Avodah Mailing List

Volume 17 : Number 100

Thursday, July 27 2006

• RE: Music
• Re: Music
• Inyana d'Yoma: Without Comment
• Re: The Power of a Beis Din to Create a Halachic Metzius
• RE: The Power of a Beis Din to Create a Halachic Metzius
• Re: IYOV
• re:nashim da'tan kalos
• Re: historical contingency and brachos
• Re: MB/Yeshiva Communities
• Re: How do Achronim become Rishonim?
• RE: Music
• Recorded music
• Re: Music during the Three Weeks
• Re: Music during the Three Weeks
• music
• Re: The Power of a Beis Din to Create a Halachic Metzius
• Re: Noshim daatan kalos

RMSS:
> The prohibition of listening to music in the Three Weeks is because of
> its result; therefore these types of music which lead to that result
> are prohibited as well.

I think this goes to the whole issue of different types of takanot etc.
and when we say that we go based on our understanding of the intent
versus treating them as a chok. Part of the problem aiui is that the
boundaries are not clear or not well communicated (i.e. it creates
cognitive dissonance to tell people in one case, tough luck even though
it's not logical that's the gzeirah, while in other cases extending it
on the basis of logic). In this case do we extend the rule to say
The prohibition of listening to music in the Three Weeks is because
of its result; therefore any activity that produces this result (e.g.
exercise?) is prohibited?

KT
Joel Rich

On Thu, Jul 27, 2006 at 08:28:05AM -0400, Rich, Joel wrote:
: I think this goes to the whole issue of different types of takanot etc.
: and when we say that we go based on our understanding of the intent
: versus treating them as a chok..

For a taqanah we NEVER go based on our understanding of the intent,
only the intent if codified. If no reason is included in codification,
we must treat it "as a choq". A taqanah stands as passed, and therefore
the reason only has legal weight if it's encoded.

In the list's early days, I showed that this may be the nequdah about
which the machloqes over basar kafui evolved. Whether the close quote
is after the sevarah, or if the sevarah is stam gemara commenting on the
pesaq. Unfortunately, neither I nor the search engine remembers details.

But in any case, AIUI aveilus during 8-1/2 of the 9-1/2 days isn't a
taqanah. It's minhag.

Right now, as I type, I'm listning to OURadio.org. They're doing a
pure a capella format (presumably for those who do not follow RYBS on
this matter). And there have been two songs in which I caught myself
trying to figure out if there was instrumentation or hand-clapping and
non-speech mouth sounds.

-mi

-- 
Micha Berger             Zion will be redeemed through justice,
micha@aishdas.org        and her returnees will come in righteousness.
http://www.aishdas.org   
Fax: (270) 514-1507      

[I get to say barukh shekivanti, as I just took a post of mine on the
same quote out of the queue. But mishnah? I found it as the gemara at
the top of the last amud of Sotah. In any case, to quote the gemarah's
conclusion: Ve'al Mah yeish lanu lehisha'ein? Al Avinu shebashamayim! -mi]

I haven't seen this Mishnah cited concerning Inyana d'Yoma - the Artscroll
translation, plus some of the two notes, are below. One additional
note: The Rishon l'Tziyon on the mishnah notes that in Yehoshua 13:6 23
find Eretz HaGavli, and he takes that as the Gavlan. The Da'as Mikrah
identifies that as Jbail - modern day Byblos in Lebanon - but perhaps
Bint Jbail...?

In the period which will precede the coming of Moshiach... and the Galilee
will be destroyed and the Gavlan* desolated, and the people who dwell
on the borders will wander about from town to town,** but they will not
be succored.

* The name of a place (Rashi to Sanhedrin ibid.). Psalms 83:8 mentions
Geval among the lands that border Eretz Yisrael to the south...

** The borders will be attacked intermittently at various points, so
that the inhabitants of border towns will be driven from town to town.
Maharsha to Sanhedrin ibid. suggests an alternative translation: the
people of the provinces. The term is often applied to Eretz Yisrael
outside of Jerusalem. [Thus, the northern and southern environs of Eretz
Yisrael will be utterly barren, while the inhabitants remaining in the
inland area will wander as exiles in their own Land.]

R' Yosef Gavriel Bechhofer wrote:
> One of the very interesting responses was to the question of the
> status of a person condemned by a Beis Din to death who himself knows
> that he did not commit the crime in question. Is this person allowed to
> turn around and kill the Shaliach Beis Din who comes to execute him? R'
> Chaim responded that in Sanhedrin 82a we only see that in the case of
> Zimri (Bo'el Aramis) would he have been justified in killing Pinchas
> - the inference being that all other Chayavei Misos Beis Din are not
> allowed to kill their executioners. In response to a follow-up question,
> R' Chaim acknowledged two sevaros at work here: "Chiyuv mechudash," ...
> The first pshat is very much in line with my contention in the question
> of the permissibility of killing lice on Shabbos: Chazal are kovei'a
> the Halachic Metzius.

