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Volume 09 : Number 075

Wednesday, August 14 2002

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Subjects Discussed In This Issue:
Date: Mon, 12 Aug 2002 16:09:49 -0400
From: "Brown, Charles.F" <charlesf.brown@gs.com>
Subject:
RE: Some Comments on EVe


> 1. I know of no Rishonim, or Chazal, who do *not* hold like the Ritva.

Rashi (Kesubos 57b) writes that if 2 amorai'm argue about what X said, one
side is deifinitely wrong and we do not apply eilu v'eilu.  If they argue in
matters of sevara we  apply eilu v'eilu because "zimnin d'shayach hai ta'ama
v'zimnin d'shayach hai ta'ama...hata'am mithapeich l'fi shinuy hadevarim",
i.e. the truth is absolute (unlike Ritva's approach), but how to apply it is
not always clear.  

-Chaim


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Date: Mon, 12 Aug 2002 23:32:49 EDT
From: RabbiRichWolpoe@aol.com
Subject:
Re: Can Halakha dictate reality


In a message dated 8/11/02 2:19:40PM Eastern Daylight Time, chaimf@pobox.com 
writes:
> I think of it like a neural net. Questions and facts go in on one side,
> and an answer comes out the other. The net does not have an answer but
> the entire system "understands" the problem space.

IOW - Nir'eh li is a kind of gestalt answer w/o a specific proof.

> But in the end it seems like most proofs are disprovable. If all proofs
> were absolute how could we have machlokes the answer would be obvious.

Sometimes the premises differ even if the reasoning process is the same.

Example, if I hold that the Masorah as contained in the Siddur/Machzor
is the ultimate authority on nusach, I would use it's texts as a proof
that Yotros are OK

While

OTOH if I held that Talmudic dictates were supreme I mgith draw other
conclusions about the various piyyutim inserted into davening.

Therefore the same reasoning technique can draw different conclusions
if the underlying presumptions differ

Regards and Kol Tuv,
RabbiRichWolpoe@aol.com


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Date: Mon, 12 Aug 2002 18:26:12 +0300 (IDT)
From: Daniel M Wells <wells@mail.biu.ac.il>
Subject:
Re: Application of kol isha to goyim


>> One of the 7 mitzvos bnei Noah is that of arayos and since the issur
>> of kol isha is that of (ie it leads to) arayos - therefore I would
>> suggest that the issur kol isha also applies to gentiles.

> I would argue against your conclusion, based on Igros Moshe EH 1:56.Rav
> Moshe says that the issur of histaklus at arayos stems from "v'nishmarta
> mikol davar ra"--that one should not be meharer during the day so that one
> will not come to tuma (which R Moshe interprets as hotzo'as zera l'vatala) at
> night.Consequently, Rav Moshe says that histaklus is not a din in arayos
> and there is no halacha of yehareg v'al yaavor, even though yehareg v'al
> yaavor applies to abizrayoo d'arayos.He suggests even that HZ"L itself
> would not require yehareg v'al yaavor.

I would beg to differ:

http://www.torah.org/learning/rambam/kriatshema/ks3.16.html

***************begin quote ***************************
Rashi (Berakhot 24a s.v. l'istakulei bah) understands that the "even a
little finger" of R. Sheshet applies to a married (to someone else) woman;
Rashi later hints that this is associated with *hirhur 'aveirah* -
thoughts of sinning. In other words, the prohibition of lascivious gazing
is directly related to the prohibition of acting on that gaze - since
relations with a married woman are a capital crime, gazing at her (in a
way which stimulates thoughts of such a violation) is an extension or
protection of that violation.
************end quote*******************************************

> Remember also that while for Jews, a niddah is an erva, this does not
> apply to goyim.So the only arayos for goyim are aishes ish and krovim.
> Even though the 7 mitzvos imply that goyish batei din should make
> additional gzeiros to avoid arayos, I wouldn't think that a ban on all
> histaklus would be necessary (maybe just histaklus at aishes ish and
> krovim).

**************begin quote********************************************
Rambam (MT Issurei Bi'ah 21:2-3) reads this prohibition as applying to all
forbidden women - even non-married women - the one exception he makes (and
encourages) is to gaze at the face of a non-married woman who is he is
considering marrying. We could explain Rambam's approach as similar to
Rashi - with the extension applying to anyone with whom relations are
forbidden. However, from the context of Rambam's ruling, it seems that he
judges "gazing" as inherently problematic, and therefore equally
applicable to anyone who is a prohibited sexual liaison.
***********end quote***************************************************


Daniel


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Date: Mon, 12 Aug 2002 11:29:53 -0400
From: "Gil Student" <gil_student@hotmail.com>
Subject:
Re: Basar SheNisalem Min HaAyin


>>>So if one finds a pot of Cholant in the street (on Shabbos) he may eat it?

>>I don't know that one would any more than one would eat meat found on the
>>ground in front of a kosher butcher. But lichora it should be mutar like
>>the case of teisha chanuyos.

>See SA YD 63 where it says that Min Hatorah there is the Chazoko of Tisha
>Chanuyois, but the Chachomim were Gozer that it's no good because it was
>Nisaleim Min Hoayin.

And the Rama there is meikel like the sevara acharonah.

Gil Student


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Date: Mon, 12 Aug 2002 19:52:02 -0400
From: David Glasner <DGLASNER@ftc.gov>
Subject:
FW: treifa of the Rema, Sha'agas Aryeh et al


Rabbi B wrote (9:72):
>>                       Afterwards, in describing why he would give such
>> unusual advice, the CI is purported to have explained that in hearing
>> the description of the ailment he was reminded of a siman in SA dealing
>> with treifos. ...
>> is not a treifa and the Rema disagreed holding that the animal was osur
>> as a treifa. Based on this, the CI is alleged to have opined that since
>> the "moreh deasrah" of Europe is the Rema, there this individual would
>> be b'geder treifa and not have long to live. In EY, where the SA had
>> jurisdiction, the individual was not in the category of treifa and would
>> be fine. ...

