Avodah Mailing List

Volume 06 : Number 091

Wednesday, January 3 2001

• Re: das Moshe
• Re: das Moshe
• Twelve (hope I'm not too late)
• Re: hair covering as a das yehudis or a das moshe
• covering face
• Re: das Moshe
• T'filin
• taleissim and atifas Yishmoelim
• Re: Baal nefesh
• Re: Baal nefesh
• Re: Baal nefesh
• Re: Forgetting Halachos - Re: Dor Revi'i and TSBP
• Re: Forgetting Halachos - Re: Dor Revi'i and TSBP
• Re: Dor Revi'i and TSBP
• Re: Types of Halachos - Re: Dor Revi'i and TSBP
• Re: Rambam, Hilchos Mamrim 2:1 - Re: Dor Revi'i and TSBP
• Re: Compilation of the Mishnah - Re: Dor Revi'i and TSBP
• Re: Rishonim, not
• RE: Rishonim, not

From: Rabbi Y. H. Henkin <henkin@surfree.net.il>
>>From the Rosh on the Mishna in Ketuvot 72a:

>"What is dat Moshe? A wife who feeds him untithed produce, or  has relations
>with him when she is  niddah, or does not separate chalah [from his bread],
>or vows and does not fulfill [her vows]. What is dat Yehudit? A wife who
>goes out bareheaded, or knits in the marketplace, or talks to
>everybody... That which she violates dat Moshe and [dat] Yehudit and receives
>no  ketuva, [in the case of dat Moshe] it is that she causes him to stumble
>(machshilato) such as the cases in the Mishneh and similarly if she feeds
>him cheilev or blood, and also [if she]vows and does not fulfill [her vows],
>because of his sons. But if she [alone] violates other aveirot such as if
>she herself ate forbidden foods, she has not lost her ketuva. And [in the
>case of] dat Yehudit, she loses [it] because of brazenness and suspicion of
>promiscuity."

Why add in brackets [in the case of dat Moshe] to the Rosh?  Clearly he
himself is talking about both categories:  DM and DY.  Her aveiros affect
him.  Either he is sinning or losing his sons or his marriage.  Her private
aveiros don't affect him.  DY needs further explanation of the Rosh because
it is not necessarily a full aveira.

Shlomo Goldstein

> Why add in brackets [in the case of dat Moshe] to the Rosh?  Clearly he
> himself is talking about both categories:  DM and DY.  Her aveiros affect
> him.  Either he is sinning or losing his sons or his marriage.  Her private
> aveiros don't affect him.  DY needs further explanation of the Rosh because
> it is not necessarily a full aveira.

Shalom,

To say that in the case of dat Yehudit "her aveirot affect him. He
is losing ... his marriage" is circular. If he wouldn't be losing his
marriage her aveirot wouldn't currently affect him. Also, halacha is
that her husband is permitted and recommended to divorce her, but he is
not compelled to.

"Losing his marriage" seems to me anachronistic as a paraphrase of
"These women go out without a ketuvah."

All of the examples in the section in the Rosh which I labeled in
brackets dat Moshe, are from the list of dat Moshe in the Mishnah. It
is not likely that the section refers to dat Yehudit.

I did not follow your argument "... because it is not necessarily a
full aveirah."

With Torah blessings,
Rabbi Yehuda H. Henkin*
* (not Rabbi H. Henkin)

Now that Aryeh Leib's shabbos chanukoh BM celebration is history - and
thanks to our christian colleagues we are enjoying the usual exceptionally
slow time of year - I thought to re-dip my toes in the yam shel avodoh
and offer a few comments culled entirely at random from the truly awe
inspiring volume of traffic generated since I last retired as an active
poster.

