Avodah Mailing List

Volume 24: Number 56

Thu, 15 Nov 2007

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Subjects Discussed In This Issue:
Message: 1
From: "Chana Luntz" <chana@kolsassoon.org.uk>
Date: Thu, 15 Nov 2007 12:29:22 -0000
Re: [Avodah] Just what ARE the rules of p'sak anyway?

RYG writes:

> There are three Halachic questions pertaining to a married 
> Jewish woman and her relations with a non-Jew: i) is she obligated to give
> up her life rather than sin with him, ii) if she engages in such 
> relations,
> does she become forbidden to her husband and iii) as ii. but vis-a-vis
> her paramour.  The primary context of the discussion of RT is i., and
> iii. is also discussed, with RT lenient on both because of a certain
> unflattering Halachic status of non-Jews.  I still fail to see a
> compelling argument that ii. is also being discussed.  It seems to me
> that you feel m'svara that ii. is dependent on i.

I think not just m'svara, but also from the context of the discussion in the
gemora which is all about whether a woman is going to be assur to her
husband or not.  I can now see how you could read it the other way, but I
guess I still feel that my reading is the most straightforward one, and that
the other reading is a bit of a dochek (although I can understand it because
the straight reading does seem hard to believe in the light of other

> and particularly
> on iii., in light of RT's argument about the status of non-Jews, but I
> still maintain that there is no indication of this from the 
> comments of
> the Rishonim.  I do agree that your s'vara is quite 
> reasonable; my point
> is merely that there is no irrefutable proof from the semantics
> of the discussions of the Rishonim.

In any event I am somewhat relieved to say that this s'vara appears not to
be some chiddish of my own, but that, inter alia, Rav Moshe appears to read
the Tosphos that way: see Iggeros Moshe Even HaEzer chelek 4 siman 44 first
paragraph "d'hu hadin shehaya matir Rabbanu Tam otah gam l'ba'ala".  The
heading of this section is entitled "b'ma shyashev hagaon Evnei Nezer shitas
Rabbanu Tam shebias nochri aina asures l'baal".

The whole thing really felt very odd, because I sent you an effectively off
the cuff posting merely referring to what I thought was a widely discussed
position that keeps cropping up (so that even I had heard of it, even though
I did not know any sources inside).  It is not generally the sort of thing
one does a major reread of a Tosphos about without even looking - ie I was
pretty sure I knew what I was going to find when I went back to look at the
sources, which suggests to me that I must have been told at least something
about this somewhere, but I could not, and still cannot, work out where in
my travels I have come across this.

So anyway I went off to try and search it out, and while I still have no
idea where I heard about this discussion from, there is quite a lot around,
as I had thought.  Not just this Rav Moshe, but Rav Ovadiah Yosef has quite
a bit on it in Yabiat Omer chelek 3 Even Haezer siman 7, have a look at
si'if 20 and following.  And it is not clear to me that ROY himself holds
this way (not that I confess, I have been through the whole teshuva, but
that is where I think he is going), he, in his own inimitatable way, brings
various people who have held similarly that Rabbanu Tam applied his din ot
the husband as well, including the Meiri and somebody called the Chayim
Sha'al who apparently believes it is clear that inter alia the Mordechai
holds this (although ROY says he cannot see clearly where this is said).
And he also brings the Hafla who says that Rabbanu Tam only holds that the
issur of a woman to her husband is d'rabbanan, and so safek d'rabbanan
l'kula.  And the Sri Eish (chelek 2 siman 147) also holds that Rabbanu Tam
holds that the issur to the husband is d'rabbanan, and that Esther was
engaged only in midus chassidus.  Interesting ROY brings the Rema in Even
HaEzer siman 20 that shekol sheain chiyuv misa al oso biah, muteres
l'ba'ala" (this is the focus for his discussion, really, trying to
understand this Rema - ie the dependency linkage you refer to above).

