Avodah Mailing List

Volume 26: Number 139

Sun, 19 Jul 2009

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Subjects Discussed In This Issue:
Message: 1
From: Micha Berger <mi...@aishdas.org>
Date: Fri, 17 Jul 2009 15:54:04 -0400
Re: [Avodah] Tzeni'us and gender roles

On Thu, Jul 16, 2009 at 11:50:03AM +0100, Chana Luntz wrote:
: Let us just think for a moment about what it means to be either a litigant
: or a witness in any court system...
: The whole exercise is, has to be, one of public humilation...
: And take what perhaps seems like a more innocuous form of witnessing - eg
: being the eidim at a wedding.  Well that is all fine and good if everything
: goes well.  But if there is a serious problem with the marriage, then there
: could well be, many years down the track, a serious push to pasul you the
: eid....

If you make the argument that we must be holding by a different
definition of tzeni'us because our behavior doesn't fit the literal
translation, then why not here too?

It is considered a kibud to be an eid at a wedding. I assume because it
implies that the person is clearly one "everybody" would accept eidus
from. But also because we realize that few people are really embarassed
by being singled out for positive attention.

The seifa you are willing to use as a raayah that tzeni'us is
misunderstood. (Although I don't see how your later definition (b)
ended up differing from my take on RHS.) So why not use the reisha to
prove that women also shouldn't be concerned about the long-shot of
humiliation at a messy get case?


Micha Berger             Never must we think that the Jewish element
mi...@aishdas.org        in us could exist without the human element
http://www.aishdas.org   or vice versa.
Fax: (270) 514-1507                     - Rabbi Samson Raphael Hirsch

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Message: 2
From: rabbirichwol...@gmail.com
Date: Fri, 17 Jul 2009 16:03:01 +0000
Re: [Avodah] Tzeni'us and gender roles

> Everyone can play a role, but far too many people assume roles that
> are above them.

In YI of West Hartford we did a Solomonic "split"

On shabbos young boys and men were encouraged to daven and lain as often
as possible

While on shalosh Regallim - only Regillim (pun) led services v'ein
tzarich lomar that on yamim nora'I'm they hired a shatz for mussaf etc.

So - like Qoheles - there was a time for hinuch trumping a quality shatz -
and vice versa

FWIW I kinda like this approach.

Sent via BlackBerry from T-Mobile

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Message: 3
From: Ben Waxman <ben1...@zahav.net.il>
Date: Sat, 18 Jul 2009 22:57:05 +0300
Re: [Avodah] best v. worst;

In the case about Shabbat, the secular guy is driving to the dati guy's
home. You are suggesting that the dati guy go out and perform actual
aveirot for the secular guy. 

In the Shabbat case, he would be doing an aveira in any case, so why not
have him do a mitzva? mitzva ha'ba b'aveira makes sense when the person in
question is mainly a mitzva doer, and then comes up against a situation
where to do a mitazva might entail doing an aveira. So don't do the mitzva.
But this guy has nothing but aveirot. So this Shabbat, he drives to a
Shabbat meal instead of a movie. Hopefully next Shabbat he'll walk.

  ----- Original Message ----- 
  From: harveyben...@yahoo.com 
  To: Liron Kopinsky ; avodah 
  Sent: Friday, July 17, 2009 2:35 AM
  Subject: Re: [Avodah] best v. worst;

	hb: according to this reasoning, if someone is going out to eat a
	cheesburger (not on shabbas) one should instead go out and purchase
	treif meat for him, put cheese on it, and then have him/her make a
	bracha on it; one could then say........"at least he'll be making a
	bracha on the food" 
        what happened to the entire concept of "mitzva ha'ba b'aveira"???h

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Message: 4
From: "Chana Luntz" <ch...@kolsassoon.org.uk>
Date: Sun, 19 Jul 2009 00:13:55 +0100
Re: [Avodah] Tzeni'us and gender roles

RMB writes:

> This is a shift of topic. "In accordance with common practice" and
> "in common understanding" are two different things. What I asked for
> was a justification for the claim that common practice indicates there
> is a different shitah in tzenius, and it's that shitah which we are
> following.

I am not quite sure what exactly you are getting at here.  The point has
been reiterated by many posters that nowhere in common practice do we see
any evidence of an understanding of tznius leading us to diminish the
availability of public roles or indeed the creation of new ones - at least
as it applies to men.  We do see some indication of men trying to avoid the
kavod that goes along with such roles, but the roles themselves tend to be
multiplied rather than diminished.

