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Volume 25: Number 127

Tue, 08 Apr 2008

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Subjects Discussed In This Issue:
Message: 1
From: Micha Berger <micha@aishdas.org>
Date: Mon, 7 Apr 2008 14:44:18 -0400
Re: [Avodah] Mutzkeh: Sticks, Stones, and Pets

On Wed, Apr 02, 2008 at 10:04:50AM -0400, Zev Sero wrote:
: But *why* are stones and animals muktzeh?  Because they have no legitimate
: use.  These stones and animals do have a use, if you call playing with them
: a use (and if you don't then why aren't the checkers muktzeh too?).  So it
: shouldn't be enough to say "they remain stones and animals".

On Fri, Apr 04, 2008 at 08:13:58PM +0000, kennethgmiller@juno.com wrote:
:I wrote:
:> To understand the reason why stones are muktzeh, one must
:> remember the principle on which muktzeh was based:
:> Everything handled on Shabbos must be prepared for Shabbos
:> in advance.

: R' Sholom Simon commented:
: > Well . . . except for the myriad of things which are
: > considered automatically prepared, no? ...

: Yes, indeed, being "automatically prepared" does count as "preparation"
: in this context.

We have here two different formulations of muqtzah:
- that which has no legitimate use on Shabbos (RSZ)
- that which was prepared, explicitly or imlicitly, for shabbos (RAM and

The latter position bothered me on two levels:

Linguistically, muqtzah is that which is separated off. The exact reverse
of the imiplication that the permissable is that which is separated.

Second, this notion of "automatic preparation" seems too much of an
oxymoron. Preparation connotes koach gavra, an intent to make something
non-muqtzah -- the opposite of automatic.

So, being bothered on both the level of language and of ta'am hamitzvah,
I did what should be the obvious... turned to RSRH! Grabbed my Horeb vol
I and for appropriate DE mindset, my SD card with Baroque music on it,
and had an enjoyable bus ride into work this morning.

RSRH writes:
> The term muqtzah comprises any object which was not designated for
> human use when Shabbos commenced,
> a) because its purpose is the production of melakhah;
> b) because it was not intended for use as an instrument or as food,
> as it is useless or incomplete or has not been detached from its place
> of growth or which could only be put to use by means of violation of
> the Shabbos laws;
> c) because is had been designated for the fulfillment of a mitvah.

RSRH then distinguishes between (a) and (b) & (c) by pointing out that
"objects under (a) may be removing for a use which is permitted or so
that the space it occupies may be used". (And so, in 10 lines of one
column of a 2-column page RSRH manages to explain the concept of muqtzah
even as far as the din of keli shemilakhto le'issur. Impressive.)

But note that despite his use of the word "designated" it appears that by
the time you get to the end of the sentence (which admittedly takes some
patience) RSRH gives RSZ's definition. I don't know the original german,
but there is no concept of setting it aside explicitly or implicitly. More
like "the kind of thing one would use". Which is why a keli shemilakhto
le'issur is okay for non-standard mutar uses.

These two theories imply a difference in threshold. Perhaps the machmirim
WRT pets (eg RMF) hold by the "preparation" sevara, and animals aren't
prepared for Shabbos use, not even by putting a collar on. Whereas the
"Shabbos use" sevara would explain the matirim (eg RSZA), since the
animal does have a commonly agreed-upon use.

In terms of derekh halimmud, I think my chiluq (right or flawed) would
be classical RSSkop. It explains a machloqes in terms of "fahr vus?"

Tir'u baTov!

Micha Berger             The mind is a wonderful organ
micha@aishdas.org        for justifying decisions
http://www.aishdas.org   the heart already reached.
Fax: (270) 514-1507

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Message: 2
From: "Daniel Israel" <dmi1@hushmail.com>
Date: Mon, 07 Apr 2008 12:59:57 -0600
Re: [Avodah] Medicine for a Metzora

On Mon, 07 Apr 2008 10:20:20 -0600 Michael Makovi 
<mikewinddale@gmail.com> wrote:
>I've seen some things that said that tzaarat is definitely not
>leprosy, but the various forms of tzaarat do appear similar to 
>eczema, ringworm, and other skin conditions.
>Could it perhaps be that a person gets a real medical condition 
>(eg., ringworm) because of his lashon hara, i.e. a person gets a 
>condition as a punishment b'derech teva? Similarly, perhaps a 
>might break his bone or catch a cold because he did an averah.
>If so, just as we can fix the bone or the cold even though it is a
>punishment, perhaps too the tzaarat?

