Avodah Mailing List

Volume 17 : Number 085

Monday, July 10 2006

• Capital punishment
• Re: Tzaar Ba'alei Chaim
• Re: How do Achronim become Rishonim?
• Re: Veal and RMF
• re: Tzaar Ba'alei Chaim
• Re: Tzaar Ba'alei Chaim
• Re: historical contingency and brachos
• RE: How do Achronim become Rishonim?
• Re: Capital punishment
• Re: Veal and RMF
• Re: checking a sefer torah
• Re: historical contingency and brachos
• Re: How do Achronim become Rishonim?
• Re: Nevu'ah in Hebrew?
• Re: kiyem Avraham Avinu kol haTorah?

On Areivim, someone wrote:
> Oh wait, i forgot... minimizing the death penalty is a liberal  
> Democratic value, and therefore by definition anti-Torah.  Someone go  
> tell Ribbi Tarfon, Ribbi `Aqiva and Ribbi El`azar ben `Azarya...  
> (Makot 7a)

Someone did tell R Tarfon & R Akiva: R Shimon ben Gamliel, who gets the
last word. [it helps to have your son edit the transcript :-)]

As for REBA, is his stance really about minimising the application of the
death penalty, or is it, like that of the Tanna Kamma, about minimising
the *need* for it? The TK says that even a properly governed society will
experience a capital crime about every seven years; is REBA simply saying
that with enough education, *and with especially rigorous enforcement
of lesser penalties* (cf Rudy Giuliani's successful application of the
"broken windows" theory), the incidence of serious crime can be reduced
to one per 70 years? Or is "70 years" a figure for "ever", in which case
he is rejecting the TK's theory altogether and siding with RT and RA?
The gemara asks this and can't answer it.

-- 
Zev Sero
zev@sero.name

[The first topic raised seems to be a dead-end in terms of productivity.
 -mi]

> On the subject of Tzaar Ba'alei Chaim and veal, Jacob Farkas wrote:
>> Pardon me for pointing out that testimony from Shokhtim on this matter
>> is the fairness equivalent of my using PETA as a source that veal calves
>> are mistreated....

R' Shalom L. Kohn wrote:
> 1. I know and can vouch for the integrity of the shochtim I was quoting.

I don't suppose my knowing a PETA member and vouching for his integrity
would change your mind either (hypothetically speaking). You would find
him to be Noge'a beDavar, or hypersensitive to the plight of animals. I
don't discount the Shokhet's trustworthiness, but his line of work frames
his position on animal welfare matters in a light that is unfair to
introduce when discussing TZBH. In legal terms, his testimony on these
matters would be considered conflict of interest.

> 2. If you don't trust shochtims' word on this issue, I don't know how
> you can trust them that their shechita is kosher.

Issur V'hetter allows for the testimony of Eid ehad, provided that his/her
Hezqas Kashrus is intact. However, s/he would still be disqualified if
called in to testify for matters in which s/he is Noge'a BeDavar.

> He also wrote:
>> In any case, reports about the mistreatment of calves is not R'
>> Tendler's Hiddush, it is well known, and has been a cause of great
>> controversy between cattle farmers and animal welfare advocates for years.

> The magic words here are "animal welfare advocates"

They are the ones fighting the cause. Are they biased? Of course, but
so are cattle farmers. Bottom line is that their testimony has launched
investigations by government agencies and regulations were put into
place as a result. Advocates claim that these measures are not enough,
and would like for stronger measures to be legislated.

> He also wrote:
>> The greater question is your argument against human projection in the
>> evaluation of TZBH. See an earlier discussion:
>> <http://www.aishdas.org/avodah/vol16/v16n166.shtml#09>

> Not germane. The issue there was whether human suffering (by humans)
> is deemed Tzaar Ba'alei Chaim.

I was referring to the reasoning I cited why the Havos Ya'ir would
exempt human suffering from TZBH, where the HY points out that animals
lack a voice to protest their mistreatment, unlike people. By lacking a
voice, any knowledge of their pain is through projection, exclusively.
(Modern scientific research should be able to determine pain and suffering
as well, though not a criterion in the description of the Issur in Shas
and Posqim.)

> He also wrote:
>> Inasmuch as the Torah asked to intervene on behalf of animals we
>> perceive are suffering, it is only human projection that can determine or
>> estimate an animal's pain. Animals don't communicate, so how do we know
>> that Roveitz Tahas Masa'o is TZBH, only because we perceive it to be so,
>> based on our own experience given in that situation.

> Let's see. How many humans would like to be attached to an oxcart and
> pull it through the streets? How about having their faces muzzled,
> wear a saddle, have their lactating organs attached to a machine, kept
> in a bird cage, hit (even lightly) with a whip to go faster, be kept on
> a leash, etc.? Humans can certainly intuit about animal suffering based
> on the animal's reaction and some common sense, but I would submit that
> "Da'alach Sanei Le-Chavrach Lo Sa'avid" is a halacha about "Chavrach,"
> and animals do not fit that category.

