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Volume 06 : Number 088

Sunday, December 31 2000

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Subjects Discussed In This Issue:
Date: Fri, 29 Dec 2000 11:23:49 -0500
From: "David Glasner" <DGLASNER@ftc.gov>
Compilation of the Mishnah - Re: Dor Revi'i and TSBP

Micha Berger wrote:
> BTW, when does the Dor Revi'i date the writing down of TSBP. We noted on
> Avodah a while back that according to a number of Rishonim (including
> the Rashbam and Tosafos), Rebbe's compilation of mishnayos may not have been 
> physically written down until the Savora'im.

David Glasner wrote:
> Although the hakdamah talks about writing down the Mishnah as the crucial
> break between the ideal TSBP in its pristine form when Mamrim 2:1 was
> still in force, and the form we have it now in which basic halakhot cannot
> be changed in the way that they could previously, I don't think that it
> is crucial to his position when the actual text was first written down.
> The point is that Rebi initiated a process of creating an authoritative
> text that would eventually be written down and it is the process that he
> initiated that created the rupture between the earlier halakhic system
> and the one under which we now operate.

Gil Student wrote:
: I think Micha's question is very strong. Everyone agrees that there
: were early stages of the Mishnah that took form well before Rebbi's time.
: The Mishnah itself talks about the Mishnah Rishonah. Some place the early
: forms of the Mishnah all the way back to the times of Anshei Kenesses
: HaGedolah while others place it at the time of Hillel and Shammai.
: However, there is no question that there were full masechtos of Mishnayos
: that were memorized and transmitted verbatim long before Rebbi was born.
: "All" Rebbi did was collect the Mishnayos from the different schools,
: decide which to include where, and convene a gathering of all the gedolim
: to accept this as the official Mishnah. [See Toldos Tannaim VeAmoraim,
: sv. R. Yehudah HaNasi] There were authoritative, albeit unwritten
: texts before Rebbi's time. However, there may have been two or three
: different texts on any given masechta. For the Dor Revi'i's criteria,
: I'm unconvinced that there has to be only one accepted text for the [oral]
: Torah to be considered written. If there was a text from R. Akiva's
: school and another from R. Meir's school, does this mean that the [oral]
: Torah was unwritten?

Well, I encourage you to read or re-read the hakdamah to Dor Revi'i.
He was perfectly well aware that there had been written editions of
the mishnayot before Rebi. I mean, Rebi did not make up the mishnayot,
they had to come from somewhere. Don't you think that the Dor Revi'i
knew that?

> That is precisely the point of the Dor Revi'i. The famous question of
> the Keseph Mishnah on Mamrim 2:1 is why Amoraim cannot argue with Tannaim
> if Mamrim 2:1 is valid. His answer is that there was an agreement by the
> entire generation at the time of the redaction of the Mishnah that they
> would accept the halakhot as determined by the previous generations of
> Sages quoted in the Mishnah and other contemporaneous sources. The Dor
> Revi'i asks why there is no mention anywhere of such an agreement.
> And b'kitzur nimratz his answer is that there was no need for a separate
> agreement, because it was understood that the process of creating an
> authoritative text of the Mishnah would necessarily have the consequence
> of precluding disagreement with the drashot and halakhot contained in
> the authoritative text.

: The Maharatz Chajes [Toras Nevi'im, Ma'amar Los Sasur, pp. 109-110]
: answers the above question differently. He says that since the Mishnah
: was proclaimed by Rebbi and his beis din and it was accepted by kelal
: Yisrael, it falls under the issur of lo sasur.

I am dust beneath the feet of the Mahartz Chajes, one of the giants of the
nineteenth century.  (not that c.v. he needs any haskamah from me, but I want
to emphasize how seriously I take anything that he said.]  But how, pray tell, 
does the gaon explain why the redaction of the Mishnah was considered eit 
la'asot la-ha-Shem heifeiru toratekha?  According to him what heifeiru toratekha 
was involved?  On what basis could they demolish, uproot,and annihilate the
p'sukim in parashat Shoftim which the Rambam codifies l'halakhah in Mamrim 2:1,
and not even al pi yud gimmel mi-dot she-ha-torah nidreshet ba-hen.

: The Maharatz Chajes [Ateres Tzvi, Mishpat HaHora'ah, pp. 385-386] later
: offered a different answer. He says that once an halachah is argued
: amongst all the gedolei hador, and they all have the opportunity to
: convince each other with their arguments, the majority rule obligates even
: the minority to follow it and makes the halachah immutable. In Rebbi's
: day, he convened a gathering of all of the gedolim and they all had
: a chance to convinve each other. Therefore, the Mishnah's conclusion
: is binding on everyone, even those who disagree. See also R. Elchanan
: Wasserman, Kovetz Shiurim vol. 2, Kuntres Divrei Sofrim 2:6.

lo zakhiti l'havin divrei kodsho. This is true of any Sanhedrin.
All the g'dolei ha-dor are arguing and they reach a conclusion that
becomes binding on everyone else. But they can never bind a subsequent
Sanhedrin. And I repeat the Rambam so paskens l'halakhah.

David Glasner

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Date: Fri, 29 Dec 2000 11:23:49 -0500
From: "David Glasner" <DGLASNER@ftc.gov>
Forgetting Halachos - Re: Dor Revi'i and TSBP

Micha Berger wrote:
> There is also a second grounds for doubt -- not only machlokesin but also
> forgetting. Or, never needing to formalize and study the precise definition
> of the each melachah until then.

