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Volume 37: Number 20

Sat, 16 Mar 2019

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Subjects Discussed In This Issue:
Message: 1
From: Professor L. Levine
Date: Thu, 14 Mar 2019 12:33:28 +0000
[Avodah] Common Modern Purim Misconceptions Debunked

Please see https://goo.gl/6gssWF

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Message: 2
From: Micha Berger
Date: Thu, 14 Mar 2019 22:31:40 -0400
[Avodah] How to Avoid a Chilul HaSheim

I have been sitting on https://jewinthecity.com/2019/03/orthodox-jews-heres-how-to-stop-making-a-chillul-hashem/
from Jew in the City for a while. A snippet:

    Orthodox Jews: Here's How to Stop Making a Chillul Hashem
    by JITC Staff
    March 05, 2019

    Baruch C. Cohen, a Los Angeles civil litigation attorney, has taken
    a special interest in creating awareness in the community about
    the dangers of chillul Hashem, which literally means a "desecration
    of God's name" and is used when a Jew does something that bring
    shames to Judaism...
    Whether from in-fighting, condescension towards other Jewish
    communities, or trying to beat the system and take shortcuts, the
    culture of chillul Hashem is rampant in some places. The culture of
    perfectionism is also detrimental. "When people operate with the
    pressure that it's A+ or nothing, they'll also tempt their yetzer
    hara to want to take that shortcut and compromise their values
    because that A+ is the [goal] outcome." This poisonous root sends
    people in the wrong direction. Cohen feels that if the root evils
    are corrected, a lot of the bad behavior will end as well.

    Baruch C. Cohen's Rules for All Orthodox Jews:

    1. The World Does Not like Jews - we do not need to encourage more
       people to dislike us
    2. Wearing a Yarmulke - carries with it an extra measure of
    3. We Must Be More Honest - more careful, more courteous & more
    4. When We Screw-Up, it Gets Magnified - the "Cringe Factor"
       (ie., Frum Slumlords)
    5. Having Good Intentions Is Not a Legitimate Excuse - for breaking
       the law
    6. Bad Behavior for a Good Cause - a lie for a good reason & a
       Mitzvah is still a lie
    7. The US Government Is Not the Enemy - we're not in Europe during
    8. Stop Dehumanizing "the Other" - the victims of fraud are not on
       a lower human level
    9. Stop our Elitist Views - Adopt the Rambam's "Gam Hem Keruyim Adam"
    10. Stop our Inflated Sense of Entitlement - "Es Kumt Tzu Mir"
        self-sabotages success
    11. We Cannot Pick & Choose the Rules We Live by - no smorgasbord

    Baruch C. Cohen's Rules for the American Orthodox Jew:

    1. Keep Your Word - do what you what you say you're going to do
    2. Document Everything - confirm everything in writing
    3. Follow the Rules - be a law-abiding citizen - know the laws -
       serve on a Jury
    4. Don't Think You're Smarter than the Law & Won't Get Caught -
       you will
    5. Myth of Shortcuts - work hard; there's no express elevator to the
       Penthouse Suite
    6. You're Not Right Because You're Orthodox - you're right because
       you're honest
    7. Establish Credibility - "Man Up" & admit when you're wrong
    8. Listen to Your Internal Compass - if it sounds to good to be
       true, it is;
    9. Consult Before Taking Action - not after
    10. Believe in Yourself, Act with Courage & Confidence - but
        never with arrogance
    11. Stop Being Nosy - "but I'm just asking" is no excuse for prying
    12. Give Unconditionally - with no expectation of anything in return
    13. Insert Bais Din Arbitration Clauses in Your Contracts - believe
        in our Torah
    14. Stand up Proudly for Judaism & Eretz Yisroel - never apologize
        about either
    15. Pause, Before Pushing "Send" on Emails and Texts - it could
        save your life

    For more information, email Baruch Cohen at bcc4...@gmail.com.

I only disagree with the basic presenration.

If we make the need to be considerate to others about chillul hasheim,
we aren't teating people to develop consideration for other people.
But that is a primary value in-and-of-itself, and arguably the highest
primary value, ask Rabbi Aqiva about klal gadol. If not "derekh eretz
qodmah le...Torah" would still say it's the value we have to worry about
it first.

