Avodah Mailing List

Volume 08 : Number 061

Thursday, November 29 2001

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Subjects Discussed In This Issue:
Date: Wed, 28 Nov 2001 09:27:50 EST
From: Joelirich@aol.com
Re: gerut

In a recent shiur we were discussing the halachik status of a Kuti.
2 questions came up that I'd be interested in getting the chevra's
insights on.

1.The Kutim are described as gerei arayot as a nation and generally
(I think I found at least one exception in the Ritva) are assumed to
be either acceptable or unacceptable gerim as a nation. Why is this
a national rather than an individual issue - especially for the first
generation? Should there not need to be individual drisha vchakira to
determine the motivations and practices of the particular convert or his
ancestors (at least to the extent possible) rather than relying on rov?

2.I think we've previously discussed the concept of zachin ladam as it
applies to a ger katan who will be raised by nonorthodox parents. The
issue was that it may not(at least per R'YBS) be a zchut if we know he
won't be a shomer tora umitzvot. What about a grown individual - are
there any sources that say one is better off being a Jew even though a
choteh than being a shomer the zayin mitzvot completely? One possible
analysis - we know that perek chelek tells us kol yisrael yesh lahem
chelek....with certain exceptions. Is the olam haba of a Jew who didn't
do those exceptions but did sin (how much?) by definition greater than
that of a shomer the zayin mitzvot completely?

Sources welcome!

Joel Rich

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Date: Wed, 28 Nov 2001 10:06:31 -0500
From: "Gil Student" <gil_student@hotmail.com>
Havara For Leining

Carl Sherer wrote on Areivim:
>Interesting. When I was a bochur in the Gush, I leyined Megillas
>Esther for the vasikin minyan, and the guys insisted that I do so in
>Havara Sfaradit. I went to RAL and asked him what to do, and he said
>that despite the general rule of "al titosh Toras emecha," the tzibur
>had the right to require you to leyin it their way. I managed.

R. Dovid Lifshitz used to insist that ba'alei korei in the YU beis medrash
lein in Ashkenazis. He also corrected pronunciations like "Yankov".

Gil Student

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Date: Wed, 28 Nov 2001 16:33:05 +0000
From: Micha Berger <micha@aishdas.org>
Re: Havara For Leining

On Wed, Nov 28, 2001 at 10:06:31AM -0500, Gil Student wrote:
: R. Dovid Lifshitz used to insist that ba'alei korei in the YU beis medrash
: lein in Ashkenazis. He also corrected pronunciations like "Yankov".

And yet he did /not/ insist I use the Poilisher choilam that is the
Suvalker minhag. Even though that would dictate both my minhag and


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Date: Wed, 28 Nov 2001 10:08:01 -0800
From: Eli Turkel <Eli.Turkel@colorado.edu>

>> The Chazon Ish writes in Yevamos 57:3... even though the nature of
>>animals  has changed (nishtanah hateva) in regard to treifos, since
>>the halachos  were determined during the 2000 years of Torah (from
>>Avraham to appr. the  close of the Mishnah) they cannot be changed
>>based on current nature.

>> However, in other places that he mentions nishtanah hateva he
>>recommends  changing halachah. For example, in Yoreh Deah 155:4 the
>>Chazon Ish  permits violating Shabbos for the needs of a baby born
>>in its eighth month  because nishtanah hateva and the baby is
>>viable. Why doesn't he say that  the halachah must remain as it was
>>established during the period of Torah?

>treifos is halacha l'Moshe while the other is not.

However, the gemara has a debate whether a terefah can live 12
months. According to Rambam that halachah le-moshe misinai doesn't
have a machloket this is difficult. Also there seems to be a difference
in terefah of animals versus terefah of humans. Wouldn't they both be
halachah lemoshe misinai.

Eli Turkel

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Date: Wed, 28 Nov 2001 12:09:58 -0500
From: "Gil Student" <gil_student@hotmail.com>
Re: Chazon Ish on Nature

>treifos is halacha l'Moshe while the other is not.

Are you saying that, according to the Chazon Ish, the 2000 years were
for the establishment of the parameters of these halachos leMoshe miSinai?