> It is debatable whether the classic concept of Mara d'Asra still
> exists. Once, however, local psak determined local reality.HaGaon HaRav
> Yechiel Michel Gordon zt"l of Lomza related that an indivdual in Volozhin
> suffered from a certain form of lung disease. The person intended to leave
> the city and move to a place with better air. The individual's father
> appeared to him in a dream and told him that his specific form of lung
> disease was the subject of a machlokes between the Rema and the Sha'agas
> Aryeh. The Rema held that if this particular form of lung disease occurs
> in a cow, then the animal is treif, as it is incapable of living for
> another year. The Sha'agas Aryeh, however, had paskened that an animal
> with this disease was nonetheless kosher. (The fascinating history of the
> psak of umma haserucha ladofen im makka badofen is well documented. See,
> for instance, Makor Baruch chap. 17 section 2.) The father therefore
> warned his son to remain in Volozhin. His rationale was that in Volozhin,
> the Sha'agas Aryeh's town, the psak _ and therefore the Ratzon Hashem _
> followed the ruling of the Sha'agas Aryeh. The disease would not threaten
> this person's life as long as he remained there. Were he, however, to
> leave Volozhin, he would fall under the ruling of the Rema and would be at
> mortal risk. (I am indebted to Rabbi Avraham Kivelevitz for finding the
> source of this ma'aseh in Rabbi Menachem M. Yashar zt"l's essay in the
> She'eilos U'Teshuvos Sha'agas Aryeh Mahaduras Machon Chasam Sofer note 2.)

I once heard this story repeated by a rabbi from the pulpit except that in
the rabbi's version it was not the father of individual with the diseased
lung, but R. Haim of Volozhin, who told him not to leave Volozhin. Nor
were the instructions not to leave Volozhin communicated in a dream
but in person (at least that is how I now recall what I heard). When
I heard the story, I nearly fell off my chair. And I told the person
sitting next to me that the story could not be possibly be true. Here
is why I believe the story to be absolutely untrue.

What difference does it make whether a particular lung condition would
make an animal a treifa? The 18 treifot that are halakhot l'moshe
mi-sinai have nothing to do with whether a human being is or is not
able to live with a condition that would make an animal a treifa. We
know this, because the Rambam tells us that establishing that a person
is or was a treifa for purposes determining whether the death penalty
could be administered is based on imud ha-rophim. Thus, for purposes of
deciding whether to execute a defendant, the beit din does not rely on
the 18 treifot, but on the best (and obviously still highly fallible)
medical opinion available to it. Can anyone tell me that the halakhah
would be to execute someone based on a medical opinion that a person with
a lung disease could survive even though it was one of the 18 treifot
that are absolutely fatal because the halakhah has established a metziut
that such a person would in fact die within 12 months and therefore must
be exempt from the death penalty?

Second, the 18 treifot are not absolute statements about what the
reality is. The 18 treifot are humrot imposed upon us to dispense with
the need for determining whether a given condition will result in death
and therefore come under the divrei soferim prohibition of treifa as
opposed to the Biblical prohibition which is nat'tah lamut mahmat makoteha
mei'eith l'eit. The opinion in the Talmud that treifa einah hayah, which
is the halakhah p'sukah, does not conflict with this, because the mahloket
is not about metziut, but about whether one may resolve a doubtful treifa
by observing that it has survived 12 months. The opinion treifa einah
haya says that we may infer from the fact that a doubtful treifa has
survived that it was never really a treifa and therefore may be eaten.
But that is just a halakhic inference that we are entitled to make,
not a statement about metziut.

Third, even if one interprets the dispute about treifa hayah o einah
hayah as a dispute about metziut, and even if one insists that the 18
treifot determine when a human being is a treifa, the dispute proves that
the meztiut of whether a treifa condition is fatal is independent of,
not determined by, the halakhah. The opinion that treifah einah hayah
would (arguendo) hold that the 18 treifot are fatal conditions and
must always be so, the contrary opinion would hold that they are not
necessarily fatal. If it is the halakhah that determines the metziut
what is there to argue about, unless one were to say that the argument
is precisely whether halakhah determines metziut? But what commentary
has ever interpreted the dispute about treifa hayah o einah hayah as a
dispute about whether halakhah determines the metziut?

It is not my impression that Rabbi Bechhofer's larager argument requires
that one accept as sweeping a notion of halakhah determining metziut
as implied by the Rema/Sha'agas Aryeh story. I think that most of what
Rabbi B. wrote could still be valid even if one denies, as do I, the
veracity of this particular story, but I leave that to others to ponder.

David Glasner
dglasner@ftc.gov


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Date: Mon, 12 Aug 2002 11:55:30 EDT
From: Yzkd@aol.com
Subject:
Re: kriyas hatorah


> BTW the L. Rebbe did not make the Sefer Haminhagim tough there are
> parts in there taken directly from the Rebbes writings and this doesn't
> seem to be one of them

It happens to be this one is taken from the Rebbe's own writings as printed 
in the Reshimos on Eicha, and as the Rebbe writes in his letters.

>                          and even if it does Dayo Lovo min Hadin Lehiyos
> Kenodun. Because the Sefer Haminhagim could be talking about where there
> is a Minyan made up of 10 people and most of them are old and weak and
> cant fast medically (which equals to Oines).

As I said the Sevara and Mokor for 3 does not seem to make room for any
such distinction.

Kol Tuv,
Yitzchok Zirkind


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Date: Mon, 12 Aug 2002 14:11:39 EDT
From: Joelirich@aol.com
Subject:
Re: 2 aveilus questions


In a message dated 8/11/02 5:24:17pm EDT, azz@lsr.nei.nih.gov writes:
> 2. May an aveil start shabbos early?

In shiva or shloshim or yud bet chodesh? What is the concern? In shiva
there are various opinions as to when to "stop" mourning on friday
pm - ranging IIRC from mincha ketana all the way up to evening. Else
I suppose it could be talui in the machloket as to whether starting
shaabat early really turns friday into shabbat or is it still friday
with some restrictions.

KVCT
Joel Rich


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Date: Mon, 12 Aug 2002 14:55:08 EDT
From: Phyllostac@aol.com
Subject:
histaklus bipnei odom rosho - contemporary applications


[Some general observations about a point made on Areivim. -mi]

From: "Gil Student" <gil_student@hotmail.com>
: R. Ahron Soloveitchik once said, I think regarding Jesse Jackson, that one
: should own a TV to watch the news because only through sight can one truly
: comprehend rishus.

From: Gershon Dubin <gershon.dubin@juno.com>
> Since one can presumably hear the same rishus on the radio, it follows that 
> he holds that it's a mitzva, rather than an issur to look at the face of a 
> rasha.  I wonder why.