Twelve: re the inquiry some time ago about the presumed significance
of the number twleve, since there are davka twelve canonical sh'votim
(though there precise identification does seem to shift). The first point
that ought be made is that the notion of a twelve tribe nation is hardly
limited to b'nei yisroel. We see in bireishis that b'nei yishmo'el
are also organized into a twelve tribe taxonomy, as are the edomi.
That b'nei qituroh are organized into a six tribe system is probably no
coincidence either. Outside the toroh, and at a later date to be sure,
one finds a similar twelve tribe federation - designated an amphyctiony
-amongst the greeks (the delphic league) and also the etruscans. So it
seems to be a rather common arrangement, which if one assumes a common
cultural thread at work (a notion which internally directed/ yisroel
betach bodod/ traditional types might well reject), then one might seek
a common impetus. That impetus, one can suggest , is none other than the
calendar. All these societies inherited the mesopotamian calendar of 12
months. Also, all these amphyctionic societies were organized around
a central sacred shrine with a rotating caretaking, which scheduling
would be considerably aided by corresponding population subgrouped into
twelve orders. And while the caretaking of jewish central shrine, o'hel
mo'eid/bais miqdosh, was ultimately entrusted to a single population
group - descendents of levi - this too was not meant to be the original
plan which would certainly have entailed a full tribal rotation, as one
contemplates the statistical improbability of eleven tribes producing
only first born females in perpetuity.

Mechy Frankel				W: (703) 588-7424
mechyfrankel@zdnetonebox.com		H: (301) 593-3949
Michael.Frankel@osd.mil

"Yosef Gavriel Bechhofer" <sbechhof@casbah.acns.nwu.edu> wrote:
>> In the context of Limud Zechus, while I must defer to your expertice,
>> it seems to me that the fact that it is stated in the context of "valid
>> grounds for divorce" does not limit the SA's definition of it being
>> a Das Yehudis to only divorce situations, thus making hair covering a
>> relativistic Halacha.

> Pray tell why this is *not* an obvious limitation?
 
Because it is listed as a Daas Yehudis. To quote SA 115:4...

"What is considered a Daas Yehudis?... that which is the Minhag Tznius
and is the custum of the daughters of Israel and if she transgresses
one of them she is liable on the transgresion of Daas Yehudis (eg):
if she goes out to an open alleyway or courtyard where it is a public
area and her head is uncovered and there is no hat on her as is the
manner of all women and even if there is a scarf...(other examples of
Daas Yehudis)...all of these invalidate her Kesuvah rights etc."

The fact that the SA is is Paskining her Kesubah rights does not take away
from his defining which category "uncovered hair" falls into. As can be
seen from the quote above it is clear that he consisers it Daas Yehudis.

HM

> Anyone who has seen Yishmaelim wrapped up should realize that the one
> place they do not cover is at least part of the face that lets them
> see where they're going.

In recent parsha and daf yomi Yehuda did not recognize Tamar because she
covered herself while she married (ki cisasa referes to her married life
not to how she was on the crossroad).
However, if she only covered her hair and not her face how come Yehuda
did not recognize her?

Eli Turkel

RYHH shlita wrote:
>    To say that in the case of dat Yehudit "her aveirot affect him. He is
>losing ...his marriage" is circular. If he wouldn't be losing his marriage
>her aveirot wouldn't currently affect him.

I was unclear.  I meant she harms their current married relationship by not
behaving as a proper wife.


>    I did not follow your argument "... because it is not necessarily a full
>aveirah."


I mean that some of these activities (DY) are not forbidden for non-married
ladies and are not Torah requirements, therefore, the Rosh wants to answer
why they are grounds for divorce

Shlomo Goldstein

RSBA:
>> Those  who do  put on tfillin during Chol Hamoed, what are the reasons
>> given why a person should put on tfillin during Chol HaMoed?

> Because that's what it says in SA - where it also clearly states the
> different times one removes the Tefillin Chol HaMoed Pesach(1st/other
> days) and Sukkos. The question is not on those of us who put on Tefillin,
> but to those who don't.

RSBA is correct, at least for ashqenazim. The burden does fall a little
more heavily on those (of us) who do not put on t'filin on chol hamo'eid
since the remoh posqened one should -- while the shulchon oruch explicitly
posqened one should not. However, I don't think anyone has mentioned
the zohar (or perhaps I've missed it in which case I apologize to the
citer. My avodoh coverage has been fairly episodic). The zohar not only
recommends not wearing t'filin, he (if I may personify the sefer) is quite
adamant that those who do are doing major wrong and are going to come to a
no-good end -- chayov misoh!. In the face of such vehemence, the halachic
tide (it had been seesawing amongst the s'fardim for some time because
of the influence of the rosh, whose ashqenazic practice to wear t'filin
came into conflict with the standard s'fardic practice -- based on the
standard minhog of the g'onim -- not to) turned decisively in s'fardic
areas -- towards not wearing. Obviously those circles more attuned to such
qabbolistically inspired considerations have been persuaded by this. You
can read a more extensive story in one of jacob katz's historical essays
collected in a hebrew volume, halochoh v'qabboloh.

