Avodah Mailing List

Volume 25: Number 205

Sat, 31 May 2008

• 1. Re: Rosh Hashanah 32b There's Hope For Everyone (Richard Wolpoe)
• 2. Re: Rosh Hashanah 32b "There's Hope for Everyone" (Richard Wolpoe)
• 3. Two Zohar based Customs - was Rosh Hashanah 32b There's Hope For Everyone (Richard Wolpoe)
• 4. Women in Torah (Michael Makovi)
• 5. Re: Assorted quotes from RSRH (Michael Makovi)
• 6. NASO "HAVE YOU EARNED YOUR RIGHT TO DRINK?" (Cantor Wolberg)

On Thu, May 29, 2008 at 9:55 PM, Micha Berger <micha@aishdas.org> wrote:

> On Sun, May 25, 2008 at 12:23:00AM -0400, Richard Wolpoe wrote:
> :> On Tue, May 20, 2008 at 09:24:29PM -0400, Richard Wolpoe wrote:
> :>:> And no one knows the technical limitations of derashos anymore -- one
> :>:> of the reasons (perhaps the lack of Sanhedrin is a 2nd) we don't in
> :>:> practice make new ones even lefi haRambam.
>
> :>: Except that
> :>:    1. The Taz created a new Halacha of davening Arbis after Tzeis
> becuase of
> :>:    Temimos
>
> :> Not a derashah. "Temimos" is being translated.
>
> : I  call this a distinction without a difference.
>
> But the difference is huge! Rambam is discussing the power of beis din
> to make a halakhah that didn't exist before using the middos shehaTorah
> nidreshes bahen.


The MB [and others] treat this Taz as ps'ak iow as normative.  Why?


>
>
> The Taz created a chumrah, it's unclear if he thought is was baseline din,
> through reading a pasuq and getting peshat. He interpreted existing law,
> and found the norm to be non-ideal. It's like the MB looking at peshat
> in a pasuq and saying "ur'isem oso" would be better done with the strings
> out where you could see them. A chumrah based on reading the deOraisa.
>

So I'l lback off the Taz and attack those who TREAT this Taz as anything
beyond a mere suggestion based upon the text.

Bu my point is that this understanding of Temimos is an unprecedented use of
the terms in a Halchic context. It might as well be a drashh.  If I can
manufacture  something out of a passuk w/o any precedent and it becomes
noramtive how does that differe from what Sanhedrin might have done? Only
that  it takes  a slightly different route



>
>
>
> :    4. Maharil is in concert with about 90% of Yekke minhaggim but they
> :    reject this one- why?
>
> A major problem in our communication is that we're doin g different
> projects. You're looking at theories on how halakhah works, and
> rejecting the numerous exceptions as being an abuse of the system.
>
> I, OTOH, and looking at how halakhah is made, not only as per Frankfurt
> prioritization, and trying to deduce what rules exist in practice.
>
> You're being prescriptive, I'm trying to be descriptive.
>

IOW ae you saying that anything practiced is ispo facto normative and ispo
facto correct?



>
> :    6. If this is  NOT a drasha then what is it and why do people follow
> this
> :    minhag in face of Poskim [such as MB] who rule otherwise?
>
> It's not a derashah because it doesn't create issur or chiyuv, just
> minhag. And I think it just post-facto supported minhag, anyway. As you
> write:


IT's a minhag that is being mevateil the proper use of Tallis according to
many poskim, Rmea, MB, and BA'eir Hetev  included. Is this Minhag legit?


>
> :
>
>
> You are making a distinction that I wouldn't, since pesaq isn't about
> finding truth, it's about defining law. My "can't be right" is referring
> to the same thing as your "have to accept their p'sak".
>

So Rabbi Rackman's afkin'u  of Kiddushin cannot be attacked so long as he
does what?  IOW there are no boundaries so as long as the game is played
within the rules =-anything goes?

The C Teshuva on driving on Shabbas would lay claim to "playing by the
rules" Since the combustion in the engine does not resemble the hav'ara in
the construction of the Mishkan it is not a d'orassio yada yada yada.




>
> But we were talking about them being wrong on halakhah. The rav who
> didn't err in procedure defines halakhah.