Not mekabbel. You're literally equating killing people with killing
lice. What one calls Halachic Metzius, another might call Erroneous. In
the case you mention, neither of the two should be killed, but the error
leads to the impression that the defendant should. The resulting problem
is that the executor is innocent, but still endangering the defendant's
life. (I don't have the seifer, could you explain R' Chaim's questioning
the roudef be-ounes svore?) So, there's more to consider than just a
couple of erroneously killed arthropods.

Lipman Phillip Minden
http://lipmans.blogspot.com

How do you reconcile this with the concept in Horiyot that a member of
bet din or talmid rauiy lhoraah who acts on the psak of bet din he knows
is wrong(granted there it seems bkum vaaseh according to the mfarshim
-i.e. who could just not have eaten the chelev)is toleh batzmo and chayav
a korban? Why not say that bet din creates a mtziut (or that bet din
can't be "wrong")?

KT
Joel Rich

On Thu, Jul 13, 2006 at 12:43:42PM -0400, Rich, Joel wrote:
: I'm putting together a Tishaa Baav shiur (hopefully it will be a chag)
: concerning Iyov. The gemara B"B 15a discusses when Iyov lived if at
: all. One of the proofs is from the use of the word eipho which ...
:                                 is spelled 2 different ways in Breishit
: (chap 27 alef-fei-vav-alef, chap 37and 43 alef-yud-fei-hei)

In pereq 27, the question is "Mi eifow" (with no yud, and a vav alef),
and has nothing to do with "where". See the Seforno ad loc, "eifow"
means "im kein".

I concluded misevarah before seeing the Seforno that eiyfoh (with a hei)
is the normative spelling for "where". My reasoning:
     koh : eiykhah :: poh : eiyfoh
Koh means "like this", eiykhah "means how could it be like this?"
Poh is "here", eiyfoh is "where?"

The "eiy-" seems to be a prefix.

-mi

-- 
Micha Berger             Man is a drop of intellect drowning in a sea
micha@aishdas.org        of instincts.
http://www.aishdas.org                         - Rav Yisrael Salanter Fax:
(270) 514-1507

> Although I'm aware of some question of whether two witnesses by a kidushin
> are simply testifying that the kedushin took place or whether they are
> some sort of ceremonial witnesses.

Where do eidei kiddushin testify? In the millions of kiddushin that have
taken place since mattan Torah, in how many of them were the eidim ever
required to testify? And if such testimony were ever required, even
in the case where the ba'al was m'yached eidim, any of the people who
were present can testify. Obviously, the specific eidei kiddushin are
not for the purpose of testifying, although calling them "ceremonial"
sounds like a term used in scholarly, not Torah, circles.

> It seems to me that p'shat is that an isha is gomar umakneh nafshoh when
> it is clear to her that there are solid witnesses who are watching. And
> therefore it is the fact that two witnesses are such solid evidence of
> something happening that gives their presence so much meaning and it is
> not separable from the fact that they are solid witnesses.

Then why are they necessary when she appoints a shaliach to be m'kabeil
kiddushin, and isn't even present when the kiddushin is accepted?
And why is the presence of eidim necessary at a get, which can done
against her will? And if it's for her to be gomeir umaknah nafshah,
why is it that the ba'al can be m'yacheid eidim, and not the woman?

It is accepted that eidim, whether for kiddushin or for gittin, are
not eidei raiyah, who serve as proof that the act took place. For proof
purposes, even if the ba'al appointed specific witnesses to the exclusion
of all others, any kosher witnesses who were there can _testify_ that
the kiddushin took place. The purpose of the eidei kiddushin is kiyum
hadavar; that is, the Torah defined an act of, e.g., kiddushei kesef not
merely as the willing giving of something worth a p'ruta by a man to a
woman for the sake of kiddushin and its willing acceptance by the woman,
but rather the doing of same in the presence of two kosher witnesses.
Their presence is what makes the act a kiddushin or a geirushin.

To say that the reason for their need is her g'miras da'as is as much
drush as saying that women can't testify so as not to be at risk: there
is no source for either.

EMT

Ari Zivotofsky <zivotoa@mail.biu.ac.il> wrote:
> Gershon Dubin wrote:
>>The Biur Halacha quotes the Chaye Adam that you need kevius al hayayin....
>>otherwise, his own daas is noteh to this pesak.  Therefore, it would be
>>at the least melo lugmov, not the most.

> by "at most" I meant the largest shiur suggested.
> some require a taste, others require a melo lugmav.
> I do not know anyone who requires a revi'is. thus at most, i.e. the
> largest minimum shiur, is a melo lugmov.

