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Volume 24: Number 43

Mon, 05 Nov 2007

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Subjects Discussed In This Issue:
Message: 1
From: "Rich, Joel" <JRich@sibson.com>
Date: Mon, 5 Nov 2007 08:30:17 -0500
[Avodah] Recent Threads

Either here and/or on Hirhurim there were threads concerning whether
Yahadut improves character (should this be statistically demonstrable)
and what the nature of the "nefesh asher asu bcharan" was.  It occurred
to me this morning that there is a well known drashot haran (:-)) that
states the reason that Avraham sent back home for a wife was because
it's easier to teach belief than to change midot.  It would seem this is
a rayah that (at least monotheism - perhaps yahadut if we understand
avot/613 literal and maximal) won't change midot or else why didn't
avraham send home.
Separate note:IIRC  I heard R' HS say that there's a mesora that they
learned nashim and nzikin in Yeshiivat Shem Vever as these applied to
bnai noach at some level.
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Message: 2
From: bdcohen@optonline.net
Date: Mon, 05 Nov 2007 17:06:54 +0000 (GMT)
[Avodah] Specific to general vs general to specific (was:

Rn Chana wrote:
"So it seems that there are (at least) two alternate ways of formulating
a legal system, and the Torah (really surprisingly, would you not have
expected it to be codelike?), the Mishna (at least to the extent that it
is not bringing halacha Moshe miSinai), and Chazal often seem to me to
prefer something closer to the English common law system than the Code
system, which I then described as being a tendency to work upwards from
a specific case to general principle, rather from general principle
downwards to a specific case. "
AISI, the common law system uses case law to derive general principles which are then applied to further cases. However, there is still a primary organic law, such as the Constitution in the USA or the various documents (Magna Carta etc.) making up the British "constitution", to which all case law principles must conform.
The halachic system bears similarity to the common law, but differences are critical. The "Torah Shb'al Peh" is closer to unwritten principles which are nevertheless understood as binding, and are not derived from a particular case law. The Mishneh does not seem to be a "case book" from which we derive principle of halacha. On the contrary, mishnaic cases assume one's familiarity with the basic  principles applicable to the specific area of halacha. The cases reported in the mishna are those designed to test and teach what are the outer limits of the applicability of those principles, but not the derivation of the principles themselves. (For the lawyers in the group, Hadley v. Baksdale established the principle of mitigation of damages in English common law of contracts. One almost never finds an equivalent case in the Mishneh. rather, a mishnah usually expects one to know the principle (part of TSBP) and would be exploring how far we can extend the principle (e.g. in what ca
 ses would be mitigation of damages not apply).
David I. Cohen
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Message: 3
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
Date: Mon, 5 Nov 2007 13:36:34 -0400
Re: [Avodah] Kaddish Triggers

On 11/4/07, Jonathan Baker <jjbaker@panix.com> wrote:
> According to RD Moshe Sokol, not mikra, but aggadita, is the trigger for
> Derabbanan.
> When Debbie gave a siyum on a seder Mishnayos in shul at Shaleshudis,
> she was supposed to say R' Chananya ben Akashya afterwards, before saying
> the long kaddish, until R' Sokol noticed that the mishna itself ended with
> aggadita, obviating R' Chananya.
>         name: jon baker

IIRCe the Magen A raham is  a source for syaing aggada before Kaddish

   1.  the yehi ratzon after RAbbi Yishmael,
   2.  Amar Rabbi hanina before
      1.  bameh madlikin
      2. pittum ketores

[see how structure works?  you can backformat this shita of the Magan Av by
seeing the pattern in the siddur!]

Problem: There is a shul in Teaneck that doesn't bother with this trigger
and I am taken back because this is really imho a minhag shenispashet. Why
would a shul  NOT say an aggadic passage first?  [that ommision triggered me
to look up the Magen Av]

Furthermore, there are shuls that have a D'var torah between minhah and
Arbis and many say a Kaddish Derabbanan and many do not. I find it unusual
to NOT say it before Arbis.Whilst in aveilus for my late Mom OBM I actually
ASKED rabbis  of shuls that do not say  kaddish and they almost make it a
policy NOT to say.  Why?

[BTW  another thread: does bar'chu at arbis require a preceding kaddish?]

