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Volume 24: Number 49

Sat, 10 Nov 2007

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Subjects Discussed In This Issue:
Message: 1
From: "Chana Luntz" <chana@kolsassoon.org.uk>
Date: Fri, 9 Nov 2007 11:58:47 -0000
Re: [Avodah] Just what ARE the rules of p'sak anyway?

RMB writes:

> 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.

> RnCL introduced the notion of bottom-up pesaq and the story
> of Shemuel.
> 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.

I don't think I disagree with your analysis that part of psak is
heuristic with factors having to be weighed.  The point is that you
cannot weigh factors if you don't start with the case and then look at
what applies (ie factors).  If you start where RAF seemed to want to
start - with philosophical principles that you formulate in the abstract
as a consistent guide to life and upon which you believe you now need to
act, you are almost certainly going to miss many factors, (and often and
most likely the human cost factor as the human cost is borne by the
shoel or by society, not so much by the posek) in your analysis.

So I think I am discussing a step before yours.  Before you can get to
the point of being able to weigh factors, you need to have all the
factors that can possibly be weighed in contemplation.  If one can point
out the Shmuel was capable of missing an important human factor, it
seems to me that rather demonstrates is that even getting to all the
factors that could be weighed is very very hard.  

Earlier you wrote:

> 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.

Actually though, do not those teshuvos often read as though they are
trying to get to a result that they know is correct, and finding the
tools to do so (prove it is a d'rabbanan, find a snif lehakel or a safek
or a sfek sfeka)?  Sometimes one does get a very strong sense that the
posek feels a certain position is correct (one might call it daas torah,
or underlying morality or whatever - I guess depending on where you
think it is coming from).  The teshuva of Rav Moshe on abortion
certainly reads like this.  He is convinced abortion is murder, and has
to argue quite hard and wrestle with the texts to get them to say that.
Sometimes on the other hand one gets the opposite sense, that the posek
sat down with the texts and the result is what came out of them, almost
to his surprise - or at least it just flows automatically if you read
them simply and plainly, using ordinary analysis.  I confess I get that
sense from the Tzitz Eliezer's psak on abortion - I don't think that is
necessarily where he would otherwise gone, but that the texts seemed
compelling.   On the other hand, where I felt the Tzitz Eliezer had to
struggle with the texts to get to the result he felt had to come out,
was in the opposite case - where a woman wanted to continue to bear a
child, even though the doctors stated emphatically that it would shorten
her life, and she said she didn't care, so long as she would have
children to survive her, and the question was, was she allowed *not* to
have an abortion.  And there seems to me to be the same sense of
wrestling with the texts to allow her to do what she wanted to do.

And then there are the "leap of genius" type teshuvos - ie where
somebody reinterprets or brings a gemora (or the Torah) or a line of
rishonim that is desperately compelling, but unheard of before.  The
example that springs to my mind on this is Rav Moshe on allowing
somebody not frum to be counted in a minyan.  Now I do think a bit that
he did feel he needed to find this result - because that is what klal
yisroel were doing and in a way it was a necessary psak in the context
of the America in which he was living, in order to allow many many ad
hoc and not so ad hoc minyanim to survive, and he needed to defend the
practice - and one wonders if he would have ever linked the gemoros
together the way he did and understood the gemora in Arachin the way he
did if there hadn't been that kind of social need.  But the result is so
mindblowingly a chiddush that simultaneously seems to make so much sense
and be so obvious that you end up sitting back and saying "wow".  Ie
there is no sense of struggling with the texts, but rather the texts
just seem to fall into line like dominos.  Somehow to me it is this last
set that feels like the truest mapping, to use your terminology -
somehow the siyata deshmaya seems (at least to me) to be the most
visible.  And yet these seem to me to be the ones that are *most*
difficult to put into any rule based formulation, as they have a semi
miraculous feel about them.  And yet they feel very situational - this
particular scenario sparked this particular reaction (including the
assistance from above - ie was the particular help *needed* here?).  It
is not guaranteed reproducable, even when the same person writes other
teshuvos (so what changes?).  If anything it feels closer to a master
golfer (or other sportsman) getting his swing just right.  Did the
golfer weigh the factors (the weight of the ball, the wind etc)? -
perhaps unconsciously, but you can see the same golfer on a not so good
day struggle to hit the ball with anything like the skill.  
> 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.