This brings up some interesting thoughts......

According to the above logic, that it would be ossur to 'look' at the
face of a rosho on tv, video, perhaps in newspapers, magazines, etc.,
too. - so how can one read a newspapers which often carry pictures
(photos) of Arafat Ym"sh, Saddam Hussein ym"sh, various murderers,
child molesters, etc. ym"sh ?

Perhaps we can say a few things WRT the inyan....

1) hitaklus means gazing - like staring - bikavonnoh. It does not mean a
fleeting, passing glimpse of something. This is a klal, which is nogeia
also to inyonim like histaklus biNoshim, biAmmah, baLivono.....

2) One could question if one is oveir this by a gaze at an image - perhaps
it only applies (at least fully) when looking straight at a live person,
'in person'. Similar to arguments some make WRT to kol isha, e.g. (a
'tzad lihokeil' perhaps).

3) One could question if Jackson is bichlal for this inyan. He doesn't
have blood on his hands like Arafat ym"sh, e.g. Not that he is a tzaddik,
of course...

I assume R. Aharon z"l meant something along the lines that 'eino domeh
shemiah lereiyah' (seeing cannot be compared to hearing). Sometimes
perhaps one must see things to fully grasp them....Perhaps the quote
may have been taken out context as well.....

Mordechai


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Date: Tue, 13 Aug 2002 10:21:35 +0300
From: "Carl and Adina Sherer" <sherer@actcom.co.il>
Subject:
RE: smicha requirement


[We were discussing on Areivim the value of contemporary semichah,
and contrasting it with rav umanhig. -mi]

On 12 Aug 2002 at 19:21, kennethgmiller@juno.com wrote:
> Where does one draw the line between a shaala which is simple and
> obvious, vs one which is not?

I would draw it at the difference between something that is explicit 
in the Shulchan Aruch and/or poskim (without machlokos) as being 
simple and obvious, as opposed to any case where to know the answer 
you would have to derive the halacha from something else that is 
writtten explicitly (not simple and obvious). 

-- Carl


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Date: Tue, 13 Aug 2002 11:16:20 -0400
From: David Riceman <dr@insight.att.com>
Subject:
Re: smicha requirement


Carl and Adina Sherer wrote:
> On 12 Aug 2002 at 19:21, kennethgmiller@juno.com wrote:
>> Where does one draw the line between a shaala which is simple and
>> obvious, vs one which is not?

> I would draw it at the difference between something that is explicit
> in the Shulchan Aruch and/or poskim (without machlokos) as being
> simple and obvious, as opposed to any case where to know the answer
> you would have to derive the halacha from something else that is
> writtten explicitly (not simple and obvious).

There is a relevant halacha here: what constitutes horaah wrt shasuy
yayin? IIRC (at least some of) the poskim prohibit even reading a psak
halacha from a sefer psak. Presumably the act of psak is determining
that the circumstances pertain to that halacha and not another one.
In my experience this comes up mostly in understanding the shailah:
people often ask something other than what they should be asking.

I don't understand the concept of rav umanhig but a plausible
understanding of semichah (the Rama, following the Rivash, gives three) is
that it is reshus to be moreh horaah l'acheirim. So that the distinction
is whether the person performing the action is someone other than the
person deciding its permissability.

There is a distinction between something explicit in poskim and something
deduced, but IIRC it is mentioned in Chazal only in reference to dinei
momenus (spelling?).

David Riceman


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Date: Tue, 13 Aug 2002 11:11:07 -0400
From: "Herb Basser" <basserh@post.queensu.ca>
Subject:
Re: eilu veilu


Rabbi Lempel's book is not really the art of dispute but rather: The
Dynamics of Dispute: The Makings of MacHlokess in Talmudic Times.

Zvi


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Date: Tue, 13 Aug 2002 11:27:53 -0400
From: Turkel Eli <turkel@icase.edu>
Subject:
elu v-elu


In order to organize the applicability of the various approaches to the
possibility of one ultimate truth vs several truths I consider different
situations.

1. A halacha that originally was argued by has been decisively decided.
The classic case would be Bet Hillel vs Bet Shamai. Would include all
cases decided by the Gemara e.g. Rava against Abaye etc. More modern
cases might include electricity on shabbat.

2. A machloket that has become decided by communties. The standard case
would be the SA with the Mechaber vs Ramah Sefard/Ashkenaz. Similarly
for Yemenite customs according to Rambam.
Later examples would include Shach vs Taz, Litvak/Poland and various
Yekke customs.

3. Machloket that is still active. This would include the Mezuza case
of RGYB.

4. Chumrot especially those based on try to satisfy different shitot.

A separate point is possible differences between positive and negative
mitzvot.

---
As discussed there is a basic discussion whether there is an
ultimate/onjective truth and psak is a pragmatic answer in the absence
of knowing this truth or alternatively there is a multi-logic truth
which allows psak to determine what G-d wanted.
There is a similar concept that siyata deshmaya helped history determine
what was the objective truth.

It would seem to me that this last concept would work in case I of psak
by the Talmud. It would be harder to justify for cases II and III of
more recent psak.

According to the approach of RYGB that one gets reward for putting a
mezuzah according to any recognized shitah it is not clear that the
same applies to prohibitions. It is harder to come up with a case that
one can't be macmir like all shitot. One possibility is the sheitel/hat
controversy. It is possible to wear a hat on top of the sheitel but in
most communties that is not done. While sefardim in particular insist
on a hat/head covering I understand that chabad insists on a sheitel to
the exclusion of a hat. Does Elu -velu apply here?

In general i am unhappy with the whole concept of reward & punishment
being using as a criteria for actions.
According to the viewpoint of RYGB is there any purpose in a chumrah to
follow all shitot when one gets rewarded for following any one of them?
In keeping with the season let me consider the Brisker chumrah of
blowing 5 shevarim to be able to keep both shitot of the length of the
shever. Similarly for the custom to blow shevarim-teruah in one breath
or 2 in different parts of the davening.

Does anyone really believe that a person going to a shul that has these
chumrot gets a bigger reward than someone who goes to a shul that has
the standard shevarim and tashrat?