Second, I don't think it can work. If we don't teach people the importance
of consideration in-and-of itself, there is insufficient motive to pay
attention to and hone the appropriate middos. That's just the side-issue,
not the real problem. Allegedly.

What do you think?

Tir'u baTov!

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

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Message: 3
From: Ben Bradley
Date: Fri, 15 Mar 2019 13:01:42 +0000
Re: [Avodah] Derech psak

If I can also respond to a number of points in a slightly unorganised

R Micha wrote:
> As I noted, we see this in practice in Brisker Chumeros.

> - It is only an issue in a style of lomdus that makes it difficult
> o choose sides. Not that one can SEE both sides, but that one finds them
> qually compelling.

> I think lomdus is more in the style of Tosafos, focusing on how we
> understand the gemara, with "only" implications about practice. Rather
> than focusing on getting to a lemaaseh. It's just a different subject.

> On Thu, Mar 07, 2019 at 03:12:32PM +0000, Rich, Joel via Avodah wrote:
>: I understand that's the case, I just don't understand why. For example
>: if you lived back in the day and your tanna was doreish klal prat uklal to
>: derive Halacha , how could you be accepting rulings from someone who did
>: not but rather used ribui umiyut ? Wouldn't that likely lead to tartei
>: dsatrei...

R micha wrote:
> Besides, don't take the "compeating" lists of derashos too seriously. We
> find R' Aqiva using rules of kelal uperat (eg R' Aqivah on Y-mi Eiruvin
> 18b or Bavli Pasachim 36a) and (less often) R' Yishma'el using ribui
> umi'ut.

Firstly, I think we overemphasise the chidush of lomdus. Granted, R'
Chaim's derech and subsequent Brisker development was something new in
its explicit conceptual tools. But to say that being able to see all
sides of a sugya with great clarity is a new thing, well isn't that
part and parcel of classic ameilus batorah? A criteria for being a
member of the Sanhedrin was being able to metaher a sheretz. That for
sure takes lomdus of whatever style, and yet is seen a essential for
one of the poskei hador. As R Micha noted, R Meir could perform the
kind of analytical wizardry which confounded his peers, and even if we
don't pasken like him when stated by name, it didn't stop him apparently
having own clarity in halacha l'maaseh.

In general, the impression one gets is that the basic learning of the
batei medrash of the amoraim was to to do exactly what we call lomdus,
just that the format of the gemara doesn't record exactly how that process
happened, presumably to maintain the oral/mimetic nature of the process
of learning Torah. Nonetheless we don't find that this amoraic/tannaitic
lomdus inhibited the ability to arrive at halacha l'maaseh.

Slightly derech agav, drashos on pesukim seem to be used both to create
new halachos and also verify oral traditions. The Netziv in the hakdama
to Vaykira in Haemek davar makes this explicit and the Rambam in the
Shorashim (2 or 3?) seems to say the same, although there seems to be
some comtemporary debate about this issue. Given the inability to enter
the world of drasha after the closing of the gemara I'm not sure how
this relates to our topic but I can't see how it's the same issue as
style in learning. It's seems to be a much more technical issue of the
actual mechanics of Torah She'Bal Peh, and therefore subject to genuine,
classic eilu v'eilu which doesn't inhibit halacha l'maaseh any more than
any other aspect of machlokes in chazal.

All of which still leaves me uncertain as to why (some) Briskers find it
so hard to pasken rather than cover all bases. Of note, despite claims
by some talmidim that RYBS wasn't really a posek, more a Rosh Yeshiva,
because he changed his mehelach in gemara sugyos freqently, a la Brisk,
it's clear that he was very clear and consistent in many issues of psak
over a long period of time when dealing with shailos for the RCA rabbonim
as recorded in their documentation. So at least one Brisker didn't have
trouble paskening l'maaseh despite his aptitude in lomdus.


