messilas Yesharim
> bypasses the need for a moreh derech in avodas Hashem?

Perhaps if one takes into account the life of the Ramchal (the cherems for
being from what I understand [and I am open to correction] an independent
thinker who did not follow the "authorities"), can one learn from him,
then or now?

Chaim

Eli Turkel <Eli.Turkel@colorado.edu> wrote:
> While many Bnei Torah refrain from using the eruv because of this shita
> in the MB/BH. I wonder how many of their wifes also follow this shita ,
> especially if they are invited out for a meal. In R Teller's beautiful
> bio of RSZA, he records that RSZA was not fond of this practice. This
> is not meant as a critique , but solely as an observation.


Interesting foonote in light of the above: 
The Lakewood Rav who is one of the two Rabbanim responsible for the
Chicago Eruv does not use the Eruv himself, but his wife does.

HM

In Avodah 8:94, R' Steve Brizel darshens out from Rav Amital that <<<
if all you do is read Parasha sheets and Arevim off the web, how do
you function on Shabbos and Yom Tov without actual limud haTorah from
a sefer? >>>

I'd take it a step even farther. Even when learning from a sefer, I
find that I can learn better if I write down notes through the course of
that learning. This, of course, cannot be done on Shabbos, which makes
my Shabbos learning more difficult.

But Shabbos is "Me'eyn Olam HaBa", so I ask myself, "What lesson does
Shabbos teach me about Olam Haba"? My answer is that Shabbos teaches us
to prepare ourselves, and sharpen our learning skills so that we will be
able to learn in Olan HaBa -- where we'll have to manage without CD's,
without websites, without notes --- and even without seforim.

Rav Amital's point was that faxes and computers are great tools, but
they are *only* tools. He stressed that real learning is with a sefer,
a rebbe, and a charusa. My point is that even the sefer is only a
concession to Olam Hazeh. We (actually, *me* especially) need to get
better at listening and learning and remembering.

How else can we even dream that we'll be able to appreciate Moshe
Rabbenu's shiurim?

Akiva Miller

In a message dated 1/17/02 2:04:55pm EST, acgerstl@hotmail.com writes:
> Having written the above, I have still not dealt with the situation of a 
> complete change in the circumstances that a Minhag was effected to 
> alleviate 
> (in the case a Minhag effected as a Siyag Ve-Geder) and as to whether the 
> Minhag may then be changed; but that is another matter upon which I would 
> appreciate comment and which I will attempt to research.

There is much written about this topic by the Maharat"z Chayos in his Darkei 
Horo'oh

Kol Tuv, 
Yitzchok Zirkind

In a message dated 1/17/02 3:56:39pm EST, micha@aishdas.org writes:
> Now that RYZ added in the SA haRav we also have the shitah that the

For clarification, my refrence to SA haRav was WRT when may one be Machmir, 
not as an issue of CY

[A 2nd email. -mi]

In a message dated 1/17/02 3:56:55pm EST, sbechhof@casbah.acns.nwu.edu writes:
> Perhaps they do classic C-sections, as opposed to ones that go through the 
> abdomen or stomach - it is those new-fangled C-sections that generate the 
> treifus problem.

See Shut of the Baal Hatanya # 16 (printed in the last Vol. of his S"A).

Kol Tuv, 
Yitzchok Zirkind

From: Eli Turkel [mailto:Eli.Turkel@colorado.edu] on 1/10/2002
<<BTW I saw in MiPeneniei [HaRav] that RYBS disagreed with the heter
from shemirat shabbat to change shabbat clocks on shabbat and yom tov
(forward or backward depending on the case) and felt that this was not
a case of grama but of koach acher meurav bo which is prohibited.>>

I read the MiPeninei HaRav selection (and also what RHS wrote in B'ikvei
Hatzon). He does not clearly spell out the situations of moving shabbos
clocks RYBS was machmir.

The article by Rabbis Broyde and Jachter in the RJJ Journal vol. 21
claims that RYBS disagreed with RSZA with respect to the case where
the shabbos clock is set to turn a light on at 11 and at 7 you switch
it to turn on earlier (at 9)--RSZA believed that this was a case of
grama (because the result of your action does not occur immediately),
which is muttar l'tzorech, while RYBS believed that it was not grama.
However, both were matir the case where the shabbos clock is set to go
on at 9 and you postpone it to go on at 11.

Kol tuv,
Moshe

At 06:12 PM 1/17/02 +0000, Micha Berger wrote:
>How? You have to spell it out for some of us.

>Yes, he implies the reason for the yisrael ro'eh could only be chasnus,
>but that is true of the meqoros cited so far by us, and the CS's maqor.
...