Gil Student

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Date: Wed, 28 Nov 2001 13:12:13 -0500
From: "Kenneth Miller" <kennethgmiller@juno.com>
Re: Chazon Ish on Nature

R' Gil Student brings a stira in the Chazon Ish, that <<< in regard to
treifos, since the halachos were determined during the 2000 years of
Torah, they cannot be changed based on current nature. >>>, but he <<<
permits violating Shabbos for the needs of a baby born in its eighth
month because nishtanah hateva and the baby is viable. Why doesn't he
say that the halachah must remain as it was established during the period
of Torah? >>>

Here's my wild guess: Perhaps the CI felt that the rules of treifos were
not merely *codified* during the 2000 Years, but that we received them
from HaShem at that time as a [Halacha L'Moshe MiSinai, or insert some
other comparable phrase or concept here].

In contrast, perhaps the CI felt that the "eighth month baby" rule was
*not* based on any kind of Revelation, but based merely on the current
medical expertise and observations, and is always subject to review.

Akiva Miller

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Date: Wed, 28 Nov 2001 12:15:26 -0500
From: "Gil Student" <gil_student@hotmail.com>
Re: chabad customs

Eli Turkel wrote:
>2. For lechem mishne they say each person who receives a piece says their 
>own beracha (but not over the wine of kiddush). I was always taught they if 
>each person makes their own beracha they lose the lechem mishne.

I was surprised when my rav (no connection to Chabad) told me that this
is his minhag also. When I asked him the same question you asked,
he asked how I know that the beracha has to be on lechem mishneh.
Maybe you only have to eat from lechem mishneh.

Gil Student

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Date: Thu, 29 Nov 2001 01:24:26 +0800
From: "Alan Davidson" <perzvi@juno.com>
Chabad customs

All I can answer is for shalosh seudos but it is like this: The hebrew
Siddur (as well as the first edition of the Hebrew-English Siddur) quotes
the relevant sections verbatim from the Baal HaTanya in Shulchan Aruch
HaRav which states very clearly the requirement to wash, the English
section focuses more on what the actual minhag is -- the minhag of the
later Lubavitcher Rebbeim was not to wash for shalosh seudos because
of the exalted nature of that time and many Lubavitch baalei batim do
not do so for this reason but rather eat mezonos or fruit. Others will
wash but will eat only very lightly at this meal (btw I have seen many
poilisher Chassidim wash and only eat enough to be kevayis seuda at
shalosh seudos too).

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Date: Wed, 28 Nov 2001 14:10:17 EST
From: RaphaelIsaacs@aol.com
Re:Chabad Customs

Prof. Turkel, I didn't know you studied inyanei Chabad this much.
Next time, you're in Newport News, we'll have to talk in learning.
It gets lonely here.

From: Eli Turkel <Eli.Turkel@colorado.edu>
> I was in a chabad shul this shabbat and they have a new (less an year)
> siddur which has a detailed discussion of their customs in English....

> 1. For lechem mishne they say the 2 challot should be side by side covered
> by ones 10 fingers. I always thought that one is on top of the other and
> the order is given by kabbalah with differences between shabbat eve and
> shabbat morning

The minhag you (we) are familiar with is based on the Rama. Chabad has
its own mesora with regard to the kabala of this matter.

> 3. I was all confused by their shalashudus. In Hebrew they quote the
> SA which in their quote clearly says the preference is to use lechem
> mishne and fruits etc are definitely a last choice. In the English they
> say that the Chabad minhag le-chatchila is to use fruits and
> not bread and for the meal to sing niggunim. 
> So does the custom depend on whether one can read hebrew?

Chabad is not unique in this regard.  For example, the Artscroll English 
differs from the Artscroll Hebrew in a number of respects.  As does the 
Mishnah Brurah from the Biur Halacha.  

The Shalosh Seudos issue, a controversial one, is one the Rebbe discussed
in a sicha many years ago. I read it in Likutei Sichos Vol.20 I think
(or 22?)Parshas Beshalach.

B'Kitzur: The Rebbe explained it based on a teaching of the Chabad
Rebbeim quoted in the Chabad sefer HaYom Yom, (compiled by the rebbe
before he became rebbe), the three "HaYom"s in parshas BeShalach that
allude al pi remez to the three Shabbos Seudos. The 3rd HaYom is
"HaYom lo tim'tzaihu ba'sadeh", you won't find the mon in the field,
alludes to the fact Shalosh Seudos does not require bread.