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Message: 4
From: Rich, Joel
Date: Fri, 15 Mar 2019 11:53:50 +0000
Re: [Avodah] How to Avoid a Chilul HaSheim

> If we make the need to be considerate to others about chillul hasheim,
> we aren't teating people to develop consideration for other people.
> But that is a primary value in-and-of-itself, and arguably the highest
> primary value, ask Rabbi Aqiva about klal gadol. If not "derekh eretz
> qodmah le...Torah" would still say it's the value we have to worry about
> it first.

> Second, I don't think it can work. If we don't teach people the importance
> of consideration in-and-of itself, there is insufficient motive to pay
> attention to and hone the appropriate middos. That's just the side-issue,
> not the real problem. Allegedly.

I agree with you and would just add it's sad that 95% of this even has
to be said.

Joel rich

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Message: 5
From: Micha Berger
Date: Sat, 16 Mar 2019 23:05:15 -0400
[Avodah] Not Embarassing Others -- Social Media

I just posted on the Other-Focused Orthodoxy - Mevaqshei Tov veYosher
group on Facebook:
    Two shiurim by Rav Yonatan Ziring should be required reading for any
    Jew who wants to be both Torah observant and a user of social media.

    Shiur #22: The Dangers of the Shame Storm - Public Humiliation in
    Halakha Part I
    Shiur #23: Cyberbullying - Public Humiliation in Halakha Part II

Rabbeinu Yonah's position (discussed there) is that Tamar's protecting
Yehudah was halachic, rather than lifnim mishuras hadin. Hamalbin
penei chaveiro is a kind of retzichah, and therefore included in
yeihareig ve'al ya'avor.

So I was wondering... Would Rabbeinu Yonah go so far as to say that
a Ben Noach who knowingly embarasses another is chayav misah?

Gut Voch!

Micha Berger             What we do for ourselves dies with us.
mi...@aishdas.org        What we do for others and the world,
http://www.aishdas.org   remains and is immortal.
Fax: (270) 514-1507                        - Albert Pine

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Message: 6
From: Micha Berger
Date: Sat, 16 Mar 2019 23:18:01 -0400
[Avodah] VBM-Hashkafa- 22: Lo Ba-Shamayim Hi

On Wed, Mar 13, 2019 at 02:10:55PM -0400, Micha Berger wrote:
: We've had too many people raise this topic over the years not to share
: this section of R' Bednarsh's series on-list.
: So I give you, Avodah's 24th or 25th "eilu va'eilu" discussion!

Except I realize now I should have started with the previous shiur,
on lo bashamayim hi.


Topics in Hashkafa
Rav Assaf Bednarsh
Adapted by Leora Bednarsh.
Yeshivat Har Etzion

                          Shiur #22: Lo Ba-Shamayim Hi

The well-known principle of lo ba-shamayim hi, which teaches that the
halakha is not determined in Heaven, is found in the following passage:

    We learned in a mishna there (Keilim 5:10): If one cut [an earthenware
    oven widthwise] into segments, and placed sand between each and
    every segment, R. Eliezer deems it ritually pure. [Because of
    the sand, its legal status is not that of a complete vessel, and
    therefore it is not susceptible to ritual impurity.] And the Rabbis
    deem it ritually impure, [as it is functionally a complete oven,]
    and this is known as the oven of akhnai. [The gemara asks:] What
    is the relevance of akhnai, a snake, in this context? R. Yehuda
    said that Shmuel said: It is characterized in that manner due to
    the fact that the Rabbis surrounded it with their statements like
    this snake [which often forms a coil when at rest] and deemed it
    impure. The Sages taught: On that day [when they discussed this
    matter], R. Eliezer answered all possible answers in the world to
    support his opinion, but the Rabbis did not accept his explanations
    from him. [After failing to convince the Rabbis logically,] he said
    to them: If the halakha is in accordance with my opinion, this carob
    tree will prove it. The carob tree was uprooted from its place one
    hundred cubits, and some say four hundred cubits. The Rabbis said
    to him: One does not cite halakhic proof from the carob tree. He
    then said to them: If the halakha is in accordance with my opinion,
    the stream will prove it. The water in the stream turned backward
    [and began flowing in the opposite direction]. They said to him: One
    does not cite halakhic proof from a stream. He then said to them:
    If the halakha is in accordance with my opinion, the walls of the
    study hall will prove it. The walls of the study hall leaned inward
    and began to fall. R. Yehoshua scolded the walls and said to them: If
    Torah scholars are contending with each other in matters of halakha,
    what is the nature of your involvement in this dispute? [The gemara
    relates:] They [the walls] did not fall because of the deference due
    R. Yehoshua, but they did not straighten because of the deference
    due R. Eliezer, and they still remain leaning. He [R. Eliezer] then
    said to them: If the halakha is in accordance with my opinion, Heaven
    will prove it. A Divine Voice emerged from Heaven and said: Why are
    you differing with R. Eliezer, as the halakha is in accordance with
    his opinion in every place that he expresses an opinion? R. Yehoshua
    stood on his feet and said: [It is written:] "It is not in heaven"
    (Devarim 30:12). [The gemara asks:] What is the relevance of the
    phrase "It is not in heaven" in this context? R. Yirmeya says:
    Since the Torah was already given at Mount Sinai, we do not regard
    a Divine Voice, as You already wrote at Mount Sinai in the Torah:
    "After a majority to incline" (Shemot 23:2). [Since the majority
    of Rabbis disagreed with R. Eliezer's opinion, the halakha is not
    ruled in accordance with his opinion.] R. Natan encountered Eliyahu
    [Ha-Navi] and said to him: What did the Holy One, Blessed be He,
    do at that time [when R. Yehoshua issued his declaration]? He said
    to him: He smiled and said: My children have triumphed over Me;
    My children have triumphed over Me. (Bava Metzia 59a-b)