We do see a tendency to diminish public roles for women.  And we do
periodically here explanations of this being based on tznius.  But the usual
definition of tznius used here is not the tzanua laleches one, but the one
that is the opposite of pritzus.  That is, because sight/hearing of a woman
by a man will cause hirhurim and the like, this is a form of pritzus, and
tznius dictates that this not occur.

> Common understanding is blurry and doesn't really make the point.
> Removing common understanding to just talk about nidon didan,
> the following:
> : (A) as the opposite of pritzus.  Pritzus is inappropriate 
> sexuality, and
> : tznius is the opposite of that.
> is not relevent.

Ah but it is highly relevant.  If you asked the halachic man on the
equivalent of the clapham omnibus (ie the halachic everyman) what was the
reason women could not get aliyos, chances are the explanation you would get
back is because it is not tznius for men to see/hear a woman (maybe even kol
isha perhaps).  No, it is not written anywhere authoritative (and ROY, for
example, repeatedly rebuts that kol isha has anything to do with women not
getting aliyos) - (perhaps the closest I have seen is the Matne Ephraim and
similar on why women shouldn't say kaddish) but it certainly crops up in the
common understanding.

There is no question that RHS is playing on this understanding when he comes
in with his thesis.  What he is saying is - yes halachic everyman, it is
about tznius, but you are not fully understanding tznius.  Ie he is trying
to keep the explanation and make it gender neutral by sliding from my A)
definition to B).

> He says noting about anti-peritzus / tzenius type A. Neither in accord
> with the Western mind nor in opposition.
> FWIW, I personally would propose a unifying definition -- peritzus is
> the ultimate in drawing attention to oneself for a non-productive (in
> fact counterproductive) purpose. But that's tangential since only
> one end of the linkage is relevent.

You can only understand RHS like that if you think he is talking in a
vacuum.  I find that completely impossible to believe. Rather I believe that
your unifying definition is precisely his unifying definition.  That is his
starting point.  There is no reason to assume that tzanua laleches has any
connection to aliyos or public roles if you don't go through this pritzus
linkage that is already in the common understanding.  Walking with G-d is
something that does carry with it a sense of privateness - but the exclusion
is of the public altogether - ie the hermit communing with G-d in his cave.
The part of the public yes but out front of public no - which is the radical
bit of the explanation, existed previously linked to the term tznius, but
only in relation to women, with the problematic part of being in front being
labelled pritzus.
> I'm arguing that even if that is what I concluded, with no 
> specific issur
> involved there are reasons that have the force of halakhah not to make
> such changes.

Yes, and one of these is - it is not the way women's roles have
traditionally been - it is not tznius, it is pritzus. Women being up front
and in men's faces leads to greater possibilities of hirhurim etc.

A second is that minhag is torah, if we have the minhag that women don't do
things, then that works as as a bar to doing them (think shechita).

A third is to explain kovod hatzibbur in some way - that it is insulting to
the community if women do things that men could do.

I am sure there are others.

You may not like any of these, but these run far deeper in the sources than
what is being proposed.  And while one might not like the consequences of
these, they do not lead to the other negative consequences that would come
about by applying your thesis generally.

I then wrote:
> : But synagogue is not supposed to be quiet worship, and 
> quiet worship is only
> : one of a number of idealised forms of worship...
> Isn't the idea of tefillah betzibbur to be part of the 
> corporate entity
> of the tzibur rather than only being an individual (which you could do
> without the tzibbur)?

Yes, but that is not necessarily quiet worship (in many communities it can
involve people chanting things together, and in others people screaming,
what sounds at the top of their voice, their own individual prayer oblivious
to the other).  Chana is a certain kind of an ideal, but it is not the only
ideal. And even tefillah betzibbur is arguably only a substitute for the
ultimate form of avodah, which takes place in the beis hamikdash and was
very ritualised and involved very public roles.
> RnCL objected in this later email because:
> : The attitude is a problem.  But you are then going on to confuse the
> : attitude with the object. It is the classic alcoholics  attitude...
> Not really, because the burden of proof rests on the innovator. I'm
> saying that the status quo has advantages, and am not suggesting new
> bans.