He goes on to say that the three Shabbos meals allude to three eras in
Jewish History, the last of which is L'asid La'Vo, when as the Rambam
says, there is no eating and no drinking etc...Therefore the meal which
commemorates this inyan does not require a full measure of eating (bread).

As to the Halachic requirement for bread quoted in S"A Harav, the rebbe
said that the requirement for bread is a function of Oneg Shabbos.
If there would be no oneg from eating bread me'eizeh taam she'iyheh,
bread should not be eaten. So if one grasps or accepts the teaching that
bread is a b'dieved al pi p'nimius HaTorah for the reasons listed above,
there will be no oneg in eating bread and eating bread becomes b'dieved
al pi halacha as well.

This explanation is very similar in reasoning to the Lubavitch hora'ah
not to sleep in the succah.

As to why the instructions are different in Hebrew, I have two reasonable

1) I remember hearing that the Rebbe was particular that the format of
the Tehillat Hashem siddur not be changed. It could be that Kehot was
reluctant for this reason to change the text, and

2) It might be assumed that anyone who can read the Hebrew is
knowledgeable enough to be familiar with the Chabad Minhag on this issue.

> 4. Their measurements seemed to be the same R. Chaim Naeh (eg 86 ml of
> wine). Was this always so - is this from Baal haTanya?

R'Chaim Naeh was a Chabad posek. His shiurim are standard in the Chabad
world, except for mikveh measurements, which are closer to the Chazon
Ish's numbers.


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Date: Thu, 29 Nov 2001 00:45:09 EST
From: RabbiRichWolpoe@aol.com
Re: Ikkarim as Halakha?

In a message dated 11/27/2001 3:55:05pm EST, Eli.Turkel@colorado.edu writes:
> the LR states that in the days of rishonim both viewpoints were
> legitimate. he claims that the Ari "paskened" like the Ramban and
> therefore only that side is legitimate today.

> Do others agree that the the position of the Ari on issues is similar to
> that of the Mechabber on halachah? In particular that implies we always
> pasken like kabbalah against philosophic opinions of rishonim.

I dunno if we all pasken like Ramban, but I agree with RMMS's basic
technique is that there is a period of flux before something gets decided

As Far as I'm concerned there is no intimate knowldge of HOW techiyyas
hameisim works and therefore I consider it mandatory to believe it but
I'm agnostic as to how it works in reality. IOW, if you were to tell
me that techiyyas hameisim includes what we call gilul re-incarnation
I would be hard-pressed to say this is WRONG. Techiyas hameisim min
hatoarh ipmlies that Moseh Rabbineu will sing shira in the future.
And if he comes back as Yossele Rosenblatt who is to say this is NOT
THE techiyas hamiessim min Hatorah?

The WHAT of this ikkar is required. The exact HOW is IMHO speuclation

[In a 2nd email. -mi]

In a message dated 11/27/2001 3:55:16pm EST, afolger@ymail.yu.edu writes:
> Methinks, though, that Rambam would be (is) quite horrified by such a
> change of meaning of his ideas, although that IS BESIDE the point. <smile>

The Rambam was entitled to his opinion. There is no evnidence to me
that the Rambam had any right to impose his opinion as normative w/o it
being accepted.

Plus you must realize that few of us have read this Rambam in the
original. Just as you say our re-interpretation of the Rambam would have
hooriffied him how - how do you know that contemporary understanding
of ibn Tibbon's translation would not have equally done the same to
begin with?

and FWIW, the Rambam himself does not take everything at face value. He
tells us to us davar mitoch davar to get at the emes. Do we take Chumahs
at face value w/o consulting TSBP on it? Do we take Gmara at face value
w/o Rsihonim showing us contradictions etc.? So why should the rambma's
writing be less subject to scrutiny?

Furthermore, it is demonstrable in some areas that the Rambam himself
modifed what he says in later Seforim. And IIRC, the ikkarim re not in
the yad itself.

I heard this from a member of Breuer's choir:
One year R. Breuer instisted on reliminatng the repeating of words.
The then choir leader re-arranged an uvnucho yomar to leave out an entire
line that was repeated. The arrangement was a bit of a flop. R. Brfeuer
told the choir leader to go back to the old way. Something like "never
mind waht I said about repeating words, do it anyway."