Scope of the Principle: Two Tosafist Views
""""" "" """ """""""""" """ """""""" """""

First, we will analyze the scope of this principle.

The gemara in Yevamot 14a tells us that a bat kol, a heavenly voice,
rang out and announced that the halakha follows Beit Hillel whenever they
argue with Beit Shammai. The gemara there assumes that R. Yehoshua, who
ignored the bat kol in the case of the "Oven of Akhnai," would hold that
the halakha does not follow Beit Hillel, as the halakha is not determined
in Heaven. Tosafot wonder: If, in fact, we follow the conclusion in Bava
Metzia, in which God Himself endorses the principle of lo ba-shamayim hi,
why does the halakha follow Beit Hillel?[1]

Tosafot suggest two approaches to resolving this difficulty. According
to one answer in Tosafot, the general rule is that we do, in fact, decide
the halakha based on a heavenly voice or other supernatural proof. Only in
the case of the "Oven of Akhnai, where R. Eliezer demanded explicitly that
a heavenly voice attest to the correctness of his opinion, do we suspect
that the heavenly voice might have fibbed in order to preserve the honor
of R. Eliezer. Tosafot assumes that God is so concerned for the honor of
Torah scholars that He would even send out a false message to protect R.
Eliezer's honor -- even though R. Eliezer foolishly backed himself into
a corner by demanding heavenly evidence -- and that God would rely on
the assembled Sages to know better than to heed this white lie (and,
indeed, they did know better).

According to the second opinion in Tosafot, we accept the conclusion of
the story of the "Oven of Akhnai" and assume that supernatural evidence
cannot override the normal workings of the halakhic process. The heavenly
voice that favored R. Eliezer has no authority to override the principle
of majority rule that was referenced by R. Yehoshua. However, we do grant
authority to the heavenly voice that decided in favor of Beit Hillel,
because, as mentioned in the gemara there, there was no clear majority
on the side of Beit Shammai. Beit Hillel was numerically larger than
Beit Shammai, but it was universally acknowledged that the Sages of
Beit Shammai were sharper that those of Beit Hillel. Apparently, Beit
Shammai and Beit Hillel disagreed regarding the question of whether
the halakha should follow the school with the larger population or the
one with more intellectual prowess. This created a logical conundrum,
for according to Beit Hillel's opinion, Beit Hillel was in the majority
and therefore should be followed, but according to Beit Shammai, Beit
Shammai constituted the majority and their opinion must be followed. In
such a case, where the standard halakhic process has no way of resolving
the dispute, there is room for a heavenly voice to intervene and tell
us what to decide.

According to this opinion, supernatural evidence does have authority
within the halakhic process, but only when it does not contradict the
accepted rules of halakhic decision making.