But you see you can't do this.  If you propose that the reason why one
cannot change the status quo is because the torah goal is X, in this case a
diminishing of public roles, then the next and logical step is to follow
through and diminish those public roles that currently exist, ie refusing
innovation in one place on a certain ground is likely to set you on a path
towards innovation somewhere else.

But in this case, we don't even need to go so far.  There are already views
(non mainstream, non halachic views) which say that one shouldn't be praying
for the restoration of the beis hamikdash (the Reform movement has
traditionally been big on this).  Now after all, that is a form of prayer to
change the status quo.  Your argument gives strength to that kind of
thinking, because, as I have mentioned, the beis hamikdash is just rife with
the kind of public role that you find such an anathema, and which you argue
is against the Torah goals.  Restart the avodah and the beis hamikdash and
you will have a whole load more of these "tznius" issues that you identify
as a problem.  That is, you have just created a con to a form of davening
where one never previously existed, and something which might cause people
to draw back from a whole hearted prayer that they might otherwise offer.
That is a necessary innovation of your thesis.

The burden on proof as to why we should make a change does indeed rest on
the innovator - but when one proposes a novel theory as to why the status
quo is as it is, then you are in fact the innovator, because it will without
question lead to innovation, in a whole range of subtle and less subtle
> I'm saying his tzni'us would have been greater, and perhaps that means
> that even the anav mikol adam would have been even more of an anav.

Ie Moshe the flawed hero.  And, as I said, there have been objections on
this list to people viewing Pinchas and Avraham and Yitzchak as flawed heros
- especially using non chazal sources to come up with this flaws.  This is a
not dissimilar form of reasoning, it being a consequence of your analysis.
Moshe is less of person that he could have been. 
> :-)BBii!
> -Micha


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Message: 5
From: "Chana Luntz" <ch...@kolsassoon.org.uk>
Date: Sun, 19 Jul 2009 00:14:06 +0100
Re: [Avodah] Tzeni'us and gender roles

RAF writes:

> Beautiful hypothesis. However, lacking strong proof, you should keep
> in mind that you may or may not be right.

Certainly I may not be right, especially when it comes to why women are not
permitted to be witnesses - given that the derivation is from a pasuk.  It
is harder to say that I may not be right vis a vis litigants, when this is
what the gemora says.  As mentioned, the gemora in Shavuos states flat out
that "lav orta meshum kol kavuda bas melech penima! - ie it is not customary
for women [to come to court as litigants] because of kol kavuda.  This after
stating earlier that if the discussion was about litigants, not witnesses,
"ki anashim ba'in l'din v'nashim ain bain l'din" - ie can you say that men
come for judgement and women do not come for judgement? [and hence the pasuk
must be talking about witnesses].  And then Tosphos says there that the
reason we can't say that the same thing about witnesses is because of the
rule that we cannnot have evidence eid mipi eid, and hence if the women were
to be witnesses, they would have to come.

 Data point: the maamar
> 'Hazal I quoted from Rashi states melamed she-ein la-isha *reshut*
> ledabber bifnei ha-ish.
> According to your beautiful theory, the maamar should have taught:
> "she-ein ha-isha *tzerikha*" or "*'hayyavet,*" "le-dabber bifnei
> ha-ish."

Well not necessarily - it might be that at least with some there is a
natural inclination rant and rail at him for the humiliation he has caused
her, and it may be that she is not permitted to do that for her own
protection, or to protect the court from making things even more awful than
they already are.  The problem with your making this into a general blanket
prohibition, rather than one specific to the case in hand is that, for
example, women have an explicit Torah mandated speaking part when it comes
to chalita, which is a case both of speaking in front of a beis din and of
speaking in front of the man who, but for the court case, would be her
husband.  And then you have the "lav orta" of the gemora - not that they
can't but that they generally don't (or perhaps shouldn't).

I am not necessarily wedded to the theory - what I was trying to show though
was that RHS/RMB's theory, while I think completely off track when it comes
to general public roles, runs much much closer to the sources when it comes
to litigation/witnessing.