I also JUST heard a few weeks ago that R. Schwab was oposed to
Englsih Gmaras. Then he gave haskamos to Artscroll! How can that be?!
He explained that english Gmarmos wer simplistic, but Artscroll is
"like listening to a shiur!" and is different

But his is not new. Rabban Gamliel's Talmidim disocvered that RG made
excpetoins to the very rules he tuaght them (see Mishnayos Avos).

I am also learning Arvei Psachim. There RSBG is kovei'a halacha like R.
Yossi l'doros. Then R Yhudah says in the name of Shmuel that the Halacha
is NOT like either R. Yossi nor like R. Yehudah. Rashbam does a big
stretch to deal with the obvious! How can Tannaim kovei a halachah ONE
way and Amoraim dismiss it! The very next line!

Anyway, I am talmid of a talmid of R. Chaim Brisker. Certainly he felt it
was OK to put words itne the Rambam's mouth! <smile> All kidding aside,
I have posted that my rebbe claimed that a book of chidushie Shas of
the Griz had a line therin that was 180 degrees opposite of what he had
heard in shiur. And who do YOU belive and who should I believe?

Shalom and Regards
Rich Wolpoe

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Date: Thu, 29 Nov 2001 00:51:03 EST
From: RabbiRichWolpoe@aol.com
Re: Dor Revi'i and the siddur

In a message dated 11/28/2001 5:47:25am EST, CMarkowitz@scor.com writes:
> Does this mean that he held one can pasken based on the siddur?

If you read in a Jewish nespaper that R Moshe Feinstien said X, and you 
followed that are you relying on
the newspare article?

The Siddur is not a sroucebook of Halachah. But it is easy to show it
reflects psak.
How? Because Reform insisted on taking out passages that they felt were
incorrect. and so did the Ba'al Hatanya, the Gra etc. IOW, poskim of
any stripe do not tolerate statmeents in the litrugy that fly in the face
of Halachah. We even see that the Ari opposed the Yigdal and Birnbaum
found it necesaary to emend it in order to better reflect Rambam's
ikkarim. Why Bother?

Midrash Rabbah is not a Halachic wrok per se but we do use it to learn
various Halachos.
Shalom and Regards
Rich Wolpoe

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Date: Wed, 28 Nov 2001 09:49:55 -0800 (PST)
From: Harry Maryles <hmaryles@yahoo.com>
Re: FW: Rav Berkovits

--- "Shinnar, Meir" <Meir.Shinnar@rwjuh.edu> wrote:
> With regard to the discussion of R Eliezer Berkovitz ... We should
> separate two issues:

> 1) Whether we believe the proposals in Not In Heaven ... have intrinsic
> merit, or are too radicall and perhaps dangerous

> 2) The status of the individual who proposed them

> The discussion of the first has merit. I think that the discussion has
> focused too much on the apparaent resemblance to Conservative ideology...

> However, the second discussion is highly problematic....

Personally, I have mixed emotions about Dr. Berkowitz. I am both a
great admirer of his independant type of thinking but, at the same time
find it difficult to go to the extremes that he suggests. As to casting
aspersions on Dr. Berkowitz's Status Post Mortem, once again I have only
asked the question, not labeled him. And most of the responses here on
Avodah have been very favorable to Dr. Berkowitz.

It is rather well know that Dr. Berkowitz was considered an Apikores
in his lifetime by many Gedolei Israel. I saw a Ksav Yad in english
from R. Gifter clearly labeling Dr. Berkowitz an Apikores. When I asked
Dr. Berkowitz about it, he of course vehemently denied it and said that
his positions were misunderstood and he explained why. I believe that
he WAS indeed misunderstood and that he was likely NOT an Apikores. But
he was definitely not mainstream. He was radical in his thinking and a
Daas Yochid, which of course he had every right to be.

The question still remains as to how radical one has to be before he
crosses the line into Apikursus.


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Date: Wed, 28 Nov 2001 13:24:13 EST
From: DFinchPC@aol.com
Re: R. Eliezer Berkovits

> Yes restoring the Sanhedrin would mean replacing the Shulhan Arukh by a
> higher authority. However, you began the discussion by comparing Rabbi
> Berkowitz's attitude toward the SA with that of the Conservative movement.
> I'm pointing out to you that there is a huge difference between abandoning
> the Shuhan Arukh (and for purposes of this discussion let us stipulate
> that that is what the Conservatives have done) and replacing it with
> the renewed Sanhedrin.

