Halachic Process, interlude: What it isn’t

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14 Responses

  1. Richard Wolpoe says:

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    there is zero prohibition of listening to music in the omer nor of parting in the rishonim

    the ONLY issur is reikkudim to music. This morphed by the acharonim to go further.

    The original Rishonic model would permit BOTH
    listening to music as in a concert
    partying bu w/o any musical accompaniment

    Any other model is strictly an aharonic humra, and not ikkar halacha.

    This can be verified by reading the Tur and Beis yosef, the Shulchan aruch etc The first introduction of greater issur is the Magen Avrham and is codified by the Aruch hshulchan

    What has happened is givne the facts on the ground after these humros are in place an anchronistic ratoinalization is formed to make this the structure of the original aveilus. the Tur says “miktzas aveilus” So does the Kitzur.
    KT
    RRW

  2. Richard Wolpoe says:

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    The 10 commandments imporews us that our animals are to ‘rest” on Shabbos just as we do.

    yet the Tur [end of orach chayyim Siman 246] quoting Rabbeinu peretzsays that a simple act of hefker beino uvein atzmo FOR THE DURATION OF SHABBOS ONLY is sufficient to be mattir a Jew to have aGentile hire his animal on Shabbos despite the Biblical requirement of “shevisas behemto” “af al pi she’eino mafkir legamrei… ayein sham

    re: consistencies: how differenet really is this then the C loophole of selling one’s business on Shabbos?

    KT
    RRw

  3. Richard Wolpoe says:

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    I would suggest reading Dr. Jacob {ya’alkov] Katz’s works espcially Shabbos Go and his artcile on permitting travelling on a boat on Shabbos for “end-driven” pesak.

    I would suggest taht O p’sak is often “goal driven” sometimes to be mattir what is being done [e.g. clapping/dancing on Shabbos] or to produce issurim where there used to be none [e.g. women reading the Megillah for themselves or for other women – celearly permittd by Beis Yosef himself a Kabbalist]

    I am not sure how clapping/slpping on Shabbos for musical purposes is any better halahcially than playing a guitra on Shabbos, the same Talmudic g’zeria applies – shema yetkanken klei shir. I am bewildered as to how the current halachic norms are objective on this matter, either BOTH should be assur or BOTH muttar.

    Maybe C halahc IS highly subjective, but are we wiling to use this lense on ourselves, too, or only focus on the shortcomings of others?

    Shouldn’t keshot atzmecha v’achar kach keshot acheirim exhort us to greater objectivity and fairness in our own pesak BEFORE we point fingers?

    KT
    RRW

  4. Richard Wolpoe says:

    “”Or, amoraim were unwilling/unable to dispute the conclusions reached by tanaim, In numerous places an amora’s position is questioned on the grounds “vehatenan — but didn’t the tanna say otherwise?” The inability to dispute a tanna was a given.””

    An amora could not dispute a Tannaitic statement otright. OTOH amoraim qualify virutalyl any and every Tannaitic statement and limt or expand its scope.

    Even today, suicides are nearly ALWAYS deemed shelo midaa’s. Thsi was not always the case and in earlier generations suicides wer often buried at the edge of a cemetery. This is rare today. We have raised the bar of “mida’ato” so that virtually any suicied is ruled against their will.

    There is a worthwhile read by Ruth Sandberg on the expansion and contraction of Halchic norms over the generations

  5. Richard Wolpoe says:

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    See Artscrol Kesubos 85a note 17: in later tiems when econmic conditions changed the enacted that even movable items…

    See ARtscroll Kesubos 85a3 note 26: Rif citing a Gaon that no judge can decare… even though it is found in the Talmud…

    See Artscroll Kesubbos 85a2 note 10 all 3 laws are clear and uncontested neverthelss Rambam states taht nowadays no judge may exact property from orphans on the basis of his own assessment

    KT
    RRW

  6. Richard Wolpoe says:

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    FWIW Kesubos 85a Rava unconditionally accepts the testimony of his wife [both a woman AND A a relative] regarding the trustworthiness of a omwn re: giving an oath but rejects the ingular testimony of Rav Pappa because he is ONLY 1 witness!

    Rava ssates: re: bas rav Hisda [i.e his own wife} I am CERTAIN she would not lie, about Rav Pappa I am not so positive.