> Kol tuv,
> -- 
> Arie Folger,



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Message: 6
From: Meir Shinnar <chide...@gmail.com>
Date: Sat, 18 Jul 2009 22:13:29 -0400
Re: [Avodah] Tzeni'us and gender roles

>> But, and I think this is where RAF above is misunderstanding RMS,  
>> RMS above
>> is talking about being an advocate (lawyer) in the court system  
>> (and the
>> secular court system at that). ?Being a lawyer is a very very  
>> different kind
>> of situation to being either a litigant or a witness.
> Based on RMS' reaction to my post, I don't think I misunderstood him.
> He mentioned that women surely aren't barred from court, and I pointed
> out that there is/are (a) maamar(ei) 'Hazal that say(s) the opposite.
> I did not attempt to analyze whether or not we are presently bound by
> those maamarim, or whether they depend on societal norms or whatever;
> that exercise I left to him and other participants to the "Tzeni'us
> and gender roles" thread, which I enjoy reading without getting
> actively involved ;-).
While I am honored to be darshened, my point was somewhat in the  
middle.  RCl is right that I was pointing out that the current MO/YU  
community accepts as a matter of course public roles for women in the  
nonreligious sphere - intending lawyers in secular court, which is a  
common career path.  However, this is in spite   of the fact that  
there exists clear textual precedents, as well as history of social  
norms, that would argue against such roles( kol kevudah bas melekh  
penimah was finally brought in, but there ar others) - these are not  
thought to apply.  The text RAF is another  one that suggests a  
problem - which is not held to be binding.   However, WRT the specific  
> Beautiful hypothesis. However, lacking strong proof, you should keep
> in mind that you may or may not be right. Data point: the maamar
> 'Hazal I quoted from Rashi states melamed she-ein la-isha *reshut*
> ledabber bifnei ha-ish.
> According to your beautiful theory, the maamar should have taught:
> "she-ein ha-isha *tzerikha*" or "*'hayyavet,*" "le-dabber bifnei
> ha-ish."
while it may express reservations, I do not think carries the weight  
that RAF suggests - that it is a blanket prohibition (she ein laisha  
reshut) to speak before a court - understanding haish as the court -  
the issue is a far more limited one.  After all, in general (to  
distinguish from the particular case being discussed, there is no such  
issur - a woman litigant is allowed to speak before a court, and a  
woman is allowed to testify in areas where we accept her testimony  
(eg, roughlyin areas where it is one of ne'emanut, rather than a  
formal ma'ase edut), and I have not heard of any posek who would use  
this rashi to disqualify such speech, so it is difficult to read this  
as such a blanket issur.  )Furthermore, the language - bifnei haish -  
is strange, if ish is referring to the bet din.

I think that the answer lies in the case, and it is a far more  
specific issur (albeit one that suggests family dynamics..) The  
particular case being discussed was motzi shem ra - and the issue is  
that before the court appear the father and mother (not the primary  
victim), and then only the father speaks - and the question is why  
either not the girl, or why doesn't the mother speak - and therefore  
the tora temima's pshat makes perfect sense - the rationale here is  
the kavod of the father - and the wife is not allowed to speak before  
haish - the ba'al.

Meir Shinnar
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Message: 7
From: Meir Shinnar <chide...@gmail.com>
Date: Sat, 18 Jul 2009 22:58:56 -0400
Re: [Avodah] Tzeni'us and gender roles

Both RRW and RKM suggested that the problem with my model of  
participation as driving some of the current women's issues, is  
problematic - because we can not participate in many aspects of avodat  
hashem, such as birkat kohanim (RRW)  - and a definition  
distinguishing proper participation from improper is whether one is  
fit for it (RKM).
I fully understand the limitations of participation - it does not mean  
that everyone gets to do everything, and the particpatory model does  
have flaws in the shuls that adopt it - that there are people who  
daven who don't know nusach, etc.  These are all real issues, but they  
miss the fundamental point.
The driving impetus behind the Young Israel movement (which started as  
the prototype participatory minyan - as distinct from a hazzan led  
shul) - was not that everyone would duchen, or even just that everyone  
would rotate davening musaf on yom kippur before the amud.   The issue  
is that doing something - whether it is merely pticha , or an aliya,  
or davening before the amud - increases one sense of avodat hashem and  
of belonging to the minyan.  The level of participation clearly varies  
- but there is some participation.

In essentially all Orthodox shuls, if one removed the women's section,  
or if just no women came to shul, it would have no impact at all on  
what goes on in the men's side and with davening - maybe some social  
issues, but would not change anything that happens.  That means,  
essentially, that the women's role in shul is essentially an extension  
of their private role - they are there as private individuals, rather  
than being part of the kahal (yes, I am aware of the different  
opinions about whether the ezrat nashim counts as part of the shul,  
and issues of answering to different tefilot - and even possibly kiyum  
of mitzvot - but on a practical level, they are not perceived as part  
of the kahal).