A different example is wool tzizit on a cotton beged. According to Ramah
one is mekayem the mitzvah from the Torah. Neverthless, MB says one
should be machmir like the Mechaber and wear a wool beged? Why? Since
both shitot are recognized does not one get the same sechar independent
of the beged and the machloket?

BTW by eruv I was referring to the various disagreements about eruvin,
eg is one around Manhattan allowed etc. and those who oppose eruvin based
on the Rambam. I am not referring to eruvin put up by people ignorant
of the halacha that are pasul.

On a different level RYGB says
< A rav must : attempt to be yored l'umko shel inyan and determine
accordingly. If he cannot, well, then he may ascertain minhag ha'olam,
who is more of the mara d'asra>

Isn't it a chupzpah on the part of most rabbanim to decide between CI
and RMF?

kol tuv,
Eli Turkel


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Date: Tue, 13 Aug 2002 09:48:04 -0400
From: "Stein, Aryeh" <AStein@wtplaw.com>
Subject:
100 Berachos


> On a different note: women who do not daven ma'ariv will always be
> short 23 berachos each day....either they eat a lot of snacks, there is
> some other way to be mashlim, or for some reason the whole obligation
> does not apply to them?

According to RSZA (page "Areiv" (i.e., 272) of Halichos Shlomo), the
obligation of 100 brachos does not apply to women. The reason: since
the 100 brachos obligation stems largely from birchos krias shma and the
three shemona esrai, and since women are patur from some/most of these
brachos, (and even though they could be mashlim the 100 brachos with
lots of "birchos hanehnin," since on a fast day they couldn't do so),
it's "mistaver" that they are patur from the 100 brachos obligation.

KT
Aryeh


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Date: Tue, 13 Aug 2002 08:14:56 -0400 (EDT)
From: "Ari Z. Zivotofsky - FAM" <azz@lsr.nei.nih.gov>
Subject:
Re: 2 aveilus questions


In a message dated 8/11/02 5:24:17pm EDT, azz@lsr.nei.nih.gov writes:
>> 2. May an aveil start shabbos early?

On Mon, 12 Aug 2002 Joelirich@aol.com wrote:
> In shiva or shloshim or yud bet chodesh? What is the concern? In shiva
> there are various opinions as to when to "stop" mourning on friday
> pm - ranging IIRC from mincha ketana all the way up to evening. Else
> I suppose it could be talui in the machloket as to whether starting
> shaabat early really turns friday into shabbat or is it still friday
> with some restrictions.

I was asking regarding shiva.
and whatever opinion you hod regarding when to stop mourning on friday,
it is understood that the aveilut is until shabbas starts but the halacha
has to give the aveil time to prepare for shabbas. By making early shabbas
the aveil is totally ending the mourning sooner. and my question is,
whether that is permitted. Or maybe it is a davar pashut.


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Date: Tue, 13 Aug 2002 20:37:13 +0200
From: S Goldstein <goldstin@netvision.net.il>
Subject:
emes and eilu v'eilu


See Rashi Kesubos 57a that agrees with RYGB and not RAF, in favor of
multiple emes.

Shlomo Goldstein


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Date: Tue, 13 Aug 2002 17:14:59 -0400
From: David Glasner <DGLASNER@ftc.gov>
Subject:
Dor Revi'i on elu v'elu


Aryeh Frimer wrote (9:73)
> (1) You cite the view of the Ritv"a on Eilu va-Eilu. I must admit,
> that it is a very problematic Shit"a. Indeed, the vast majority of
> Rishonim and acharonim who discuss the issue of Eilu va-Eilu reject his
> view outright. In their eyes, there can only be one Emes - one divine
> truth....                      Both views however are essential to the
> process of determining and honing the truth. Both are using their
> powers of logic and analysis. Both are le-shem Shamayim - but only
> one is emes....

Herewith the Dor Revi'i on elu v'elu from the haqdamah to Dor Revi'i

Thus, it is clear, as I have written, that although the Oral Torah was 
transmitted to Moses at Sinai, since no text was given, but only 
concepts, and since it was forbidden to reduce the Oral Torah to a 
written text, the will of the Blessed One Who commanded was not 
to make the interpretation of Torah unchanging, in order that an open 
contradiction between life and the Torah should never appear.  This is 
how the Talmud answered question - if there is any content in the 
Oral Torah, why was it not written down?  The answer given was to 
cite the verse "of making books there is no end" (Ecclesiastes 12:12), 
by which the Talmud meant that if the Oral Torah had been written 
down, it would have been necessary to write for every time a new and 
different interpretation according to the specific needs of the 
circumstances.  And precisely because the Oral Torah reflects not 
an absolute, but only a conventional, truth it is called "new," 
(Berakhot 40a).  Only that which the Sages of each generation agree 
upon is considered true. But when the Sages contradict what had 
been accepted as true until then, their new interpretation becomes 
the new (conventional) truth.  So have we been commanded by Him, 
may He be blessed, that we "may not depart from whatever the 
Sages of that generation tell us "either to the right or left" 
(Deuteronomy 17:11) - even if they uproot what had previously been 
agreed upon.  This, furthermore, is what the Sages meant when they 
said "Both these and those are the words of the Living God" 
(Erubin 13b).


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Date: Tue, 13 Aug 2002 22:40:38 -0400
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
Re: Dor Revi'i on elu v'elu


At 05:14 PM 8/13/02 -0400, David Glasner wrote:
>Herewith the Dor Revi'i on elu v'elu from the haqdamah to Dor Revi'i
>
>     ..., and since it was forbidden to reduce the Oral Torah to a
>written text, the will of the Blessed One Who commanded was not
>to make the interpretation of Torah unchanging, in order that an open
>contradiction between life and the Torah should never appear....
>                And precisely because the Oral Torah reflects not
>an absolute, but only a conventional, truth it is called "new,"
>(Berakhot 40a).  Only that which the Sages of each generation agree
>upon is considered true. But when the Sages contradict what had
>been accepted as true until then, their new interpretation becomes
>the new (conventional) truth....

Sounds like the Ritva...

Kol Tuv, Kesivah va'Chasimah Tovah,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb


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Date: Tue, 13 Aug 2002 22:45:55 -0400
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
Elu v'elu


 From a correspondent:
>L'havdil elef alfei havdalot, medical experts (vs. those newly trained)
>develop what's called (in German) an augenblik (eyeblink)diagnosis where
>20-30 diagnostic possibilities are considered simultaneously rather than
>sequentially. Intuitively, they come up with the correct diagnosis even
>though they don't really know why (can't precisely articulate the reason).