Kol Tuv / Best Regards,
Please Visit:
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Message: 4
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
Date: Mon, 5 Nov 2007 14:11:50 -0400
Re: [Avodah] Kaddish (was: Shabbas he mi lezok)

On 11/4/07, Elazar M. Teitz <remt@juno.com> wrote:
>      The following dialogue took place between RRWolpoe and RZSero:
> RRW: Kaddish after Aleinu [after shir Hakavod] could use its own thread.
>   The usual structure is
>   Kaddish Yehei Shlamah after Mikra
>   Kaddish Derabbnan after TSBP
> RRW: Aleinu and Shir Hakavod do not fit into any of the above
> RZS: They're both followed immediately by a pasuk ("Vehaya Hashem
> lemelech" and "Mi yemalel") precisely for this reason.
>      Aleinu does not require the adding of "Vehaya," since it already ends
> with the pasuk "Hashem yimloch l'olam va'ed."  Shir Hakavod is also followed
> by the pasuk "L'cha Hashem hag'dulah," so that "Mi y'mallel" is not needed
> to justify kaddish.  Obviously, then, these p'sukim are said for their
> content, and not for permitting kaddish.
>      It would seem that it's the other way around: not that the p'sukim
> are added so that kaddish may be said,

KAJ says neither 3 p'sukkim nor Kaddish after Hir Hakavod! see below!

but rather that kaddish is said because there are p'sukim.

See below re: Al Tirah!

AISI the trigger is at least 3 p'esukkim  [or maybe a complete kappitel!]

   1. Shir Hakavod has 3 2 lecha's and Mi Ymeallel
   2. Aelinu has TWO at the end
   3. BUT al tira has 3!

 Is this a co-incidence that these 3 come after aleinu
is it by design to trigger a kaddish!

Nevertheless, Syrian Sephardim and Frankfort do NOT say kaddish after Aleinu
-  yet Rema requires it anyway.

FWIW Many if not most Amreican Shuls say NO kaddish after shir hakavod and
go to shir shel yom and say Kaddish THEN  [viz. at the end of Musaph]. KAJ
says shir hakavod w/o any kaddish afterwords [and afaik no 3 pesukkim

And FWIW on Shabbos KAJ [and iirc Nusach Sepharad] say Shir shel Yom after
shacharis w/ a Kaddish yehei shelama afterwards

Clarification: I am NOT saying Ch'vSh that is is WRONG to say Kaddish after
aleinu!  I have done it hundreds if not  thousands of times myself!   Rather
- what I AM saying is to me - based upon a consistent structure - the Syrian
model makes BETTER sense logically.  I.E. kappitel, Kaddish  THEN Aleinu for
each of the 3 Tefillos.

Kol Tuv / Best Regards,
Please Visit:
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Message: 5
From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
Date: Mon, 5 Nov 2007 14:33:32 -0400
Re: [Avodah] V'sein Tal Umatar

On 11/4/07, Richard Wolberg <cantorwolberg@cox.net> wrote:
>  *That is the critical bit: the possible inclusion of the words "Don't say
> V'Ten Tal UMatar".*
> Perhaps I'm missing something, but if the gabbai says "V'sein b'rocho" as
> he says "ya'ale v'yavo" on Rosh Chodesh and on Dec.5th  (or 6th in a civil
> leap year) say "v'sain tal umatar", why wouldn't that be enough?
> V'sein Talm umatar is an addition
V'sain bracha constitues an OMMISION
to anounce an ommision is problematic - albeit possible

Kol Tuv / Best Regards,
Please Visit:
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Message: 6
From: "Moshe Y. Gluck" <mgluck@gmail.com>
Date: Mon, 5 Nov 2007 14:05:43 -0500
Re: [Avodah] mechitza

> >> I don't understand this.  Even if there's no chiyuv, what's wrong
> with
> >> taking out a sefer?  Even on stam a Wednesday, with no mitzvah
> >> whatsoever, can't one take out a sefer torah just to learn chumash
> from
> >> it?
R' Michael Kopinsky wrote:
> > To learn chumash, yes.  To hold a k'rias hatorah b'tzibbur, many
> poskim
> > hold not.
R' ZS: 
> On what grounds?  At the very least, it *is* limmud hatorah, isn't it?
> How does the presence of an audience make it worse?

Someone very kindly sent me off-list a scan of She'eilas Aharon's Teshuva on
the matter, where he concludes, "Mikol Hanal Nireh She'ein Laasos Milsa
Chadata Ki Hai L'hotzi Sefer Torah B'shvil L'hasmia Parashah Zu L'nashim
She'karov Lihiyos Bizayon HaTorah." The She'eilas Aharon is a Rav in
Philadelphia, IIRC, his name is R' Felder. I can send the scan to anyone
interested. (If you have the She'ilas Aharon, it's Siman 34.) 