Leaving aside the question of whether there is support in Chazal 
for the idea that tzaras manifests itself as a physical illness in 
some sense, I would say that the real question is not whether it is 
mutar to heal it, so much as whether it would be effective.

The difference between tzaras and the other examples you cite is 
that tzaras is specifically described in the Torah and a specific 
refuah given.  It would seem to me that, regardless of the physical 
characteristics, one could successfully heal tzaras by any medical 

IIRC, we also have a specific halacha that one cannot cut off a 
tzaras.  I don't know if this has any implication for non-surgical 

Daniel M. Israel

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Message: 3
From: "Jonathan Baker" <jjbaker@panix.com>
Date: Mon, 7 Apr 2008 14:46:55 -0400 (EDT)
[Avodah] Is it ossur to have fun?

From: "Richard Wolpoe" <rabbirichwolpoe@gmail.com>
> On Fri, Apr 4, 2008 at 2:47 PM, Micha Berger <micha@aishdas.org> wrote:
> > Music for the sake of music is more problematic. Not in and of itself;
> > you're "speaking" with a fan of Baroque and Rhennaisance music, as well
> > as some of New Age (if it isn't too muzak-y) and lately (I guess I'm
> > getting older) some forms of Klezmer and Jazz. - Micha
> I am really puzzled by any issur of listening to music that 'soothes the
> soul" even during aveilus.   AISI, the issur of music during aveilus is the
> kind of music that inspires one to get up and dance.   The kind of music
> [say the Goldberg variations] which were meant to help soothe an insomniac
> is to me just like taking a form of "spiritual" medication. It's not for
> enjoyment but for relaxation.
> I must confess legabi Sefirah the Aruch Hshulcan sees this as the opposite.
> If dancing music is assur, instrumental music all the more so!  WADR, I
> I have heard besheim RYBS that only music that caused one to get up and
> dance [lich'ora even if one did not actually dance!] was the kind of music
> that is assur. 

Hm.  I wonder if part of the difference is the social aspect?
That is, before recorded music, if you wanted to listen to music,
you had to go someplace where musicians were playing: in the shuk
for money, at a wedding, at a concert (if our Acharonim went to 
public concerts, as some are reputed to have been aficionadi of
the opera).  All those occasions have a social-lebedig aspect.

So maybe the issur on music is because of the general avoidance of
social gatherings during aveilus.  To what extent did the Aruch
haShulchan even have classical music as part of his experience?
So one goes to weddings, and singing is lebedik, but even more so
is the dancing, which is done to pure instrumental music - which
is at odds with the nature of sefirah.  Dancing music *is* instrumental

Also, what kind of dancing?  Frenetic wedding dancing?  What would
he say about the more formal set-pieces of 18th-century and earlier
non-Jewish society - minuets, pavans, galliards, etc.?    Are the
earlier non-Jewish dance tunes OK in isolation?  A lot of instru-
mental music before the 19th century is dance music for such set-
pieces.  I sometimes play recorder for emotional stability, and a
lot of the music I have is Renaissance dance music.  Not really what
would get us up and running around.