If a Rav ignores a "mishna" of a accepted [p'sak he is to'eh didvar mishan
as per choshen mishpat 25.  His onlyh wiggle room is articulated there.
Using corrct procedure and paskning a deviant p'sak is still not kosher

That is why we KNOW that techeils is NOT m'eakeiv es halavan because it is
an open Mishna that has been accepted as p'sak. if you atack this mishna you
might as well attack hazakkos, too!  einb ledavar sof.  Every Halachah can
be revise as long as one follows certain parameters [although I am not quite
sure what they are.] how can the term kayma lan EVER have any meaning?



>
> ...
> :> In any case, Rebbe dies in 220 CE R' Hillel II died in 385, Ravina died
> :> in 399. (Rav Ashi lived until 427, but the gemara persumably had to be
> :> written when both were alive.) So, by the narrowest definition, there
> :> were 180 years of amora'im, of which only 14 didn't have a Sanhedrin.
>
> : But Amoraim in Bavel were w/o Semicha.  And there is LITTLE evidence that
> : Hillel II ruled on 99% of the drashos in Bavel.
>
> I'm not sure of the relevence. We're talking about authority, not whether
> the authority was in practice used. I have no idea how the Sanhedrin
> operated in this era. However, there was a central beis din with the
> power that their decisions were that of everyone's poseiq.
>

The Existing BD is really not related to Rav Ashi and RAvina as sof hor'ah.
I am interested in knowing how this connection was made because no one else
I know ever invoked this connexion. OTOH I have heard that the Yersushalmi
was a product of Musmachin while the Bavli was not.  But I would not call
that a mainstream argument either.



>
> So even aside from derashah or other means of legislation (again, we're
> working within the Rambam who has derashos as a means of legislating
> new deOraisos), Sanhedrin at that time had the power to make binding
> interpretations of existing law.
>
> And they were umps who modified the official MLB rulebook.
>
> Tir'u baTov!
> -Micha
>
> --
> Micha Berger


So how can ANYONE say the  Halachah is like the Bavli or like Rava over
Abbaye AFTER the  LAST Sanhedrin closed up shop?

-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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On Thu, May 29, 2008 at 2:06 PM, <cantorwolberg@cox.net> wrote:

> The question was asked:
> Nowadays.... I wonder if people still challenge their rebbes? ... .
>
> It seems to me that the more secure a rebbe (or scholar) is, the less
> defensive he would be.  I have always asked my students to actively disagree
> with me if they disagree. There is also nothing wrong with saying: I don't
> know, but I will check sources, etc. In addition, the whole structure of the
> gemara is arguing and challenging each other. Kol tuv,
> ri


In the context of the give-and-take of a shiur, I really do not expect
students to be  100% polite. They need to be more spontaneous and so being a
bit less polite is OK.

When a student is outside the parameters of the give-and-take it is always
roper to be mindful of etiquette.  In my parshah Shiur at Cong. Mt. Sinai, I
used to explain Rashi and show how I respectfully disagreed and I would make
an effort to sho what forced Rashi's hand

I had several rigid types of attendees:


   1. For SOME people,  IF I said a Shiur on the parsha it meant I at least
   was resposible to KNOW every Rashi on the Parshah
   2. some were even MOE machmir and were upset if what I said did NOT
   conform with Rashi.

Illustration: At Friday night dinners inthe Heights I once posited that the
brothers did NOT sell Yosef and that the Yishma'elim did so -even thought
that IS the peshuto shel mikra!  I had a VERY hard time defending myself
[even though by then I had leined vayeshev maybe 20+ times]!

Finally, I mentioned the Rashbam and reluctantly they concede that I MIGHT
be OK after all, even though the passuk  SAYS Yishma'elim yanked Yosef out
of the pit.

To such an extent, many people are rigidly conformists on these matters.

I might add taht other p'sukkim DO back up Rashi's read [e.g. in Mikketz
yosef accuses his brothers of selling him.] so in now way do I mean to say
Rashi is WRONG, only that he is forcing the simple read of Vaeyshev because
of external problems. I call forcing a local read to match an external read
the simplest form of PILPUL viz.  Ignore what it says here and over-ride it
in favor of more "global" harmony.

Knowing that Rashi has a point I need to answe that and so I myself pilpul
Yosef's accusation to MEAN "I am Yoseph whom YOU CAUSED to be sold down to
Egypt" or "who are responsible for my ultimate sale to Egypt, etc."  IOW
fair is fair, Rashi has a valid point, but the way he wiggles out of it is
IMHO not the simplest read.

