Avodah Mailing List

Volume 28: Number 140

Wed, 20 Jul 2011

• 1. Re: dina demalchuta (Zev Sero)
• 2. Re: dina demalchuta (Lisa Liel)
• 3. Re: is this muttar? (Zev Sero)
• 4. Kofin Oso (Micha Berger)
• 5. Re: Kofin Oso (Zev Sero)
• 6. Re: dina demalchuta (Chana Luntz)
• 7. Re: is this muttar? (Rich, Joel)
• 8. No Image at Choreiv? (Micha Berger)
• 9. Re: dina demalchuta (Micha Berger)
• 10. Re: dina demalchuta (Zev Sero)
• 11. Re: dina demalchuta (Lisa Liel)
• 12. Re: dina demalchuta (Micha Berger)
• 13. Re: dina demalchuta (Lisa Liel)
• 14. beautifying the mitzvas.....priorities in spending?? (Harvey Benton)
• 15. Re: beautifying the mitzvas.....priorities in spending?? (Rich, Joel)

On 19/07/2011 10:37 PM, Micha Berger wrote:
> On Tue, Jul 19, 2011 at 10:27:52PM -0400, Zev Sero wrote:
>>> DDD is not an obligation? You want to say it's an issur against violating
>>> their dinim?
>>
>> No, it's neither one.  Not unless you show me a source that derives
>> such an obligation or prohibition from it...
>
> Then what are you saying DDD is, if Shemu'el was neither telling us
> what to do, nor what not to do?

Shmuel's statement is exactly what it looks like: a statement.  The
kingdom's dinim are valid.  When Reuven sues Shimon in Beis Din over
possession of a house, and Shimon shows his title deed from the land
registry, the BD must accept that as valid proof.  If Reuven says,
"ah, but when I sold it to you you didn't make a halachically valid
kinyan", the BD says that doesn't matter, the kingdom's laws, which
are valid, say that it belongs to Shimon even without a kinyan, or
with a kinyan that is not mentioned in halacha.  If the kingdom's laws
are that whoever pays the property tax is recognised as the valid owner,
and Shimon comes in with his tax receipts, that's valid too.  But if
Shimon comes in with a good-old-fashioned shtar kinyan in Aramaic,
signed by two kosher witnesses, who saw all three kinds of kinyan, but
there's no tax stamp on the contract, and the kingdom's law is that no
contract is valid without a tax stamp, then Reuven gets his house back.
That's what Shmuel says, and that's what he means.


>>>>> or as Rashi puts it
>>>>> explaining R' Tarfon, our obligation of uvi'arta hara'ah miqirbekha.

>>>> Rashi does *not* put it that way; you are simply making that up out of
>>>> thin air.

>>> I am not making anything up -- in fact, I gave you a URL and page number
>>> within the article for you to see where RHS says it.

>> You claimed that *Rashi* put it that way.  He didn't...

> I repeated other's claims -- R' Broyde and RHS, because they happened
> to convince me.

They convinced you to put words in Rashi's mouth that *he did not use*?!!
No, you did that on your own.  Nothing in RHS or RMBroyde's articles
justifies claiming that "Rashi puts it" in a way that he doesn't even
hint at.   Nor does anything in RHS's article justify your claim about
an obligation to turn anyone in; *you* came up with that one.



> The only question I'm interested in is how you read the Rashi so as
> to reach a different conclusion than the one I gave.

The Rashi is only a few words, and I read them exactly as written.
There's no mention of the government, no mention of DDD, and no mention
of "uviarta".  All Rashi says is that "if you did kill then it would
be forbidden to save you".  That's it.  Anything else is someone else's
explanation, and can't be attributed to Rashi.

Oh, and I looked up the Maharshal RHS quotes, and the explanation he
reads into it is very strained.  The Maharshal makes no mention of
secular courts or DDD or anything like that.  His only point is that
just because we can't apply dinei nefashos, doesn't mean we shouldn't
let a rasha come to a just end.  Essentially, lo maalin velo moridin.


-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

On 7/19/2011 9:37 PM, Micha Berger wrote:
> On Tue, Jul 19, 2011 at 10:27:52PM -0400, Zev Sero wrote:
>>> DDD is not an obligation? You want to say it's an issur against violating
>>> their dinim?
>>
>> No, it's neither one.  Not unless you show me a source that derives
>> such an obligation or prohibition from it...
>
> Then what are you saying DDD is, if Shemu'el was neither telling us
> what to do, nor what not to do?