> > > We have, then, independent of the question of whether RT 
> > > would actually permit the woman to her husband, no Halachic 
> > > source that RT's view is accepted at all by the Poskim, and 
> > > the SA implies that we do not accept it, as per my previous mail.
> > 
> > Agreed.  The point is that here were are clearly scurrying around
> > looking for minority opinions to rely on.  And afkinu seems 
> much more
> > monority than Rabbanu Tam.  To posit afkinu in this kind of case,
> Certainly odd, and most provocative, but not necessarily a minority -
> who disagrees?

Well perhaps minority is not quite the right word - but you see, and it can
been seen now reasonably clearly from the sources I cited above, that there
has been a lot of discussion of Rabbanu Tam and his heter, with a fair
number understanding this also to extend to the ba'al - so such an
understanding is within the traditional debate, despite many holding the
other way - so holding on what might be the minority side given a shas
hadchak does not seem non normative.  Whereas it seems to me that afkinu in
this context comes from left field, its not picked up before and not picked
up after, whereas you would expect this to have been tussled over and
discussed this way and that way (just the way this Rabbanu Tam has), so at
least we know all the possibilities.  It just doesn't fit here.

> > without any kind of citation at the time seems very odd - 
> > particularly as it seems completely out of character for afkinu.  In the
> > cases of afkinu in the gemora, the point is that the husband did 
> > something wrong as the gemora states in Yevamos 110a, he acted  shelo 
> > k'hogen- egmarried improperly or sent a get improperly  and therefore, 
> > as the gemora states, asu bo shelo k'hogen, they the rabbis acted 
> > shelo k'hogen by uprooting the kiddushin.  But here, what did the poor 
> > husbands' do? They married intending a marriage and then found their 
> > marriages torn apart by gentile capture. And further, afkinu works, as 
> > is made clear in Yevamos 110a, by, if he made kiddushin by way of kesef,
> > by the use of hefker beis din hefker, ie they take away his property 
> > retrospectively so he was never able to effectuate kiddushin, and in the
> > case of kiddushin by way of biah, by deeming his biah a bias znus.  
> > Now these poor husbands, not only have they lost their wives to 
> > gentile capture, but you are deeming the rabbis to have deprived them of

> > their property rights and/or deemed their biah biat znus?  

> All this is certainly true, which is why I characterized this DM in my
> original post as:
> > the most sensational account of a post-Talmudic afke'inhu,
> > and the only one I know to have occurred without a 
> preexisting edict,
> > and justified solely by a perceived Rabbinic fear of a 
> potential future
> > socio-religious catastrophe
> This is also why some consider this comment to be pregnant with
> implications for modern day solutions to certain Halachic problems.

Yes but using something which doesn't seem at all relevant, and where there
is a lot of discussion as to how to deal with the problem in other ways, and
where it just seems to be a surmise on the part of the Darkei Moshe, doesn't
seem to me to get you very far.

It seems to me that the case for using afkinu to solve the modern day
problem of a mesorev haget is a fair bit stronger than this, and doesn't
seem to be helped by the reference, as all you are going to do is get bogged
down in discussions of its applicability to the situation of the time. The
case as I understand it for using afkinu vis a vis a modern mesorev haget is
precisely that he has, and has been adjudged to have acted, shelo k'hogen
(however that has been determined by the relevant authority) in failing to
listen to rabbinical authority that has told him he ought to give a get (I
agree you then get into the mess as to who is a rabbinical authority, but
let us step aside from that at the moment and assume you could theoretically
get the gadol or gadolei hador to speak unanimously).  That is why I don't
quite understand RYBS's concern that it will undermine the whole of hilchos
gitten.  Normal decent, shomrei halacha (one of which is to listen to the
chachamim, at least on such matters - especially as hilchos gitten and
kiddushin are d'orisas, so depending on how you hold on lo tasur today ...)
aren't going to get into this, and the sort of person who is happy to flout
rabbinical authority in this way was pretty clearly lying through his teeth
when he said he was being mekadesh the woman k'daas Moshe v'Yisroel - Rather
he was pretty clearly being mekadesh her according to his daas only.

I am not saying you have to buy this argument, but I don't see the Darkei
Moshe helping.