Kol Tuv, Kesivah va'Chasimah Tovah,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb


Go to top.

Date: Tue, 13 Aug 2002 23:02:44 -0400
From: "Yosef Gavriel and Shoshanah M. Bechhofer" <sbechhof@casbah.acns.nwu.edu>
Subject:
Re: elu v-elu


At 11:27 AM 8/13/02 -0400, Turkel Eli wrote:
>According to the approach of RYGB that one gets reward for putting a
>mezuzah according to any recognized shitah it is not clear that the
>same applies to prohibitions. It is harder to come up with a case that
>one can't be macmir like all shitot...

>In general i am unhappy with the whole concept of reward & punishment
>being using as a criteria for actions.
>According to the viewpoint of RYGB is there any purpose in a chumrah to
>follow all shitot when one gets rewarded for following any one of them?
>In keeping with the season let me consider the Brisker chumrah of
>blowing 5 shevarim...

>Does anyone really believe that a person going to a shul that has these
>chumrot gets a bigger reward than someone who goes to a shul that has
>the standard shevarim and tashrat? ...

Ah!

An excuse to re-post my chumros essay!

Good Chumros?: Rabbi Yosef Gavriel Bechhofer

The Big Question

Do you merit a greater portion in the World to Come if you always reads the 
Shma before the Magen Avrohom's deadline? (1) Do you generate more nachas 
ru'ach for HaKadosh Baruch Hu if you keep your refrigerator on a Shabbos 
clock? If the answer to these questions is an unqualified "yes," then why 
are we not machmir every conceivable chumra possible?

Before we continue, let us clarify that the converse of a chumra is not a 
kulla. Halacha recognizes many instances in which kullos are justified: 
"hefsed merubeh," "she'as hadechak," "kavod Shabbos," etc. However, these 
are not, for our purposes here, the alternatives tochumros. The alternative 
is "baseline" halachic observance. While the definition of such a standard 
is iffy, let us say that it consists of a standard of halachic behavior 
endorsed by: a) many great Poskim who have weighed in on the issue; and, b) 
prevalent practice among many observant Jews.

Are there Unwarranted Chumros?

Of course, chumros must be warranted. Chazal warn us not to prohibit things 
or activities arbitrarily:

Rabbi Eliezer said: Just as allowing that which is prohibited is forbidden, 
so prohibiting that which is allowed is also forbidden. (Yerushalmi Terumos 
5:3). (2)

Many writers have attempted to identify sociological reasons why, in their 
perception, our generation has a more stringent attitude toward Halacha - 
is more machmir - than our parents' and grandparents' generations. Their 
various theories may or may not constitute insightful analyses of 
contemporary conditions. They do nothing, however, to answer the questions 
that we posed at the outset. Some chumros may be sociologically motivated. 
Some people may be machmir unthinkingly. These may not be the "right" 
motivations for adopting achumra. We, however, want to understand what a 
"right" motivation might be, and, will achumra adopted as a result truly 
enhance one's Avodas Hashem?

Chumros for the Thinking Person

In broad terms, we can identify four categories of chumros:
1.  Based on halachic issues.
2. Based on ahavas Hashem.
3. Based on yiras Hashem.
4. Based on separation from gashmiyus.

The first category is halachic in nature: A great Posek reviews an issue in 
depth and comes to the conclusion that Halacha definitively follows the 
stringent opinion in a certain area.

For example, for centuries most of Ashkenazic Jewry was lenient concerning 
yoshon andchodosh. (3) When Rabbi Chaim and Rabbi Velvel Soloveitchik zt"l 
revisited the issue, however, their analysis led them to conclude that the 
prevailing practice was incorrect, and that following the stringent opinion 
in this area was necessary. A chumra arrived at by this process is 
inescapable. But very few of us are equipped to engage in this process. It 
is one reserved forGedolei Torah at the highest echelon. Often, Poskim who 
have engaged in such comprehensive reviews and analyses are loath to impose 
the standards implicated by their conclusions on the masses of Am Yisroel. 
Their reasons may be based on the principle of eilu va'eilu divrei Elokim 
chayim. (4) They may, however, advise their talmidim and followers of their 
conclusions, and direct them to adhere to these rulings.

As these talmidim and followers would then be bound to follow the stringent 
opinion of their Posek, to be perfectly precise, for them this mode of 
behavior is no longer a "chumra." Ifyour halachic authority has ruled in 
accordance with the more stringent opinion in an issue, this becomes for 
you normative Halacha. To many beyond your circle, however, this mode of 
behavior will still be an apparent chumra, as their halachic authority may 
not  accept the more stringent opinion.

(We should note that rabbinic authorities, even to the present day, may 
issue  guidelines and enactments - takkanos - that are not properly 
classified as chumros. The Chazon Ish zt"l(Orach Chaim 52:6) understood the 
prohibition to use an umbrella on Shabbos as a modern day rabbinic 
enactment, based on their mandate to preserve the public aura of Shabbos.)

The next two categories of chumros are best understood by introducing and 
exploring them together. They are "chumros me'yirah" and "chumros me'ahava" 
- chumros adopted out of fear (of Hashem or the defiling qualities of the 
sin itself) or love (of Hashem or Am Yisroel). (5)

The Shelah HaKadosh zt"l (vol. 1, Bais Dovid, Bais Chochma) attempts to 
explain the phenomenon of ever-more chumros. He writes that as time goes by 
there are many more enticements. The power of the yetzer hara becomes ever 
greater. Society "devolves," and spiritual danger increases. It becomes 
imperative, therefore, to introduce more safeguards. Halacha may not even 
mandate these chumros. Any boundary, however, may be positive. TheNesivos 
Shalom (Kovetz Sichos p. 16), in the name of the Toras Avos, cites the 
verse regardingBila'am and his donkey, which found itself standing in the 
path among the vineyards bound in narrow confines by a "gader mizeh v'gader 
mizeh" - a fence on either side - that pressed the leg of Bil'am. The 
Nesivos Shalom interprets the pasuk as an allusion to the necessity to 
imposegedarim on oneself to keep on the straight and narrow path:

For when there are boundaries and limitations on all sides they press and 
wear away the habits ["hergel' - a play on the Hebrew word "regel" - leg] 
of Bil'am. He [the Toras Avos] explains, that there are boundaries and 
limitations meant so that one who learns Torah remains free of inclinations 
and negative thoughts, and that there are others meant so that one who 
involves himself in matters of this world should not become too 
materialistic ["megusham"]. The boundaries and limitations in the vein of 
"gader mizeh v'gader mizeh" that surround each step direct the individual 
in the proper path.