Mechy Frankel				W: (703) 588-7424
Mechyfrankel@zdnetonebox.com		H: (301) 593-3949
Michael.Frankel@osd.mil

Simcha Klagsbrun wrote to Areivim:
>: .... It seemed to him that everyone was putting on their tallaisim
>: right out of the MB, and not out of memory.

From: Micha Berger <micha@aishdas.org>
> Not "tallaisim", "tallisos" or "talliyos"!

> Yes, the irony of giving a textualist correction to something canonized
> in Yiddish is intentional. And yet...

Would the fact that most of Klall Yisroel (well, at least those from
Eastern/Central European background - say 'Taleisim' PROVE that until
recently our ancestors didn't care too much about perfect dikduk (at
least in speech).

[No, it means they spoke Yiddish. Similarly "Shabbosim". -mi]

(BTW it would be interesting to hear from our Sefardi chaverim - how
they/their parents referred to Taleisim/os - in plural.)

> ..I do atifah the way I do. Because the Rambam says that
> if done right, you end up wrapped like a Yishma'eli. ..

I once heard that the Shinever Rav z'l (Divrei Yechezkel-son of the
Divrei Chaim z'l) specifically visited Eretz Yisroel to see how the
Arabs do their atifah.

I also recall seeing in one of the sforim of the Munkatcher Rov z'l
(I'll try to search it) that the method that most people do for atifah -
ie covering their eyes is totally wrong - after all the Yishmoelim
 want to see where they are going..

SBA

SBA <sba@blaze.net.au> wrote to Areivim, in a discussion about who uses
eiruvim, and why in so man homes, only the husband is machmir not to:

> I have asked a  few rabonim who keep pushing the Baal Nefesh
> line re not using an eruv - that maybe a Baal Nefesh is one
> who is Mehader on the Mitzvah of Oneg Shabbos - which using the eruv
> would enhance?

Try this:

Baal Nefesh? Owner of your soul! (and therefore protect it to the max.)

If one is a Baal Nefesh he knows that his soul will be judged by
the entirety of his behavior in the physical world. This means that
in absolutist terms, when someone relies on a Kula, that is Halacha
L'Maaseh and the vast majority of Poskim are in agreement with, he does
no wrong and is following accepted guidelines of behavior, eventhough
there is even a Daas Yachid that is Machmir. Never-the-less, he should
be Machmir on himself and be Choshsesh for the Daas Yachid HaMachmir,
if their is no Halachic downside to this Chumra. In this way he can
be assured that no Issur will be violated at all, even in the outside
chance that the Daas Yachid is correct in his analysis of the Halacha,
i.e., his soul will not be tainted even in the slightest.

This does not mean that acceptance of Psak Halacha L'Kula by Rov HaPoskim
is anything less than laudible behavior. It just means that for one's
own sense of his soul's ultimate destiny he is a Baal Nefesh and chooses
to be machmir only on himself.

Of course this can only be acheived in an ideal plane of existence.
If such behavior impacts negatively on loved ones or society in general
then one should re-exaamine his Chumra observance because a Baal Nefesh
will not want to be responsible for giving over a negative impression
of Torah observance, creating a possible Chillul HaShem.

HM

In a message dated Wed, 3 Jan 2001 10:30:36am EST, Harry Maryles
<hmaryles@yahoo.com> writes:
> This does not mean that acceptance of Psak Halacha L'Kula by Rov HaPoskim
> is anything less than laudible behavior. It just means that for one's
> own sense of his soul's ultimate destiny he is a Baal Nefesh and chooses
> to be machmir only on himself.

So a true baal nefesh would be choshesh for every daat yachid ever posited? 
Why did R' Moshe pick only certain examples to apply this criteria(eg chalav)?

KT
Joel

Joelirich@aol.com wrote:
> So a true baal nefesh would be choshesh for every daat yachid ever posited? 
> Why did R' Moshe pick only certain examples to apply this criteria(eg chalav)?