What this means is that for many women therefore do not feel any need  
to come to shul - this is both in many haredi communities, where there  
is no expectation for them to come - but even in MO - where there is a  
social expectation, and the religious training is that they should  
come to shul.  For sure, there is no sense that the shul serves as the  
outlet for religious expression of the public person.

Some Orthodox shuls have instituted a limited amount of participation  
- whether it is carrying the sefer torah near the ezrat nashim for  
them to touch, carrying it through it, allowing women to say kaddish  
(either by themselves, as permitted by RYBS, or with a man, as  
permitted by RYE Henkin), etc - but it is still a very limited amount.

The issue I am raising is not what the proper solution is - I am aware  
of the problems with many of the solutions.  The issue I am raising is  
recognition of what the problem is - today, people are not willing to  
be actively engaged in an institution that does not offer them any  
outlet for participation -but only as  spectators.  This means that  
the shul does not function as the religious expression of the public  
personae of the women.  The failure to recognize this has long term  

Finally, RMB raises the issues of tzeniut as a problem - arguing for a  
model of tzeniut wherein any public role is automatically a violation  
of tzeniut - and then we judge whether there is a reason for the  
violation of tzeniut.  I, as well as others (RCL far more ably and  
more scholarly, RTK (if I and RTK agree on something.....)) view this  
model of tzeniut as being a radical innovation, without any basis (and  
RMB has still not provided any basis) which is actually opposed to  
traditional Jewish values - which makes further discussion difficult,  
as RMB wishes to protect a value that is not recognized as such by the  
rest of us.  However, even with the model of tzeniut that RMB raises,  
the issue becomes one of justification - violations of RMB tzeniut may  
be acceptable if there is sufficient good that comes from that.

He argues that the changes in the workplace - have led to changes in  
kol kvuda bat melekh pnima (and I would agree).  he also argues that  
this is a violation of anava - and here I (and others) disagree -  
viewing this as being created out of thin air..  however, he is not  
arguing for a change in the workplane - but rather, that no changes  
take place in avodat hashem - and therefore arguing that there be no  
correspondence between the inner and outer - that halacha should have  
no form of expression of the changed status and role - which is  
essentially writing their lives out of the community - and this is a  
profoundly anti halachic, anti mussar viewpoint.  What the changes  
should be is, again, a different issue - but that there should be no  
correspondence is something that we must reject as ovde hashem.  Even  
with his utilitarian model, the damage from no recognition is large.

Meir Shinnar

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Message: 8
From: T6...@aol.com
Date: Sun, 19 Jul 2009 04:24:40 EDT
Re: [Avodah] Tzeni'us and gender roles

From: Arie Folger <afol...@aishdas.org>
>  And it also  implies that this is the basis for the exclusion of
> women as witnesses -  see eg Tosphos there (although of course this is 
> a pasuk, so no  reason need really be given, so even that one cannot say 
>  definite).  What this seems to allow is for women, for the most part,  to
> avoid cross examination and public humilation in a court setting.  [--R'n 

Beautiful hypothesis. However, lacking strong proof, you  should keep
in mind that you may or may not be right. Data point: the  maamar
'Hazal I quoted from Rashi states melamed she-ein la-isha  *reshut*
ledabber bifnei ha-ish.

According to your beautiful theory,  the maamar should have taught:
"she-ein ha-isha *tzerikha*" or "*'hayyavet,*"  "le-dabber bifnei

Kol tuv,
Arie  Folger,
My father addressed that point, too.  I can't  remember his exact words but 
the idea was that if you gave the women the option  of either serving or 
not serving as witnesses, you would not have an equitable  system.  It would 
introduce a level of arbitrariness to the legal system --  a male witness who 
is subpoenaed /must/ testify, but a woman gets to decide case  by case 
whether she wants to testify or not?  Quite unfair, and it makes  the whole 
legal process unpredictable.  Plus, maybe more important, it  would remove from 
the woman the element of protection of her dignity and tznius,  since if she 
/can/ testify at her own discretion, she will be pressured to do so  in 
many cases.