I don't know if we have a lot of reliable records of what people
danced to at Jewish weddings before the 19th century.

        name: jon baker              web: http://www.panix.com/~jjbaker
     address: jjbaker@panix.com     blog: http://thanbook.blogspot.com

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Message: 4
From: rebshrink@aol.com
Date: Mon, 07 Apr 2008 18:17:10 -0400
[Avodah] Skipping Korbanot

I believe Ashkenasi Jewry took very?seriously the perspective that saying
the Karbanot was tantamount to offering them.?? For this reason the Eyn
Kelokeinu followed by P'tum Haketoras was not said during the week since at
that time?people are rushed and would say it innaccurately.??? It is well
known that?the spices improperly prepared would create a Chiyuv
Mitah.??Since verbally formulating the spices is conceptually equivalent to
preparing them, a mistake in the verbalization would be theoretically very
serious.?? Therefore, only on?Shabbat and holidays is Eyn Kelokeinu and
P'tum Haketorat recited, for at that time we are not in a rush to complete
the dovening and can be careful in our formulation.?? This may also be the
source?for not saying all the Karbanot daily, or even on Shabbat abd
holidays.?? In my shul we say all Karbanot only at the beginning of
Shacharit on Yom Kippur when we are in no rush whatsoever.???In so doing we
are avoiding the serious issue of verbally f
 ormulating the Korbanot incorrectly which would be against tradition.??? I
 am sure that matters of convenience and trime constraint has also played a
 role in the lack of Karbanot recitation.?? However, I believe I am
 following my Rebbi's, the Rav's, dictate in finding a Halachically tenable
 reason for this custom.?

Kol Tov

Stuart Grant???
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Message: 5
From: Micha Berger <micha@aishdas.org>
Date: Mon, 7 Apr 2008 20:35:27 -0400
Re: [Avodah] Is having a good time ossur

On Mon, Apr 07, 2008 at 09:18:51AM -0400, Richard Wolpoe wrote:
: I have heard besheim RYBS that only music that caused one to get up and
: dance [lich'ora even if one did not actually dance!] was the kind of music
: that is assur.  This dovetails well with what I'm saying. I would suspect
: that our esteemed moderator might also concur with this chiluk

To again repeat something besheim my father who said it besheim RYBS
(which could well have this earlier source, but in this period of ge'ulah,
I will continue saying them besheim omram as I heard them)...

My father's version is that RYBS held that recorded music is mutar during
aveilus. Rather, the issur was against celebrations -- which was the
only time people had musical instruments.

The flipside of this is that RYBS would assur parties during omer or
the three weeks even without music.

Tir'u baTov!

Micha Berger             A cheerful disposition is an inestimable treasure.
micha@aishdas.org        It preserves health, promotes convalescence,
http://www.aishdas.org   and helps us cope with adversity.
Fax: (270) 514-1507         - R' SR Hirsch, "From the Wisdom of Mishlei"

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Message: 6
From: "SBA" <sba@sba2.com>
Date: Tue, 8 Apr 2008 17:41:06 +1000
Re: [Avodah] Sheva Brochos

From: SBA [mailto:sba@sba2.com] 
....I noticed that the Pischei Teshuva EH 62:9 writes beshem the Nodah
Beyehuda "..be'inyan noef shenoso be'uloso ein mevorchin sheva brochos ele
yom echad.."- as his Simcha is far less that in case of a bachur ubesula.

So BTs who after living together (in their previous life) and now get
married. If one makes 7Bs for a week is it a brocho levatolo?

So I didn't look at the rest of that Pischei Teshuvah when I posted the
Now that I did, I see that he quotes the CS as disagreeing with the NB on
this matter and seems to OK 7Bs for the whole week.

But the introduction of this CS (which comes from his Teshuvos - EH 123) is
very interesting.
He writes (regarding the marriage of a couple who had had pre-marital

"...ani omer - ma'us yimasu hanoef vehano'ofes, ve'einom rauim librocho,
ve'eich yekablu peneihem panim chadoshos kol shiva - veheimah bo'alei
niddos, choteh bal yisnoeh ubal yisgoeh... Ach, im yimtze'ui raim (re'im ?)
kemosom - lechadesh panim kol shiva - yevorchu lohem kol shiva..."

Is the CS saying that the only people who should be saying the sheva brochos
for these 'bo'alei niddos' are others who have similarly misbehaved?


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Message: 7
From: Galsaba@aol.com
Date: Tue, 8 Apr 2008 05:31:15 EDT
[Avodah] U'Lechaparat Pesha - In Mussaf Rosh Chodesh

I am trying to find the source of saying "U'Lechaparat Pesha" in Musaf Rosh 
Chodesh in a Leap year.
Also, I wonder why we say it only on Rosh Chodesh Chesvan to Nissan, and not 
every Rosh Chodesh for the entire year.

