Avodah Mailing List

Volume 27: Number 52

Fri, 19 Feb 2010

• 1. Re: Revenge and Punishment (Micha Berger)
• 2. Re: Geirut for marriage (Micha Berger)
• 3. Re: Revenge and Punishment (Zev Sero)
• 4. Re: Revenge and Punishment (Micha Berger)
• 5. Re: Revenge and Punishment (rabbirichwol...@gmail.com)
• 6. Do gentiles have more teeth than Jews? Do they have less? (Prof. Levine)
• 7. Re: Do gentiles have more teeth than Jews? Do they have less? (Micha Berger)
• 8. Re: Do gentiles have more teeth than Jews? Do they have less? (kennethgmiller@juno.com)
• 9. Re: Revenge and Punishment (Daniel Eidensohn)
• 10. Re: Revenge and Punishment (Micha Berger)
• 11. Re: Revenge and Punishment (rabbirichwol...@gmail.com)
• 12. science and talmud (Eli Turkel)
• 13. Acharaei Rabbim l'Hatos (Eli Turkel)
• 14. Re: Acharaei Rabbim l'Hatos (Micha Berger)

On Thu, Feb 18, 2010 at 10:43:48AM -0500, Zev Sero wrote:
:> Since neqama (among Yehudim) is assur

: It's only assur among Yehudim, because we should be forgiving each other.
: But, e.g., a go'el hadam has an obligation to avenge the victim, because
: only the victim himself has the right to forgive.  When it comes to son'ei
: yisrael, all our prayers are full of the call for revenge...
...
: I repeat, "The earth cannot be forgiven for the blood that was spilled
: on it, except by the blood of the spiller."   That is *the* basis for
: capital punishment...

:> It would seem we're asking to rid ourselves
:> of that desire, lo siqom velo sitor, not applaud it.

: You omit "et benei amecha".  That is not an afterthought, it is the most
: important phrase in that pasuk.  We do *not* aspire to rid ourselves of
: the desire for revenge; we are not Xians.  What we do aspire to, is to
: gain such over control that desire that we can turn it off when it comes
: to "benei amecha"....

You are confusing the need for justice with revenge. We say Hashem yiqom
damo and thereby take revenge out of the hands of people who can feel
vengeful and elevate it to HQBH's hanhagah of the universe. "Keil qanah"
no more refers to revenge than Av haRachamim refers to actually feelings
of mercy.

This is why writing VelaMeshumadim, the berakhah that evolved into
VelaMalshinim required Rabban Gamliel to find the one person capable of
writing it.

Notzrut, at least in the set of platitudes you refer to, doesn't
understand that evil can't be forgiven, the world requires it be
destroyed. They therefore have insufficient stomachs for deterrant --
whether it be by teaching future potential criminals or preventing this
particular person from repeating his offense.


All this ties back to your denial (2-1/2 years ago) of the position of a
dozen or so baalei mesorah about Chatzi Hallel on the 7th day of Pesach
and "maasei Yadai tov'im bayam, ve'atem omerim shirah?" You are trying so
hard not to assimilate the surrounding Notzri ethic, you hold one that is
on the other side of that attributed to R' Kahane (Pesiqta deR' Kahane),
the Yalqut Shim'oni, the Shibolei haLeqet (quoting the Medrash Harninu,
whatever that is), R Shelomo Alkabetz, the Beis Yoseif, the Taz, the
Chabos Ya'ir, the Yafeh haLeiv, the Kaf haChaim, the Meshekh Chokhmah,
the Netziv, and R' Aharon Kotler, etc...

The drowning of the Egyptians is an event that all of the above tell us
to face with ambivalence.

(Mar'eh meqomos at
http://www.aishdas.org/asp/2007/07/compassion-for-our-enemies.shtml ,
which summarizes results of a previous Avodah discussion.)

If you could accept that rov acharonim follow maamarei Chazal that call
for us regretting the need for our enemies to die, you wouldn't have
this notion that we want or like revenge. Our simulatenous joy at seeing
justice restores to the world doesn't qualify as vengeful.

Tir'u baTov!
-Micha

-- 
Micha Berger             A person lives with himself for seventy years,
mi...@aishdas.org        and after it is all over, he still does not
http://www.aishdas.org   know himself.
Fax: (270) 514-1507                            - Rav Yisrael Salanter

On Wed, Feb 17, 2010 at 01:10:58PM -0000, Chana wrote:
: RMB writes:
: > Except that I still don't find it clear. He writes, "chutz miqabalas
: > hamitzvos sheme'aqeves..." which although is the language of the Tosafos
: > and the Rosh WRT requiring a beis din (3 kesheirim meeting during the
: > day) does not prove he holds like them WRT sefeiqos in the qabalah due
: > to the person having ulteriar motives. And the Rambam is more machmir,
: > requiring the other steps to also require BD, not that qabbalas ol
: > mitzvos before a BD is less mandatory.