Vehr hodt geredht veggen Chasnus? Nisht der Chasam Sofer!

Look at the Shu"t YD 107 - he does not make anything contingent on Chasnus 
- it is a gezeirah that exists independent of its catalysts - which may 
have been kashrus, or anything else, and therefore are not linked to any 
degree of certainty that the milk is "kosher."

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

[I can't tell who is quoting what, so I left this as-is. -mi]

>> I asked my source - C sections in and of themselves do not make terifos -
>> that is nittal ho'em and is OK - but the usual procedure nowadays seems to
>> be to cut through the abdomen in order to do the operation - a terifos.

>My sources tell me that this is 100% false!  I did speak to a vet today
>because of your email who tells me that going through the abdomen is only
>done when the cow is going to die anyway, and is never done for milking
>cows because it effects milk output.

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

From: "Gil Student" <gil_student@hotmail.com>
> I have this vague recollection that eid mipi eid is kasher be'issurin.
> For example, if Shimon gives me food and tells me that Reuven said it
> is kosher, we believe this eid mipi eid because it is betoras ne'emanus.
> I thought it was in a Ketzos but I could not find it.
> 
> Hu hadin that I could tell someone that Rav Reuven told me that Rav Shimon
> was matir something and I could be believed despite being an eid mipi eid.

It'a a machlokes achronim - brought in Knesses Hagdolah CM Siman 28,
referenced in Sefer Tvilas Keilim chapter 8 note 1*.

We say two requests at the end of kaddish: yehe shelama raba.....alenu
ve'al kol Yisrael Hu ya'aseh shalom alenu ve'al kol Yisrael.

Aside from one being leshon hakodesh and one Aramaic, why the two
seemingly duplicate requests?

Gershon
gershon.dubin@juno.com

On 17 Jan 2002 at 13:06, reuven koss wrote:
> I know that for this past shmitta, Rav Elyashiv poskined for She'eris
> Yisroel not to use matzaim menutakim and for the va'ad hashmitta of
> the local kehilla (I also think he poskined the same way for Rav
> Efrati) he poskined that they could use matzaim menutakim.

Do you know why? Does it have to do with She'aris holding like the CI 
with respect to Kdushas Shviis for peiros nochrim? 

-- Carl

Please daven and learn for a Refuah Shleima for our son,
Baruch Yosef ben Adina Batya among the sick of Israel.  
Thank you very much.

R Akivak Miller wrote:
> so I ask myself, "What lesson does Shabbos teach me about Olam Haba"? My
> answer is that Shabbos teaches us to prepare ourselves, and sharpen our
> learning skills so that we will be able to learn in Olan HaBa -- where
> we'll have to manage without CD's, without websites, without notes ---
> and even without seforim."

I disagree.  In Olam Haba we will have clearer minds, not full of tirdos of
olam hazeh (see RA Kaplan's essay about all the static in our brains).  In
olam hazeh it's harder to concentrate and we should make use of the best
techniques of learning (which include taking notes and reviewing them,
involving as many of the five senses as possible).  Even during the time of
Rav Chiyah, when Torah SheB'al Peh wasn't written down, people wrote
megillos s'tarim for their own use.

Kol tuv,
Moshe

>Imagine the following situation. Shimon blinds Reuven. Reuven comes to the 
>town beith din and asks them to blind Shimon. They say "no,no, we have it 
>direct from the Sanhedrin that we can only fine Shimon." He says "But I 
>learned in kindergarten that the humash says ayin tachath ayin, and you 
>yourself told me that the humash trumps the Sanhedrin."
>What's wrong with Reuven's argument?

Because pashut peshat is that you must pay an eye's worth for damaging an 
eye.  You might have asked better from the cases where halachah is okeves 
hamikra (Sotah 16a).

Gil Student

On Fri, Jan 18, 2002 at 10:25:20AM -0500, Gil Student wrote:
:> Imagine the following situation. Shimon blinds Reuven. Reuven comes to the 
:> town beith din and asks them to blind Shimon. They say "no,no, we have it 
:> direct from the Sanhedrin that we can only fine Shimon." He says "But I 
:> learned in kindergarten that the humash says ayin tachath ayin, and you 
:> yourself told me that the humash trumps the Sanhedrin."
:> What's wrong with Reuven's argument?

: Because pashut peshat is that you must pay an eye's worth for damaging an 
: eye.  You might have asked better from the cases where halachah is okeves 
: hamikra (Sotah 16a).