    KT
    RRW

  7. Mike S says:

    I think you were a little careless in your discussion of nulifying marriages. Rav Rackman’s innovation was to nullify marriages retrospectively. It was fairly common in the Middle Ages, before our current practice of performing eirusin and Nissuin at the same ceremony, for communities to enact general takkanos prospectively nullifying marriages not made in accord with the takanah (any kiddushin not performed with a minyan was a pretty common one.) There are a number of t’shuvot of the Rishonim and Acharonim paskening that such takannos are valid and enforcable, and the girl (it was usually a girl and not a grown woman as the bride in these cases) did not require a get. If I recall correctly Rav Kook wrote a t’shuvah regarding the applicability of such a takkanah in the Sephardic community in Yerushalayim to kiddushin given in the marketplace elsewhere in Israel.

  8. micha says:

    Mike,

    I believe you are mistaken. I have been listening to over a year of weekly lectures given by R’ Rakeffet in 1993-1994 on the subject of hafka’as qedushin. It was never common. By the end of the eonic period, we have no record of it being used at all. Even the Rosh, who proposed such a taqanah did not actually apply it when the case came up halakhah lemaaseh. Similarly the Rashba, in his teshuvos. The Rashba simply concludes that if hafkaas qedushin were so easy — why do the last 2 chapters of Yevamos exist?

    There is also a significant difference between saying a unified qehillah can pass a law that declares all future ceremonies of a certain format invalid (or an invalidation of a get declared as grounds for retroactive annulment) and annulling marriages on a casewise basis.

    -micha

  9. Mike S. says:

    I think you missed my point. I was trying to say what I think you meant by your second paragraph. However, I think the key difference is not blanket takkana versus case-by-case, but the difference between prospective and retrospective application.

    Takkanos to nullify a marriage prospectively, i.e. to prevent the kiddushin from being chal in the first place, despite their having no d’oraita defect, were fairly common in the Middle Ages, and were enforced even into this century. They eventually led to our current ceremony, combining Kiddushin and nissuin. What was uncommon, if not unheard of, and what is Rav Rackman’s innovation, is to use hafka’at kiddushin to nullify retrospectively, that is, l’mafreya after some period of them having been (or seeming to be) a valid marriage. If I have time I will provide ma’arei mekomot after Shabbat.

  10. Mike S says:

    I don’t have much time, but Sh”ut Tashbat”z 1:133 has a discussion of the difference between prospective and retrospective cases. Rav Rakeffet’s lectures of 12/25/2005 and 1/1/2005 (and maybe a couple around them) discuss a couple of cases in Eretz Yisrael 100 years ago.

  11. micha says:

    Since I’m still in the 1990s, it’ll be a while before I get to those shiurim. But you’re right, I saw “it was fairly common in the Middle Ages”, misunderstood your “it” and didn’t get your point.

    So far, RAR noted that of the cases in the gemara, all share two properties:

    1- They are rules set in advance. E.g. Anyone who weds in the marketplace. Or anyone who sends a get and invalidates it before the get reaches his wife.

    2- They all involve an action, either a wedding ceremony that would otherwise have been valid, or a get that would otherwise have been invalid.

    And there is a question as to whether anyone after the gemara, or perhaps after the end of the central authority of the geonim, could enact such laws.

    Rabbi Rackman’s usages seems to be unprecedented. But I think you would agree to that.

    -micha

    PS: The teshuvah you half remember… Was it perhaps the Chacham Bashi about a Teimani wedding in the 1880s? I’m not in the 20th cent yet, but since you only half remember and it seems to fit…

  12. Mike S says:

    Oops, off by a decade. The Rav rakeffet Shiurim or 1994 and 1995, not 2004 and 5

  13. Mike S says:

    As you surmise, I was not intending to defend Rav Rackman, but to clarify exactly what was so radical about his p’sak.

    There was some dispute about the ability of communities to prevent kiddushin from being chal by a takkanah, but I believe that we genrally pasken that such takkanos are enforced. However, I do not believe kiddushin were nullified l’mafreya by the Rishonim or Acharonim, as you said. Indeed, there would have been no need whatsoever to deal with the gittin of m’shumadim, a substantial body of Shu”t literature, if the Rishonim and Acharonim felt they could just be mafkiya kiddushin l’mafreya.

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