Now if you want to get the gedolei hador to say that because of the modern
tendency towards znus and intermarriage, and also because of Chillul Hashem
aspects, people should give and receive gitten more easily and perhaps
freely than in days where this was less of a problem, and where the non Jews
felt that divorces were immoral, rather than their modern position where
they feel that not to give a divorce is immoral, then that is another
argument too, based on socio-religious concerns (which could then be tied
back into the above about listening to the chachamim).   But I just can't
see how one could do a general uprooting today in the manner that the DM
wants to posit (and even the DM is only talking about a pretty defined
subgroup of women).  Just doesn't seem to me to make any sense.

> I concede that the possibility that the 'Gedolim' [0] were really
> relying on RT is quite an interesting one.

Well the only thing is, it seems clear from the sources I have just been
looking at that the Terumos HaDeshen is one of those in the foremost camp of
saying that Rabbanu Tam did not mean to include the husband.  So at best one
would have to say that this was the reason of the "Gedolim" but not the
Trumos Hadeshen.  Note by the way that most of those who explain Rabbanu Tam
in the way I have, understand him to also be poskening like the Rambam vis a
vis the Mishna in Kesuvos on 26b, ie that this Mishna only relates to the
wives of Cohanim (which I gather from you, although I confess I have not had
time to look up the Trumos HaDeshen myself, the Trumos HaDeshen rejects, as
a Rabbanu Tam and Rambam agreement would make a pretty powerful

> Yitzhak



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Message: 2
From: David Riceman <driceman@att.net>
Date: Thu, 15 Nov 2007 08:43:27 -0500
Re: [Avodah] skeptics

Micha Berger wrote:
> Philosophical
> argument is never sounder than the combined weaknesses of all its
> postulates, which ultimately means is the product of numerous
> experiences. Anything as complex as religion will therefore be more a
> product of the person's willingness to accept the proof than the proof
> itself. It simply can't be objectively judged.
See William James, "A Pluralistic Universe", Lecture 1, especially pp. 
639-640 in the Library of America edition.

David Riceman

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Message: 3
From: "SBA" <sba@sba2.com>
Date: Fri, 16 Nov 2007 02:19:31 +1100
Re: [Avodah] Vayeitze "Watch Whom You Marry"

From: T613K@aol.
 >>Keeping all the mitzvos was a hiddur.? Keeping ones word was a chiyuv.
Since he'd promised to marry Rachel he had no right to break that
promise just because he wanted to be a chassid and keep mitzvos that
hadn't yet been given.<< [--RZS]

>>In which case iz shverr the 'veTaryag mitzvos shomarti".<<SBA

S.. "Taryag mitzvos shomarti" is shverr even without Yakov marrying two
sisters.? NO ONE can do all 613 -- unless you are a man, a woman, a kohen, a
levi, a Yisrael, a king, a judge, a witness, the brother in law of a
childless widow, and so on, all at the same time.?? "Taryag mitzvos
shomarti" just means, "I kept the Torah"? -- I kept the mitzvos I had to
keep, I served Hashem -- despite Lavan's influence.? "Shamarti" doesn't even
have to mean "I kept" -- it can also mean, "I upheld, I guarded.">>


I disagree. Most mitzvos can be fulfilled via Yidden being areivim zeh lezeh
etc etc.

But when one has been oyver a lav - there is no way that he can claim to
have observed the taryag mitzvos.


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Message: 4
From: "SBA" <sba@sba2.com>
Date: Fri, 16 Nov 2007 03:26:51 +1100
[Avodah] Derech Eretz Kadmah L'Torah

From: "Moshe Y. Gluck" < >
> Tana D'bei Eliyahu Rabbah (1:1): Melamed Shederech Eretz Kadmah L'eitz 
> HaChayim, V'ein Eitz HaChayim Ela Torah... (Courtesy of Michlol 
> Hamamarim V'hapigomim, which lists this (as well as R' SBA's Vayikra
> Rabbah) as the source for Derech Eretz Kadmah L'Torah.)
> >>
> I presume that you are agreeing with me that there is no such a Chazal 
> ("Derech Eretz Kodmo LaTorah"). In any case DE refers to earning a 
> living and not 'manners'.