But w/o allowing oneself the luxury of thinking,analyzing and scrutinizing,
then Torah is not learning but indoctrination, and we can digress from
teaching students to a form of "CONTROLLING" them via mind games.

Read the Rema's inro to his Mappah on SA and se why he felt it necessary to
provide an alternative read to RY karo's p'sak. We true-blue Ashkenazim have
been engaged in this kind of alternate reading for perhaps approaching a
millenium. I hate to see it go away in favor of some kind of perceived
politcal correctness.



Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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On Thu, May 29, 2008 at 9:55 PM, Micha Berger <micha@aishdas.org> wrote:

>
> .RRW:..
> : Actaully the Same Zohar that says NOT to wear TEfilin on Hol HaMo'ed says
> it
> : is EIDUS SHEKER al atzmo NOT To wear Tzitzis whilst reicting Shema.  If
> the
> : Zohar is normative [I think not aiui but YOU do] then I ask mah nafsach!
>
> Actually, I do not believe halakhah operates the way you're assuming.
> The Zohar is a consideration. It's not a halakhah text, so it isn't
> used to define normative, just to choose among options. But if it has
> a strong argument, it may motivate stretching my set of of normative
> options to choose something a poseiq wouldn't have otherwise.
>
> Tir'u baTov!
> -Micha
>
> --


OK.

   1. The Zohar says wearing Tefillin  on ChhM is a no-no because it steps
   on "os"
   2. The ohar also states iirc that reading Shema w/o Tzitzis is mei'id
   sheker al atzmo [akin to waht the Talmud says about reading shema w/o
   Tefillin]

Mah Nafsahch are either of these 2 passages normative?
Can we eclectically select ONE lehalachah and ignore the other and be
intellectually honest?

Sephardim obviously feel that BOTH apply.I.e.

   1.  Tallis is required of all - even the unmarried and
   2. Tefilin is a no-no on ChhM


Rema rules that we should:

   1. Wear Tefilin on ChhM Despite the Zohar
   2. Wear a Tallis Gadol even if unmarried [Darchei Moshe ho'oruch]

[NB: both Ba'eir Hetev and MB side with this 2nd Rema]

The common Minhag amongst Yekkes is:

   1. Wear Tefilllin on ChhM
   2. Wear Tallis when Unmarried. [hmmm, co-incidence?]

The common Minhag amongst non-yekkes is:

   1. To stop wearing Tefillin on ChHM despite Rema -[even though most no
   Hassidic Ashkenzzim wore Tefilin on ChhM until about 50-75 years ago,,,]
   2. For non-married  boys to  NOT wear a Tallis Gadol

Questions to ponder:

   1. Why are yekkes different than other Ashkenazim?
   2. Why does Rema in Cracow co-incide with what Yekkes do?
   3. What is the Zohar Quotient in all of the above?
   4. Are the minhaggim in question supported by Halachic norms or
   social/societal norms?

Disclaimer:  this is NOT about questioning Minhagim that do NOT conflict
with normative Halachah.  Rather it is about  scrutininizing Minhag IN LIGHT
OF Halachah.

IOW - Consider mimetics as an equal partner with  text,  BOTH should be
understood an qualified in light of  other factors.

For example, just because BY states that fish and milk are not permitted
together does not make it normative. We analyze this BY and E.g. the Rema in
Darchei Moshe posits 'ta'us Soferim.  Text is not necesarily the last word.
"Davar mitoch davar" perhaps is.

Similarly just because people DO IT does not make it normative per se. It
could be the mimetic equivalent of a ta'us sofer.
-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe@Gmail.com
see: http://nishmablog.blogspot.com/
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I was discussing women in Torah with my friend, and she [the same
friend of mine who is suffering in chu"l] brought up pilegishim,
saying that  it was totally unreasonable, and she couldn't understand
how the Torah could allow it.

I replied that it seemed perfectly reasonable, as a time-based
concession to the yetzer hara and/or the minhagim of the time (i.e.,
up-to-date then but out-of-date now).

I related this to, for example, the Torah saying that if you go to war
and take a woman, you have to treat her  kach v'kach - Chazal already
told us this is but a concession to the yetzer hara; ideally, no man
would do this, but the Torah knows it that man cannot always live up
to lofty ideals.