If I understand what Zev has been saying, he's saying that DDD means 
that those things the goyim claim are their dinim have the status of 
dinim, and that we can rely on the fact that they have din-ish intent. 
The hava amina would be, I guess, that the dinim of the goyim are 
hefker-ish and can be considered arbitrary shtuyot on their part.

Zev, correct me if I've misunderstood you.

Lisa

On 19/07/2011 11:07 PM, Micha Berger wrote:

> I would like to be mechadeish a new explanation, based on the Rambam's
> explanation of kofin oso ad sheyomar "rotzeh ani".
> [explanation omitted]>
> What does the chevrah think; plausible?

This seems to me obviously correct, but I may be missing something,
because I don't understand what is the chidush.  How did you understand
the topic until today, or whenever you came up with this?  I don't know
how else to understand it.



-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

On Tue, Jul 19, 2011 at 11:17:20PM -0400, Zev Sero wrote:
> This seems to me obviously correct, but I may be missing something,
> because I don't understand what is the chidush.  How did you understand
> the topic until today, or whenever you came up with this?  I don't know
> how else to understand it.

In my experience, it is usually explained that kefiyah can produce a
valid get because the kefiyah is halachically legitimate (mandatory and
thus permitted), Then the "rotzeh ani" is really a haaramah, one that
bothers me because (1) we don't allow haaramos in dinim deOraisa, and
(2) it smells so inquisitional.

I am suggesting that get anusah is only a problem when it's a pure
oneis, with no ratzon at all backing it. That a ratzon overshadowed
by another ratzon is sufficient for a get to be valid -- if the
ratzon's existence could be brought to light (thus "ad sheyomar").

Tir'u baTov!
-Micha

On 19/07/2011 11:23 PM, Micha Berger wrote:
> In my experience, it is usually explained that kefiyah can produce a
> valid get because the kefiyah is halachically legitimate (mandatory and
> thus permitted), Then the "rotzeh ani" is really a haaramah, one that
> bothers me because (1) we don't allow haaramos in dinim deOraisa, and
> (2) it smells so inquisitional.

Oh.  That doesn't seem right at all.  It's clearly not what the Rambam
says, at any rate.  And I think the word you're looking for may be
"Jesuitical".

Bear in mind that "kofin oso ad sheyomar 'rotzeh ani'" is not just used
for gittin.  Think back to the first Rashi you probably learned, when
you were brought in to cheder.  A korban must be brought "lirtzonchem",
of the owner's free will.  So what can BD do if a person is obligated in
a korban (either as a chatas or because he promised to bring it and has
now changed his mind)?  If they just confiscate his money and bring a
korban in his name, as they would do for tzedaka or machtzis hashekel,
it won't count.  So what do they do?  Kofin oso, exactly as the Rambam
and you explained.

-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

RMB wrote:

> >> DDD is the Jewish obligation to follow their dinim

RZS replied:
 
> > No, it is *not*.  Where do you see any reference to an obligation?

And RMB further replied:

> DDD is not an obligation? You want to say it's an issur against
> violating
> their dinim? No problem. But also, a distinction without a difference -
> -
> you can't tell from Shemu'el's words whether it's an asei or a lav.
> 
> Personally, given RHS's tying this all to uvi'arta hara miqirbekha, I
> would go with asei.

Just to slightly butt in here, I don't think you are understanding RZS's
argument.  He doesn't believe that DDD is an aseh or a lav, he believes it
is just a kind of recognition of a fact, ie a shtar is valid, or a seizing
of property by the king make the property legitimately the king's.  He
doesn't believe that this imposes on anybody any obligation to do anything.

And part of the reason you are finding this so frustrating is the same
reason why it used to be intensely frustrating on the old soc.culture.jewish
debating with these modern day karaites, who do not accept Chazal, and keep
insisting that the words in the Torah meant what they say they mean, and not
what Chazal said they mean.  And the reason it is frustrating is that they
have a point, the words in the Torah could, in the absence of Chazal, be
understood to mean what they say they mean.  It is just that we are not
karaite Jews. For us if Chazal tell us that the Torah means X, then it means
X and not interpretation Y, which might also fit the words, but do not fit
Chazal.

Similarly, RZS's explanation could fit the cases of DDD in the gemora, were
it not for all of the rishonic and achronic explanation which is predicated
on DDD being an obligation, and not merely a recognition of validity. 