Good question. My guess is that my definition is applicable in the
ideal world. When RMF said a Baal Nefesh should be Machmir I assume
that he had a somewhat greater threshold of when a Baal Nefesh should
be Machmir. While he might have agreed with what I said, he might have
felt that it would be unnatural and virtually impossible to apply that
standard consistantly in the real world. Therefore, even a Baal Nefesh
would not be required to do so.

I am not sure what his "trip wire" for a Baal Nefesh was but it probably
had something to do with a greater degree of doubt about a Psak L'Kula.
Perhaps he meant, as is the case with Chalav Israel, that eventhogh
he felt that his Heter (for non-Chalav Israel) was legitimate and one
could easily rely on it, there was still substantial reason (i.e. more
than just a Daas Yachid) if one is able, to be machmir. And it is this
"substantial" reason that generates his Baal Nefesh admonition.

HM

On Fri, Dec 29, 2000 at 11:23:49AM -0500, David Glasner quoted the Rambam's
introduction to Zeraim 54a:
: aval mi she-yahashov she-ha-dinim she-nehelaku ba-hem k'mo kein m'kubalim
: mi-pi Moshe...

According to the Rambam, there are no machlokesin in halachos liMoshe
miSinai or in dinim spelled out in the pasuk. He therefore can't
be discusses the causes of such machlokesin. The Rambam here must
be referring to di'Oraisos that were given to Moshe Rabbeinu only
by implication, that we infer from the premises biderech sivara or
derashah. I know it's a dochak in the lashon here, but he gives us no
other category which is even slighly "m'kubalim mipi Moshe" in which he
believes machlokesin can arise.

Also note that the Rambam speaks of one side being wrong because of
ignorance or error -- not that one side is silent. He could be asserting
something about the entrance of false information into the mesorah;
not about forgetting altogether. As RGS later points out, we have
instances where one side of the machlokes gave in when they heard that
the other side had a mesorah that their kehillah had lost. Apparantly
shich'chah IS possible.


I therefore disagree with R' Gil's assessment of the Rambam:
: What I see the Rambam saying is that one should not say that a machlokes
: is due to one person forgetting an HLMmS or that a mistake was made in
: the transmission of an HLMmS.

Yes, he rules out forgetting or erring in a hlMmS, but I think he's
saying more than that here -- that any machlokes is about how to paskin
between two right answers, not between right and wrong.

Since I believe the rest of RGS's statement is true based on seifer
haMitzvos, just not what the Rambam says here, I'd like to comment.

: 1] HLMmS's cannot be forgotten (which is how you understand this Rambam)
: 2] If any party of a machlokes claims that he has a tradition about a
: HLMmS then the other party will immediately accept the HLMmS....

This is a question I asked last week: is hlMmS prescriptive or
descriptive? Does labeling a halachah hlMmS mean that there is divine
protection of that din from machlokes? Or is the label applied post-facto
-- whenever chazal noted a din that is based on mesorah and never had a
machlokes, they called it hlMmS? The latter would explain the expression's
colloquial use -- sometimes even diRabbanan's are called hlMmS.

On a slightly different point:

The Malbim's introduction to Vayikra implies that it is possible for
halachos to be lost through shich'cha. He writes that all of Torah could
be restored using the text, derashah and sevarah. Implied is that the
need for such restoration is possible, no?

I don't understand this Malbim, since the rules of derashah are themselves
TSVBP, what if they themselves were ch"v lost? Say, for example, we
forgot how to coin a k'lal up'rat -- how can we then find individual
instances of k'lal up'rat that were forgotten?

LAD, this is lima'aseh what happened. Boaz was able to coin a hekesh --
Moavi vilo Moavis requires already knowing that only male Amonim were
chotei and that Amoni and Moavi are referred to in the same pasuk. By
the days of the tana'im, we have a b'raisa in Cheilek telling us that we
can't coin gezeiros shavah, we can only use those that we have a mesorah
for. The Amora'im only reserved the right to make a new kal vachomer.
Apparantly we lost the ability to make derashos during the period
of Chazal.

So, nowadays, we only have derashos via mesorah, we don't discover
new ones. So how can we recreate anything that was forgotten?