And what if the new Sandhedrin decided to discuss Torah S'bal Peh using
its own words and concepts? Wouldn't that discussion be tantamount to a
process of interpretation, and in turn a process of modification? (This
might especially be the case because, as one of our posters noted, the
new Sanhedrin would not be bound by "precedent." "Precedent" takes in
a lot of territory.)

This goes beyond the Sanhedrin's power to trump the Shulchan Aruch,
which, after all, is a learned guidebook, not an intrinsically holy
text. (Same with the MT.) A new Sanhendrin would replace rabbincal Judaism
as we've known it since the fall of the Second Temple. We'd end up with
a new religion that looks to the old one only as a source of the new
religion's legitimacy.

By the way, where would the new Sanhedrin, with its power to ignore prior
rabbinical legislation, get its understanding what did or didn't happen
at Sinai? Or would the new Sanhedrin be bound by past learning just as
we are? If so, what would be "new" about it?

David Finch

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Date: Wed, 28 Nov 2001 13:35:48 -0500
From: "Gil Student" <gil_student@hotmail.com>
Re: R. Eliezer Berkovits

I read David Hazony's article on R. Eliezer Berkovits
<http://www.azure.org.il/11-hazony.htm> with great interest, as this was
only my second exposure to R. Berkovits' views (the first was R. Shalom
Carmy's critique of Major Themes).

Is it in any way correct to say that R. Berkovits was concerned with
morality before halachah while RYBS was concerned with morality as
halachah and the ba'alei mussar were concerned with morality after

In other words, all three people/categories were extremely loyal
to halachah. However, R. Eliezer Berkovits felt that halachah should
bend when it comes into conflict with morality (as internally defined by
Judaism - Hazony uses this to contrast R. Berkowits to the non-Orthodox).
RYBS, however, defined halachah as the ultimate morality. The ba'alei
mussar were concerned with morality but would not consider altering
halachah and gave it precedence.

Gil Student

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Date: Wed, 28 Nov 2001 13:44:03 -0800 (PST)
From: Harry Maryles <hmaryles@yahoo.com>
Re: Rabbi Dr. Bekowitz

--- David Glasner <DGLASNER@ftc.gov> wrote:
> Yes restoring the Sanhedrin would mean replacing the Shulhan Arukh by a
> higher authority. However, you began the discussion by comparing Rabbi
> Berkowitz's attitude toward the SA with that of the Conservative movement.
> I'm pointing out to you that there is a huge difference between abandoning
> the Shuhan Arukh (and for purposes of this discussion let us stipulate
> that that is what the Conservatives have done) and replacing it with
> the renewed Sanhedrin.

I pointed out that in practical terms, if we are to follow Dr. Berkowitz's
Shitah, then we could end up with a radically different approach to daily
living similiar to that of the Conservative Jew. This may be speculative
but, I think a legitmate possible conclusion.

>> A reconvened Sanhedrin may be his means but in the end if one wants to
>> return to the purity of Torah She Bal Peh one must dispense with the
>> written Shulchan Aruch.

> So?  v'khan ha-ben sho'eil:  Is that not what we pray for three times a 
> day?

Yes, in the context of Bias HaMoshiach.

Unfortunately I am at a disadvantage not having read Dr. Berkowitz'z
book and only getting my information second hand from R. Twerski's
critique. But if I understood correctly, Dr. Berkowitz thinks the time
for action is now. He would reconvene a Sanhedrin Now in a newly restored
Medinat Israel. This is radical. All attempt over the millenia by those
greater than Dr. Berkowitz such as your illustrious ancester the DR have
failed mostly becuse there was no universality. Dr. Berkowitz seems to
gloss over that minor detail.

> In that case, I suggest you not throw around the A-word quite so
> casually.  

I don't think I have done that. I merely asked a thought provoking
question. I am not the first to suggest the possiblity and I certainly
did not label him as such. But othjers did during his lifetime. No less
a Gadol then R. Gifter referred to Dr. Berkowitz as an Apikores way back
in the sixties and seventies.


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Date: Wed, 28 Nov 2001 22:21:10 EST
From: Jthedawn@aol.com
Re: FW: Rav Berkovits

[A reminder to everyone: Avodah is not just an email list about
Avodas Hashem, but an attempt to build a chevrah of aspiring
ovedim. I therefore request that all mails be signed, or at least
forwarded by someone who signs their full name. It is impossible
to build a chevrah of anonymous people. -mi]

> The irony of Dr. Berkowitz's view is that theoertically, Orthodox and
> Conservative Jews could end up having no differences between them on
> any practical level and indeed the differences between Jews and non-Jews
> would disappear. Judaism would become nothing more than an intellectual
> excersize debating the relative divinity of the Torah.