Scope of the Principle: Rambam
""""" "" """ """""""""" """"""

The Rambam seems to have a third opinion about the scope of this
principle. He writes that if anyone were to bring supernatural proof to
buttress a claim that we should add, subtract, or modify a mitzva of the
Torah, he is to be considered a false prophet and is liable to receive the
death penalty. Likewise, adds the Rambam, even if this person were merely
to claim that the halakha should follow a particular side of a dispute,
he is considered a false prophet, because he contradicts the principle of
lo ba-shamayim hi.[2] The Rambam thus assumes that the principle of lo
ba-shamayim hi is universal and allows no exceptions. Even in the case
of an unresolved halakhic dispute, where there may be no clear halakhic
precedent that dictates whom the halakha should follow, it is anathema
to bring supernatural evidence and involve the Heavens in an earthly
halakhic dispute.

According to the Rambam, the heavenly voice that favored Beit Hillel
is granted no authority whatsoever. We must therefore conclude that the
halakha follows Beit Hillel not because of any heavenly voice, but rather
because the majority of Sages in the later generations agreed with the
logic of Beit Hillel, in accordance with the normal halakhic process.

Scope of the Principle: Summary
""""" "" """ """""""""" """""""

We have seen three opinions about the scope of the disqualification
of supernatural evidence within the halakhic process. One opinion in
Tosafot holds that supernatural evidence is always admissible, except
in cases in which there is strong reason to suspect an ulterior motive,
such as to save a Torah scholar from embarrassment. A second opinion in
Tosafot believes that supernatural evidence is admissible only when the
halakhic process cannot arrive at a firm conclusion, but not when the
accepted halakhic principles suffice. A third opinion is found in the
Rambam, who holds that supernatural evidence is never admissible in the
halakhic process.

It is interesting to note that one of the Tosafists, R. Yaakov of
Marvege,[3] wrote an entire work, titled Shu"t Min Ha-Shamayim, Responsa
From Heaven, which reports halakhic decisions that he received from the
heavenly academy in his dreams. Such a work could never have been written
by the Rambam, as he does not give credence to the halakhic opinion of
the heavenly academy. However, according to the Tosafists, it is logical
that R. Yaakov of Marvege ruled based on what he learned from the heavenly
academy, as these rulings were not given to protect anyone's honor and
presumably only dealt with undecided halakhic issues that could not be
successfully resolved through the earthly halakhic process.[4]

Justification of the Principle
""""""""""""" "" """ """""""""

A second question that emerges from the story of the "Oven of Akhnai"
relates not to the scope, but rather to the justification of the
principle of lo ba-shamayim hi. If God revealed His halakhic opinion by
means of a heavenly voice or other objective evidence, how can we rule
otherwise? To paraphrase the language quoted in the name of God Himself,
how is it legitimate for us to "triumph over God" if the goal of halakhic
observance is to fulfill God's will? Shouldn't the overriding principle of
the process of determining halakha be the wish to fulfill the will of God?

Justification: Two answers of R. Nissim Gaon
"""""""""""""" """ """"""" "" "" """""" """"

This question is raised by R. Nissim Gaon.[5] His first answer is that,
in fact, we did not rule in contradiction to the heavenly voice. He
points out that the heavenly voice announced, seemingly verbosely,
that the halakha follows Rabbi Eliezer in all places. While we may
have understood (and so indeed understood R. Eliezer himself) that the
heavenly voice intended to relate that the halakha followed R. Eliezer
in this particular dispute, and it merely added that the halakha follows
him in all places in order to further bolster his credibility, R. Nissim
Gaon understands that the heavenly voice meant this formulation as a
hint that the halakha follows R. Eliezer in all other places, but not
in this dispute. The majority of the Sages, then, were not contradicting
the heavenly revelation, but rather following its true intent.