Similarly, Shadal (Shmuel David Luzzatto) quoted in Nechama Leibowitz,
says that the Torah allowed the goel to kill the accidental
manslaughter until he arrives at the city, as an attempt to wean us
off Arab-style blood revenge. Had the Torah forbade the goel from
killing the manslaughter, he would have ignored the Torah and taken
revenge for his family's honor. The Torah's attempt to gradually wean
us, however, succeeded, B"H, for the Torah says "flee" but Chazal say
"exile", showing that Chazal-era people no longer entertained notions
of chasing the manslaughterer to avenge their honor.

We could add to this the fact that the Torah says "if a man has two
wives, one loved and the other hated..."; also, it is "Adam and Eve"
not "Adam, Eve, and Joan"; the Torah lets us have two wives, but it
subtly lets us know that two wives will mean marital discord, and it
lets us know what it really wants. Indeed then, Chazal tell us (if I
remember correctly) that you must have your wife's permission to take
a second, and when Shmuel's mother's husband had two wives, the
midrash says this is criticism of him. And then of course Rabbenu
Gershom banned polygamy altogether. Although the Torah lets us
practice polygamy, we eventually got the message.

However, I added to her that I was scared to wonder in many instances,
whether my criticisms of certain Torah/Chazal-ic statements (eg, women
cannot be eidim) were because the statement goes against the ethos of
the Torah, or because it goes against modern Western values.

Now then, I just saw Rabbi Eliezer Berkovits in his book "Crisis and
Faith", chapter 7, "The The Status of Women Within Judaism". He also
has a book, "Women in Time and Torah", but I have not yet been blessed
with the ability to procure that book. Anyway...

Rabbi Berkovits brings up many Chazalic statements that are critical
of woman's nature, such as that they are lazy, greedy, vain,
gluttonous, prone to witchcraft, etc. He says it is highly doubtful
whether anyone could accept these statements today.

He notes that there are no statements of what men are like, nor what a
husband means to a wife; all of Chazal's statements are male-centric.
So are the laws of the Torah - only men can be eidim, only men can
divorce their wives, only men are admitted into the center of
religious life (especially in learning).

This male-centricity no doubt contributed to the negative qualities
women were accused of - not being allowed to learn or participate in
or shape religious life, being confined to the home, was sure to make
them frustrated. Likely the "good" wife was demure and docile, while
the bright and alert and vital woman would have rebelled and been the
"bad" wife.

But he contrasts all these with many statements of Chazal much much
more favorable towards women; eg, that there is no blessing without a
wife, that a man should honor his wife more than himself, etc. He says
that the Jewish home has always had a much greater degree of love and
honor towards the wife than non-Jewish homes.

Also, despite the male-centric nature of the laws, Chazal did try to
fix certain situations disadvantageous to women; they would sometimes
compel a man to divorce his wife, they allowed only one witness, and
also a woman, to testify about a husband's death to prevent an aguna,
and various other measures.

The question then is, how to explain the negative statements and laws
in light of the positive ones? Rabbi Berkovits answers:

"There exists, then, a tension between the moral conscience of the
tradition, or, as we may also put it, between the ultimate ethos of
the Law, and its institutionalization in specific laws. There can be
little doubt that the tension is normally due to the fact that
inevitably, the actual institutionalization of the ethos is always
time-conditioned; it cannot be achieved independently of the people
whose adherence to it is demanded. This need not contradict the faith
of the religious Jew who believes that the Torah as God's revelation
has validity."

He notes Rambam that the korbanot were a concession to primitive
people. While others would dispute this, Rabbi Berkovits says the
point is that it may be a meta-principle that many Torah laws are
concessions to primitive times, and that these laws conflict with the
moral ethos of the Torah itself (NOT Western values). He also brings
up slavery, something Rabbi Berkovits is sure no religious Jew today
could live with; he says the Torah allows slavery, but attaches so
many conditions to it, that over time, we got the message and ceased
the practice.