How so?

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Date: Thu, 29 Nov 2001 00:25:43 EST
From: RabbiRichWolpoe@aol.com
Re: Dr. Berkowitz, Conservativism and Orthodoxy.

In a message dated 11/27/2001 3:54:33pm EST, hmaryles@yahoo.com writes:
> Until I was made aware of Dr. Berkowitz's view, I assumed that this
> "dynamic" application of Halacha was strictly within the domain of the
> Conservative movement. But Dr. Berkowitz has demonstrated that this is not
> necessarily so....

Several points:

1) Who says that Halachah was NOT easily changeable before Reform.

2) According to many "scholars" Tosafos was innovating Halachah trhoughout
the Middle Ages and doing just what the Talmud did.

3) The C movement in the 19th Centruy was led by people like Z. Frankel
(P-H) and Solmon Schechter. As described by Moredechi Kaplan, the
C movmment had 2 componests, the far RW of Reform and the LW of
neo-Orhtodoxy. He put Z Frankel and S Schchter in that camp with RSR
Hirsch in the far RW of Neo-Orthodoxy.

4) Re: Tsofaos above, the raionale I have made is that Tosfaos was
presdrving or perpetuating a specific Minhag foreign to Bavel and his
innovations were primarily reconciliaionts of Talmudic Text to Ashkenazic
Halachic praxis. Im kein it is not so innovative for say the Chasam
Sofer to abaondon Minhag Frnakfort and take on the mantle of Minhag
PRessburg after having migrated. This is not Halachic innovation. this is
re-indetifying with another Legit Masorah in the nahara v'nahar upasthei
concept of multiple valid Massoros.

5) Mekkubaim and Hassidm revise many Halachos away from the poskim and
towards the Zohar. (See Jacob Katz' essayos on this)

Bottom line, while in theory many people see the Talmud Bavli as the
last word of biening Halachah, this is not so simple.

Asheknazim were willing to use Psikta etc. instead .Adn they laid claim
to other Masoros - some of them paralletl to Yershulami

Mekubbalim took on many Zoharic practices and ignored the Bavli or at
least the Rishonim on the Bavli.

The Issue to me is, can you ignroe all the Rishon and go back to the
Bavli and re-construct Halachah that way. E.G. can you claim that
Kavod hatzibbur is no longer an impediment to giving women aliyos?
{ironcially a Tshuva from Maharam miRothenburg suggests to do so
lechatchila in the case of an ir shel kohanim}

Rabbi Kanarfogel (RDEK) quotes a Ri Migash that insists that one MSUT
factor in Ganonic litratue and the Rif before issuign a ruling and NOT
to rely on Bavli alone.

AISI, the ideal way to pasken is to research Tshuvos to see if there is
a precedent. This is parallel to "common law"

the next technique is to use Rishonim as a prism. One might rely on an
obsucure Rishon at times, but to re-interpret the Bavli or to pasken based
upon the Bavli w/o ANY Rishonim concurring imho is breaking with Masorah


That case of using the Bavli and ignroe Rishonim is only OK in a hora'as
sh'ah type or sha;as hadechak. IMHO aguna is just such an eis la'asos

Unfortuantely for my tehory, there were acharonim that have gone back to
the Bavli and not felt compelled to see if there are post-Bavli precedent.

And IMHO when Ashkenaz relied upon a Psika or Yershulmi or Tosefta against
a BAvli it was only to rationalize {textualize} an existing practice
that they considered OK opr based upon Masorah. AFAIK, Ashkenaz did
not INNOVATE a practice by using the Psikta etc. in oreder to overrule
a Bavli.

The question becomes, can C lay claim to being melamed zchus to a pervasie
lack of Observance. I say no. I say only a custom that has a bona fide
Masorah OR perhaps having evolved in an Observant community would count
as having set a precedent. Ignoring a Halachah by non-Observant Jews
does not cause a precedent worth yof limud zchus.