R. Nissim Gaon also suggests a second approach in which he admits that the
Sages disregarded the heavenly voice, but claims that they nonetheless
did not contradict the opinion of God Himself. He points out that the
Torah itself states unequivocally that God may grant a false prophet
supernatural powers in order to test the Jewish People (Devarim 13:2-6).
Even an authentic heavenly miracle, if brought in support of a position
that contradicts the Torah, is merely a test to see if our loyalty
to Halakha will remain steadfast even in such extreme circumstances.
Likewise, the heavenly voice that supported R. Eliezer was in fact sent
by God, but did not represent His true halakhic opinion. The Sages were
being tested to see whether they would follow the misleading heavenly
voice or the true will of God as revealed through the halakhic process,
and they passed the test.

Both interpretations given by R. Nissim Gaon dull the philosophical
edge of this principle. We ignore heavenly proclamations not because we
prefer human reasoning over divine logic, but because the heavenly voice
-- though it originates in Heaven -- does not necessarily represent an
authentic heavenly conclusion. The Sages did not literally triumph over
God by ruling against R. Eliezer, but only overruled the deceptively
formulated or disingenuous heavenly voice in order to successfully
discern the true will of God.

The impression given by the story of the "Oven of Akhnai," however,
does not support the reading of R. Nissim Gaon. The closing scene, in
which God Himself says that the Sages triumphed over Him, implies that
God indeed ruled in accordance with R. Eliezer, but He was nonetheless
pleased that the Sages followed human logic and the majority vote in
disregard of Divine truth. Apparently, following the earthly halakhic
process is more important than fulfilling the halakha in accordance
with God's original intention. God Himself was pleased that we followed
His will regarding the proper procedure for resolving halakhic disputes,
even though it negated His will regarding the substance of the particular
halakhic question at hand.

Justification: Two Answers of the Ran
"""""""""""""" """ """"""" "" """ """

The Ran, in his philosophical work Derashot Ha-Ran,[6] understands the
principle of lo ba-shamayim hi in the context of a broader principle
derived by Chazal regarding the commandment, "Do not stray from the
matter that they tell you, neither right nor left" (Devarim 17:11). Chazal
derive from the verse that one is obligated to follow the rulings of the
Sanhedrin, the highest court, even if they were to tell you that right is
left and that left is right.[7] The Ran understands that one should follow
the authorized halakhic decisors not only if it merely seems to him that
they are mistaken, but even if they are actually completely wrong. Even
if their ruling is as erroneous as the statement that right is left and
left is right, one is nonetheless commanded to follow them. Therefore,
the Sages followed the majority opinion over the opinion of R. Eliezer,
even in the face of valid proof that he was correct, because we are
commanded to follow the standard halakhic procedure based on human logic,
whether it represents ultimate truth or utter falsehood.

The Ran suggests a number of reasons why the Torah would command us to
follow human reasoning over supernatural revelation in deciding Halakha.
First, it is impractical to make the Halakha dependent on the power of
prophecy or access to the supernatural, because not every generation
merits prophecy or supernatural providence, and we would then be unable
able to reach firm halakhic conclusions. Intellectual understanding
of Torah, however, can be found in all generations. More importantly,
logical reasoning can be analyzed and rebutted and subject to a degree
of scrutiny that would ferret out any vacuous arguments or hidden
errors. Supernatural proofs, however, can easily be falsified. It is
not difficult for a charlatan to convince the gullible masses, and even
great Sages, that he is a prophet or miracle worker, producing what
seem to be signs and wonders to buttress his claim. We are much more
likely to achieve accurate halakhic rulings, not to mention religious
stability, if halakhic authority is restricted to logical reasoning,
to the exclusion of supernatural proofs. Even in the case of the "Oven
of Akhnai," in which R. Eliezer's proofs certainly seemed legitimate,
it is preferable to rule inaccurately with regard to one particular oven,
while preserving the stability of the halakhic process for eternity.