**************Planning your summer road trip? Check out AOL Travel Guides.    
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Message: 8
From: "Micha Berger" <micha@aishdas.org>
Date: Tue, 8 Apr 2008 13:51:49 -0400 (EDT)
Re: [Avodah] Skipping Korbanos

RMPoppers corrected me off list on something I miswrote back on Mon,
March 31, 2008 5:19pm:
: Yes, this is the line at which most people say the first two berakhos
: with the shat"tz before the heicher qedushah. According to RYBS,
: that's the only way to do it; the notion of repeating the first two
: berakhos after qedushah simply isn't in his system.

Obviously it would be the first three berakhos.

Also, when saying the third berakhah with the chazan, I take that to
mean that if he closes birkhas qedushah with "Ledor vaDor", I should

Second, my apologies if anyone was annoyed by my quoting a shitas
haRema as being RYBS's. I'm just telling it the way my father did; he
came back from a shiur on Tues night and some point during the next
week repeated it to me. It wasn't something I had looked at

As people who have seen <http://www.aishdas.org/luach> might have
deduced, I did once see the AhS OCh 232:6, who has the usual shitah of
repeating the berakhos /after/ the chazan.

BTW, the Beis Yoseif (OCh 234) records a cheirem issued by Chachmei
Tzefas against minyanim that do not do a full Chazaras haShatz. That
might explain our (other than the aforementioned kollelnikim)
reluctance to use heicher qedushah, even in the days of siddurim.

SheTir'u baTov!

Micha Berger             "Man wants to achieve greatness overnight,
micha@aishdas.org        and he wants to sleep well that night too."
http://www.aishdas.org     - Rav Yosef Yozel Horwitz, Alter of Novarodok
Fax: (270) 514-1507

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Message: 9
From: Micha Berger <micha@aishdas.org>
Date: Tue, 8 Apr 2008 14:45:38 -0400
Re: [Avodah] R' Berkovits = Conservative halacha??

On Wed, Apr 02, 2008 at 11:39:57PM -0400, Richard Wolpoe wrote:
: It is quite clear to me that [aftere reading the bio of Rabbiner Hirsch]that
: RSR Hirsch would NOT buy any sort of cognitive dissonance and I would
: venture the GRA [and perhaps Rambam] would never accomodate this dichotomy
: between theory and practice...

I don't know. Didn't the Gra tell his talmidim to follow minhag avos
and not change practice based on his shitos? E.g. didn't they say Barukh
H' leOlam in his shul? (Of course, once he was niftar, things

Add the MB to the list. As retold here ad nauseum, the text didn't
always match the CC's practice. Most famously (and seasonal) is R'
Zacks's inability to use his grandfather's kos for the seider, as it's
not large enough according to the MB.

: I think R. Berkovits had a point though. Halachah is SO far removed from its
: orgins that some flexibility seems reasonable.

But so is our culture. "Torah values" are harder to objectively assess,
and so distance from the source is more of an issue there than in sevara.
It actually justifies more formality of legal process, not less.

But REB's change is different in kind than the examples at the head
of your post. There are two alternatives to keeping halakhah as per
mimetics, not one: there are the Torah values that underlie the halakhah
and the relative strength/appeal of the textual arguments.

The textualist is changing the norm based on the latter; REB is advocating
doing more of the former.

Tir'u baTov!

Micha Berger             Our greatest fear is not that we're inadequate,
micha@aishdas.org        Our greatest fear is that we're powerful
http://www.aishdas.org   beyond measure
Fax: (270) 514-1507                        - Anonymous

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Message: 10
From: "Michael Makovi" <mikewinddale@gmail.com>
Date: Tue, 8 Apr 2008 13:26:52 -0400
Re: [Avodah] R' Angel & Geirus Redux