RZS is partly basing his position on, as he says later:

> All I'm doing is translating the words, and not going
> beyond them.   DDD is a huge chidush, an enormous chiddush.  Shmuel
> gives no source, and no explanation.  The reason is so obscure that the
> rishonim have to make wild guesses as to what it might be, which is why
> their answers are all over the map.  And the fundamental rule about any
> chiddush is that you cannot extend it beyond what it says.  Shmuel
> doesn't say anything about obligations or prohibitions, and though the
> gemara cites him several times, in different cases, none of them imply
> an obligation or prohibition.  So anyone who asserts that such a thing
> exists must prove it.

Again, this is like our "karaites" who keep saying they are translating the
words of the Torah, and want you to prove that Chazal's explanation is the
valid one.  It is almost impossible to do, without a belief system in Torah
she baal peh.

It is true, the rishonim are all over the map in trying to explain the
source for Shmuel's ruling.  But one of the reasons they are all over the
map is because almost all of them understand it as a chiyuv, not merely a
statement of fact (which they then variously try and limit in some way,
because the consequential breadth is otherwise enormous).  But part and
parcel of each of their justifications for the basic ruling involve
inclusion of this fundamental understanding of chiyuv within the din.  I say
almost all, because it is possible to say that where the source for  DDD is
hefker beis din hefker, you might also see that as a statement of fact
(although once a Beis Din has ruled your property not yours, then
obligations of handing over other people's property to them kick in, but
arguably less so in this case).  However, that position is not the dominant
position amongst the rishonim, it is not what is brought in the Shulchan
Aruch and the Rema, and it is thus overwhelmingly not the way that Klal
Yisroel poskens.

That is why people feel free casually to assume this explanation of DDD in a
discussion of halacha, eg on this list.  It is like assuming that you start
counting the omer on the day after Pesach even if it is not a Sunday. We
would all do this, because we are imbued with Chazal's understanding of the
Torah.  Similarly, RHS and anybody else writing on this either assumes or
brings this understanding, because the rishonim overwhelmingly do and the
justifications they give for the din do.

RZS is trying to say that we cannot extend a chiddush beyond the most
limiting interpretation one can place on the words of the gemora even
against the rishonim and the sweep of halachic history, including many
teshuvot on the subject.  It is thus a very difficult position to argue
without writing a book (or at least a Rav Ovadiah like encylopedic list of
citations) because you need a level of overview that does not so easily lend
itself to communication (unless you are Rav Ovadiah).  And you also need a
belief in the halachic process that validates the position of the rishonim,
and not just the rishonim, but the rishonim as then codified and discussed
by the Shulchan Aruch and meforshim, over and above any interpretation we
might ourselves find. Analysing the words themselves are not going to get
you there, although once you have "bought in" to the understanding of the
rishonim, just as once you have "bought in" to the understanding of Chazal,
all sorts of other places which seem to prove, or "fit" the explanation
appear.  That is what makes it difficult, but that does not mean that IMHO
you are not still right.
 
> Tir'u baTov!
> -Micha

Regards

Chana

>>That said, I would agree that if this kidnapping (1) actually occured,
>>and (2) was a BD-ordered "kofin oso ad sheyomar rotzeh ani", DDD wouldn't
>>trump halakhah.
==============================================================
Do our batei dinim have the power to order corporal punishment? If so, my
guess would be that it's from the power of the melech, not the traditional
beit din.  If so, I'm not sure that DMD (at least according to those who
see it going beyond monetary issues) wouldn't trump.
KT
Joel Rich


>>>>>
In this particular case we're not talking about corporal punishment, which
a person would be sentenced to as /punishment/ after being convicted of a
crime or a sin.

We are talking about using force -- I don't think it matters what kind of
force, whether a beating, or just being held somewhere against his will --
to make someone do something that he doesn't want to do.  The "something"
he doesn't want to do is free a captive -- his own former wife.

You could definitely make a case that freeing a captive (the ex-wife)
trumps dina demalchusa and doesn't need the authority of a king, or of
anyone.  The only reason you'd need a bais din, or at least the approval of
a very well-respected rav, in my understanding, is that under certain
circumstances a get given under duress is not halachically valid, so you
would need to know that after you had forced the man to release his wife,
she really was free.

To repeat, dina demalchusa would not apply in the case of freeing a captive, and corporal "punishment" also is not an issue here.

A separate issue would be, who has the responsibility or even the right to
put /himself/ at risk -- risk of incarceration, police record, monetary
loss, etc -- in order to save an agunah?  That's a different, possibly even
more complicated question.