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

Gil Student wrote:
> What I see the Rambam saying is that one should not say that a machlokes
> is due to one person forgetting an HLMmS or that a mistake was made in
> the transmission of an HLMmS.

> The Rambam does not explain why but I can think of two reasons:

> 1] HLMmS's cannot be forgotten (which is how you understand this Rambam)

> 2] If any party of a machlokes claims that he has a tradition about a
> HLMmS then the other party will immediately accept the HLMmS. Since the
> machlokos in the gemara remained machlokos, neither party must have
> claimed to have a tradition.

Well you may be right, but I have a hard time reconciling your interpretation 
with what the Rambam actually wrote, as I think the Havot Yair would as well.

> An example of 2] can be found in the Mishnah on Yevamos 76b, "If it is an
> halachah, we will accept it. But if you derived it, we have a response."

As for the Mishnah in Yevamot, my off-the-cuff reaction, without I admit
even looking it up, is that this is a d'huya b'alma from which you can't
necessarily draw an inference either way on point 2.

David Glasner
dglasner@ftc.gov

Micha Berger wrote:
> Let's start with Seifer haMitzvos....
> I- Di'Oraisa
>     1- Those that come from the pasuk
>     2- Halachah liMosheh miSinai
>     3- Conclusions reached from 1, 2, and earlier halachos of this category
>        via derashah and sevarah.
> II- Di'Rabbanan
>     4- Siyag
>     5- Dinim Dirabanan

I basically agree with this except I note again that there are very great
(if not insuperable problems in trying to determine what is and what
is not Halakhah l'Moshe mi-Sinai either in the strict sense in which
that term is used by the Rambam or the more general sense that includes
interpretations of p'sukim derived mi-pi ha-shemua. A further quibble
is that the dividing line between I.3 and II is not so clear because
I.3 seems to refer to divrei sofrim which can have either d'oraita or
d'rabbanan status.

> To explain the Rambam, he holds that halachos that come from pisukim
> (1) or are hlMmS (2) are immune from machlokes. There is no Rabbinic
> input. So, when he addresses the authority of a beis din, as in Hil
> Mamrim perek 2, he can only be talking about 3 - 6.

I agree that he is only talking about 3 - 6, which to me seems to include most 
of our everyday halakhic practice.  But, the boundary between 1-2 and 3
is far from clear.

> Li nir'eh that 2:1 can only refer to derashos, possibly the entire
> category 3, sevara as well. The words "shedarshu bi'achas min hamidos"
> is pretty clear...

Actually, come to think of it, s'vara is on the same level as category 1.
"kra mai ba'i? s'vara hu."  Again, I see no basis for saying that, if a later
Sanhedrin were to conclude that spontaneous generation does not occur, 
that it could not change the halakhah p'sukah (whether l'heter or l'issur is
irrelevant) concerning killing a louse on Shabbat.

David Glasner
dglasner@ftc.gov

Gil Student wrote:
> I am not understanding something. RD Glasner has said or hinted on
> a number of occasions that, according to R. Yishmael, shechitah only
> requires slitting the throat. From where do you see that? Is there a
> passage other than those on Chullin 17b-18a [actually 16b-17a, dg] 
> and 28a that is relevant?

Well, the Dor Revi'i proves this in his p'tihah from many places in
Hulin and elswhere in Shas. I obviously can't reproduce that here.
In a short space, perhaps the best that I can do is to point out that
the halakhah is that sh'hitah is effective as soon as the simanim are
cut even before the animal dies. Thus, one would be allowed to cut a
piece of flesh from the throat of the animal before it dies and eat it.
There might be a separate issur d'rabban on doing so based on the pasuk
lo tokhlu al ha-dam, but there is no question that the sh'hitah takes
effect immediately and the issur of eiver min ha-hai is terminated. This
seems to be a tremendous kulah, because under Noahide law, one would not
be allowed to eat flesh taken from an animal before it actually died.
Where does this halakhah, which was a source of astonishment to many
aharonim, come from? Halakhically, it is based on Rebi's baraita which
gives the shiur of sh'hitat simanim as derived from a Halakhah l'Moshe
mi-Sinai. But what is the halakhah itself based on.

