Avodah Mailing List

Volume 06 : Number 089

Monday, January 1 2001

• Types of Halachos - Re: Dor Revi'i and TSBP
• Forgetting Halachos - Re: Dor Revi'i and TSBP
• Rambam, Hilchos Mamrim 2:1 - Re: Dor Revi'i and TSBP
• Talit and 'atifa
• RE: menorah lighting
• Chanu-koh
• menorah
• P' Mikeitz/daf yomi
• RE: hair covering as a das yehudis or a das moshe (fwd)
• Re: hair covering as a das yehudis or a das moshe
• Re: hair covering as a das yehudis or a das moshe
• Dat Yehudit
• Re: dat Yehudit
• bechira
• Re: hair covering as a das yehudis or a das moshe

I am not understanding something. RD Glasner has said or hinted on
a number of occasions that, according to R. Yishmael, shechitah only
requires slitting the throat. From where do you see that? Is there a
passage other than those on Chullin 17b-18a and 28a that is relevant?

Gil Student

David Glasner wrote:
> See introduction to Zeraim 54a in the Vilna Shas 
> following Brakhot. Under the headling heilek sh'lishi

What I see the Rambam saying is that one should not say that a machlokes
is due to one person forgetting an HLMmS or that a mistake was made in
the transmission of an HLMmS.

The Rambam does not explain why but I can think of two reasons:

1] HLMmS's cannot be forgotten (which is how you understand this Rambam)

2] If any party of a machlokes claims that he has a tradition about a
HLMmS then the other party will immediately accept the HLMmS. Since the
machlokos in the gemara remained machlokos, neither party must have
claimed to have a tradition.

An example of 2] can be found in the Mishnah on Yevamos 76b, "If it is an
halachah, we will accept it. But if you derived it, we have a response."

David Glasner wrote:
> I am still puzzled by what you mean by new 
> halakhot.  Are you calling all halakhot derived 
> through the 13 midot or other hermeneutical 
> principles new halakhot?  Why call them new?  Some 
> of the halakhot derived in this way are not in 
> accord with the apparent p'shat of the p'sukim on 
> which they are based.  

Yes, some of the halachos which are derived from the text via the 13 midos
were really transmitted from Sinai. However, there was an active attempt
to connect all halachos to the text and the 13 midos were sometimes enough
to accomplish this. Other times, less precise textual derivations were
used. None of these were new halachos.

Only some of the times that the 13 midos were used were strictly for
deriving new halachos. Unfortunately, the tannaim and amoraim did not
leave us flags to identify which derashos are derivative and which are
merely supportive. However, the gemara was never interested in spelling
everything out for us.

>                                   What would prevent
> a new Sanhedrin if it should come into existence 
> (speedily in our days) from propounding new halakhot
> of its own?

Nothing.

Gil Student

> Anyone who has seen Yishmaelim wrapped up should realize that the one
> place they do not cover is at least part of the face that lets them
> see where they're going.

For what it's worth, I have seen Rav Dovid Feinstein do atifah this way.
(although I can't verify it's exactly as descrobed above but he does it
in a similar fashion)

C1A1Brown@aol.com:
> Tefillah has its own set of rules, e.g. the Mishna in Berachos says that
> if you say 'ad kan tzippor yageyu rachamecha' while davening it indicates
> minus, yet the Rambam in Moreh explains the reason for the mitzva of
> kan tzippor is G-d's mercy. The teirutz is the Mishna is a special
> din in tefillah and not a rule in kol haTorah kula of what is minus.

Hypothesis:
One consideration of putting something into the liturgy - as opposed
to putting it into a Midrash or other sefer - is that it becomes {or
potetially CAN become} normative. AISI, this is because the litugy
contains - among other things - affirmations.

So I would infer that:
1) Anyone who says Hanukkah never happened, is a Kofer.  
However,
2) Anyone who says there was a Hanukkah as described by Al Hanissim
but the miracle of the oil never really happened, might be mistaken,
but he is not a Kofer.

Good Hanukkah
Rich Wolpoe

The Kedushas Levi distinguishes between nisim that occur without a us
having to do anything, e.g. Pesach, and nissim which are initiated by
our efforts, e.g. milchemes Chanukah. The former parallels the nevuah
of Moshe, which existed outside the bounderies of teva, and the latter
parallels the nevuah of all other nevi'im which was directed through
their this-wordly experience. Kol hanevi'im nisnab'u b'koh, vMoshe
nisnabei b'zeh. Chanu-koh celebrates the hashpa'ah from within teva.