The Maharal (Be'er HaGolah 1:4, d.h. HaRevi'i) explains the Gemara that 
states that rabbinic enactments are more precious before Hashem than Torah 
laws. He notes that the hallmark of love is the quest to give to one's 
beloved. (6) The Michtav Me'Eliyahu (vol. 5, p. 234) cites the pesukim in 
Yeshaya (58:13-14) that admonish the Jewish people to keep Shabbosproperly. 
The stress in those pesukim is on Kavod Shabbos. Rabbi Dessler asks the 
obvious question: Surely, were it up to us, we would stress the 
prohibitions of Shabbos and their fortification - not the honor of Shabbos? 
We must preface Rabbi Dessler's answer with the comment of the Rambam 
(Peirush HaMishnayos) on the well-known mishna at the end ofMakkos:

Rabbi Chananya ben Akashya said: Hashem wanted to enhance the merit of the 
Jewish people. It is for that reason that he granted them many mitzvos.

A "conventional" understanding might be that Hashem wants to reward us as 
much as possible, and that is why he gave us so many opportunities to 
fulfill mitzvos. The Rambam, however, says that to qualify for "entry" to 
the World to Come a "candidate" must have fulfilled at least one mitzva 
lishma during his or her lifetime. This is a very difficult task, as lishma 
is not a simple matter to attain. (7) Rabbi Chananya ben Akashya's meaning 
is that it was to make that difficult task more feasible that Hashem gave 
us so many opportunities to complete it successfully, by giving us so many 
mitzva opportunities.

Rabbi Dessler explains that lishma is a critical prerequisite for Olam HaBa 
because the World to Come is, by its very nature, a world of lishma. The 
characteristic of Olam HaBa is"l'hisa'neg al ziv ha'Shechina" - to enjoy 
the transcendent radiance of the Shechina. Only if that is meaningful to an 
individual is there a point to that individual's presence in the World to 
Come. It is, says Rabbi Dessler, the Oneg Shabbos - that is one sixtieth of 
the World to Come - that is the lishma that is the barometer of one's Shabbos.

Rabbi Dessler goes on to explain the concept of hiddur mitzva in this vein: 
If you buy a more expensive esrog to take pride in it Sukkos morning that 
is not a valid reason for hiddur mitzva. However, if you spend more on an 
esrog as an expression of your love for Hashem that is a "chumra me'ahava":

This is also the definition of "hiddur mitzva." A hiddur mitzva does not 
mean "a little more mitzva." It is, rather, a higher level in one's 
appreciation of a mitzva in one's heart. If we have not reached such a 
level internally, of what benefit is our hiddur?

A noteworthy example of "chumra me'ahava" based behavior may be found in 
the regulations set by the Ramchal zt"l for his group of disciples. Among 
the seven enactments were:

All the reward for all of their mitzvos and good deeds was to be given as a 
gift to all Klal Yisroel, with the intent to be "gomel chesed" (so to 
speak) to the Shechina.

Any mitzva performed by any one of the group was as if done in the name of 
the entire group. They accepted upon themselves to conduct themselves with 
great love toward each other and to accept rebukes from each other with 
total love and no anger at all.

No chumra nor minhag b'Yisroel was to be disregarded. (8)

   There are dangers in both kinds of chumros. Rabbi Yeruchom Levovitz zt"l 
(Da'as Torah, Bereishis p. 19) reminds us of the exchange between the 
nachash and Chava in Gan Eden. Chava embellished the command of Hashem not 
to eat from the Tree of Knowledge with a prohibition to touch the tree. The 
Avos d'Rabbi Nosson (9) attributes this "chumra" to Adam and says that from 
here we see the danger in adding on stringencies where not essential. The 
Chovos HaLevovos explains that one should not take upon oneself excessive 
restrictions. They are apt to become a burden and a nuisance, and may 
eventually tempt a person to cast the yoke of much more than the chumra off 
his or her shoulders. This is the danger inherent in chumros me'yirah.

The danger in a chumra me'ahava is manifest in a story I heard from one of 
my Rabbeimzt"l. An impetus for Rabbi Yisroel Salanter zt"l to found the 
Mussar movement was an experience he once had on one of the Yomim Nora'im 
in Vilna. He had forgotten to bring aMachzor to Shul. He found himself 
standing next to an illustrious scholar and motioned a request to be 
allowed to look into his neighbor's Machzor. The scholar's "response" was a 
shove. This scholar stressed his chumra of davening to Hashem with the 
utmost kavana - which we need not doubt that he did. Yet there is in this 
stress an inherent haughtiness that may lead one to improper leniency in 
other areas - here, in one's bein adam l'chaveiro. Even worse, says Rabbi 
Dessler (Michtav Me'Eliyahu vol. 3, p. 294), is overt conceit - the sin of 
ga'avah that outweighs any advantage accrued by the chumra. He says 
therefore, that it is proper:

...To be machmir and meticulous in primary areas, such as Bittul Torah, 
Lashon Hara, etc., [but not other areas], to avoid the danger that by 
peripheral meticulousness to an exaggerated extent one may, chas ve'shalom, 
lose sight of the primary areas in which, to our regret, so many fail . . .

The Yerushalmi (Berachos 9:5) captures these pitfalls in its caution:

Do [mitzvos] both out of love and out of fear. Do out of love, for even if 
you are prone to hate you will not, because one who loves does not hate. Do 
out of fear, for one who has fear does not reject.

A fourth type of chumra is that alluded to by the Nesivos Shalom cited 
above and described by him elsewhere in greater detail: (10)

Excessive Gashmiyus in and of itself is a negative thing - it is a barrier 
between oneself and Hashem.