--Toby  Katz


**************An Excellent Credit Score is 750. See Yours in Just 2 Easy 
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Message: 9
From: Arie Folger <afol...@aishdas.org>
Date: Sun, 19 Jul 2009 10:47:16 +0200
Re: [Avodah] Tzeni'us and gender roles

On Sun, Jul 19, 2009 at 10:24 AM, <T6...@aol.com> wrote:
> My father addressed that point, too.? I can't remember his exact words but
> the idea was that if you gave the women the option of either serving or not
> serving as witnesses, you would not have an equitable system.? It would
> introduce a level of arbitrariness to the legal system -- a male witness who
> is subpoenaed /must/ testify, but a woman gets to decide case by case
> whether she wants to testify or not?? Quite unfair, and it makes the whole
> legal process unpredictable.? Plus, maybe more important, it would remove
> from the woman the element of protection of her dignity and tznius, since if
> she /can/ testify at her own discretion, she will be pressured to do so in
> many cases.

Surely this raises the question whether the theory previously
expounded upon in this august forum is correct, namely that tzniut
underpins just about all behavior, and that for whatever reason, poor
men are sometimes obligated to sacrifice this behavior - a behavior
that both genders have in common - for the sake of the greater good. I
simply take note that you have brought tzniut squarely back on women's
backs, as one could imagine there being equally important public needs
for men's and women's testimony.

Furthermore, as I have demonstrated, the plain meaning of said derash
on Devarim 22:16 is that a woman cannot/should not/may not defend
herself against a male accuser, who accuses her of a capital crime.

IOW, we weren't talking about subpoena (well, R'n CL was, but the
derash isn't) but rather about the right to represent yourself in beit
din when defending yourself. Again, I do not analyze here whether such
is always the rule (that a woman does not speak up in beit din), and
RMS has argued why it may be a societal issue (in which case ours is
not a "real" derash, but rather an asmakhta), however, I find it hard
to argue that there are no halakhic/derash statements hampering a
women in court, ever. They may be non-binding, they may be restricted
to particular cases, we may rule according to a different opinion, vus
vais ikh. However, such statements exist and deserve to be taken
sufficiently seriously that we actually deal with them, rather then
apologize them away.

Arie Folger,
Latest blog posts on http://ariefolger.wordpress.com/
* Barukh She-Amar Elucidated
* The Anatomy of a Beracha
* Basic Building Blocks of Jewish Prayer

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Message: 10
From: David Riceman <drice...@att.net>
Date: Sun, 19 Jul 2009 16:09:15 -0400
Re: [Avodah] Categorical imperative

Micha Berger wrote:
> If someone has the time to explain the Maharal's discussion in Tif'eres
> Yisrael pereq 6, I would be thrilled. (I'm a bit spread thin right now,
> behind schedule in other learning.) He discusses this machloqes and
> presents his own shitah.
As usual when I look at the Maharal, I understand only a small fraction 
of what I suspect is there, but I'll give it a whirl since no one else 
seems to be doing so.  He seems to say that the person saying "al kan 
tzippor yagiu rahamecha" is guilty of a category error.  Running the 
world is, apparently tautologically, an instantiation of justice, not of 
mercy.   The mitzvot are part - - the word "part" is inaccurate but a 
full explanation requires a digression so please excuse it - - of how 
God runs the world, and hence must be instantiations of justice, not of 
mercy.  So attributing shiluah hakan to rahamim is just wrong.

The Maharal doesn't explain here why this particular error is so 
terrible that it deserves a special place in the mishna (and, as he does 
point out, the same mishna appears in two massechtot).  I have a guess, 
but I'd be much happier if someone more knowledgeable could provide a 
reference to somewhere the Maharal himself answers the question.

David Riceman

Go to top.

Message: 11
From: rabbirichwol...@gmail.com
Date: Sun, 19 Jul 2009 23:26:18 +0000
[Avodah] Davar Barur Baposqim

A while back I explained that in the time of Shas [thru Rambam?], toeh
bidvar Mishneh did not and could not include the Posqim...

However by the time of the SA this principle COULD be applied to
Posqim. See SA ChM 25:1 who adds Posqim to the L'shon HaRambam WRT To'eh
bidvar Mishnah...

What changed? In the time of Gmara There was no force of Posqim and the
Rambam siezed the expression of shas - "haRambam L'shon haShas naqit"

This concept has already been expounded by AhS YD 242:32-33 to explain
the Rema. (Baruch shekivanti)

Shas allows a davar mefurash Battorah to be pasqened by a Sh'suy yayin,
and similarly the Rema is mattir "ledidan davar hamefurash baposqim"
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