I thought with this you could answer the Ch. HaRI"M's kashe as to what
the gadlus of the oil buring for 8 days is - after all, the gemara tells
us that R' Chanina was able burn vinegar when he needed to.

If you are on a madreiga beyond teva like R" Chanina, ain hachi nami,
oil/vinegar, 1 day or 8, it is all the same thing. But Chanukah shows that
davka on our madreiga b'toch hateva we are also able to achieve a nes.

(The CH. HaRIM"s teirutz is that the gadlus of Chanukah is not the
oil burning for 8 days, but in our ability as a tzibbur to rise to the
heights of R" Chanina).

-CB

> Note: The Vanilla Megllas Taanis does mention that Hanukkah is a
> holiday, of course. However, The Hebrew parts of Megillas Taanis are
> of later origin. The passage re: the miracle of the oil is considered
> grafted onto the original text.

when was it grafted? If it is still taanaic literature it is still before
the gemara.



> As I see it, there are really two questions relevent to my suggestion
> about the lack of a discussion of Chanukah (not just a single oblique
> reference) in the mishnah:
> - When Rebbe compiled the mishnah, was the mitzvah of hadlakas haneiros
>   in the MT yet?
> - If not, was Chanukah itself?

From memory that Josephus mentions that there were public parades with
torches on Channukah. Hence, even in second Temple days there were
public connections of Chanukah with fire. However, Josephus himself
does not know about pach hashemen.

Eli Turkel

I saw on another e-mail list the Ksav Sofer's pshat that "Asher ro'inu 
b'tzoras NAFSHO b'his'chan'no eileinu" means that Yosef was concerned with 
his ruchniyus which would be lost in Mitzrayim, and this explains Reuvain's 
words "al TECHETU va'yeled" meaning don't cause him to come to sin.   

Perhaps this explains pshat in the gemera in Sota 7b - Yehuda's bones were 
rolling around till Moshe was mispallel on his behalf - since Yehudah caused 
Reuvain to do teshuvah (Reuvan was modeh on the ma'aseh of Bilhah after he 
heard Yehudah be modeh on the ma'aseh of Tamar) he should be admitted to the 
yeshiva shel ma'aleh.  Since Yehudah was the goreim of Yosef being placed in 
an environment where he could come to sin, his tshuvah was mida knegged mida 
being goreim tshuvah for others.  This also answers the kashe of R' Yehudah 
Leib Chasman (Ohr Yahel in the ma'amar Madreigas HaAdam, a hesped for the 
Saba m'Slabodka). He asks why was Moshe not mispallel that Yehudah should 
enter olam habah on the merit of his own hoda'ah - if the ikkar hoda'ah is 
itself not sufficient zechus, the fact that as a byproduct it led to 
Reuvain's hoda'ah as well shouldn't make a difference?  L'fi hana"l it is 
meduyak that since the cheit was in potentially being goreim Yosef's cheit, 
the zechus to be metakein that had to be davka in being goreim others 
(Reuvain) to tshuvah.  (He gives a different teirutz there).

Kol Tuv,
-Chaim B

Daniel Eidensohn:
: In the Yad Moshe (current edition page 280-281) I have a list of Reb Moshe's
: many statements concerning publicizing psak halacha. "I don't want to put
: this in writing", "I don't want to publicize my views" "I generally don't
: respond in writing concerning certain issues of men and women"...

I can understand R. Moshe's concern that heterim get abused.

The question is:
What if the abuse is there already? Mutav sheyihyu shogegim (or C'V
mzidim) instead of Mutarim?

The idea of limud zhcus is based on Ymin mekareiv. If I know that a bona
fide limud zchus takes one out of a rebellious mindset into a compliant
one, isn't that itself worthwhile?

Good Hanukkah
Rich Wolpoe    

I must admit I am fascinated, indeed, fixated by the ongoing debate
between RYGB and RMJB.

Before I begin I would like to admit my bias. A while back I expressed
my negative feelings about hair covering for married women and IIRC,
I stated the reasons I felt so negatively about it. There was some
ensuing discussion and then it quickly died down. But the discussion
here has been illuminating to me and I can certainly see both sides of
the issue now being debated.