It would be Assur to do all of the above to animals, if not for Tzorekh
haAdam. Horse racing is most likely Assur (Whether Trumas HaDeshen would
permit it, because it does profit the owners is a question of its own
right... -jf) The point I was trying to raise a few posts ago was that
Tzorekh haAdam and Akhzariyos are interrelated. Should there be *need*,
the animal's needs are secondary. Absent of need, the animals condition
needs to be addressed. Should the need be so trivial, the Akhzariyos
factor could determine that this trivial need is not sufficient to
override the animal's pain.

> Finally, he wrote:
>> On another note, this isn't the first instance where I hear of T'shuvos
>> in Igros Moshe being challenged on RMF mistake of fact (according to
>> those challenging his p'saq on that given matter, of course). Is this a
>> common challenge to Posqim, and RMF in particular, when all other logical
>> approaches fail, or was RMF often misled? Should the latter be true,
>> what does that say about the Siyata Dishmaya of a Poseq, particularly
>> one who is crowned as Poseq haDor?

> 1. Rav Moshe would be the first to say that if the facts are not as he
> assumed, the p'sak would not be the same.

Fair.

> 2. He would probably also be the first to say that although he hoped for
> "siyata d'ismaya," his words were not vested with nevu'ah. One hallmark
> of the man was his intellectual honesty.

I meant Siyata Dishmaya in obtaining the right facts. We (too) often
hear that he was misled in facts.

> 3. Castigating those who dispute the factual basis for a psak as somehow
> not in good faith is unfair at best. On the other side of the coin,
> assuming that Rav Moshe gave a heter and a metziut changed, would we
> adhere to his heter regardless? We know, for example, that Rav Moshe
> drank NYC water. For those who now question that water's kashrut, do we
> say that tzaddikim are never nichshal on treifos (see sugya and tosafot
> re: Pinchas ben Yair's donkey), or do we say the facts have changed?

The Metzius with veal farming has *not* changed (in the US) since RMF
T'shuva. The conditions have improved in Europe, though. Should the
Metzius change in the US, both you and I agree will absolutely agree
that his T'shuvah was for the time being, when calves were tortured.
Until then, I will conclude that they are still tortured and his T'shuva
criticizing the practice still applies.

Jacob Farkas

Ilana Sober wrote:
> We are now undergoing a similar transition from print to electronic
> transmission of texts - it's a lot easier just to start a blog than to
> go to the trouble of getting a book accepted for publication. And even
> in the world of printed books, it is much cheaper and easier to produce
> a book when the "manuscript" is submitted electronically and much of
> the formatting is automated.

There is a tremendous proliferation of Sefarim today. Anyone today
can publish a sefer (and get Haskamos as well). The night kollel that
I learned in is publishing a sefer with an article by me (v'hamavein
yavin). This is good and bad. The good is obvious. The bad is that it
is very hard to distinguish the great from the good from the bad from
the awful (that should not be published). There are so many sefarim
being published it is very hard to keep up. In one of the shuls where I
daven, every morning there are different sefarim new sefarim published by
authors most people have never heard of. I would guess that in future
generations the end of the era of the Acharonim is going to be marked
sometime in the past 20 years and all the new sefarim coming out will
be given some new characterization.

Jacob Farkas <jfarkas@compufar.com> wrote:
> R' Bannett wrote:
>> proof that penned in chickens are sublimely happy is that they lay even
>> more eggs than free rangers.

> If it can be proved that donkeys are perfectly happy with a great load
> on their backs, would it be relevant to TZBH? 

There's no general limit on how big a load one may put on a donkey;
there are no maximum weight regulations, and no suggestion that there
ought to be such regulations. The passuk only steps in when the burden
on an individual donkey is clearly too much for it to carry, and it
is in fact *not* carrying it. AFAIK the mitzvah is only to remove as
much weight as will enable the donkey to get up and carry what's left;
as soon as it does so, there's no mitzvah or reason to remove any more.

-- 
Zev Sero
zev@sero.name

Shalom Kohn wrote:
> We know, for example, that Rav Moshe
> drank NYC water. For those who now question that water's kashrut, do we
> say that tzaddikim are never nichshal on treifos (see sugya and tosafot
> re: Pinchas ben Yair's donkey), or do we say the facts have changed?

To the best of my knowledge the facts haven't changed in NYover the past
20 years, how do we understand that?

On Mon, Jul 10, 2006 at 01:42:55PM -0400, Marty Bluke wrote:
: To the best of my knowledge the facts haven't changed in NYover the past
: 20 years, how do we understand that?