The Ran is still bothered, however, by the audaciousness of knowingly
ruling and practicing halakha in violation of the actual will of God. He
points out that according to mainstream Jewish thought, every positive
commandment in the Torah was commanded by God because its fulfillment
generates some substantive spiritual benefit, and every transgression
forbidden by the Torah was forbidden because its performance causes
substantive spiritual damage to our souls. If so, asks the Ran, how
can we justify following the accepted halakhic process when it reaches
a conclusion that is known to be incorrect? Just as a medical consensus
that poison is harmless cannot save one who ingests it from the damaging
effects of the poison, so too, no rabbinic consensus can save our souls
from the objective damage caused by following an incorrect halakhic

The Ran's first solution to this problem is based on a philosophical
premise found already in the Rambam's Moreh Nevukhim:[8] The Halakha
is not meant to benefit everyone who follows it in all circumstances,
but rather to benefit the world as a whole. The Halakha brings
spiritual benefit to most people under most circumstances, but not in
all circumstances. Therefore, the halakha of lo ba-shamayim hi dictates
that in the exceedingly rare occasion of a mistaken ruling on the part
of the highest halakhic authorities, individuals bound by those rulings
should indeed incur spiritual damage by following those rulings, in
order to preserve the system and bring spiritual benefit to themselves
and to the rest of the Jewish People in the 99.9% of cases in which the
halakhic authorities decide the halakha correctly. According to this
theory, it is not theologically problematic if the spiritual medicine
of halakhic observance causes detrimental side effects in exceedingly
rare circumstances.

The Ran's second approach to dealing with this problem assumes that
the Halakha is universally beneficial, and that even in the rare
circumstances covered by the principle lo ba-shamayim hi, one would
never suffer spiritual damage by following the Halakha. One who follows
the majority opinion of the Sages, even if it contradicts the actual
halakhic truth as known in Heaven, will not be spiritually harmed at all
by his defective observance, because the salutary effects of accepting
rabbinic authority will negate any possible spiritual harm that could
ensue from the specific defective action he performs. The Ran points
out that just as in the realm of physical health, ingesting unhealthy
substances can be harmless under certain conditions, even an act that
would otherwise be spiritually harmful may in fact be harmless in the
context of upholding a principle that is greatly beloved by God and
exceedingly beneficial for spiritual development.

Both explanations of the Ran agree fundamentally that the principle of
lo ba-shamayim hi obligates us to give preference to global, procedural
principles over specific substantive accuracy, and that it is worthwhile
to act wrongly in a particular matter in order to preserve and protect
the system of Halakha. Any spiritual harm that would ensue from such
wrong action is either very rare and a worthwhile sacrifice, or will be
neutralized and rendered harmless from the outset.

Justification: Ketzot Ha-Choshen
"""""""""""""" """""" """"""""""

The Ketzot Ha-Choshen advocates a bolder perspective on the principle
of lo ba-shamayim hi.[9] He begins by presenting a conundrum: The Zohar
praises the creative accomplishments of those who innovate "chiddushei
Torah," novel Torah insights. However, ask the Ketzot Ha-Choshen, how can
we add anything new to the Torah? Anything that is true is already found
in the Torah, and that which is false is not worthy of being propounded!

He answers by quoting the Ran and adding that by giving the Torah to human
beings, who are fundamentally incapable of fully understanding Divine
wisdom, God redefined the nature of ultimate truth and elected to prefer
the truth that emerges from the best efforts of human logic, however
imperfect and inaccurate it may be, to the ultimate truth found only in
Heaven. In fact, by creating man and making our service of God the goal
of creation, God expressed His desire for human "truth" over the ultimate
truth favored by the angels who argued against the creation of man.[10]
God wants us to be His partners in developing the truth of the Torah, and
that goal is so valuable that it overrides the value of ultimate truth.

The Ketzot Ha-Choshen interprets the language of our daily birkot
ha-Torah, "an everlasting life He implanted in our midst," as an answer to
the Ran's comparison of following an incorrect ruling to ingesting poison.
When one ingests poison, it remains poison. But God implanted everlasting
life in our midst by giving us the Torah; He implanted within us the
ability to create everlasting life via novel Torah interpretations. When
the Sages, following proper halakhic process, declare something permitted,
then even if previously it was spiritually poisonous, it becomes benign or
even beneficial. The very human process of halakhic development has the
power to make certain actions spiritually beneficial or detrimental, and
if that requires a rewiring of the spiritual workings of the heavenly and
earthly realms, then God has committed Himself to adapting His reality
to the decisions of the Torah Sages.