> This
> is why people who do not feel comfortable with this implication [that
> a TsN knows absolutely nothing, and so too any nonreligious today
> labeled as TsN must know absolutely nothing], try to
> argue that the terminology of tinuk shenisbha is being misused (as in the
> gemora it is only used to describe somebody who really knows absolutely
> nothing).
> The problem with that argument is that you end up accusing some modern day
> heavy weights - starting with the Binyan Tzion and including Rav Ovadia
> Yosef of misusing the terminology - as it is quite clear that they are using
> it to describe people who are aware of the existence of Orthodoxy and quite
> a lot of the basics.  That, to my mind, is untenable.
> So what people like RDE are doing is arguing from within various teshuvos to
> try and show that the way these heavyweights are using the terminology it is
> so far and definitely no further. Whereas your argument would be that they
> don't need to go further for the purposes of the teshuvos, but that the
> implication remains (as evidenced by the common understanding).  I suspect
> it is a bit of the one and a bit of the other, which is the approach that
> RMB took to the sources that RDE  brought.
> R' Chana

Therefore, what I am trying to suggest is perhaps the Gemara's case of
TsN, viz. knows absolutely nothing, is lav davka. Perhaps we can say
that while a baby literally taken captive by gentiles will know
absolutely nothing, we can just as well say that the paradigm fits for
someone who *does* know something of the Torah, but his perspective is
skewed and warped, and he doesn't really get it, doesn't really
understand it, and his general perspective on it is wrong, regardless
of his level of pure knowledge. He was kidnapped and given a faulty
introduction and foundation to Torah, irrespective of how much pure
knowledge of pratim he has.

If you take a Jewish child (i.e. "kidnap" him), and teach him the
entire Gemara, but all under the presumption that it is all obsolete
and ridiculous (perhaps = HUC, JTS), I am arguing that perhaps this is
TsN too - he is shogeg in the Torah's **entire** foundation, even if
he knows many pratim.

If this is all valid, then I can say that today's nonreligious are not
merely mumar l'teiavon, but rather they are mamash shogeg and TsN - as
I said, if shogeg mean the person is ignorant of something that had he
known he wouldn't have sinned, we can say that these people are
ignorant of the Torah's truth and Sinaiticity, and had they

If so, then the terminology of TsN in these teshuvot is very
deliberate and correct and davka, and I don't have to resort to saying
that TsN does in fact mean knows-nothing (as per RDE) but today's
nonreligious are not exactly TsN but merely something similar. Rather,
I can say that Gemara-TsN includes (theoretically/potentially) someone
who DOES know something. And so I don't have to accuse these teshuvot
of error or imprecision in using "TsN" incorrectly for someone who
does know something whereas TsN properly means only know-nothing.

And IMHO, this fits very well with Rabbi Aryeh Kaplan that even when
they learn more, they are still captive children. I can say that RAK
means davka TsN, and he means that even when they learn pratim of
Torah, they are *still* true Gemara TsN, because they haven't yet
learned (inconclusively with proofs, etc.) that Torah is m'Sinai.

This then all fits for today's nonreligious. But what of those in the
first days of Reform? Many of them were meizid/mumar l'hachit, many
were mumar l'teiavon, and I'd say that many would have been TsN (or at
least regular shogeg in the individual lavim) if they were ignorant
enough to be truly won over by smooth-talking reformers with clever
misappropriations of Torah knowledge.

Mikha'el Makovi

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Message: 11
From: "Rich, Joel" <JRich@sibson.com>
Date: Tue, 8 Apr 2008 13:59:16 -0400
Re: [Avodah] Skipping Korbanos


Also, when saying the third berakhah with the chazan, I take that to
mean that if he closes birkhas qedushah with "Ledor vaDor", I should

SheTir'u baTov!

Micha Berger        

This is what I was told lhalcha bshem R'YBS based on the concept of
tfillat hatzibbur.  Interesting question to me is what if I do (and the
chazzan did) that but the rest of the tzibbur says atta kadosh,
according to R'YBS have I been yotzeh tfilla btzibbur?

Joel Rich
distribution or copying of this message by anyone other than the addressee is 
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immediately by replying: "Received in error" and delete the message.  
Thank you.