: I struggle to see how you can see this in the Rambam ...

I was looking at the SA when I wrote that. Not what the Rambam says,
just translating what the SA says he says.

But since we are revisiting this discussion, we can return to the
Rambam...

: I struggle to see how you can see this in the Rambam - let us look at the
: whole section in Issurei Biah Perek 13...

I'm just going to skip to the ones that deal with QOM (qabbalas ol
mitzvos).

...
: Halacha 1: Three things caused Israel to enter into the convenant, mila,
: tevila and korban. [No mention of Na'aseh v'Nishma, which would be the
: equivalent of kabbalat mitzvot - noting of course that if he had done so,
: questions of har hagigis would not doubt have come up]

Because in 12:17 we see the Rambam calling QOM a separate part of becoming
Jewish from the mitzvah maasis of geirus. (BTW, note also in hilkhos
teshuvah, he opens by telling you the mitzvah is saying vidui when you
do teshuvah. The mindset is a precondition; the act is the mitzvah. I
think there is a leshitaso here -- the Rambam doesn't count pure thought
and emotion among the mitzvos.)

The language of 12:17 is "kol hagoyim kulam sheyisgayru viyqablu aleihen
kol hamitzvos shel Torah .. harei hein keYisrael lekhol davar..." He
says you need QOM in addition to geirus. Two things.

Last time around I wondered why the Rambam wrote QOM second, since with
the exception of geir qatan, we make it a prerequisite to geirus. Then
we got into what "al daas BD" meant, and what the QOM at the time of
becoming an adult did -- provide the QOM piece or validate that the other
3 were actually a zekhus for us to say zakhin le'adam shelo befanav on
the milah, tevilah and qorban.

The Bach you refer to (YD 268, "vekhol inyanav") also doesn't deny the
Rambam requiring QOM. Rather, he says the Rambam and Semag only require
BD for tevilah. The question he addresses is whether QOM requires BD,
not whether becoming a Jew requires QOM altogether -- even bedi'eved.

I would think the Bach's understanding of the Rambam is mistabeir from
the notion that it's geirus that requires BD, and this other part of
becoming Jewish does not.

This notion that there are two stages: mitzvas geirus and QOM, fits the
layout of pereq 13. When he defines geirus, the Rambam defines only
the steps of geirus -- "sheyisgayru", not those of "viybalu aleihen
kol hamizvos".

Halakhah 9 is arguably not about QOM, but about using observance as a way
to set up a chazaqah that there must have been a BD. Similarly halakhah
10 is about neemanus. 11-14 speak about an eved at the time of shichrur.
(There there is no requirement of QOM, although there is a QOM of the
mitzvos that are shayachim to avadim at the time he is enslaved if he is
to be a true eved kenaani rather than a nakhri. Required back in 12:11.)

So, we don't get to defining QOM for certain until 13:15. Although again,
we know from 12:17 that the Rambam required it.

We also see the requirement in pereq 13, halakhah 17, where the Rambam
contrasts someone we are unsure did QOM with one we established his
tzidqus but afterward "chazar ve'avad AZ". In the first case, Jewishness
is a matter of cheshash until QOM is resolved. In latter case, the
Jewishness was already chal, so the person is a meshumad, but Jewish
with all the dinim -- the Rambam lists qidushin and hashavas aveidah.

And a weak proof from the SA and the Bach arguing about whether it
requires BD bedi'eved, which kind of distances one from the question of
whether it is required altogether.

BTW, the Tur that Bach is commenting on says that QOM bifnei BD is
me'aqeves, and he also has the Rif saying that tevilah and milah require
a BD even bedi'eved. Nothing about the Rif saying that *instead* of QOM
requiring BD.

What I can't find is the Rif himself, to see the original words.

...
: So where can you see in the Rambam that kabal ohl mitzvos before a beis din
: is mandatory? ...

As I said above, I don't. I was saying the SA did. And in fact, since the
Rambam separates QOM from the mitzvah of geirus, alhtough requiring to
create a geir tzedeq, I don't think it's compelling to assume that he did.

But we were originally discussing the need for QOM, not that QOM meant
before a BD. And then you moved us to the SA, saying I shouldn't have
invoked the Rambam as the SA doesn't hold like him. But in the SA's
version of the Rambam, the Rambam and the Rif *add* requiring a BD for
tevilah and milah to the previous requirement (which he gives as the
baseline pesaq) of requiring it for QOM.


All of which is really tangential, as you now made the discussion about
the definition of QOM -- does it require BD or not? The notion that
someone isn't Jewish unless they did QOM altogether is IMHO clearly
required even bedi'eved, lekhol hadei'os. And it was QOM, not whether
QOM requires a beis din, that really addresses RJR's original question.