How much is the Chaye Adam's "kevius"?  Certainly at least a reviis?

Gershon
gershon.dubin@juno.com

Okay, I will accept that which has been said by those who know a lot 
more history than I do, that the Anshei Kneses Hagdolah did *not* 
establish a specifc text for the tefilos and brachos, so that later 
generations were allowed to add relevant additions, such as Yotzros 
to Birchos Krias Shma and Piyutim to Chazaras Hashatz.

But I'm still wondering WHY they chose to add the piyutim to the 
Repetition of the amidah. They could have either added them to both 
the silent and repeated versions (which would have preserved the 
nature of the Chazara as being for those unable to daven on their 
own), or they could have just added the piyutim to a different part 
of the tefila (like they did with Alenu and Av Harachamim).

Akiva Miller

RRW
>So is the reaon histoircal or sociological? Did the Gaonim promote the
>Bavli over other texts?
>Is that how it came to becoem pre-eminent?

It would seem so, and it would seem the answer is both. It is historical
and sociological. It happened;and it happened because efforts were made
so that it would happen, but it is also because the EY community had
declined, its Talmud just wasn't as polished as the Bavli and because
the Ge'onim believed in the Talmud they had inherited.

>I agree that the Yerushalmi was poorly redacted. Nevertheless,there is
>little evidence that the Bavli ever saw a Yerushalmi. Plus only Gaonim
>from about 800+ knew of the Yerushalmi.

I didn't say the late Bavli amoraim truly did know of it. I said that this
was the assumption made by rishonim who had no way of knowing whether or
not later hahamim in Bavel knew the Yerushalmi, but assumed that they
had and nevertheless disagreed with it when they did--presumably for
good reasons known to them--and therefore halakha ke-batrai.

>All this does not explain how the Bavli got the tag of "talmud didan"
>etc. by Rishonim who never ventured forth into Iraq. What makes it
>Didan? - Unless one is a Talmid of one of the Gaonic era Yeshivos
>in Bavel.

By that time the Bavli *was* prime, so it wasn't a question of elevating
it. It already was "the Talmud," even though obviously another Talmud
existed. There was a time when the Bavli community absolutely dominated
virtually the entire Jewish world in terms of influence. It is under
that circumstance that the Bavli spread all over the world, to Spain,
to France etc and under that circumstance that 'Talmud didan' was the
Bavli, where it has remained since, despite occasional attempts to crack
open the Yerushalmi.

And don't forget that the Bavli really is a more complete work. It isn't
only a historical accident or social engineering which made the Bavli
"talmud didan." It deserves its place.

SW

On Thu, Jul 27, 2006 at 08:28:05AM -0400, Rich, Joel wrote:
: I think this goes to the whole issue of different types of takanot etc.
: and when we say that we go based on our understanding of the intent
: versus treating them as a chok..

[Micha:]
> For a taqanah we NEVER go based on our understanding of the intent, only
> the intent if codified. If no reason is included in codification, we
> must treat it "as a choq". A taqanah stands as passed, and therefore the
> reason only has legal weight if it's encoded.

Yes I didn't capitalize takanot for that reason so as to try to use the
generic(e.g include gezeirot, horaat shaah etc.)
I agree with your statement philosophically by Taqanot but even there
iirc the practice is not universal (e.g tosfot by mitaken klei shir)

KT
Joel Rich

R. Shmuel Svarc wrote:
>As one of the Lakewood poskim told me, "If you want to use a suppository
> that will give you nutrition on Yom Kippur, fine. The Torah assered
> achila, not its result and that isn't achila. The prohibition of listening
> to music in the Three Weeks is because of its result; therefore these
> types of music which lead to that result are prohibited as well.

This analysis is generally correct, because aveilus is a question of
attitude (although there are classic aspects of aveilus prohibitions
which need to be enforced despite a subjective feeling that they might
be unrelated to mourning). However, as applied to the three weeks/nine
days, the requisite "result" is not the absence of music, but the absence
of the joy and celebratory atmosphere that exposure to music historically
entailed. That applied to parties, and -- perhaps stretching the point --
even concerts (at least of certain kind of music), but in today's society,
it seems far-fetched that this air of joy and celebration could be said
to attend any type of recorded music outside a party setting (like a DJ
at a bar mitzvah), especially when not accompanied by dancing. From this
vantage point, the distinction drawn between instrumental and a capella
music is itself tenuous, and leads to the pulled-up-by-the-bootstraps
chumra that a tape recording is an instrument so recorded a capella
music is therefore instrumental and prohibited. Defining the "issur"
in terms of music, rather than joy, entirely misses the point.