We argued already whether it's derashah that makes "tachas" mean
financial payment or if it's peshat in the word (when used idiomatically).
I found other examples of "tachas" meaning financial payment rather than
necessarily physical replacement. However, Chazal on the pasuq use the
lashon of "derashah" in describing our pasuq. I left that conversation
convinced I was wrong.

But whether derashah or peshat, it's de'Oraisa and therefore mesorah,
and not a statement by Sanhedrin, upon which it rests. (Otherwise RDR's
argument would eliminate the role of derashah altogether.)

-mi

-- 
Micha Berger                 For a mitzvah is a lamp,
micha@aishdas.org            And the Torah, its light.
http://www.aishdas.org                       - based on Mishlei 6:2
Fax: (413) 403-9905          

On Tue, Jan 15, 2002 at 11:32:58PM -0500, DFinchPC@aol.com wrote:
: > By saying that proper behavior goes beyond halachah, one calls in the need
: > for a rav on non-halachic questions. More stress to the idea, more need.

: This strikes me as pretty circular. If one is required by halacha to
: call in a rav for advice on non-halachic questions, then the questions
: are ipso facto halachic....

The circularity you address is even more true in an actual halachah.
It's assur to be a menuval birshus haTorah. Which, if you think about it,
means that the Torah prohibits being disgusting in ways the Torah permits.
Paradox.

When I want to be maqatzeir (e.g. on scjm) I would translate it at "...
in ways the Torah [otherwise] permits". But it may be more specific to
say "does not *specifically* prohibit".

Here too, the baal mussar and chassid agree that the Torah calls on us to
be qadosh, to act in a manner in accord with the Torah's values beyond
those things specifically obligated by us. Since this is particularly
central to the lifestyles they promote, the need for a rav beyond halachah
is also more central.

But still, he isn't providing a halachic ruling. There are no specific
dinim for the rav to evaluate. Rather, there is a halachic need to *get*
such advice as pert of the general quest of qedoshim tihyu. There is
a difference between the halachos of when to ask, and whether or not
the question being asked is halachic.

: As many people understand DT, DT accepts the authority of gadolim to
: treat these implied principles as creatures of halacha and to rule upon
: them accordingly.

But as other people understand DT, and as the chassidim understand the
role of the tzaddiq, he has the ability to make non-religious choices
(such as which job is more likely to be successful financially) better
than the rest of us. Whether because of a refined intellect because it's
more in line with the "Mind" of the Borei (via His Torah) or because of
a level ruach haqodesh.

It's that which I was asking about. My logic does not explain why
non-chassidim would go to that extent.

-mi

-- 
Micha Berger                 For a mitzvah is a lamp,
micha@aishdas.org            And the Torah, its light.
http://www.aishdas.org                       - based on Mishlei 6:2
Fax: (413) 403-9905          

In a message dated 1/17/02 2:04:28pm EST, DFinchPC@aol.com writes:
> I don't either, but it seems that Tosafos wasn't really acquainted the
> with idea of minhag, at least as that term has since evolved. The pilpul
> of Tosafos was frequently designed to reconcile the irreconcilable --
> and often it succeeded in doing exactly that. I've often thought that
> the real difference between the Platonic process of dialectic and the
> Judaic process of machlokess lies exactly at the point: Jews need to
> preserve the unity of Torah as an article of the Oneness of HaShem.

Tosafos turns the pashut pshat of the Gmara on its head to preserve several
minhaggim

Illustrations:
1) Clapping and stomping on Shabbas - See IM ORach Chaim #2 Tshuva 100
2) See Tosafos re: Zimun and women.

I don't now how Minhag has "evolved" today. As far a the arly minhaggim of
Ashkenazim there are many works on this

Start with Maharil go to Hmaburger and check out Ta Shma

The question is: Was Tosafos using Dialectic for internal reasons
of Talmudic consistency 
or
for external reasons to be meysheiv minhaggim or even pshat in shas. 

Based upon how I understand Tosafos and Minhag and Professor Agus'
take, I would posti he was primarily interested in fostering the way
Ashkenazim saw the issues and therefore framed everything in shas to fit.
Sometimes the frame fits well at other times it does not.

RDEK {Kanarfogel} told me that Tosafos held that for Tosafos Bavli was
a readcted work that demanded consistency and hence Tosafos went to
work on dialectic. This is certianly the case at times. But overall,
I think Tosfaos simply KNEW what the halachah had to be BEFORE engagin
inthe text and then retrofitted the pshat to match

If you have ever leanred gmara with anyone that knows kitzur well but
not gmara, you will see that they have a hard time dealing with the
hava aminos and other dialectics that get in the way of the bottom
line conclusoin.