One has to understand how R. Akiva was reading the p'sukim in parashat
Re'eh. What were the p'sukim talking about if, as R. Akiva holds, the
Israelites had been eating b'sar ta'avah all along, except that they were
not using sh'hitah to slaughter animals but n'hirah? Two things were
going on. First they would no longer be close to the Mishkan so they would
no longer be able to easily bring a korban before eating meat. So to allow
them to eat meat with some greater element of k'dushah attached to it,
the pasuk is allowing them to use the method of sh'hitah, which heretofore
had been reserved for korbanot, even on hulin. But secondarily, the
substitution of sh'hitah for n'hirah meant obviously that n'hirah was no
longer allowed at all, so that it was no longer possible for someone,
with a burning desire to eat meat, to kill an animal instantly, say,
by choping its head off. Therefore the words b'kol avat nafsh'kha tokhal
basar, according to R. Akiva came to allow one to eat meat immediately
after v'zavakhta, i.e., even before y'tziat n'shamah.

But R. Yishmaeldoes not interpret the p'sukim in this way. There was
never such a thing as n'hirah and sh'hitah was never afforded any special
halakhic status, it was simply the preparation required to terminate
the prohibition of eiver min ha-hai while avoiding the prohibition of
n'veilah. Thus, as long as the animal died from a slit on the throat
within 24 hours (mei-eit l'eit) the requirement of sh'hitah was satisfied
according to R. Yishmael. The Talmud well understands that the five
p'sulei sh'hitah are latent in the meaning of sh'hitah which is to cut
in a continuous back and forth motion. No Halakhah l'Moshe mi-Sinai was
necessary for those p'sulei sh'hitah, according to R. Yishmael. At first
R. Akiva did not accept that there was any Halakhah l'Moshe mi-Sinai
for the p'sulie sh'hitah either, and the mishnayot in Hulin are based
on that premise, i.e. nishnu kodem hazarah. It was only R. Y'sheivav,
who, based on a tradition from R. Yehoshua, held that there was a need
for a Halakhah l'Moshe mi-Sinai concerning those p'sulei sh'hitah to
teach us that the p'sulei sh'hitah would not just invalidate a sh'hitah,
but cause n'veilah, even though during the 40 years in the desert such
p'sulei sh'hitah had never caused n'veilah, because n'hirah was valid
and the p'sulei sh'hitah are irrelevant to n'hirah. That is why the
issur of n'veilah had to be repeated in parashat Re'eh, even though
every one already knew that there was such a prohibition. But in Re'eh
it says lo tokhlu kol n'veilah to include even the p'sulei sh'hitah.
The pasuk also says that one may dispose of the n'veilah by selling it
to a non-Jew even though previously the Torah said that the carcass of a
treifah was to be thrown to the dogs. A treifah min ha-Torah (she-nat'tah
lamut mahmat makoteha as opposed to one of the 18 treifot derived from the
Halakakha) or a n'veilah that died a natural death are unfit for human
consumption and it would be prohibited for any human being to eat them
(even a m'sukent that was slaughtered before dying should not be eaten
even though there is no actual issur to do so). However, a n'veilah
that results from a p'sul in the sh'hitah is fit for human consumption
and may be sold to a Gentile.

This is a longer, and more complicated answer than I meant to give
you, but I hope it helps as an introduction to how the Dor Revi'i
understands the mahloket R. Akiva-R. Yishmael which is the basis for
much of masekhet Hulin.

David Glasner
dglasner@ftc.gov

Gil Student wrote:
> Only some of the times that the 13 midos were used were strictly for
> deriving new halachos. Unfortunately, the tannaim and amoraim did not
> leave us flags to identify which derashos are derivative and which are
> merely supportive. However, the gemara was never interested in spelling
> everything out for us.

I don't necessarily disagree with this, but I hope you can see why I don't
think that you have established that under the terms of Mamrim 2:1, 
there is any clear limitation on what a Sanhedrin could do in the way of
changing halakhot based on new or alternative drashot to those that
are in the Talmud.

>>                                   What would prevent
>> a new Sanhedrin if it should come into existence 
>> (speedily in our days) from propounding new halakhot
>> of its own?

> Nothing.

We seem to have arrived at some degree of consensus here, but
somehow I think that there are still disagreements between us
lurking beneath the surface.  But that's not necessarily a bad thing.