Agreed.  But, when they do not follow the classic rules, is when you
sometimes have this sense of wrestling with the texts (and sometimes
this sense of a "knights move").  Ie if you look at the cases where ROY
comes out against Maran).  The cases where he doesn't are relatively
easy and straightforward, the interesting ones are where he does.  I
agree, what the klal is doing and has been doing has an effect - think
of the psak allowing a Sephardi to eat in a hotel where the bishul akum
problems are resolved the Ashkenazi way.  Or the non glatt meat teshuva.
Some of these the weighing element is clearer than others - in the case
of the non glatt meat teshuva, there were issues of kovod habrios and
darkei shalom and eiva and these were clearly articulated and you could
see how they were being weighed.  In the case of the eating at an
Ashkenazi hotel, I think there were underlying factors being weighed,
including what has been done historically by the klal and great Sephardi
rabonim and what is being done today, but they are much less clearly
articulated.  And sometimes the "knights move" aspect seems in the
linkage itself or the appeal to factors generally unthought of  (if in
fact you were to hold like X, the consequence would be that you would
have to hold like Y is case Z and clearly that is untenable - which of
course it clearly is, but nobody has thought of that).  But again, and
maybe this is my bias, I tend to feel that the existance of the knights
move or this sense of almost divine intervention kind of proves the
correctness of where the teshuva went retrospectively.  But if you are
not taking the situation seriously, and are looking to impose
preformulated rules too hard, then the knight's move aspect can't
happen, there is no opening.

> 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 "Metahalakhah".
> 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.

Yes but poetry is by definition situational, is it not - you have to
know when and how to take licence, and the wrong place and the wrong
time does not work.  And the poet does not sit there and weight his
words in the way you described adding in this factor and that.  He
weaves a pattern with words, which is dependent on the individual
situation.  I think I like this formulation the best of all.

> SheTir'u baTov!
> -micha



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Message: 2
From: "Micha Berger" <micha@aishdas.org>
Date: Fri, 9 Nov 2007 13:51:46 -0500 (EST)
Re: [Avodah] Women's zimun

On Wed, November 7, 2007 10:12 am, Richard Wolpoe wrote:
: However. if you accept a heuirstic POV of how to decide matters pasken
: then you are ALWAYS [at least potentially] bringing your own spin into
: any text! Objectivity gets trumped by subjectivity!

Not really.

I actually think that limited your structure to which rules trump
others gives you MORE room for subjectivity. There is no guidelines
provided by differential less than all or nothing. And so if you can't
prove either side of a machloqes by the rules, a person has full
autonomy to pick whichever sides he wants. I'm saying that the poseq
would be weighing factors to get a preference, and thus one side can
"win" even when it's shy of "A trumps B".

: Shitas Dr. Meir Shinnar: let the text speak for itself - do not READ
: INTO IT, do NOT bring one's prejudices into it. Do not presume one's
: shitos MATCH the text, etc.

: Shitas R. Micha Berger:  View any text with one's learned
: pre-conceived notions and see it through THAT prism

And so, I would say that shitas RDMS is that if the text doesn't speak
in absolutes, the question isn't halachic, do what you feel is right.
However, I would say that one's notions created by earlier learning
override other concerns -- to the point of mandating a given answer.

: e.g. Mamleches kohanim via the prism of Mussar school is then  about
: self-perfection and NOT about a Preistly Kingdom!

Kingdom of Priests! You're basing yourself on bad diqduq. At least use
"Goy qadosh". See -- Hashem requires BOTH. (I'm repeating myself out
of frustration; you're blatantly restating something without even
addressing my rebuttal.) Nor is that pesaq halakhah. Don't take rules
of pesaq and apply them to aggadita.

: There is no way to havea meeting of minds with these two contrary
: pre-suppositions.  There would probably be disagreement about text
: 90%+ of the time.

You are confusing heuristics with anarchy. I'm going to reuse stuff
from a private email; apologies to RRW, but it's new to the rest of

The problem with trating pesaq as an algrorithm is that you're
limiting the rules of pesaq to only mean those that are absolute. A
trumps B, so we rule X. If C comes along... the fact that B is also
there is
irrelevant -- it was trumped by A.

But if C and B both mandate conflicting answers? No rules.

And if A doesn't trump B? Also no rules. There is no "following A is
*more important* than following B" -- you are giving an all or

In short, your opening question is that there is ample proof the
system isn't algorithmic, but since you insist it is, you're troubled.
You then confuse using a weighting system with anarchy. Learn how most
digital thermostats are programmed; intensity of mebership in the set
"too hot" makes a more efficient thermostat than treating it as a
boolean. And yes, if the heat goes on when the temperature is rising,
you know the system is being violated.