I have no idea how large the crustaceans (copepods et al) in NY tap water
were in the past. For all I know, nothing the size of Diacyclops thomasi,
Mesocyclops edax or Skistodiaptomus pygmaeus (the species named by the OU)
were in the water, only things that don't even look like white specs to the
naked eye.

Still, I have no reason to believe RMF would have been more machmir than
RHS and RYBelsky.

-mi

RMB:
> From the days of the original Greek philosophers, the people who
> advanced science the furthest were monotheists or deists. (Including
> Aristotle.) I think technology is best served by the belief system
> (or at least products of a culture founded on the belief system) that
> expects a rational purposive and designed universe.
> Xianity therefore indirectly gave Europe a technological advantage.

absolutely correct
and one more reason why the scorn many scientists feel towards religion
is so misplaced their discipline would not even exist if Torah (via the
Christian bible) had not paved the way

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

R' Marty Bluke:
> I would guess that in future
> generations the end of the era of the Acharonim is going to be marked
> sometime in the past 20 years and all the new sefarim coming out will
> be given some new characterization.

I don't think that it would be particularly wild to mark the beginning
of the current era after the printing of the Mishna Berurah.

KT,
MYG

R' Zev Sero wrote:
> Someone did tell R Tarfon & R Akiva: R Shimon ben Gamliel, who gets the
> last word. [it helps to have your son edit the transcript :-)]

While RSBG did dispute R' Tarfon and R' Aqiva, it can't be argued that
RT and RA by seeking to minimize death penalty were Anti-Torah, which
was the poster's point.

> As for REBA, is his stance really about minimising the application of the
> death penalty, or is it, like that of the Tanna Kamma, about minimising
> the *need* for it? The TK says that even a properly governed society will
> experience a capital crime about every seven years; is REBA simply saying
> that with enough education, *and with especially rigorous enforcement
> of lesser penalties* (cf Rudy Giuliani's successful application of the
> "broken windows" theory), the incidence of serious crime can be reduced
> to one per 70 years? Or is "70 years" a figure for "ever", in which case
> he is rejecting the TK's theory altogether and siding with RT and RA?
> The gemara asks this and can't answer it.

RT and RA would seek to disqualify the testimony so to avoid applying
capital punishment. TK and REBA would not. Even TK felt that the
application of capital punishment was such a technical improbability
that a Sanhedrin who authorized one in seven was Hovlanis. The Gemara's
Eebaya can be asked about REBA even if we consider that the application of
capital punishment is the issue. Was REBA saying that the probability of
having the perfect case, i.e. one that can result in capital punishment
is so unlikely that if it occurred once in seventy years, that Sanhedrin
would be considered Hovlanis, thus rebuking a Sanhedrin that is incapable
of finding a way to avoid application of capital punishment, or is
REBA in agreement with the TK that once in seven years is a reflection
of a punitive Sanhedrin, but in reality such a perfect case does have
a history of occurring every seventy years. Should a scenario arise
that a Sanhedrin applied capital punishment once every ten years, REBA
would concede that it isn't the fault of an overly punitive Sanhedrin,
but rather a reflection of increased violence. In the first Tzad of the
eebaya, REBA would consider such a Sanhedrin Hovlanis.

Jacob Farkas

R' Zev Sero wrote:
> There's no general limit on how big a load one may put on a donkey;
> there are no maximum weight regulations, and no suggestion that there
> ought to be such regulations. The passuk only steps in when the burden
> on an individual donkey is clearly too much for it to carry, and it
> is in fact *not* carrying it. AFAIK the mitzvah is only to remove as
> much weight as will enable the donkey to get up and carry what's left;
> as soon as it does so, there's no mitzvah or reason to remove any more.

Absolutely true. There is no Tzorekh haAdam in having a donkey lay on
the road with packages attached. Should it be capable of carrying said
load, there is a purpose, otherwise its Tza'ar needs to be considered.
My point was that even if we could somehow determine that the donkey
wasn't uncomfortable with the added weight per se, that the overburdening
was just a physical limitation without any other signs of pain or stress,
we *assume* that the animal is under duress and help it to its feet by
unburdening its load.

I won't argue that penned chickens aren't serving a purpose that could
invoke TZBH over Tzorekh haAdam, but to argue that they are sublimely
happy and therefore justifying the practice is not consistent with how
TZBH is determined in the first place. Should penning be so cruel in
comparison to the need of egg production, that would be a different
discussion altogether.

Jacob Farkas

Sun, 9 Jul 2006 from: ""Eli Turkel"" <eliturkel@gmail.com>
[Zvi Lampel:]
>:> In full agreement with using scientific clarifications to determine
>:> metsius ....Computer scanning
>:> of sifrei Torah (plus human input) is an example.

> To the best of my knowledge this is not a good example. Most poskim
> (eg R. Wosner) do not allow one to rely on the computer exam by itself
> except as an auxilliary to a human (sofer) check.