If I may I would like to distill the debate down to it's bare
essentials. The question here is not whether uncoverd hair of married
women is a Halachicly viable option for us today. I think everyone
would agree that it isn't. This is largely based on the Beis Shmuel's
(one of the Nosei Kelim in the EH) assertion that the Rambam's view is
the correct one, therefore, making total "uncovering" a Das Moshe which
then falls into the category of probably a D"oraisa. This is how RMF
Paskins, and I doubt that there is any other Posek who disagrees (with
the exception of the one mentioned by RYGB). To say that RMJB was trying
to imply that RMF allows "complete hair uncovering" in any way shape or
form is to misread or misunderstand what RMJB said. All he was saying is
that RMF treats Das Yehudis Halacha as relativistic. RMJB readily agrees
that RMF holds "complete hair uncovering" to be an Issur of Das Moshe,
and therefore immutable Halacha.

But I must side with RMJB on the issue of Limud Zechus. It seems clear
to me that the Tur and SA, DO NOT consider " complete hair uncovering"
to be Das Moshe, and only Daas Yehudis. It is also apparent to me that
Das Yehudis has the component of relativism.

In the context of this discussion, what we call Tznius is a term that
refers to any manner of dress that goes beyond the minimum of the
body covering requirements of Erva. And this feature (of Das Yehudis)
IS REALTIVE TO SOCIETAL STANDARDS. That Das Yehudis falls into that
category is ably demonstrated by RMJB.

RMJB's description of Limud Zchus is the best I've ever heard. It bears
repeating. To qoute:

> A limud zichus is a plusible path not taken
> by the poskim.  Let me elaborate.  Sometime sources are unclear in the
> talmud (or rishonim, or achronim), and debate follows.  Sometimes one
> posek advances a view which is plausible in the sources, but does not
> disprove other plausible views.  In those circumstances, since anylitical
> proof does not work, as neither side can logically prove the other wrong,
> we realy on second level rules as to what we should do.  Sometime, indeed,
> views that are anylitically plausible are not taken by any halachic
> authorities and one should not follow a practice not endorsed by poskim
> even if it is anylitically plausible within the sources.  When someone
> notes that this particular practice can be defended if one heads down the
> path not taken by the poskim (or by a minority of poskim), and no one can
> prove this path wrong -- i.e., inconsistent with the sources -- that is a
> limud zechut. 


As for RDE's suggestion that we "change the topic", I couldn't disagree
more. It is the obligation of every reader of these posts to read them
thoroughly so that no one is misquoted or taken out of context. This is a
unique list in that it has many people on it with a very high claiber of
Torah knowledge and the ability to articulte their postions well. This
benefits all of those on the list who are interested in the scholarly
debate of Halachic issues that impact on Klal Israel. To the extent that
there will inevitably be a quote taken out of context or a misreading
of a post should not deter anyone from transmiting his thoughts on Torah
subjects. The need to know the Emes by serious seekers of it, outweighs
the pitfall of the possible misusing of information thus transmitted.
Ceratinly our ruminations are not the same as RMF's. His desire to "leave
certain things unsaid" is based on a far more legitimate concern that his
views will be misused. He was after all the Gadol HaDor and was studied
by many more people than the number belonging to the Avodah/Areivim list.

I agree that RMJB and RYGB are Chashuva Talmidei Chachamim, and rising
stars in the Torah world, I do not think they are yet in RMF's leauge,
although I believe they both have such potential. This being the case I
don't think their words will have the same impact in the Torah community
as RMFs words.

Furthermore, I disagree with RDE on his asertion that a Limud Zchus
is the same as a Daas Yachid. A Limud Zchus is NOT the same as a Daas
Yachid. I'm not even sure that RMF's Limud Zchus would be considered
a Daas Yachid. A Daas Yachid, by definition is a Shita that only one
person has, against all other Shitos. A Limud Zchus as RMJB points out
is a viable Shitah which no one accepts but is not disproven.

So, as much as I would love it to be possible, in the end no one in
this debate seeks to uproot nor does anyone assert the authority, to
lift the prohibiton against the complete uncovering of hair by married
women. RMJB is just being Melamed Zchus on those segments in Klal Israel
where women don't cover their hair.

HM

From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
>  A woman must constantly adhere to the dictates of Hilchos EH 21.

If e.g. EH 21:2 is a perpetual obligation, it's not clear to me what 
single women rely on in not covering their heads.  Seeing the issue 
as single women now having an exception is more troubling to me:  G-d 
forbid we allow them to display erva in order to get married!