RMYG:I'm not agreeing with you. Although the words aren't there as precisely
as they are quoted, it is close enough.

SBA: In such cases - where a 'pisgom' is so widespread and quoted in seforim
of old as a Chazal - I think close enough is not good enough.

I discussed this with our rav today and he told me bepashtus that indeed DE
in that TDER refers to manners/midos (no less than parnosso etc).

He explained the statement that DE preceded Torah by 26 generations means
that even before the Torah was given certain - later announced 'mitzvos'
-were expected to be kept, ie mitzvos sichliyos, eg, kibud av vo'em.

Thinking about this, I have decided that he is correct and thus my inclusion
of 'DE kodmo leTorah' into the phantom maamorei Chazal list is herewith


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Message: 5
From: Yonatan Kaganoff <ykaganoff@yahoo.com>
Date: Thu, 15 Nov 2007 08:48:37 -0800 (PST)
[Avodah] Mindfulness and Being Present in the Moment

I was talking to my wife the other week about the following question and wanted to ask the members of the list if they had any ideas about it.
  Are Mindfulness or "Being Present in the Moment" Jewish values?
  In other words, we all know that humility (anavah), mercy (rachamim), and patience are Jewish values.  There is a long tradition within ethical (mussar), kabbalistic-ethical, and halakhic literature discussing these virtues and exploring how to aquire, retain, and develop them among many other virtues.  
  However, would you include Mindfulness or "Being Present in the Moment" as Jewish values?  For now, I am blurring the distinctions between them, even though they are distinct virtues.
  One could use the word "Kavvanah" for Mindfulness, but, traditionally, in Kabbalistic-ethical and other literature, being mindful was always about being aware of God, Sefirot, or Metaphysics and not in the sense of being fully aware of ones surroundings or being fully present in a conversation with others.  In fact there are famous passages in the writings of Rambam zt"l and the Baal Shem Tov zy"a that explicitly encourage people to be thinking of God or the Higher Realms when talking to other people.
  One could argue that once we know the value of being fully present in a conversation with someone else it becomes, de facto a Jewish value using the Ramban's category of "Ve'asitem ha-Yashar ve-ha-Tov" as developed by Rav Aharon Lichtenstein in his famous essay on whether Judaism believes in an ethic independent of Judaism.  If it is clear that cultivating this virtue allows one to be better at "ve-Ahavta le-Rai'acha Kamocha" and other "mitzvos bain adam le-adam," then, by definition it becomes a Jewish virtue and one worth cultivating.  
  However, I would argue that this is a weak answer.  And, furthermore, Judaism lacks literature which discuss this virtue and how to cultivate it.
  One could argue that there are many tzaddikim and talmidai chachamim, living and deceased, who are Mindful. But, I don't think that that is proof that being Mindful is a Jewish value or that Judaism encourages cultivating Mindfulness.
  I was recently reading/skimming Akivah Tatz's Letters to a Buddhist Jew and while Rabbi Tatz would argue that all of these virtues could be found in Judaism (I don't recall him saying so specifically, but that is often the thrust of his arguments), I am not so sure.
  So, therefore, I have much more sympathy for Ju-Bu's or people who turn to Buddhism for something (Mindfulness or Being Present in the Moment) that they cannot find in Judaism.
  Does anyone have thoughts on this matter?

Never miss a thing.   Make Yahoo your homepage.
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Message: 6
From: <cantorwolberg@cox.net>
Date: Thu, 15 Nov 2007 16:59:00 -0500
[Avodah] Eilu v'eilu

Reb Micha wrote:
"Eilu va'eilu doesn't mean everyone's perception is equally valid."
> I agree. So how do you determine who's correct when one godol says another godol's p'sak is invalid?  To carry this further, how come when a majority of poskim rule one way and a bas kol tells them that the minority opinion is correct, we don't listen to a bas kol? And to answer "lo bashamayim hee" to me, is not satisfactory. It would seem that one must be able to listen to reason and just because the majority rule one way, does not mean they are right. That's why I believe the mathematically perfect luach is valid for determining Rosh Chodesh. The witnesses were replaced by g'dolim who had the brilliance to form our calendar.
> So to imply that eilu v'eilu is fine as long as it's your "eilu v'eilu" or your rebbe's eilu v'eilu, to me is strictly subjective. Objectivity is often times never achieved since we get in the way.
> Kol tuv/Best regards
> ri