AISI Tosafos was somehwt simliar. He KNEW how it the outcome was supposed
to come out. Then he worked backwards but with a termendously higher
level of sophistication.

The question is: Why didn't Tosafos just say: "we don't follow the Bavli
in this instance?" Well he actually does in Eruvin 96A re: Michal wearing
Tfillin. He picks the psikta as pshat over the Bavli.

For some reason, having a free-standing minhag that contradicted a text
was not OK. He needed SOME text - or pre-text! - to make it work.

Now however, once Tosafos sayed that we do not follow simple pshat of the
Bavli o na given case, I have seen many learned Yiddn not even concerned
with the issue. IOW Tosafos has evolved to beocme a valid filter for
learning pshat in the Bavli much as the Bavli beome the lens throgh
which we learn Mishnah.

The process of TSBP modifying the simple pshat of a text - whether it
be Mikra or Mishna or even Gmara is apparently a continuous one.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

In a message dated 1/18/02 12:32:23pm EST, micha@aishdas.org writes:
> But whether derashah or peshat, it's de'Oraisa and therefore mesorah,
> and not a statement by Sanhedrin, upon which it rests. (Otherwise RDR's
> argument would eliminate the role of derashah altogether.)

I don't know the facts "on the ground" here.
It seems to me that Pshat in Ayin Tachas Ayin means
"{Just} compensation for an eye with {the value of} an eye

 From the Gmara it seems obvpous that:
Compensatoin as in monetary compensatoin was the norm
The Reason/Rational/Ta'am is disputed.

This goes along with my understanding of many mimetic traditions: the
WHATS are preserved better than the HOWS or the WHYS

But it is POSSIBLE that the reason we are stuck with Ayin Tachas Ayin
NOW is that in the absence of a Sanhedrin we cannot overturn it.

This is the idea of Sinai not always being literal

LIteral Sinai is from Sinai
Virtual Sinai means:
FIXED as IF IT WERE from Sinai Mamash.

An example of this is the Maharil's use of the term "miSinai" re:
yamim Noraim melodies. it is unlikely that these meolides are literally
miSinai. They are either fixed as if they were MiSinai or maybe latter
day musical reflectoins of more primitive meoldoies that go back further.
It is difficult to hear them as they are and consider them literally
miSinai. After all were Avos and Kol Nidre literally miSinai too?

After the churban there is NO Sanhedrin.
any legacy TSBP - including psak or Drash - that remains is fixed -
until we re-constitute another Sanhedrin and re-visit it.

AIUI, the Churban brought a freeze to the process of Halachic Drash. Many
many claim this freeze happened at the Chasimas HaTalmud. AISI, that
only was the last version of how that earlier freeze played out. IOW the
Talmud is the last best guess at how the TSBP was frozen at the time of
the Churban.

You will see sfarim saying that Chasimas Hatalmud had the power of
a Sanhedrin, some claim that a real convocation or "constitutoinal
convention" took place. I truly doubt it. More likely: The Talmud is
the last document that reliably plays out the TSBP received from the
last Sanhedrins.

Illustratoin: The Bavli in Shabbas brings down the machlokes BS/BH re:
Neros Hanukkah. That machlokes was probably just before the churban.
W/O the Bavli you have no source for early braisos etc.

IOW to preserve the traditions from the Bayis Shein Era, including Anshei
Knesses Hagdolah etc. it took about 300 years to redact the Mesorah into
text -starting with the Mishna and ending with the Bavli.

The facts are: the process was authoritative
The question is: was it exhaustive?  Could mesorros have been preserved in 
parallel to the Bavli w/o making it into the text?

Well look at the Mishnah. Did this authoritative text contain ALL the
universe of TSBP? Did it contain ALL of the Psak Halachah of TSBP? How
many times does the Talmud favor a Braisso or Tosefta over a Mishnah?

The preservation process would have been nice IF there were clear
demarcatoins:
this Halachah is literally miSina
and this Drash was ratified by Sanhedrin and fixed but was not necessarily
from Sinai at all.

The Rambam had a fairly clear idea where to draw the line. But it is
by no means so simple for others. And there are some questions on the
Rambam's model both internally within his writings and externally from
other sources.

Much of the above theory is founded on the Rambam in Hil. Mamrim 1:1 -
Beis Din haGadol is the ikkar TSBP. I need not remind most of you that
other parts of this model do not agree with the Rambam.

The problem is that all models are over-simplifciations. The Rambam
was probably aware of this when he positted his model. The model was
probably not deeemed flawless, just practical as a basis. For more
advanced students more sophistication is required. This seems to be
the Rambam's derech in describing the same thing to different audiences.

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com

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


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