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Message: 12
From: "Chana Luntz" <Chana@kolsassoon.org.uk>
Date: Tue, 8 Apr 2008 12:47:31 +0100
Re: [Avodah] R' Angel & Geirus Redux

RMM writes:

> Gevalt, is this what we were arguing?? Oy va voy, I misunderstood what
> we were arguing about!
> The Gemara in Shabbat perek 7 itself argues whether a TsN is b'shogeg
> (R' Akiva, Rav and Shmuel) or ones (Munbaz, R' Yochanan and Reish
> Lakish). 

I think you are misunderstanding the modern discussion regarding tinuk
shenishba, which is actually brought within a discussion of the concept of

To understand the discussion, you need to examine two concepts, one is a
"mumar l'hachis" and the second is a "mumar l'teyavon".  I think somebody
once translated l'hachis as "out of spite", which does give some of the
flavour of it.  It is perhaps easier to understand the concept of a "mumar
l'teyavon" as somebody who acts contrary to halacha because his desires
overwhelm him (eg the bacon smells too good and he couldn't resist), not
because he davka wants to act against the halacha.  Once this concept is
understood, it would seem the easiest way to understand the concept of a
mumar l'hachis is as the opposite, somebody who acts davka against the
halacha and not because his desires overwhelm him.

Now the Shulchan Aruch brings in Yoreh Deah siman 2 s'if 5:

"A mumar l'hachis even in respect of only one matter or one who is a mumar
for idolatory or who violates the shabbat publically ... Their din is like a
non Jew".

As can be seen from this, somebody who is a mumar for idolatory or who
violates the shabbat publically even if it is not done l'hachis would seem
to fall within the category of being like a non-Jew.

Now it is from the general formulation that you get to various halachos.
Because if somebody's status is like a non Jew, then it would seem to follow
that they a) don't count for a minyan; b) their shechita is not kosher and
c) wine they touch is forbidden.

But it gets worse.

The primary gemora upon which the Shulchan Aruch I just quoted to you is
based is found at Chullin 5a.  While that gemora starts out discussing
shechita of people like a mumar for idolatory, it brings its proof text from
a braisa that reads as follows:

"we accept korbanos from the sinners of Israel [poshei yisroel] that they
may do teshuva with the exception of a mumar who offers libations of wine to
idolatory and one who violates shabbas b'farhesia".

In the course of the discussion it is made clear that those who are a mumar
for adolatory and/or violate shabbas b'farhesia fall into the same category
as one who denies the entire Torah.

Obviously this would seem to beg explanation.  That given by Rashi there in
Chullin is that this is because one who offers to idolatory denies HKBH and
one who violates shabbas denies His acts (ie ma'aseh breishis) so doing such
acts constitute a fundamental denial of Hashem.

And similarly the Rambam in hilchos shabbas perek 30 halacha 15 states "that
shabbas is a sign between HKBH and us forever.  Therefore one who violates
other mitzvos they are in the category of the wicked of Israel.
But one who is mechallel shabbas befarhesia behold he is like who worships
idols and both of these are like a non Jew in all respects"

Getting back to the gemora in Chulin, the strong implication from this
reference to the korbanos and teshuva is that one who offers libations of
wine to idolatory or who violates shabbas b'farhesia cannot in fact do
teshuva. And in fact the Rambam poskens in hilchos oved chochavim in perek 2
halacha 5 that not only one who is a mumar l'oved kochavim is a non Jew in
all respects that "we do not receive v'ain mekablin otum b'teshuva l'olam
[we do not ever accept them as repenting].

The Lechem Mishna there on the Rambam questions this Rambam on the grounds
that the Rambam at the end hilchos teshuva perek 3 says that everyone can do
teshuva .  He suggests a resolution to the stira.  He says that it is
possible to do teshuva for aveiros of this nature, but they are of such a
great magnitude and it is so difficult that anybody who truly did teshuva
for them would die in the process (as we see from various stories in the
gemora where people did sincere teshuva and their souls left their bodies as
a consequence). Hence the point is that *we do not accept* any person as
having done teshuva for such aveiros, because any person who had really done
teshuva for such aveiros would no longer be alive, and if they are alive
they can't have done teshuva.
And the reference in hilchos teshuva is not to what we accept, but what HKBH
accepts - so that yes, HKBH may accept such teshuva but we cannot.