And yes, by including aggadic values in the heuristic, it makes a
difference whether one's world view is O or not. C's values aren't
always ones I could include in eilu va'eilu. (Not to mention their
giving weight to non-existent rules, the use of partial quotes to
prove the opposite of the text's thesis, etc...)

The concept of halakhah kebasra'i is often cited as the reason why the
Bavli has more authority than the Y-mi. RRW would take this to mean
"Bavli trumps Y-mi". Which then is disproven by how Tosafos treat
mayim acharonim. And thus, RRW is left with a question.

My take: Y-mi pesaqim carry less weight than Bavli, so that if all
else were equal, Bavli would "win". The weight given this rule in
Ashkenaz is far far lower than that given in Sepharad. Or, another way
of putting it aliba deR Dr. Agus -- both give the rule the same
weight, but in Sepharad, its being minhag avos means that in practice
the "follow Bavli" rule ends up with both weighting, a greater total.

But it means that if the Y-mi was meiqil, and the case at hand has
factors not discussed in the Bavli's textbook case, and minhag avos is
meiqil, I might choose to be meiqil. The Y-mi isn't trumped, dismissed

That is lemaaseh how halakhah works. Rather than RRW's questions being
questions, I see them as proofs. Exceptions will always exist, as long
as there are cases where "A almost always outweighs B" can encounter a
"B outweighs C, D and E".

However, you just can't pull out the significance of things willy
nilly. It's not simply personal opinion. There are textual rules that
have textual weights, there are mimetic histories of how seriously
various issues have been treated, and there is the desire to actually
help people become yereim usheleimim. (Such as chassidim looking for a
means to allow clapping on Shabbos along to a good hartzig niggun, or
helping a couple become parents.)

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: 3
From: JRich@Sibson.com
Date: Fri, 09 Nov 2007 11:40:42 CST
Re: [Avodah] Is an INCORRECTargument worse than NO Argument

Sometimes we accept arguments because they fit our comfort zones even thoughthey may not hold water.


or because while they are not compelling, neither is anything else we've heard on the subject.

Ktjoel rich

-- Kol Tuv / Best Regards,RabbiRichWolpoe@Gmail.comPlease Visit:http://nishmablog.blogspot.com/

distribution or copying of this message by anyone other than the addressee is 
strictly prohibited.  If you received this message in error, please notify us 
immediately by replying: "Received in error" and delete the message.  
Thank you.

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Message: 4
From: T613K@aol.com
Date: Fri, 9 Nov 2007 13:22:53 EST
Re: [Avodah] Women's zimun


But for a seminary to preach to all of 
> their students that  the Gra is the correct opinion, and they should 
> all abandon their  tradition of not doing it, is arguably, Poretz 
> Geder.

In which  case, every seminary and yeshiva that I am aware of is  poretz

>>IIRC  there's a tshuva of either R' MF or the Chasam Sofer that
specifically allows  a talmid to change his minhag to follow that of his
Yeshiva.  .<<

Joel Rich

There is a difference between a man changing his minhag to conform with his  
yeshiva's and a woman changing her minhag to conform with her seminary's  
minhagim.   A woman is much more under the authority of her father  while single, 
and of her husband when married.  So IMO girls should not be  encouraged to 
take on new minhagim. 
However, I concede that bentshing with a mezuman has enough textual support  
to permit it that I guess if a woman takes it on, she isn't really "changing a 
 minhag."  Any more than if she took it upon herself to say Tehillim every  
day, that she would be "changing her minhag."    Just because she  didn't use 
to say Tehillim doesn't mean she had a "minhag /not/ to say  Tehillim."  So 
unless her father or husband has a specific objection to her  bentshing with a 
mezuman, I guess a woman could choose to take on that  practice.  But the same 
would not be true of /every/ minhag -- that a woman  should do what her sem 
taught her, rather than what her father or husband  does.
One other point about women davening with a mezuman:  For reasons  that have 
already been discussed a bit on Areivim, there are specific public  policy 
issues in today's political climate that would require a woman to do a  serious 
cheshbon hanefesh as to WHY she wants to take on zimun, before she does  so.

--Toby  Katz

************************************** See what's new at http://www.aol.com
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Message: 5
From: Yitzhak Grossman <celejar@gmail.com>
Date: Fri, 9 Nov 2007 13:20:05 -0500
Re: [Avodah] Just what ARE the rules of p'sak anyway?