--Toby Katz
================

 Could be, but it seems to me there is a prohibition against hitting ones
 neighbor.How does one invoke makkin oto without a beit din to invoke it so
 as to override the hitting prohibition?
KT
Joel Rich
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Devarim 4:15 says "ki lo re'isem kol temunah beyon diber H' aleikhem
bechoreiv mitokh ha'eish".

The Rambam (Yesodei haTorah 1:8) cites it as one of his proofs "she'ein
HQBH guf ugevi'ah".

HOWEVER.... while I agree with the Rambam that Hashem has no guf ugevi'ah,
how can we say that noone saw a picture of one at Choreiv? Shemos 24:10,
speaking of Moshe, Aharon, Nadav, Avihu, and the 70 zeqeinim, "Vayir'u
es E-lokei Yisrael, vesachas Raglav kemaaseih livnas hasapir..."

Tir'u baTov!
-Micha

-- 
Micha Berger             You cannot propel yourself forward
mi...@aishdas.org        by patting yourself on the back.
http://www.aishdas.org                   -Anonymous
Fax: (270) 514-1507

On Wed, Jul 20, 2011 at 11:49:08AM +0100, Chana Luntz wrote:
: Just to slightly butt in here, I don't think you are understanding RZS's
: argument.  He doesn't believe that DDD is an aseh or a lav, he believes it
: is just a kind of recognition of a fact, ie a shtar is valid, or a seizing
: of property by the king make the property legitimately the king's.  He
: doesn't believe that this imposes on anybody any obligation to do anything.

Thank you, I didn't.

However, saying that a shetar is valid is identical to saying I have a
chiyuv to abide by that shetar and identical to saying I have an issur
against violating that shetar.

Tir'u baTov!
-Micha

On 20/07/2011 10:08 AM, Micha Berger wrote:
> On Wed, Jul 20, 2011 at 11:49:08AM +0100, Chana Luntz wrote:
> : Just to slightly butt in here, I don't think you are understanding RZS's
> : argument.  He doesn't believe that DDD is an aseh or a lav, he believes it
> : is just a kind of recognition of a fact, ie a shtar is valid, or a seizing
> : of property by the king make the property legitimately the king's.  He
> : doesn't believe that this imposes on anybody any obligation to do anything.
>
> Thank you, I didn't.
>
> However, saying that a shetar is valid is identical to saying I have a
> chiyuv to abide by that shetar and identical to saying I have an issur
> against violating that shetar.

Huh?  A shtar makes no demands on you.  It simply is.  And that is the
case with any din.  A din is a statement of fact, which you can neither
obey nor disobey.  And "dina demalchusa dina" is an instruction to batei
din, to recognise the kingdom's dinim as valid.

-- 
Zev Sero        If they use these guns against us once, at that moment
z...@sero.name   the Oslo Accord will be annulled and the IDF will
                 return to all the places that have been given to them.
                                            - Yitzchak Rabin

                    
                

On 7/20/2011 9:08 AM, Micha Berger wrote:
> On Wed, Jul 20, 2011 at 11:49:08AM +0100, Chana Luntz wrote:
> : Just to slightly butt in here, I don't think you are understanding RZS's
> : argument.  He doesn't believe that DDD is an aseh or a lav, he believes it
> : is just a kind of recognition of a fact, ie a shtar is valid, or a seizing
> : of property by the king make the property legitimately the king's.  He
> : doesn't believe that this imposes on anybody any obligation to do anything.
>
> Thank you, I didn't.
>
> However, saying that a shetar is valid is identical to saying I have a
> chiyuv to abide by that shetar and identical to saying I have an issur
> against violating that shetar.

Not really.  Those stem from it, and a shtar is only one case.  You 
might as well say that every lav is an asei, because you have an 
obligation to keep the lav.

Lisa

On Wed, Jul 20, 2011 at 09:55:48AM -0500, Lisa Liel wrote:
>> However, saying that a shetar is valid is identical to saying I have a
>> chiyuv to abide by that shetar and identical to saying I have an issur
>> against violating that shetar.
>
> Not really.  Those stem from it, and a shtar is only one case...

I agree, and as RnCL noted, that's the general trend of halachic
discussion on DDD as well. But Zev doesn't and it's his position I'm
trying to understand.

>              Those stem from it, and a shtar is only one case.  You  
> might as well say that every lav is an asei, because you have an  
> obligation to keep the lav.

I thought the difference between a lav and an asei is textual.

To take an from Friday's Y-mi daf yomi (BH I'm ahead of schedule)...
Pesachim 1:4 (vilna 4a) finds two mitzvos asei and two lavin in not
eating chameitz, according to R' Yehudah.