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Message: 7
From: "Micha Berger" <micha@aishdas.org>
Date: Thu, 15 Nov 2007 18:00:58 -0500 (EST)
Re: [Avodah] Eilu v'eilu

On Thu, November 15, 2007 4:59 pm, cantorwolberg@cox.net wrote:
:> "Eilu va'eilu doesn't mean everyone's perception is equally valid."

: I agree. So how do you determine who's correct when one godol says
: another godol's p'sak is invalid? ...

You follow your rav.

It means that every rav has to have two definitions of correct: What I
believe the halakhah is, and what I believe is within the range of
other answers.

:> To carry this further, how come
:> when a majority of poskim rule one way and a bas kol tells them that
:> the minority opinion is correct, we don't listen to a bas kol? And
:> to answer "lo bashamayim hee" to me, is not satisfactory....

WADR, if the gemara's answer isn't satisfactory, then you've dismissed
the source upon which the entire topic is based. Might as well fold up
shop and go home. However, you're safe -- it's unclear what the gemara

This was discussed at length in the past. There are a few takes on the
subject, since it was a bas qol that told us to follow Beis Hillel
rather than Beis Shammai, and that one we do listen to. Rishonim vary
between explaining why we listen WRT following BH (eg: they were
majority, so the process requires it anyway) and thus making the norm
not listening), to explaining why we didn't listen in the tanur shel
achnai case since normally we do (eg: G-d was saying that in general
we listen to RE, but this is an exception). So, the rishonim are split
as to whether the story means G-d has no vote.

RYBS has a beautiful explanation of why Hashem would have no vote,
including explaining His chuckle at the end of the story, "Nitzchuni
banai". The whole point of the Torah is to be a covenental
partnership, a collaboration between Hashem and man. Halakhah is not
to be dictated from above, but to be worked by man according to His

(And eilu va'eilu is limited to other answers that follow those rules.
But, just to remind people of what I think is the sticky point, among
the things the rules do is allow for the evolution of the rules! So,
if the pesaq is produced in compliance to rules for pesaq created by
following the rules for pesaq, etc... back to Sinai, then it's part of
eilu va'eilu. Add to that that the rules indicate preferences that --
when conflicting -- might not be given the same preferences as another
poseiq. Such that disputes aren't only in whether it's A or B, but
whether A is more important than B. But importance, the weighting, is
ALSO limited by the process. Etc... until the self-referentiality of
law makes you dizzy. But back to RYBS:)

Thus, when man took up the gauntlet, and didn't require that Hashem
carry the whole collaboration on His own, Hashem declared in joy, "My
sons have made Me eternal!" Only such a Torah could last through the
changes of situations and realities.

: It would
: seem that one must be able to listen to reason and just because the
: majority rule one way, does not mean they are right. That's why I
: believe the mathematically perfect luach is valid for determining
: Rosh Chodesh. The witnesses were replaced by g'dolim who had the
: brilliance to form our calendar.

Rosh Chodesh is a totally different topic. Chakhamim do not only
determine the halakhah, they were given the power to create it. RC is
defined as the day the Sanhedrin declares RH. The Sanhedrin have to
base it on the celestial phenomena as seen by witnesses, but it's not
the testimony or the moon which causes it to happen, it's the

: So to imply that eilu v'eilu is fine as long as it's your "eilu
: v'eilu" or your rebbe's eilu v'eilu, to me is strictly subjective.
: Objectivity is often times never achieved since we get in the way.

Why do you assume halakhah is supposed to be objective? And even if
objective, why would that necessarily mean universal?

My objection to Cantor Wolberg's mixing in qiddush hachodesh is
related to a similar objection to a point made by RRW last week.