On Thu, 8 Nov 2007 14:29:10 -0000
"Chana Luntz" <chana@kolsassoon.org.uk> wrote:

> RYG writes:
> > --- Begin Quote ---
> > 
> > [Quoting the T'rumas Ha'deshen:] But in the [aftermath of 
> > the] decree of Austreich they [women who had been captured by 
> > gentiles - see the previous section of the DM] were 
> > permitted, on the authority of Gedolim, to their husbands 
> > too, even to Kohanim ...
> > 
> > [The DM himself:] And it seems to me that perhaps the Gedolim 
> > who permitted did not do so Mi'dina but for a Zorech Sha'ah, 
> > for they saw that we must be concerned for future women, that 
> > if they were to know that they would be unable to return to 
> > the husbands of their youth, they might sin, and so they were lenient.
> > 
> > And do not say, can we be lenient with regard to an Issur 
> > De'oraisa? It seems to me that they relied on that which it 
> > is stated "kol d'me'kadesh a'da'ata d'rabbanan m'kadesh" and 
> > Beis Din has the authority to nullify their Kiddushin and 
> > they are therefore as single women and even if they have 
> > strayed they are permitted to their husbands, so it appears to me.
> > 
> > --- End Quote ---
> > 
> I must be missing something here:
> A) why did they not rely on the more usual their zera is considered like
> susim? (I always thought, despite the unhappiness of the Sridei Aish
> about this idea, that it was precisely for these reasons, and because
> this sort of thing happened too often, that it was good we held this
> way);

You seem to be referring to the celebrated opinion of Rabbeinu Tam.

A)  RT's famous ho'ra'ah, as cited by the Rishonim [0], was a
permission for a woman who had committed adultery to marry her gentile
paramour who had subsequently converted; it said nothing about whether
such a woman is permitted to remain married to her original husband.

B)  Shittah Mekubezes [1] states explicitly that Rabbeinu Tam didn't
permit the woman to her husband.

C)  Meiri [2] claims that "mikzas rabboseinu ha'zarfatim" permitted the
woman to her husband, but he seems to reject the shittah in toto.

D)  Terumas Ha'deshen [3] is apparently unsure, but he seems to lean
in favor of limiting RT's leniency to the adulterer.

E)  Hafla'ah [4] says that RT agrees that she is prohibited to the
husband, but not as a sotah, and perhaps from an edict of BD of Shem.

F)  P'nei Yehoshua [5] seems to conclude that RT agrees that there is a
De'o'raisa prohibition to the husband.

G)  The Poskim give at least two other reasons to justify RT's ruling
(see Rosh [6] and Mordechai [7]),  neither of which applies to the
husband.  SA [8] cites Rosh as a "yesh omrim", and the Rama and Nosei
Keilim don't seem to even mention RT's actual reason.

H)  I am unfamiliar with the responsa literature on the subject, and I
haven't seen the S'ridei Aish; where is it?

Summary: although I am not expert in the issue, I do not know the basis
for your assumption that we hold like RT, and additionally, it is far
from clear that RT is even relevant to the husband.  OTOH, if the DM
was really that desperate to understand the Gedolim cited by the
T'rumas Ha'deshen, I suppose he might at least have considered your

> B) How would afkinu help for Cohanim anyway, whether she was considered
> married to her husband the Cohen at the time or not, the problem of
> zonah would surely still exist?

Quite a baffling question indeed; the Avnei Mi'luim [9] asks it and has
no solution.  Ozar Ha'poskim [10] cites a couple of resolutions, but in
my quick perusal, neither of them seemed particularly compelling.

[0] Tosfos kesuvos 3b s.v. ve'lidrosh, Rosh ibid., Mordechai Sanhedrin
#720.  Although the Mordechai seems to indicate that RT permitted 
her to her husband, the text is problematic; see the Bach's
emendation.  I would think that the basic fact that the only recorded
ruling of RT was about an adulterer who subsequently converted
indicates that he was not lenient in the presumably rather more common
case of a woman wishing to remain married to her husband after adultery
with a Gentile.
[1] kesuvos 3b s.v. ve'ivra 
[2] ibid. s.v. eshes
[3] I #219
[4] ibid.
[5] ibid.
[6] loc. cit.
[7] loc. cit.
[8] EH 178:19
[9] EH 7:11 (5)
[10] ibid.