Note that while here the Rambam does not specifically mention one who
violates shabbas b'farhesia, the Kesef Mishna there refers to such
violations in quoting the supporting source for this Rambam (ie the gemora
in Chulin referred to above) and the general common language makes it clear
that this category too would fall within that of ain mekablin.

Now, I am not aware of any Rav on this planet that holds this as halacha
l'ma'aseh today with regard to today's non religious Jews.  As should be
obvious from what I have described above, if one follows this position, bang
goes the modern chozer b'teshuva movement.  That is, large portions of this
list and just about every minyan and family (even the most choshuve these
days) are made up of people who according the Rambam cannot have their
teshuva accepted, have the status of non-Jews, cannot be counted in a minyan
etc etc.

So... How do we get out of the problem.

There are varied approaches.

A) Tinuk shenishba: perhaps the most widespread approach is that adopted by
Lubavitch, the Chazon Ish and others that today's non religious Jews do not
fall within the category of the Shulchan Aruch described above, ie they are
not a "mumar l'chillel shabbas b'farhesia" as defined there.
That, they argue requires real knowledge and applies to somebody (eg like
Elisha ben Abuya in the Talmud) who really knew what was at stake and
violated it anyway.  Today's Jews, they argue, are rather in the category of
those captured as infants who do not understand what it is that they are
violating.  This is notwithstanding that they may know about the concept of
shabbas and be knowledgeable in many of the halachas.  In fact, people like
the Kaf HaChaim, who relies on this approach (see Yoreh Deah siman 119 s'if
katan ) argue that it is only applicable to those who in fact turn up to
shul and daven (ie affirm their acceptance of Hashem) and then later go
violate shabbas.  While it is only those that stay away  totally and violate
shabbas who remain in the category of a mumar l'chachis.  (although note he
excludes from this leniency those that go out in public in their motor cars!
who according to the Kaf Hachaim continue to fall within the category of a
non Jew in all respects).  This view of course can be further explained by
use of the Rashi on the gemora that I cited above, ie that what is really at
stake is about a denial of Hashem's act of ma'aseh Breishis, and that
today's non religious Jew (even in contrast to those in the time of the Kaf
Hachaim), no matter what they know about shabbas and its halachas, are
certainly not intending that by their acts of driving their car (or
whatever) to be denying the Creation and the Creator of the world nor do
they even understand the link. 

The issue at stake is not a question of shoegeg versus meizid.  As people on
this list have mentioned, in general that is, in the absence of korbanos,
for HKBH to decide.  But whether or not somebody is a mumar l'hachis is
something we need to decide, because of the halachic implications.  

However, because of the discussions you refer to in the gemora regarding
shogeg versus ones, once the terminology of tinuk shenishba is used, it is
arguable that these concepts will be at least implicitly dragged along with
it.  And I do think that a number of the more kiruv orientated organisations
have taken this concept and run with it.  It is on this that it seems to me
that, at least partially, your argument with RDE rests.  RDE keeps pointing
out that nowhere in any of the teshuvos is there any indication that a
modern day tinuk shenisba is to be considered anything less than a mumar
l'teiavon, ie all that has been achieved by this language is to take such
people out of the category of mumar l'hachis.  And to the contrary, there
appears to be language that supports a mumar l'teiavon reading.  Your best
argument to the contrary is to say that these teshuvos are not accidentally
using gemora terminology, namely tinuk shenishba, which carries with it an
understanding of shogeg versus ones machlokus, and hence indeed the kiruv
organisations understanding of these teshuvos follows.  Especially as one
could do it more in the manner of Rav Moshe as outlined in b) below.  This
is why people who do not feel comfortable with this implication, try to
argue that the terminology of tinuk shenisbha is being misused (as in the
gemora it is only used to describe somebody who really knows absolutely

The problem with that argument is that you end up accusing some modern day
heavy weights - starting with the Binyan Tzion and including Rav Ovadia
Yosef of misusing the terminology - as it is quite clear that they are using
it to describe people who are aware of the existence of Orthodoxy and quite
a lot of the basics.  That, to my mind, is untenable.