According to this bold theory, the Sages in the story of the "Oven
of Akhnai" indeed triumphed over God, and this is precisely what God
intended when He gave the Torah to human beings instead of angels. The
mystery of why God desires the partnership of human beings in developing
His Torah transcends our intellectual grasp, but the Ketzot Ha-Choshen
is convinced that it is this mystery that underlies the meta-halakhic
principle of lo ba-shamayim hi.


We have seen three basic approaches to understanding the philosophical
basis of lo ba-shamayim hi.

According to R. Nissim Gaon, our goal is to discern and follow the will
of God in accordance with heavenly truth. However, in order to do so,
we must sometimes discount ostensible supernatural proofs, and the
principle of lo ba-shamayim hi teaches us that not everything that
appears to reflect divine revelation indeed does so.

According to the Ran, we are obligated on rare occasions to discount
the actual heavenly truth and act deficiently in specific situations,
out of concern for preservation of the halakhic system as a whole. It
is worthwhile sacrifice, or perhaps not even a sacrifice, to err in a
particular matter in order to preserve halakhic integrity and religious

Finally, according to the Ketzot Ha-Choshen, it is not only necessary
but desirable to diverge from the ultimate heavenly truth and follow
the conclusions of human Torah logic. If God wanted heavenly truth,
he would have listened to the angelic lobbyists who urged Him to keep
the Torah up in Heaven. God gave us the Torah so that we would be not
only His subjects but His partners in bringing spiritual truth into the
physical realm, and it is precisely on those occasions in which human
truth overrides heavenly truth that we realize our destiny and become
God's partners in revealing the Torah.


Berakhot 52a and Pesachim 114a.

[2] Mishneh Torah, Hilkhot Yesodei Ha-Torah 9:1-4.

[3] Marvege, France, 12-13th century.

[4] R. Ovadia Yosef, however, rules that one should definitely give no
credence to the Shu"t Min Ha-Shamayim, because even Tosafot only gave
credence to a heavenly voice or other objective supernatural event that is
observed by a multitude of people. Dreams, in contrast, have no credence
whatsoever, as they represent merely the thoughts of the dreamer himself
and are not necessarily sent from Heaven (Responsa Yabia Omer, vol. 1,
Orach Chaim 41).

[5] R. Nissim ben Yaakov (Tunisia, 990 -- c.1060), commentary to
Berakhot 19b.

[6] R. Nissim ben Reuven of Gerona (Spain, c. 1320-1376), Derashot Ha-Ran,
ch. 11.

[7] Sifrei, ad loc., quoted by Rashi, ad loc. See also Yerushalmi, Horayot
1:1, and the comments of the Divrei David and Ha-Ketav Ve-Ha-Kabbala to
this verse.

[8] Moreh Nevukhim 3:24.

[9] R. Aryeh Leib Heller (Galicia, 1745-1812), Ketzot Ha-Choshen,

[10] Bereishit Rabbah, Parashat Bereishit 8:5.

Go to top.

Message: 7
From: Dr. Isaac Balbin
Date: Fri, 15 Mar 2019 17:15:36 +1100
[Avodah] Brisk

On Tue, Mar 12, 2019 at 12:48:40PM -0400, Micha Berger wrote:
: 3- I more than once expounded the model that there are 3-sheheim-4
: categories of concerns that a poseiq needs to consider.
:     1- textual strength
:        a- compilling sevara
:        b- source authority (acharei rabim lehatos or halakhah keR
:    2- mimetic strength -- what are people doing? How broad of a
:       swath of the qehillah?

:    3- hashkafic argument - only as a fall back, but what best fits
:       the sho'el's or poseiq's worldview...

: But lomdus doesn't take #2 into account. And #3.... Brisk is pretty
: much a hashkafah of not having a hashkafah! (With RYBS's existential
: exploration in post-facto "halachic hermeneutics" -- as he puts it --
: lessons we can take from the din, not really an exception. Because they
: are just that, post facto lessons, not claims of possible reality a
: pesaq should accomodate.)

The Mesora is huge in Brisk. Not sure how you discount the mimetic
tradition? Look at the brouhaha regarding Techeiles...

In that matter I think R Asher Weiss made up his mind and then formed
a Psak relying on the inauthenticity of archeology...

Would you not say Rav Schachter pasken through the Rav's lens?

Sent with brevity and typos from my iPhone


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