On Thu, November 8, 2007 5:32am, Rich, R Joel wrote:
: What is the traditional understanding of the Sanhedrin/finalization
: of psak history/process? Is it that Sanhedrin continually functioned
: from the time of Moshe Rabbeinu on and was the final arbiter of all
: issues but chose which to decide and which to leave local? For example
: machshirei milah on shabbat or chicken and milk...

... or Rashi vs Rabbeinu Tam tefillin, which dates back to the beis
din hagadol era too.

Except I wouldn't include of vechalav. That wasn't a matter of pesaq,
but of making a takanah. The difference in practice wasn't a machloqes
about preexisting din, but that there was a delay in it being
nispasheit through the qehillos of the Galil. (The similarity is that
this too is about chakhamim constructing, not interpreting, the law.)

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv

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Message: 8
From: "Micha Berger" <micha@aishdas.org>
Date: Thu, 15 Nov 2007 18:57:48 -0500 (EST)
Re: [Avodah] women learning Torah

On Tue, November 6, 2007 9:02 pm, T613K@aol.com wrote:
:> And so, Plato has Socrates prove that the real  unchanging Platonic
:> Truths are learned before birth, and "learning is  recollection".

: Given this context, I think the chiddush isn't that we're  prepared
: knowing Torah in order to make Torah learning easier. Rather,
: Chazal's point is that those Truths aren't limited to geometry or  the
: rigorously provable, but are/include Torah.<<

: I think this quoted dialogue has more to do with  math than with
: Torah.

My point exactly!

:          It has to do with the question of whether  mathematics is
: "discovered" or "invented"...

Plato assumes that math is Platonic Truth, not only discovered, but
more fundamental than the "real world", which is only shadows on the
cave wall compared to things like math.

Chazal turn his mashal on its head, implicitly saying that the
Platonic Truth is Torah. And thus Torah is discovered from truths the
soul has already been exposed to.

By knowing Plato's use of the mashal, you get a different picture
about Chazal's emphasis. Rather than being about Hashem doing us a
favor to help us in our learning, it becomes a variant on the theme of
"histakeil beOraisa ubarei alma", adding that since this is true, and
since we have existed outside of that olam, we have an innate
knowledge of the blueprint. (Which allows us to discover Torah rather
than learn it anew.)

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv

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Message: 9
From: "Micha Berger" <micha@aishdas.org>
Date: Thu, 15 Nov 2007 19:26:27 -0500 (EST)
Re: [Avodah] Women's zimun

On Tue, November 6, 2007 9:02 pm, T613K@aol.com wrote (in an email I
addressed part of already):
: BTW aren't the Japanese working on computers that excel at "fuzzy
: logic" which can solve problems that step-by-step straight logic
: cannot solve? ...

(I taught logic to CompSci majors for a couple of years, so we entered
an area I can say something about. BTW, you misunderstood fuzzy logic
in your later explanation. Beqitzur: it's not about multiple
simultaneous rules, it's about rules that yield values beyond just
"yes" and "no". Read on.)

We're much further along than that. If you have a digital thermostat,
it probably already is based on Fuzzy Logic. I'm not sure Zadeh's
"Fuzzy Logic" is the best way to represent more or less vs all or
nothing, but it was that meaning that I was suggesting. There are
other multi-valued logics. Statistics could even be adapted as one.
Quantum Mechanics suggests a third, etc...

Fuzzy Logic is one in which AND means "take the minimum", and OR means
"take the maximum". Say two balls are different shades of red, one a
real primary red -- we'll say it's .9 red, and another somewhat
muddier -- just a .2 red. In FL, we would say that the statement "both
balls are red" is also a .2, while the statement "at least one of
these balls is red" is a .9.

Fuzzy Logic is used in thermostats because the question "is it hot?"
really needs to be able to represent "no", "a little", "very", etc...
Without such gradations, digital thermostats tend to turn the heat on
and off too often (or need some even more complicated solution). Now,
one thermostat manufacturer may weigh the heat based on degrees above
comfort zone. Another might acknowledge that these things are
non-linear, that I'm not nearly half as uncomfortable when the temp is
5 deg off than when it's 10, and may have some fancier weighting

Notice that there are basic rules that any thermostat must comply to.
For example, the temperature should be within the desired range at all
times. All thermostats will end up sharing certain properties of the
rules and the weightings used.