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Message: 7
From: "Micha Berger" <micha@aishdas.org>
Date: Mon, 5 Nov 2007 16:01:25 -0500 (EST)
Re: [Avodah] Just what ARE the rules of p'sak anyway?

I am a little frustrated that the conversation is still about whether
there are rules, or whether some exception disproves the rule. I
proposed a third alternative, and I don't even see people trying to
dismiss it before returning to this dichotomy.

Let's say pesaq is not an algorithm, with yes-or-no rules, but a
heuristic in which various factors are weighed.

Many teshuvos in EhE and YD have the following structure. First the
meishiv proves it's derabbanan, then he adds snif lehaqeil after snif
lehaqeil until the pesaq lequlah is found. This seems to me a very
clear expression of the distinction I'm trying to draw. Not rule vs
rule, but adding up weights.

Thus one can't make an absolute statement like Sepharadim pick Shas
over Tosefta, but rather that they weight Shas far more than Tosefta
-- but might use the Tosefta if other factors come into play.


This notion that halachic process is a heuristic also fits well with
another idea I fell in love with, something from R' Moshe Koppel's

There are two ways to learn a language: The native speaker doesn't learn
rules of grammar before using them, he just knows what "sounds right".
An immigrant builds his sentences by using such formalized rules. RNK
notes that the rules never perfectly capture the full right vs wrong.
A poet has to know when one can take license.

He argues that halakhah is best transmitted by creating "native
speakers". It's only due to loss of our progressive loss of the Sinai
culture that we need to rely on transmitting codified rules. RMK notes
in a footnote the connection between this idea and some ideas in
"Rupture and Reconstruction". Earlier cited cases are the loss of
culture that occured with Moshe Rabbeinu's death, such that halakhah
needed to be reestablished by Osniel ben Kenaz -- chazar veyasdum, and
similarly the reestablishment of numerous dinim by Anshei Keneses
haGedolah -- shakhechum vechazar veyasdum. Leyaseid, he suggests, is
this codification.

The notion then that a conflict in halachic values is resolved by
heuristic rather than rigid rules of what trumps what is consistent
with this notion. We are trying to capture something inherently


Looking at an example we are discussing on Areivim, zimun for women.
(For a good survey, see RAZZ's
<http://www.ou.org/publications/ja/5760fall/legal-ease.pdf>.) Your
choices are: don't, may, and must -- all three of which have support.

The minhag avos oriented poseiq would have to explain why the answer
is "don't", or at most "rarely".

The aggadic value oriented poseiq would be looking at the sho'eles to
see whether her goal is AYH or some kind of adulteration of Torah
values, or ..., or.... And then, depending on whether his aggadic
orientation is deveiqus or toward the discipline necessary for
sheleimus, or .... he would have to come up with a pesaq.

The formalist's answer would depend on whether he emphasizes Shas
(must) or BY (may) or MB (ought not).

Interestingly, though, the non-American Briskers (trying to exclude
RYBS, RAS, RAL and the YU community) are NOT true to form on this. By
their normal stress on their usual sources, the Brisker Rav and his
talmidim should have *required* zimun for women, for the same reason
the Gra does. His fealty to minhag avos and aggadic values are not
non-zero, and for him they lead to not quite loyally following the
usual meqoros. Even lequlah.

RnCL introduced the notion of bottom-up pesaq and the story of

AIUI, bottom-up here is used to refer to two elements:

1- Taking the human cost into account.

This is not bottom up, IMHO. It's on factor that needs to be weighed.
Shemuel isn't taken to task for applying strict ideals without
accommodating the human reality as much as ignoring a whole subsection
of those ideals.

2- Building a pesaq based on case law, rather than starting from
Divrei E-lokim Chaim and applying to the case.

Here I would say it is "bottom up", but it's not instead of top-down.
If we accept the Maharal's notion that pesaq is the art of mapping DEC
to a finite reality, then we will map things differently as our
reality, knowledge of reality, and attitude toward reality change.

When the woman's report that her husband was killed by a snake was
proven to be true, Chazal realized they until then had a gap in their
knowledge of how women behave, and whether the report would in general
be reliable. The pesaq lekulah wasn't a breach of applying DEC
downward as much as a shift in what that downward was understood to be.

So, I still think halakhah is more like Platonic Idealism than
Aristotilian Realism. Truth becomes a set of instances, rather than
one collects instances, finds a pattern, and constructs a truth. What
changed is how one does the "becomes" as one knows more, not the
direction of application.