Rabbi Berkovits says, surely this applies to woman and Torah too.
Rambam says that a wife is not a prisoner, and therefore she may leave
one or two times a month. Similarly, she must wash her husband's face
and hands, but not those of her husband's kin, for she is not a
servant. Rabbi Berkovits asks, would any husband subject his wife to
such conditions today?! He notes that as a child, his family had a
servant, but the family members were forbidden to request of her
anything additional beyond her ordinary duties, for she was not a
servant to them. If this is how Rabbi Berkovits's father treated his
servant, imagine how he treated his wife!

Rabbi Berkovits goes on to say that surely then, we can find ways to,
for example, permit women to be eidim and shoftim, and outlaw halitza
altogether (because it is humiliating; we can do this, he says, by
inserting a statement in the ketuba to retroactively annul the
marriage when a husband dies childless).

This is part of Rabbi Berkovits's philosophy of the Oral Law that from
time immemorial, the Oral Law served as a humanizing measure, to
change the preexisting law in accordance with Torah-values. He makes
it very clear that he does not mean that Western values ought to
inform our sensibilities; he says "This is not so because we are
modern Jews, nor because this is the second half of the twentieth
century. This is so because we are Jews. This has been so for many
generations, on account of what Judaism has made of us."

Rabbi Berkovits adds, "One does not ask these questions because the
Torah has become a burden and one wishes to break away from it; one
asks because one believes in the eternal validity of the divine
revelation, because one is committed with one's whole existence to the
proposition that the teaching is Torah Hayim, the way of life for the
Jew".

David Hazony in the introduction to "Essential Essays on Judaism", and
in the same article on Azure.com, there titled "Eliezer Berkovits and
the Revival of Jewish Moral Thought", notes that whereas reformers
want to bring Judaism up-to-date with Western values, Rabbi Berkovits
rather say it that halakha had to be updated to keep pace with the
values of the Torah itself.

Rabbi Hirsch wrote an essay titled "Judaism Up to Date", in which he
polemicized that Judaism has never been with the times, and it never
will be until Mashiach comes, and until then, we should never strive
to bring it up to date. Rabbi Berkovits would agree - the issue is not
that halakha is trailing behind Western values, but rather that
halakha is trailing behind Jewish values! When the Torah was given,
reality and halakha were behind the ideals and ethos of Torah, and our
task is to bring halakha up to step with the Torah's own values.

Mikha'el Makovi

>  "We should not wonder at why the Torah does not conform to the times, but rather why the > times do not conform to the Torah"

Rav Hirsch says things like this all over the place, but his essay
"Judaism Up to Date" (in both Judaism Eternal and Collected Writings"
is probably the source; this essay is all about how Judaism never was
up to date, was never meant to be, and never will be (until Mashiach,
that is).

Mikha'el Makovi

This is the law of the nazir on the day that the days of his  
abstention are completed... (6:13)

Why does the Torah section dealing with the laws of the nazir follow  
immediately after the section dealing with the laws of the sotah? To  
tell you that whoever sees a sotah's ruin should forswear wine.  (Rashi)

Once, in the early days of Chassidism, a learned Jew happened upon a  
farbrengen. Taking in the sight of half-empty vodka bottles on the  
table, of Jews singing and dancing instead of studying Torah, he  
cried: "Yid'n! The Beis Hamikdash is in ruins, Israel is in exile, and  
you dance and drink?!"
Present at the farbrengen was Rabbi Dovid Ferkus, a senior disciple of  
the Baal Shem Tov. "I have a question for you," said Rabbi Dovid to  
the visitor. "In one place, Rashi writes that a nazir's vow to abstain  
from wine is an appropriate reaction for one who witnesses human  
susceptibility to corruption by physical appetites. But only a few  
verses later, Rashi quotes the Talmudic opinion which regards the  
nazir's abstinence as a sin. Which is it? Is drinking wine a positive  
or a negative thing to do?"

Having stumped the learned Jew, Rabbi Dovid continued: "I will tell  
you the difference between the two cases. The first statement by Rashi  
is addressed to one who 'sees a sotah's ruin.' A person who is capable  
of seeing the negative in a fellow Jew, had better not drink wine.  
Wine will agitate his heart, and he'll probably be roused to discover  
more failings and deficiencies in his fellows. But someone who is  
blessed with the ability to see only the good in his fellow, for him  
to avoid getting together with other Jews for a lechayim is nothing  
less than sinful! An infusion of wine into his heart will stimulate it  
to uncover the hidden good in the hearts of his fellows."  (Reshimat  
Devarim)

rw
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