What is confusing to C is that the ysee how Halacha does not match the
Bavli or at least their understnading thereof. The tempting conclusion
is that one may innovate a change. frist of all some changes were not
innovations, just non-Bavli Masorah. But even when you can PROVE that the
Halachah taht contradicts the Bavli did nto stem from an old Masorah, you
usualyl have a subltle evolutionary porocess that took centuries if not
millenia. IOW, if we are muc hmore meikel about buyring suicde victims
then the TB was, it is because over time the terend was for rabbanim to
be melamed zchus esepcially in light of psychological discoveries as to
the nature of dpression etc. It does not mean the law has been repealed
somehow by fiat. If we can show that a suice victim was a dvotee of
Kevorkian then we would probably uphold Talmudic Law on that case.
Only a person whose d'as is falky can be given a limud zchus.

IOW, Halachah does get flexible over a long time. This is not a carte
blanche to change Halachah ad hoc or willy nilly. As we've discussed,
Rabbeinu Gershom prohibited polygamy in a society that was abondoning the
process over time anyway- plus there were issues of dina demalchussa, etc.

Look at Tcheles today. It is only starting to become popular. It
may take decades to become widesrepad and normative. It's not like
Rav X got up one day and paskened from now on ALL must wear techeiles.
First one rav paskens then a 2nd etc. IT begins to catch on. It remains
in flux. Then it settles.
Shalom and Regards
Rich Wolpoe

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Date: Thu, 29 Nov 2001 01:05:22 EST
From: RabbiRichWolpoe@aol.com
Re: Eliezer Berkovits

In a message dated 11/28/2001 11:21:07am EST, DGLASNER@ftc.gov writes:
> Yes restoring the Sanhedrin would mean replacing the Shulhan Arukh by a
> higher authority. However, you began the discussion by comparing Rabbi
> Berkowitz's attitude toward the SA with that of the Conservative movement.
> I'm pointing out to you that there is a huge difference between abandoning
> the Shuhan Arukh (and for purposes of this discussion let us stipulate
> that that is what the Conservatives have done) and replacing it with
> the renewed Sanhedrin.

AISI, it would imply that any TSBP that came about after churban
Bayis sheini would be suject ot nullfication, but not necessarily be
autoamtically nullified.

The question becomse just what TSBP is vinding on any Sanhedrin?  
W/O formal research:
1) any HLMM that is a bona fide HLMM and not jsut a colloquial one
2) Any grzira or Takkanah would require a BD great in number and chachma etc.

AFAIK piskei halacha can be revisited and revised.

[In a 2nd email. -mi]

In a message dated 11/26/2001 4:04:38 PM Eastern Standard Time, Meir.Shinnar:
> The one issue over which there is much practical disagreement is the
> extent to which acharonim can disagree with rishonim. We have had this
> discussion - while some posit an absolute break in periods, that is hard
> to maintain. clearly there is great reluctance, but also clearly many
> acharonim (the gra is the most famous, but others too) do disagree.

here is an approach

1) one may argue with Rishinom in lamdus
2) re: Psak it is possible perhaps but remote
3) it is ok for an acharon to pick among resihonim unless that Rishon has 
clearly been rejected. (Rabbeinu Tam's Tefillin perhaps?)

This third point gives the Me'iri a good deal of potential since you can
say the halachic process did not weed out the unpublished Me'iris. Even so
I do not like to see Halacha w/o a precedent unless the case is brand new

Shalom and Regards
Rich Wolpoe
RabbiRichWolpoe@AOL.com Moderator of TorahInsight
"Knowledge without Insight is like a horse in a library" - Vernon Howard    

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Date: Wed, 28 Nov 2001 20:22 +0200

Rav Aharon Soloveitchik z"l in his sefer Perach Mateh Aharon on
the Rambam discusses rambam Hilchot De'ot 6:6-8 and quotes the Beit
haLevi who distinguishes between DIN and TOCHACHA. Tochacha should be
done pleasantly but "asiyat din massur rak l'dayyanim, shotrim v'tovei
ha'ir". Likewise, the Yam Shel Shlomo on Bava Kamma 28a "d'a'vid inish
dina l'nafshei" states that only the Gadol HaDor (like the Navi) is
permitted to physically castigate or punish someone who violates halacha.

The SM"A and Prisha on the TUR Choshen Mishpat 421 go into detail on
"l'afrushei m'issura". What the Rema writes in CM 421:13 seems to refer to
someone who is in his *reshut* [e.g. he sees his son violating an issur].


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