> > Yitzhak
> Regards
> Chana

Good Shabbos,
Bein Din Ledin - bdl.freehostia.com
An advanced discussion of Hoshen Mishpat

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Message: 6
From: Yitzhak Grossman <celejar@gmail.com>
Date: Fri, 9 Nov 2007 13:42:03 -0500
Re: [Avodah] lifnei iver/kanaus

On Thu, 8 Nov 2007 21:28:51 -0500
"Michael Kopinsky" <mkopinsky@gmail.com> wrote:

> On 10/11/07, Celejar <celejar@gmail.com> wrote:
> > On Thu, 11 Oct 2007 07:00:15 -0400
> > Micha Berger <micha@aishdas.org> wrote:
> >
> > > On Mon, Oct 01, 2007 at 01:10:22AM -0400, Richard Wolpoe wrote:
> > > : The Talmud/SA tells us that we may not hit a child past a certain age
> > [15
> > > : iirc] because he might hit you back and you would thereby trangress
> > lifnei
> > > : iver...on an issur of misas beis din no less.
> > >
> > > Might, not probably.
> > >
> > > Think of the gezeirah against blowing shofar on Shabbos. Takanos do not
> > > require a very high threshold of probability.
> >
> > I see no indication in the Gemara (MK 17a) or SA that this is a takanah
> > or gezeira; the gemara's language is that "he has violated lifnei
> > i'ver".
> I'm WAAAAY behind on Avodah, but....
> The Gemara at the end of Eizehu Neshech (BM 75b) says:
> "Amar Rav yehuda amar Rav: Kol mi sheyesh lo ma'os umalveh osan shelo b'edim
> oveir mishum v'lifnei iver lo sitein michsol, v'reish lakish omer gorem
> klalah l'atzmo."  In this case, the gemara also refers to it as lifnei iver,
> even though there is clearly no transgression taking place except in the
> unlikely circumstance that the loveh is kofeir.  This is most definitely not
> an issur of lifnei iveir.  It is at most a gezeirah/takanah.  (I have a

I disagree; many Aharonim seem to consider it bona fide lifnei iver.
I'm actually in the middle of a mult-part series about this Gemara on
my blog.  The first part is here [0], subsequent parts shall follow,

> comment penciled in the margin of my gemara directing me to Ritva Megilla
> 28a where he says that this is not an issur, but a middas chassidus.)  The
> same should apply to the gemara in MK 17a which uses a similar lashon.

The Divre Malkiel and the Be'er Sarim do indeed justify the prevailing
disregard of the prohibition based on that Ritva, as Part II of my
series will show, but the Be'er Sarim himself points out that this
understanding is clearly against the simple reading of the SA, who
(following Rambam) flatly states "assur".  Stay tuned to my blog!

> KT,
> Michael

[0] http://bdl.freehostia.com/2007/10/26/lead-us-not-into-temptation/

Bein Din Ledin - bdl.freehostia.com
An advanced discussion of Hoshen Mishpat

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Message: 7
From: "Richard Wolberg" <cantorwolberg@cox.net>
Date: Fri, 9 Nov 2007 15:37:08 -0500
[Avodah] lifnei iver/kanaus

Richard Wolpoe wrote:The Talmud/SA tells us that we may not hit a child past
a certain 

age[15:iirc] because he might hit you back and you would thereby trangress

lifnei iver...on an issur of misas beis din no less."


On the same topic, the Talmud also tells us we should never strike a child
in anger. (I guess you should smile when administering corporal punishment).


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Message: 8
From: "A & C Walters" <acwalters@bluebottle.com>
Date: Sat, 10 Nov 2007 20:38:25 +0200
[Avodah] luach zmanim

Does a luach zmanim have kedushas geniza? 

Free pop3 email with a spam filter.

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Message: 9
From: "Richard Wolberg" <cantorwolberg@cox.net>
Date: Sat, 10 Nov 2007 19:57:09 -0500
[Avodah] Vayeitze "Watch Whom You Marry"

In this Torah portion Jacob is deceived into marrying Leah instead of his
intended, Rachel. We all know the story. Interestingly, in Kabbalistic
literature every bride is said to have a component of Leah and Rachel.
Rachel represents the beautiful, lively, charming and appealing part of our
spouse - whereas Leah represents the not so attractive part. She is
characterized as weak-eyed and not very desirable. Initially we marry Rachel
and perhaps after a while we see the Leah component. This does not mean the
marriage is over. It merely means we must employ maturity in dealing with
it. As the female spouse has those two components, the male spouse also may
have the two components to Yosef Hatzadik and any one of his brothers. We
all contain opposing forces which is part of the dissonance of life.

Incidentally, the gematria for Rachel is 238 - the same as vay'hi or "Let
there be light." It's almost ironic that the reason Jacob was deceived with
Leah was because there was no light. On the other hand, the gematria for
Leah is 36 which is double chai (somewhat paradoxical in this case) and also
the same gematria for Eicha. Jacob certainly didn't chant Eicha, but he
probably asked "HOW?" could this have happened. Nevertheless, he accepted
his lot and dealt with it. 


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