I'm not sure what we could assess from mishnah phrasing. This is a
style of composition that values rememberability over everything, even
precision (chesurei mechasra vehakhi ketani; or bameh devarim amurim,
without the "meh' written in; etc...) Why would we think that it
reflects the actual process used to reach the conclusion?

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv

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Message: 8
From: "Micha Berger" <micha@aishdas.org>
Date: Mon, 5 Nov 2007 17:03:13 -0500 (EST)
Re: [Avodah] Minhag Yisroel

On Wed, October 31, 2007 9:35 am, R Jonathan Baker wrote:
: Or is it that the MOTHERS teach the daughters Torah, in which case
: they
: too are making the diyuk that Micha and I see in the text - it's not
: the
: FATHERS, it's the MOTHERS.

RJJB and I are making very different diyuqim.

"Chakhamim tzivu" is far from common, when compared to "chayav" or
"assur", and even less common than "tiqnu". I therefore do not make
RnCL's assumption that there is an actual lav deRabbanan involved in a
father teaching his daughters Torah. Otherwise, why the rare language?

So then why "tzivu"? Because they commanded us dads not to do
something stupid. Not qua "vetzivanu" (via proxy) but as simply out of
concern for the girl.

I do not see how the rationale of the content being tiflus would make
this an inyan gavra rather than cheftza, and therefore don't see a
reason for RJJB's diyuq, actually. (He must be more of a "formal
process" man than I.)

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv

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Message: 9
From: "Micha Berger" <micha@aishdas.org>
Date: Mon, 5 Nov 2007 17:12:09 -0500 (EST)
Re: [Avodah] Minhag Yisroel

On Tue, October 30, 2007 6:43 am, Rn Chana Luntz wrote:
:>It did not. First, there is no issur -- the word used is "tiflus".

: Um, I am not sure where you are getting this from.

The mishnah. But even looking at the SA, I explained my diyuq in my
previous email.

(Apologies to all for not noticing that I was holding onto two emails
on the same topic to reply to. Usually I try combining the replies.)

: Now, I struggle to see "tzivu Chazal" as anything but an issur....

I struggle to see why Maran BY wouldn't then say "assur", like he does
tens of thousands of other times. Or gezeirah, or taqanah, or any of
the usual idioms. In the case of an odd turn of phrase that seems to
be a synonym, you're assuming it's synonymous and I'm assuming the
phrase is used bedavka because there is a different connotation. I'm
not sure either of us are working with more than personal assumption,

: Yes, you can try and argue that the Rema's dinim shayachim l'sha has
: been broadened by the reality of the modern world - but is is a
: stretch, a big stretch....
: I confess I don't think I have ever seen anything in writing from the
: CC, so I don't know how he justified it, but I would be surprised,
: given the explicit wording of the Shulchan Aruch, if he said anything
: of the kind.  Eis la'asos sounds a fair bit more likely...

I didn't see the CC in writing either. Did he write it?

However, I did hear RYBS speak on the subject of gemara at Stern
college, as well as read a teshuvah by RMMS on the subject. Both took
the CC's rationale as being an extension of the original heter as I
explained -- that with secular education making western thought
attractive, a girl must learn Torah thought to the same depth as part
of that "enough to grow up to be an observant woman".

The line you're drawing is a blurry one, since eis la'asos and
allowing enough education to maximize shemiras hamitzvos really
revolve around the same criterion.

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv

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Message: 10
From: "Micha Berger" <micha@aishdas.org>
Date: Mon, 5 Nov 2007 17:42:30 -0500 (EST)
Re: [Avodah] Steps/Stages

On Mon, October 29, 2007 1:45 pm, R Zev Sero wrote:
:> So too here: Ana Bekoach was constructed to correspond to the name
:> of 42, with the acrostic Kroa Satan, etc.  But the 42 stages long
:> predate any of our kabbalistic concepts, by at least a thousand years.
:> Where's the connection?  Otherwise, it seems too much like empty
:> symbolism.

: You're begging the question.  You're assuming that "our kabbalistic
: concepts" are merely a human-constructed system, that there really is
: no such thing as "shem MaB", and therefore that the 42 legs of the
: journey from Egypt to the Jordan could not have *in fact* been a
: reflection of that Name.

Alternatively, something in between. Our Qabbalistic concepts could be
theories inherent to what we were given in Sinai. That theory need not
have been fully developed (or even started upon) in order to be
reflected in a tana's poem, as the tana could be reflecting the theory
already given.

More to the point, IMHO: The sheim 42 isn't Qabbalistic, unless we're
considering the Rambam a mequbal <g>. In the Moreh he points out how
the sheim must be a phrase, as no Hebrew word ever gets that long.

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv


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