In Artificial Intelligence software, the word "heuristic" is used to
describe a system for finding a solution that is less formal than an
algorithm, might not always get the optimal solution, but is used
because the perfect algorithm either doesn't exist or would be too
slow or complicated to ever get used. In truth, computers are
algorithm machines, and thus the heuristic is really a just different
algorithm than one aimed directly at solving the problem perfectly.

Heuristics better represent human thought, as people aren't algorithm
machines. Heuristics better capture that looseness. Like in this case,
we weigh pros and cons, not follow strict "IF ... THEN ..." rules on
true vs false prepositions.

On Fri, November 9, 2007 6:58 am, Rn Chana Luntz wrote:
: Actually though, do not those teshuvos often read as though they are
: trying to get to a result that they know is correct, and finding the
: tools to do so (prove it is a d'rabbanan, find a snif lehakel or a
: safek or a sfek sfeka)? ...

And much later, in response to my paraphrasing RMKoppel likening the
knowledge of halakhah by a "native speaker" who could then use poetic
:        [P]oetry is by definition situational, is it not - you have to
: know when and how to take licence, and the wrong place and the wrong
: time does not work.  And the poet does not sit there and weight his
: words in the way you described adding in this factor and that.  He
: weaves a pattern with words, which is dependent on the individual
: situation.  I think I like this formulation the best of all.

I do to. But I believe the heuristic is close enough to how people
think to be approximately what the "native speaker" is doing
preconsciously. The difference therefore can be seen as quantitative.
The better you know the right weights, the fewer rules you need to
give you details to weigh. To the point that someone with the right
gestalt (to use RRW's term), "da'as Torah" (using the term in
contemporary idiomatic sense, but specifically within the domain of
pesaq), gefeel, doesn't even realize he is weighing considerations
before they are already weighed.

The whole reason why this thread exists is that we're trying to
describe a process that is normally done by people who never thought
consciously about the nature of the process. (Know how to learn
Brisker derekh? Try writing a guide. You'll realize that even if you
could learn Brisker, you can't explain the art. Similar idea.) I'm
saying that the process includes more weighing pros and cons (or 3- or
4- way, etc.. decisions) than following simple logical rules.

My favorite example of the da'as Torah pesaq is the prohibition of
electricity on Shabbos. There is far more universal agreement that
electricity just doesn't fit the feel of Shabbos, as shaped by hours
of talmud Torah, than on the reason why it's assur. And in fact, some
of the reasons found are self-evidently stretches to explain after the
fact what seemed obvious.

This is also a consequence of my including things beyond textualism in
the weighting system. Formal rules is textualism. That domain grows as
our connection with the other domains, the perpetuity of the culture
and the light of the ideals, decreases.

Heuristics are used because -- returning to the Maharal -- we are
trying to capture something we can't fully capture. There is no
algorithmic solution because a full description of divrei E-lokim
chaim is impossible. Therefore we use the heuristic, the "good enough
for within our limitations" route.

On Mon, November 12, 2007 12:50 am, R Richard Wolpoe wrote:
: Diclaimer I DO NOT insist pesak is algorithmic. I am on record as
: saying otherwise although on this thread i have not taken ANY side
: whatseover!

I do not see how that's consistent with the words at the end of the post:
: AISI this systme is totally subjevctive. If Tsoafos says to ignore a
: Mishnah it is OK but if a C rabbi says to follow a Tur or a Rambam he
: is WRONG.
: HOW?

If you think the alternative is fatally subjective, how can you say
you aren't supporting algorithmism?

But in any case, the above is my best attempt to explain how the
baalei Tosafos and the C Rabbi are doing something different. Your
claim is similar to saying that once I open up room via eilu va'eilu
for personal differences, how am I not including everything? Simply,
the nature of the system creates limits to the range of possibilities.
Otherwise, your air conditioner goes on when it hits 30degF, and and
your heater when it reaches the 90s (also F).