This type of chumra runs into significant conflict with our contemporary 
milieu. Baruch Hashem, our generation enjoys affluence to a degree unknown, 
even unimagined, by our forbears, even a few short years ago. The American 
"dream" and "upward mobility" have a very real impact on our society as 
well. Yet, one need only recall the Ramban on Kedoshim Tee'heyuand the 
Mesillas Yesharim Sha'ar Ha'Perishus to realize the value placed in Yahadus 
on refraining from material pleasure - even permissible pleasure - and 
histapkus b'mu'at. Over-involvement in the pursuit of material possesions 
and pleasures - pursuit of "chomer" - may prove a distraction from the 
quest for ruchniyus. (11)

There is a value in even artificial disdain for the material - lest it 
exert a deleterious effect. An echo of this may be found in the Piascezner 
zt"l's remark that a necktie is a "kesher resha'im" ("Toldos Ha'Mechaber" 
by Rabbi Aharon Surasky, Chap. 11, printed in the back of several of the 
Piascezner's seforim). (While this application does not resonate with a 
community that has grown to appreciate fine neckwear as a hallmark of 
dignified appearance, we may identify other manifestations closer to home. 
(12))

Ba'al Nefesh

A subcategory of the first and last categories is the advice found often in 
halachic works:"Ba'al Nefesh yachmir" - "a righteous (Rashi Chullin 6a) - 
or pious (Rashi Pesachim 40a) - person shold be stringent."

In the Gemara (ibid., and Nidda 16b and 65b) and Shulchan Aruch (Orach 
Chaim 240:9,Yoreh De'ah 116:7 and several other places) they usually give 
this advice in cases where a certain mode of conduct may, technically be 
permissible, but skirts the boundaries of a prohibited act. To engage in 
such behavior may not be legally proscribed, but, nevertheless, suggests a 
proclivity toward indulgence and pleasure not befitting a person at higher 
levels of divine service. (The Ran in Nedarim 91b seems to use "latzeis 
yedei shomayim" in the same way.) (13)
The Mishna Berura employs this dictum in cases of major contention, where a 
significant opinion - perhaps only a few Poskim - tends toward a stringent 
approach although another equally valid opinion - perhaps even most Poskim 
- is inclined to be lenient. If neither opinion is manifestly definitive, 
then the Mishna Berura may give the advice of "Ba'al Nefesh yachmir."This 
means, that the weight of the sources allowing leniency grants that 
standard halachic legitimacy. Nevertheless, the weight of the Poskim on the 
other side of the equation led theChofetz Chaim zt"l to conclude that those 
who are yere'ei cheit (fear sin) should incline toward chumra. (14)

(This is similar to Rabbi Shimon Shkop zt"l's (Sha'arei Yosher 1:2) 
explanation of safek d'oraysa l'kulla according to the Rambam. Reb Shimon 
interprets this as follows: The Torah distinguishes between a definite 
prohibition, that one may definitely not transgress, and cases of doubt, 
where one is entitled to take chances. If, however, you ultimately discover 
that the case in doubt in fact entailed a definite prohibition, you have 
committed a transgression and teshuva is mandated. Just as yir'as cheit led 
Chazal, from the Rambam's perspective, to mandate chumra in cases of safek 
d'oraysa, so too the Mishna Berura advises a Ba'al Nefesh to be machmir in 
cases he perceives as questionable.)

The Decisive Answer to the Big Question

To return to our opening questions: The answer (you knew this was coming) 
is: It depends! If one of the four legitimate reasons for chumros motivates 
one always to read Shma before the Magen Avraham's deadline, one's Avodas 
Hashem is enhanced. Not necessarily because one has always said Shma 
earlier than others. After all, when one comes after 120 years to the Beis 
Din shel Ma'alah, one will have fine, solid halachic foundations - the Gr"a 
and Ba'al Ha'Tanya, among others - upon which to justify a later reading of 
Shma. Rather, because one followed one's Posek, manifested Yiras Hashem or 
Ahavas Hashem, or dissociated oneself from the material and mundane by that 
chumra.

A simple example of the importance of assessing the advisability may be 
found inHilchos Sukkah. The Rama (Orach Chaim 639:7) says: "Anone who is 
exempt from [the mitzva] of Sukkha [bec rain is falling, etc.] yet does not 
leave it, receives no reward for his activity . . . " The Bi'ur Halacha 
there comments: "This principle applies specifically to a scenario where an 
aspect of transgression, such as anguish ["mitzta'er], is involved, which 
is Chillul Yom Tov . . . " We see here an elementary illustration of a 
chumra not thought out, that ends up being detrimental to one's Avodas Hashem.

But . . .  It is possible that one may diminish one's Avodas Hashem by 
strict adherence to the Magen Avraham's time frame - if it led one to 
haughtiness, fractious behavior toward others, or another negative 
byproduct. And, there are scenarios in which following the later time frame 
of the Gr"a or Ba'al Ha'Tanya's time frame may enhance one's Avodas Hashem 
- if more sleep truly enriched one or one's family's Oneg Shabbos!

If nothing else, what should we take away from our discussion? That the 
motivations for our behavior are critical and that we must carefully 
analyze them. Then, in consultation with our mentors, we must carefully 
consider and plan how in every area of our Avodas Hashem we can attain 
higher levels of accomplishment and lishma.

1. The questions is of course, technically erroneous. As Antigonus Ish 
Socho tells us in Avos1:3, we do not serve Hashem in order to achieve 
reward. I have intentionally inaccurately phrased the question in order to 
emphasize the issue.

2. One of my roshei yeshiva once related that he had met a man who would 
not remove or replace a bottle cap on a soda pop bottle on Shabbos (even 
when the cap had been initially opened before Shabbos). He based his 
"chumra" on the prohibition to create a tent ("asi'as ohel") onShabbos. 
This rosh yeshiva clearly demonstrated that the problem of ohel could not, 
by any stretch of the imagination, apply to soda pop bottle caps. The 
individual remained adamant: "Everyone has their chumros," he said, "this 
is mine." Perhaps someone may have some reason to take a personalshevu'ah 
(vow) not to open bottle caps on Shabbos. In the absence of such a 
shevu'ah, this practice could not be justified as a chumra, as it did not 
reflect any legitimate halachic opinion.