So what people like RDE are doing is arguing from within various teshuvos to
try and show that the way these heavyweights are using the terminology it is
so far and definitely no further. Whereas your argument would be that they
don't need to go further for the purposes of the teshuvos, but that the
implication remains (as evidenced by the common understanding).  I suspect
it is a bit of the one and a bit of the other, which is the approach that
RMB took to the sources that RDE  brought.

B)Today's mumar l'chillel shabbas b'farhesia is the equivalent of a mumar
l'teyavon as per other aveiros - ie that today the reason Jews violate
shabbas tends to be linked to parnasa or other ta'avas and that therefore
the traditional halachas do not apply.  This appears to be the position
adopted by Rav Moshe Feinstein in Iggeros Moshe Orech Chaim chelek 3 siman
12 (in discussing giving aliyos to the Torah - note that Rav Moshe allows
the counting of such Jews into a minyan on other grounds, in Orech Chaim
chelek 1 siman 23 - ie on the basis that minyan is based on the meraglim)
This would seem deliberately to not be as far reaching an approach as that
described above (which suggests that the approach above is to be understood
in a more farreaching manner), but it is still a reading down of the
situation.  The argument that Rav Moshe appears to be advancing (although it
is written rather shorthand) is that those Jews today who do believe in HKBH
cannot be said to be denying the actions of HKBH by not keeping shabbas, but
rather are doing it out of their own desire for money or comfort, and hence
despite what seems to be the plain meaning of the text that it does not
matter why a person is violating shabbas publicly, in fact it does indeed
matter, and that only if that person is effectively doing it l'hachis is a
problem of the magnitude of treating them as non Jews.   On that basis he
does allow the calling up of such Jews to the Torah.  

On the other hand he does *not* allow the calling up of C/R Rabbis on the
basis that they are doing what they are doing not because of desires for
money or comfort, but because they have made an ideological choice to reject
the Orthodox understanding of HKBH and his Torah, and hence it is a real
denial of HaShem.  Whether Rav Moshe would still consider R/C rabbis to fall
within this category today - one could no doubt argue.  However, I suspect
he would.  My impression is that - unlike the approach in A) above, which
might regard R/C, including their Rabbis, as ignoramus's - Rav Moshe took
them seriously as indeed, as they claim, having a different ideological
approach to Judaism.  And to him that ideological approach spells heresy.
He exempts the laity on the grounds not so much of ignorance - but of having
chosen to be where they are because it offers to make thier life easier, ie
so they can pursue the desires of their heart like career.  On the other
hand, an R/C rabbi has made the ideology of R or C his career. He has, after
all, dedicated his life to this ideology.  And that, to Rav Moshe spells

For completeness:

C)The mukzak approach: Another approach turns on the "b'farhesia" aspect of
all this.  On this point, many of the classic merforshim [commentators]
already say that in order for there to be a violation b'farhesia it needs to
be in front of 10 Jews (see eg the Kaf Hachaim on this - and the discussions
about whether the person in question counts as one of the Jews, and whether
women count as one of the Jews etc). Now you can take this slightly further
and say that since what we are doing here is effectively converting this
person from a Jew to a non-Jew (ie making their status like a non Jew) that
is in many ways the equivalent to a non Jew becoming a Jew, and until the
testimony is given in front of beis din and the necessary evidence produced
that they did it in front of 10 frum Jews no conversion in status takes
place and therefore they stay the status of a Jew and can be counted for a
minyan etc.  [And of course, today, no beis din today will sit on this
matter, because of the multiple aveiros of these generations].

This last is a form of innocent until proven guilty, perhaps.  It is perhaps
easier if you are also the type to assume that everybody driving in their
cars is on some sort of pikuach nefesh mission.  But again, we are not
getting into the blame game, we are dealing with the question of what to do
if a person shows up and wants to join your minyan (and you don't hold like
Rav Moshe) or if he touches your wine, etc etc, not with the issue of
blamelessness at all.

> Mikha'el Makovi




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