:> The concept of halakhah kebasra'i is often cited as the reason why
:> the Bavli has more authority than the Y-mi. RRW would take this to
:> mean "Bavli trumps Y-mi".

: Look the Riof and Ri Migash say this. an dAFAIK so did R. Sa'dyah
: Gaon. I am not advocating this position, I am only the messnger don't
: shoot ME!

None used the word "trump". The question of whether we hold the Bavli
carries [much] more authority than the Y-mi or that the Bavli "trumps"
the Y-mi would require a diyuq lashon. And given the use of absolutes
in Hebrew (dating as far back as Leah being described as "senuah"
rather than "less loved), I don't think such a diyuq is viable.

:> Which then is disproven by how Tosafos treat
:> mayim acharonim. And thus, RRW is left with a question.

: I am not left with any question about mayyim ahcarhonim
: I WOULD ask why are we still makpid on separarting meat and fish since
: this is similar to the mayyim ahcaronim issue [viz.  Bavli medicinal
: requirements which were specifcally waved by the Ga'onim]

Mayim acharonim weren't permitted until after the saqanta was
eliminated. Fish and meat stays in the books with a constant comment
about chamira saqanta mei'issura (not that I claim to know what that
tzora'as related saqanah is...)

: But the GRA re: 2 matzos rejected basrai and went back to Talmud .
: Why?

That's not anarchy. It's people looking at the same thing from
different angles. There are limits because at some point we can
conclude he isn't looking at the same thing. That's weighting text
above all, and placing much faith in Ravina veR' Ashi sof hora'ah --
or in realizing one is no lesser than a rishon and thus one personally
can be their basra'i. Anarchy would be if there is no way to justify
such weighting, but accepting it anyway.

:> However, you just can't pull out the significance of things willy
:> nilly. It's not simply personal opinion. There are textual rules
:> that
:> have textual weights,

: But whose rules are we playing by

The metarules of how we make rules, going back to the point on the
tree where my source of pesaqim and his diverge.

:> there are mimetic histories of how seriously
:> various issues have been treated, and there is the desire to
:> actually
:> help people become yereim usheleimim.

: How does the GRA over-ruling the BY and the Rema  increase shleimus!
: Adreabbah imho it can only  create more mistrust in the process.

You're the one who implied the Gra was an aggadic value kind of
poseiq, by comparing him to another Litvisher mequbal, the SA haRav. I
am not. I am considering him a textual poseiq, and thus wanting to
create more trust in the texts. Perhaps this is just what his
generation needed -- seeing the disconnect the Enlightenment would
cause in everything else. (And maybe this belief that's what he and
the SA haRav share. I don't even fool myself into believing I know SA
haRav well enough to comment.)

: When AhS said Rashba had beter sevar but went with Rosh/Tur re: al
: nekkiyus
: Yaddayim he was putting the process over his opinion.  WADR the GRA
: put his
: opinoin OVER the process
: and sought to repeal the asccepted p'sak of BOTH ashkenaz and
: Sepharard!

And this is where I totally lose you. He puts his process-evolved
version of the process ahead of another version of the process. It's
not subjectivity, it's not anarchy, it's proper use of a heuristic,
with a different idea as to the size of the pros and cons.

: (Such as chassidim looking for a
:> means to allow clapping on Shabbos along to a good hartzig niggun,
:> or
:> helping a couple become parents.)

: And C's say that a guitar on Shabbos inspires THEM! and since they are
: not choshesh for tikkujn Maneh what's the big deal!

The big deal is not being chosheish. A weighting system in which
inspiration is more of an issue than our inability to repeal a taqanah
of Sanhedrin simply is holding a fan, not an elephant's ear. He
reached where the head would be and kept on going. In the end, the
heuristic has to fit the constraints. Otherwise, it just isn't eilu
va'eilu. And you heat will only go on in the summer.

SheTir'u baTov!

Micha Berger             One who kills his inclination is as though he
micha@aishdas.org        brought an offering. But to bring an offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv


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