Janet

R. Broyde does not dispute my point that the Semak, Rosh and Tur do
not follow the Rambam's explanation of dat Moshe and dat Yehudit, and
that there is, therefore, no basis for his original contention that
according to the Tur the prohibition of going completely bareheaded is
only a question of minhag. He now appears to be arguing that the Shulchan
Aruch holds such a position by itself, which is considerably less than
claiming that both the Tur and Shulchan Aruch do so.

It is also surprising, for which reason I appended a tzarich
iyun. R. Broyde finds this unsatisfying, and I agree. Any tzarich iyun is,
by definition, unsatisfying. But does he claim that that the Shulchan
Aruch does not, in fact, warrant a tzarich iyun, even according to his
own position? Consider:

1) Why does the Shulchan Aruch mix together the approaches of the Rambam
and the Semak, et al, to form a hybrid which is not the position of any
rishon? Tzarich iyun.

2) Why is there no mention of minhag tzniyut in the Bet Yosef, only in
the Shulchan Aruch? Tzarich iyun.

3) In Ketuvot 72a, concerning the Mishnah which lists a woman going
bareheaded as a violation of dat Yehudit, the Gemara asks, "Is not
[going out] bareheaded [prohibited] d'oraita? From [the standpoint of]
d'oraita, a kalta is sufficient." We know how the Rambam understood this
Gemara, and in Bnei Banim I explained how Semak, Rosh and Tur understood
it. How does the Shulchan Aruch, which according to R. Broyde holds that
there is no de'oraita at all in going bareheaded, understand this key
Gemara? Tzarich iyun gadol.

What does not need any iyun is what is the Halacha. Other than dubiously
in the Shulchan Aruch which involves multiple tzerichim iyun, there is no
precedent for R. Broyde's approach in the rishonim, and no echo of it in
the achronim. Moreover, the Tur wrote, "[a woman] who goes out bareheaded,
even if not completely bareheaded but with a kalta on her head, since
she is not wearing a kerchief, is to be divorced." The words "even if"
signify that going both completely bareheaded and partially bareheaded
are included in the prohibition: both are signs of brazenness and possible
promiscuity, as I quoted from the Semak and Rosh. Shulchan Aruch, wrote,
however, "These are the things that if a woman does any of them, she
violates dat Yehudit: [a woman] who goes out to market... bareheaded
and without a shawl on her like all the women, even though her hair is
covered by a kerchief." "Bareheaded and without a shawl" (roshah parua
ve'ein aleha redid) lacks the clarity of the Tur's formulation, and can
just as easily be read as saying "bareheaded in that she has no shawl
on her, even though her hair is covered by a kerchief."

Read this way, the Shulchan Aruch is not discussing a woman who goes
completely bareheaded at all, and consequently does not include her in
the category of dat Yehudit. This has the advantage of solving the various
tzerichim iyun listed above, as it establishes the Shulchan Aruch firmly
in the camp of the Rambam. It is problematic in that, if so, the Shulchan
Aruch does not explicitly mention the case of a woman who goes completely
bareheaded, although, according to the Rambam, neither does the Mishnah.

-- Yehuda-Herzl Henkin

On Fri, Dec 29, 2000 at 10:26:07AM -0500, Wolpoe, Richard wrote:
:> Such claims almost invariably are a result of a fundamental misreading
:> of the sources by the claimant...

: 1) This is why I am opposed to revisionist halachic changes.
: Halacha ideally should be basd upon precedents and not about novel
: re-interpretations of texts and then going forward bypassing generations
: of psak din...

You seem to be saying that because the system can be abused, it shouldn't
/ doesn't exist altogether.

You also seem to be closing the door on the possibility of correcting
communal unobservance. If some halachah is being ignored, shouldn't a
poseik point out that the norm is based on something other than halchah?

For example, if the lack of hair covering in the US in the first 2/3 of
the 20th cent CE was do to a lack of observance, rather than a shitah,
someone needs to speak up.

-mi

r bechhoffer asked for the source from tanya that non-jews lack bechira.
it was an inference (which i have heard others make) from the end of 
the first chapter which says that they don't have a true yetzer hatov 
(even their good actions come from selfish motivations), and the fact 
that bechira is generally defined as between the yetzers.

janet

On Fri, Dec 29, 2000 at 09:03:05AM -0600, Yosef Gavriel and Shoshanah M. Bechhofer wrote:
: Direct physical contact is an interaction issue ...
: Attire is a personal obligation ...

The way I see it, attire is akin to mesayei'a lidvar aveirah. We obligate
one person to avoid causing another to sin.

Physical contact directly involves the person who needs to avoid the
issur.

-mi

********************


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