That's what I meant to convey in my parenthetical insertion. By the way,
regarding my comment about "eid ne'eman b'issurin" being overidden by
the negius in making money (to bring the use of scientific verification
into the picture), I am preparing a clarification/retraction, which I
hope to post soon.

Zvi Lampel

On Sun, Jul 09, 2006 at 11:19:53AM +0200, Arie Folger wrote:
:> Also, even in bayis sheini, the kohanim ran their own high court to
:> decide hilkhos qodshim and yuchsin. Not just adjucate. No?

: You prove my point. These courts dealt with the application of halakhah,
: of standard halakhah.

Is application without interpretation possible?

:>: In addition, if during exile far flung communities managed to stay in
:>: touch with each other and keep halakhah mostly uniform (take you lomus
:>: spectacles off for a minute and look at halakhah from the outside in,
:>: from the perspective of an anthropologist with no preconceived notions
:>: of Judaism).

:> I would agree. However, that's largely because we are building from
:> common precedent. But there were no texts yet, not even standardized
:> memorizable mishnayos. They had much less common ground to build on.

: Good point. So I will concede that there were more regional differences
: in those days, but we would qualify these as minhag and local taqanah,
: rather than differences interpreting deOraita.

You have yet to show me -- or I have yet to remember -- how you're so
sure that there were no unresolved machloqesin deOraisa. There were
during the Sanhedrin of bayis sheini (until its end in Teveryah). If
the role of Sanhedrin was to resolve every machloqes, the mishnah and
Yerushalmi would read quite differently.

And, during bayis rishon everyone had a more local body capable of
setting local pesaq. So, why not?

I would think Sanhedrin would only be necessary for questions that
    1- require their expertise,
    2- have impact that can't be localized (inyanei yuchsin, for example),
or
    3- became major arguments that threatened ideological unity.

-mi

-- 
Micha Berger             "I hear, then I forget; I see, then I remember;
micha@aishdas.org        I do, then I understand." - Confucius
http://www.aishdas.org   "Hearing doesn't compare to seeing." - Mechilta
Fax: (270) 514-1507      "We will do and we will listen." - Israelites

On Mon, Jul 10, 2006 at 05:42:35PM -0400, Moshe Yehuda Gluck wrote:
: I don't think that it would be particularly wild to mark the beginning
: of the current era after the printing of the Mishna Berurah.

This would be along the lines that a well-accepted summarizing text
defines the end of an era. The need for a text would explain why rishonim
respect the precedent of amoraim, but are willing to dispute geonim.
Akin to the Gra's notion (which didn't catch on, obviously) that the
Shach and Taz were "sof hora'ah", ie the end of their era.

The mishnah, shas, the SA (w/ Rama) and now, perhaps, the MB? The MB
lacks 3/4 of the turf, though.

Frankly, I'm dreaming there will be a Sanhedrin before any new halachic
era gets off the ground.

-mi

-- 
Micha Berger             It is a glorious thing to be indifferent to
micha@aishdas.org        suffering, but only to one's own suffering.
http://www.aishdas.org                 -Robert Lynd, writer (1879-1949)
Fax: (270) 514-1507      

On Wed, Jun 28, 2006 at 10:25:39AM -0400, Jacob Farkas wrote:
: The hypothesis that Hebrew and Aramaic did not as of yet diverge brings
: to question the definition of Ivri, or Ivris, for that matter. If Ivri
: is defined as related to Eiver, then Eiver would have had to have his
: own distinct language, Ivris. Should Ivri mean "other side" a la Shitas
: HaRaMBaN, that all of Canaan spoke Ivris, then Ivris would be a distinct
: language as well.

For most of Eiver's life, and Avram's formative years as well, for that
matter, there was no bilbul haleshonos.

So, I don't know how and when the Semitic languages split, but it's
non-trivial to time them in relation to landmarks in Avraham's
life.

-mi

On Wed, Jul 05, 2006 at 10:49:16PM +0300, Reuven Miller wrote:
: Are we to take literaly the chazal on Yuma 28b (daf hayomi) that Avraham
: Avinu a"h kept all the mitzvot including the Rabbanan?

Didn't we discuss this on list (vol12)? In particular, RMMS's idea
(consitant with Nefesh haChaim) that they were meqaymim the yesodos
behind the mitzvos by being able to feel what was necessary given their
very individual status and circumstance -- not fulfilling the SA and
all subsequent pesaqim and taqanos.

Before that (vol 10) RJR instigated a similar conversation while searching
for sources for the pages he offered to mail.

-mi

-- 
Micha Berger             Nearly all men can stand adversity,
micha@aishdas.org        but if you want to test a man's character,
http://www.aishdas.org   give him power.
Fax: (270) 514-1507                      -Abraham Lincoln

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