Not eating:
    "Shiv'as yamim tokhal alav matzos" -- velo chameitz
    "Lo sokhal alav chameitz"

Burning:
    "tashbisu se'or"
    "shiv'as yamim se'or lo yimatzei bevateikhem"

(Side-note: I think it's interesting that 7 days is invoked for the asei
of eating and the lav associated with bi'ur. Not sure what to make of it.)

Not eating would appear to be a lav, but it's both; bi'ur would appear
to be an asei, but it's both. It's all about whether the words "lo",
"al", "bal", the shoresh /sh-m-r/ appear in the mitzvah or don't.

But in terms of semantics, yes they can be identical -- and in the case
in Y-mi Pesachim (among numerous others), they explicitly are.

Here we have the concept of the validity of civil contracts. We only have
two buckets: asei vs lav. I would think this is a din in "lo signov",
for most contracts, and thus Shemu'el's DDD here is "it is a lav to
violate a civil contract". But I'm not married to that assumption.

Tir'u baTov!
-Micha

-- 
Micha Berger             "The worst thing that can happen to a
mi...@aishdas.org        person is to remain asleep and untamed."
http://www.aishdas.org          - Rabbi Simcha Zissel Ziv, Alter of Kelm
Fax: (270) 514-1507

On 7/20/2011 10:11 AM, Micha Berger wrote:
> Here we have the concept of the validity of civil contracts. We only have
> two buckets: asei vs lav. I would think this is a din in "lo signov",
> for most contracts, and thus Shemu'el's DDD here is "it is a lav to
> violate a civil contract". But I'm not married to that assumption.

See, you say that we only have two buckets.  But that's exactly what you 
haven't established.

(As a caveat, I'm not arguing the point that DDD is what the rabbis have 
established (as noted by Chana), rather than a reconstructed 
interpretation of the original source material.  But you're pursuing a 
different line of argument, and I don't think you've succeeded.  Simply 
stating a thing doesn't make it true.  Not for Zev and not for you.)

Zev is saying that it's not in a bucket.  It's simply a recognition that 
their dinim *are* dinim.  Not that we're necessarily bound by them.

Here's a nafka mina.  If I break US law while not otherwise violating 
halakha, by Zev's reasoning, the halakha has no problem with what I did. 
  But if the US government puts me in jail for it, it's legitimate on 
their part.  The halakha recognizes the legitimacy of their actions.

I was once a camp counselor, and I had some issues with some of the 
inane rules that had been dictated between the time I was a camper and 
the time I returned as a counselor.  I told my campers that I had no 
problem with them violating those particular rules, but that if they got 
caught, they were on their own.  This seems to me a parallel situation. 
  I had rules the campers had to follow.  The camp administration had 
rules as well.  Some of them matched; some of them didn't.  I had rules 
that the camp didn't have, and the camp had rules that I didn't have.  I 
recognized the camp rules, but that didn't mean I considered my campers 
to be bound by them.

Do you see the difference?

Lisa

there is an inyan of "beautifying the mitzvas"and so in 
order to fullfill this we get nice chanukias, and etrogim, 
tefillin, etc., However, isn't v'ahavta l'reiacha kamocha
a mitzvah as well? Can we justify three or four hundred 
dollar etrogim, etc,  if we know that our neighbor needs 
medical attention and cannot afford it??
are we responsible (or even required menchlachkeitly)
to buy a less expensive etrog (or R. Tam Tfilling, etc)
for our son/s, if we know that our neighbors/fellow jews/
lack/s basic medical necessities, housing, food, etc...
?????
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there is an inyan of "beautifying the mitzvas"and so in
order to fullfill this we get nice chanukias, and etrogim,
tefillin, etc., However, isn't v'ahavta l'reiacha kamocha
a mitzvah as well? Can we justify three or four hundred
dollar etrogim, etc,  if we know that our neighbor needs
medical attention and cannot afford it??
are we responsible (or even required menchlachkeitly)
to buy a less expensive etrog (or R. Tam Tfilling, etc)
for our son/s, if we know that our neighbors/fellow jews/
lack/s basic medical necessities, housing, food, etc...
?????
 ===================================
1. If one is giving the halachically required (or even more so the maximum) amount of tzedaka, no chiyuv to give more
2. by this definition one would be required to give up all discretionary spending as long as there was one individual in need.


All this being said, R' Schachter would agree with you - see http://torahmusi
ngs.com/2011/07/audio-roundup-cliv/

KT
Joel Rich
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