David Glasner
dglasner@ftc.gov

Gil Student wrote:
> The Maharatz Chajes in his Toras Nevi'im, Ma'amar Los Sasur and Ateres
> Tzvi, Mishpat HaHora'ah distinguishes between the din of acharei rabim
> lehatos and holchin achar harov...

I will take you at your word that there is such a hiluk, but I don't
think that the hiluk is at all relevant to our discussion. See below.
Moreover, on what basis does the MC decide what the nature of the p'sak
that emanated from beit dino shel Rebi.

> The MC says that the process that resulted in the Mishnah was like a
> gathering of a sanhedrin and a stam Mishnah is like the ruling of this
> sanhedrin. No one can disagree with a stam Mishnah and no subsequent beis
> din can overrule a stam Mishnah because there was a give-and-take at the
> time and the tannaim were evidently able to answer all of the questions
> posed.

I still don't understand. How does one Sanhedrin control a later one?
How does the MC read Mamrim 2:1? Forget Mamrim 2:1, how does he read the
p'sukim in Shoftim? Besides the halakhah p'sukah does not always accord
with a stam Mishnah.

David Glasner
dglasner@ftc.gov

On Mon, Jan 01, 2001 at 08:13:35AM +0200, Eli Turkel wrote:
: Chazon Ish argues and says that the Amoraim took on themselves not to
: argue with Tannaim because they recognized the greater level of the
: Tannaim. His main proof is that Amoraim don't argue with Beraitot or other
: statements of Tannaim that are not Mishnaic...

On Mon, Jan 01, 2001 at 06:46:23PM -0800, Gil Student wrote:
> The [Maharatz Chajes] says that the process that resulted in the Mishnah
> was like a gathering of a sanhedrin and a stam Mishnah is like the
> ruling of this sanhedrin....

Lulei dimitztafina (from arguing with both the CI and the MC) hayisi omeir
that the sealing of the mishnah could signal the end of the tannaitic
era as a whole, rather than using the MC's sevara.

I would have placed the importance of the mishnah not on the process of
composition, but on that of public acceptance. IOW, that it was commonly
accepted that Rebbe's collection represents a summary of the tannaim's
major machlokesin, the period's primary maskanos. This makes the mishnah
a chasimah of the period, and not only an authoritative statement of those
that Rebbe quotes and the dinim he included.

On Tue, Jan 02, 2001 at 12:23:55PM -0800, Michael Frankel wrote:
:                                   The Leked Yosher, T'rumas Haddeshen,
: and Maharil for that matter are all acharonim ...
: The -ashqenazic anyway-  period of rishonim ends in the mid 1300s with
: the large scale outbreak of the black plague in europe.

Li nir'eh R' Mechy Frankel is holding like the CI, not the MC (nor my
own assumptions). IOW, that it's about the quality of the mesorah and
the level of the Torah and yir'ah culture pre-rupture that makes it more
authoritative than those who lived post-reconstruction.

According to the MC, it would be more mistabeir to set the line between
rishonim and acharonim at the SA or the Mappa, depending upon the kehillah.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halberstam of Klausenberg zt"l

Micha Berger
> Lulei dimitztafina (from arguing with both the CI and the MC) hayisi omeir
> that the sealing of the mishnah could signal the end of the tannaitic
> era as a whole, rather than using the MC's sevara.

> I would have placed the importance of the mishnah not on the process of
> composition, but on that of public acceptance. IOW, that it was commonly
> accepted that Rebbe's collection represents a summary of the tannaim's
> major machlokesin, the period's primary maskanos...

The issue then becomes: 
How do we deal with Braisos and Toseftos that did not make it into the
Mishnah? Are they Tannaitic albeit on a slightly lower level or are
they to be treated as "rejects"? (think of the seformim hachitzonim -
the Apocryopha - as analgous)

IOW, Did Rebbe "canonize" the Mishna to the exclusion of other Tannaitic
literature or not?

Being a fan of public acceptance myself, I would say MINIMALLY, rebbe
defined THE tannaitic textbook in terms of learning and organization.
IOW, virtually no one learns Tosefta/Braissos except as a cross reference
for a given sugya.

However, Tosefta and Braissa DO seem to be used to elucidate a Mishna now
and again and the Gmoro sometimes even brings down a braissa that argues.

Shalom
Rich Wolpoe

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