3. To be sure, this is inaccurate. There were always machmirim on chodosh, 
even among theChassidim. Some might argue that the "baseline" halachic 
position is to be stringent in the area of chodosh, and that it is a 
"kulla" - a leniency - to eat grain products from the new crop before the 
17th day of Nissan. I have chosen to deem the observance of chodosh outside 
Eretz Yisroel as a chumra because the overwhelming majority of observant 
Jews have never refrained fromchodosh. As we have noted, "baseline halacha" 
may be determined by the practices of a majority of observant Jews: "Puk 
chazei mai ama dvar" - "Go see how the nation conducts itself" (Berachos 
45a). The Mishna Berura (489:45) writes, concerning chodosh, that "Ba'al 
Nefesh yachmir. See our discussion of that concept below. See also the 
Aruch HaShulchan Yoreh De'ah 293. A fuller appreciation of the complexities 
of the issue will have to wait for another opportunity. As above, the 
intentional oversimplification here is for illustrative purposes only!

4. See "Mezuzos, Machlokos and Eilu va'Eilu Divrei Elokim Chayim," The 
Jewish Observer, __, available at: http://www.aishdas.org/baistefila/eilu.htm.

5. The Minhag Yisroel to be machmir on "pas paltar" during Aseres Yemei 
Teshuva is a good example of a chumra meant to manifest our love of Hashem 
at a time when we feel particularly close to Him.

6. As explained at length in the Michtav Me'Eliyahu's famous Kuntres 
HaChesed, vol 1.

7. The interpretation of lishma is the subject of a great debate between 
the Besht and Rabbi Chaim of Volozhin zt"l. The Besht (Tzava'as HaRivash 
simanim 29-30 and the nuscha'os acheirimthere. Rivash = Rabbi Yisroel Ba'al 
Shem) held that Torah lishma means the study of Torah with the purpose of 
achieving dveykus in Hashem. Reb Chaim expends a great deal of effort 
(Nefesh HaChaim Sha'ar 4, Chaps. 1-2) rejecting this approach. Reb Chaim 
defines Torah lishma as Torah for its own sake, as complete and total 
immersion in study for no other purpose but the study itself.Shabbos, 
however, is a mitzva, not Torah. Rabbi Dessler interprets the passage in 
Yeshaya as teaching us that the scale of measure by which one's Shemiras 
Shabbos lishma is measured is the extent to which it is for him or her a 
true oneg and "hana'ah me'ziv ha'Shechina.

(There are other interpretatitons of lishma as well. The Kotzker Rebbe zt"l 
(Emes v'Emunap. 26) notes that lishma begins in the way we learn. Torah 
lishma, said the Kotzker, is the same asTorah kishma. We learn Torah to 
fulfill the meaning of its name. Torah means "Teaching," and our Torah is 
Toras Chaim, the Teaching of Life. If we learn Torah with the intent that 
it elevate and refine our lives, our Torah is lishma, and divrei Elokim 
chayim. Similarly, Rabbi Samson Raphael Hirsch zt"l says (Siddur Tefillos 
Yisroel p. 8): "Lishma means to study Torah with the only purpose that 
pleases Hashem, and with proper preparation, to know His will and fulfill 
it: To learn, to teach to preserve and to perform."

In fact, this perspective is grounded in the words of the Shelah HaKadosh, 
Masseches Shavuos: "And the concept of lishma is the intent to involve 
oneself in Torah in order to fulfill that which Hashem commanded us... and, 
therefore, when one learns Tanach, Mishna, Talmud andPoskim, he should 
undertake that: 'All I shall find, both to pursue and to avoid, I will 
fulfill like a loyal servant'... And how wonderful it would be if when a 
person opens a sefer he says: 'I want to learn in order that the study may 
lead me to deed, to straightened middos and to the knowledge of Torah, and 
I am doing so for the sake of unifying Kudsha Berich Hu u'Shechintei.' This 
is calledTorah Lishma. See also the Gemara at the end of the fourth chapter 
of Messeches Sukkah.)

8. Other takkanos can be found in Tenu'as HaMussar vol. 1, pp. 83-84 and 
Otzaros Ramchalp. 9.

9. 1:5. See also Yerushalmi Nedarim 9:1.

10. See also the Or Gedalyahu on Parashas Naso, who makes a similar point 
in his discussion of nezirus.

11. For example, there are various "loopholes" in the halachos of Cholov 
Yisroel. A person may decide not to exploit one of these loopholes - even 
if he perceives it as an halachically legitimate loophole - because he 
feels that excessive indulgence in rich chocolate confections is inimical 
to his dveykus in Ha'Kadosh Baruch Hu.

12. Longtime loyal readers will recall, however, that in Jan. '78 we did 
draw the line at a $2000.00 necktie! - NW.

13. See Rabbi Chaim of Volozhin zt"l's Ruach Chaim on Avos 3:1 d"h Din 
v'Cheshbon (free translation): "Human free will allows an individual to 
change a materialistic existence into a spiritual one, and, chas v'shalom, 
the opposite as well... Individuals who elevate their flesh toward spirit 
are known as Ba'alei Nefesh..."

14. Through the wonders of modern technology we can list the thirteen times 
that Ba'al Nefeshis mentioned in the Mishna Berura, allowing the reader to 
verify this usage: 27:33, 246:34, 257:49, 271:21, 301:141, 303:65, 345:23, 
364:8, 444:17, 453:17, 462:11, 489:45, 580:1.

(Readers with access to one of several CD-Rom search programs will also 
find several places in the Bi'ur Halachawhere the Chofetz Chaim employed 
this phrase.)

It is this attitude that the Kotzker Rebbe zt"l probably meant to disparage 
when he said that Chassidim fear G-d, while Misnagdim fear the Shulchan 
Aruch, but the disparaging comment does not mean that the attitude is not 
legitimate!

>BTW by eruv I was referring to the various disagreements about eruvin,
>eg is one around Manhattan allowed etc. and those who oppose eruvin based
>on the Rambam. I am not referring to eruvin put up by people ignorant
>of the halacha that are pasul.

But that is an excellent reason not to use an eruv unless you have 
personally checked it out.

>On a different level RYGB says
>< A rav must : attempt to be yored l'umko shel inyan and determine
>accordingly. If he cannot, well, then he may ascertain minhag ha'olam,
>who is more of the mara d'asra>
>
>Isn't it a chupzpah on the part of most rabbanim to decide between CI
>and RMF?

Nohr vohs dahrft ehr tohn?!

Kol Tuv, Kesivah va'Chasimah Tovah,
YGB
ygb@aishdas.org      http://www.aishdas.org/rygb


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