David Glasner wrote:
> I don't have it in front of me, but I suggest that you look up the Rambam's
> introduction to zeraim where he discusses the reasons for disputes among
> the Sages about halakhot and see what he says about the opinion that
> disputes arose because over time they forgot the traditions that they 
> received from Sinai.  I could be mistaken, of course, but I don't think that 
> you can reconcile what he says there with what you say here.

Gil Student wrote:
: The question posed to the Chavos Yair in teshuvah #192 states that the Rambam 
: said that an halachah leMoshe miSinai cannot be forgotten and the Chavos Yair 
: accepts that.  However, neither I nor the Maharatz Chajes could find where the
: Rambam says that.

See introduction to Zeraim 54a in the Vilna Shas following Brakhot.
Under the heading heilek sh'lishi

aval mi she-yahashov she-ha-dinim she-nehelaku ba-hem k'mo kein m'kubalim
mi-pi Moshe, v'hoshvim she-naphlah ha-mahloket mi-derekh ta'ut ha-halakhot
o mi-p'nei she-ehad mei-hem ki-beil kabalah emet v'ha-sheini ta'ah
b'kabalato o shakhah o lo shama mi-pi rabo kol mah she-tzarikh li-sh'moa
v'yavi ra'ayah al zeh mi-mah she-ne'emar (Sanhedrin 88b) mi-she-ravu
talmidei Shamai v'Hilleil she-lo shimshu kol tzorkhan ravtah ha-mahloket
b'Yisrael v'na'aseit Torah k'shtei Torot. Zeh ha-davar m'guneh m'od,
v'hu divrei mi she-ein lo seikhel v'ein b'yado ikarim u-phogeim ba-anashim
asher nitkablu mei-hem v'khol zeh shav u'vateil. ad kan l'shono ha-zahav.
u-t'mahani eikh ne'elmu d'varim eilu mei-einei ha-gaon mhrtzh.

David Glasner

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Date: Fri, 29 Dec 2000 11:23:49 -0500
From: "David Glasner" <DGLASNER@ftc.gov>
Types of Halachos - Re: Dor Revi'i and TSBP

> As for mi-pi ha-Shemua interpretations, the Rambam offers no
> means of identifying what is and what is not a mi-pi ha-Shemua interpretation
> other than that it is an interpretation about which there was never any 
> dispute.  The problems with using this as a criterion for identifying such
> interpretations are by now too obvious for me to mention.

: I am sure that you know that this only means that the Rambam's position is 
: unprovable, not disproven.  Suspiciously convenient?  Perhaps.  But not 
: necessarily wrong.

Right or wrong, and pending future study of the Mahartz Chajes, it is difficult
if not impossible to for us to know based on the Rambam's own criterion
what is and what is not a Sinaitic tradition.  

> Sorry, that doesn't work here, because you and everyone else who cites
> the baraita of Rebi on ka'asher tzivitikha is referring to the specific
> halakhah l'Moshe mi-Sinai that Rebi cites there which is about the number
> of simanim that must be severed for shehitah to be effective.

: No, it refers to shechitah on the neck about which there is no machlokes.

Unless my memory is playing tricks on me, there is a perfectly fine limud by
which we deduce that shehitah is on the throat.  R. Yishmael requires no 
halakhah l'Moshe mi-Sinai.  I repeat:  the halakha le-Moshe mi-Sinai is based 
on the baraita of Rebi and he is saying his halakhah according to the shitah 
of R. Akiva, not R. Yishmael.

: Everyone agrees that there was a halachah leMoshe miSinai regarding how to
: slaughter (either for in the desert or for when they would reach the land of
: Israel).  The only question is whether that halachah can be based on the
: verse in Devarim.

David Glasner wrote:
> I don't think so.  R. Yishmael has no need for a halakha l'Moshe mi-Sinai. All
> the laws of shehitah can be derived without any halakha l'Moshe mi-Sinai.  He 
> does not hold that there is a minimum shiur required, he just holds that the 
> throat be slit sufficiently to cause death.  And unlike R. Akiva, he holds 
> that shehitah is only effective at death, not when the simanim are severed.  

: You are talking about R. Yishmael's opinion about what happened in
: the desert. However, R. Yishmael agrees that once the Jews entered the
: Land of Israel (or 7 years later) they were required to slaughter and
: that slaughter was based on an halachah leMoshe miSinai which is based
: on Devarim 12:21. Note that the previous verse is clear that it is
: referring to living in Eretz Yisrael.

What halakhah l'Moshe mi-Sinai are you talking about? He was reading
the p'sukim. They make perfect sense according to his opinion, which is
why every parshan who ever lived interprets the p'sukim in accord with
R. Yishmael's opinion, even though the halakhah follows the opinion of
R. Akiva not R. Yishmael. The problem is how to make any sense of the
p'sukim according to R. Akiva's opinion. The problem remained unsolved
until the Dor Revi'i, b'ru'ah kodesh she-bo, solved it. See ikarim 1-3
of the p'tiha to Dor Revi'i.

David Glasner

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Date: Sun, 31 Dec 2000 11:35:30 -0800 (PST)
From: Gil Student <gil_student@yahoo.com>
Re: Dor Revi'i and the TSBP

Rich Wolpoe wrote:
> If so how do we deal with the disputes re: Ribuy 
> miut ribuy vs. klal prat uchlal?

I wrote:
> Excellent question.  I don't know.  The Maharatz 
> Chajes writes in his Mevo HaTalmud (ch. 3) that all 
> of the hermeneutic rules are Sinaitic and explicitly

> includes kelal uperat and ribuy umiyut.  I don't know how he can do that.

The Ra'avad in his commentary to the 13 midos at the beginning of Toras
Cohanim (2nd par.) says that kelal uperat and ribuy umiyut are not
contradictory and that R. Yishmael holds from both.

Gil Student

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