That being said, there is a certainly a basis for urging the deprivation
of certain pleasures/diversions in order to emphasize the sadness of this
period -- le'havdil, like giving up something for Lent -- but that it
a more subtle and thoughtful approach than simply pronouncing an issur.
I also think that promulgating fixed and universally applicable "rules"
as to the "correct" practices on this subject is halachic legislation
without basis, and an approach that undermines the individual, personal
and necessarily nuanced attitude which will make the recognition of the
mourning period more meaningful.

May we see the geulah soon.
                           Shalom L. Kohn

Micha Berger wrote
>: Do we have the power to make this sort of gezeirah nowadays? ...

>Well if we don't, then aveilus during the omer is altogether out.
>According to the AhS, it post-dates the Crusades. So, it would seem we 
>do.

Not quite the same thing. Introducing a minhag of aveilus is not the 
sameas introducing a gezeirah to protect the minhag aveilus as was 
suggested.

Alan Rubin

On Thu, Jul 27, 2006 at 09:05:02PM +0000, Alan Rubin wrote:
: Not quite the same thing. Introducing a minhag of aveilus is not the 
: sameas introducing a gezeirah to protect the minhag aveilus as was 
: suggested.

What I was trying to say is that a rule about treating a taqanah "like
a choq" trather than reasoning about function doesn't necessarily apply
to minhagim. And thus, it's not a gezeirah around the minhag as much as
applying the logic of the minhag to a new question -- a capella music
that is identical in function and mood to instrumented music.

Besides, a minhag has no formal codification, it's grass roots (perhaps,
as per the Rambam, only with rabbinic endorsement). So can anyone say
the minhag is not to do xyz mishum aveilus rather than set a mood of
aveilus in general?

-mi

-- 
Micha Berger             Zion will be redeemed through justice,
micha@aishdas.org        and her returnees will come in righteousness.
http://www.aishdas.org   
Fax: (270) 514-1507      

> Similarly, should we prohibit beer after Rosh Chodesh because it
> has many of the same effects as wine, and is used similarly in social
> gatherings?

This would also be a logical conclusion. However, unlike the case
with modern music and recordings, which were unknown when these
issurim/minhagim were made, beer and liquor was known, and common, in
those days, and still they were not included in the gezeira. So for us
to come along and add them over and above what Chazal did seems more
than excessive.

cbk 

Minden wrote:
> Not mekabbel. You're literally equating killing people with killing
> lice. What one calls Halachic Metzius, another might call Erroneous. In
> the case you mention, neither of the two should be killed, but the error
> leads to the impression that the defendant should. The resulting problem
> is that the executor is innocent, but still endangering the defendant's
> life. (I don't have the seifer, could you explain R' Chaim's questioning
> the roudef be-ounes svore?) So, there's more to consider than just a
> couple of erroneously killed arthropods.

But look at RCK's logic #1: "Chiyuv mechudash." You don't have to agree 
with the application - I'm not sure I do - but there it is!

[Email #2. -mi]

Rich, Joel wrote:
> How do you reconcile this with the concept in Horiyot that a member of
> bet din or talmid rauiy lhoraah who acts on the psak of bet din he knows
> is wrong(granted there it seems bkum vaaseh according to the mfarshim
> -i.e. who could just not have eaten the chelev)is toleh batzmo and chayav
> a korban? Why not say that bet din creates a mtziut (or that bet din
> can't be "wrong")?

A Beis Din can make mistakes in *Halacha* - and *another member of 
the BD or a talmid ra'ui l'hora'ah* is responsible to try and overturn 
that error. But a layman does not have that responsibility, and 
therefore so long as the psak stands, says RCK, so does the chiyuv 
mechudash.

YGB

On 7/26/06, Chana Luntz <chana@kolsassoon.org.uk> wrote:
> B) this appears to be, as RSBA has identified, a explanation relating to
> the relative ease of seduction (see Rashi there) - unless of course one
> of the two women is the wife of the man in question, in which case she
> is considered to be a good shomer (so maybe we should say that noshim
> daatan kalos applies to all women other than your wife!).

It's not so clear that a wife is a shomer. But the same thing applies
to the five women who hate each other. The answer to that is that when
there is an additional emotion of hatred it strengthens the kalus so
that they are no longer kal.

> And what you seem to regard as so pashut does not seem to have been so
> pashut to the rishonim  - the discussion by the Ran springs to mind
> regarding whether the Torah form of justice is indeed the most just in
> the real world (IIRC the Ran answers in the negative, but understands
> the mechanism of the melech as acting as a corrective).

The Chinuch also seems to take a similar view, but I am taking the view
as I was taught in Yeshiva that the Torah is a perfect system of justice,
because it was given to us by Hashem who is omniscient.

In any case, lehalacha we act in a way that does not contradict this view.

-Shmuel

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


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