On Wed, Feb 10, 2010 at 8:47am EST, Rich, R Joel wrote:
: IIUC the rule is we don't lchatchila accept a ger who wishes to convert
: to marry, but bdieved "kulam geirim heim"

: 1. I assume this prohibition is on a rabbinic level-is it?

To which I replied:
: I understood it on very different terms.
...
: A convert who isn't meqabel ol mitzvos isn't a ger. But we're not
: psychic, so we have to rely on watching behavior, listening to what the
: person says, and relying on chazaqos that the qabbalah is real.

The Rambam would say he performed geirus, but he didn't do enough to be
"keYisrael lekhol davar", nor is he mutar "lehikaneis bekehilal Hashem
miyad" (to quote 12:17).

Which means that whether you call it part of the mitzvah of geirus or
not, what I wrote about him not being a Jew stands. And thus someone's
Jewishness could end up depending upon something that only a mindreader
could know. Thus, if the convert's chazaqah is blown (eg by an ulterior
motive), we then have someone whose Jewishness becomes a non-trivial
question where error in either direction is very dangerous. Therefore
we have someone who is "yatza mikelal hagohim vechosheshin lo ad
sheyisba'eir tzidquso" (13:17).

Tir'u baTov!
-Micha

-- 
Micha Berger             When memories exceed dreams,
mi...@aishdas.org        The end is near.
http://www.aishdas.org                   - Rav Moshe Sherer
Fax: (270) 514-1507

Micha Berger wrote:

> You are confusing the need for justice with revenge.

Revenge *is* justice.


> We say Hashem yiqom
> damo and thereby take revenge out of the hands of people who can feel
> vengeful and elevate it to HQBH's hanhagah of the universe.

Where do you get that?  We say HYD because we're not able to.


> "Keil qanah"
> no more refers to revenge than Av haRachamim refers to actually feelings
> of mercy.

But when we ask Him for mercy we mean it literally.  And when we ask Him
for vengeance we mean it just as literally.


> This is why writing VelaMeshumadim, the berakhah that evolved into
> VelaMalshinim required Rabban Gamliel to find the one person capable of
> writing it.

They were still Yehudim.


> All this ties back to your denial (2-1/2 years ago) of the position of a
> dozen or so baalei mesorah about Chatzi Hallel on the 7th day of Pesach
> and "maasei Yadai tov'im bayam, ve'atem omerim shirah?"

I reject it because the gemara in Megillah *explicitly* rejects it, and
attributes this shita to Haman Harasha, in opposition to Mordechai's
shita.  


> The drowning of the Egyptians is an event that all of the above tell us
> to face with ambivalence.

And the gemara tells us explicitly *not* to.


> If you could accept that rov acharonim follow maamarei Chazal that call
> for us regretting the need for our enemies to die

That is not true at all.  Even those who quote it don't necessarily agree
with it, and they do *not* constitute anything like a rov.


> you wouldn't have
> this notion that we want or like revenge. Our simulatenous joy at seeing
> justice restores to the world doesn't qualify as vengeful.

If that were true, we would pray for "tzedek", not for "nekama".
We would say "Hashem yishpot", not "yikom". 

-- 
Zev Sero                      The trouble with socialism is that you
z...@sero.name                 eventually run out of other people?s money
                                                     - Margaret Thatcher

On Thu, Feb 18, 2010 at 12:40:16PM -0500, Zev Sero wrote:
: Micha Berger wrote:
: >You are confusing the need for justice with revenge.

: Revenge *is* justice.

This is very wrong. Retributive Justice is only one theory of justice.
http://plato.stanford.edu/entries/legal-punishment/#LegPunJus has a
better discussion than I could bother producing.

...
: >We say Hashem yiqom
: >damo and thereby take revenge out of the hands of people who can feel
: >vengeful and elevate it to HQBH's hanhagah of the universe.

: Where do you get that?  We say HYD because we're not able to.

Where do you get that?

: >"Keil qanah"
: >no more refers to revenge than Av haRachamim refers to actually feelings
: >of mercy.

: But when we ask Him for mercy we mean it literally.  And when we ask Him
: for vengeance we mean it just as literally.

No we don't. We do not ask for G-d to have a middah He doesn't have. We
ask for him to act in a way that a human being would act when feeling
merciful.

But more than that, the word "neqamah" isn't limited to revenge.
See Sanhedrin 92a, where we see that Hashem's neqamah is only great
because of its positive effects, not because revenge is a good thing.
(See also the Maharsha ad loc, who writes that Divine Nekamah involved a
unification of Chesed and Din.

: >This is why writing VelaMeshumadim, the berakhah that evolved into
: >VelaMalshinim required Rabban Gamliel to find the one person capable of
: >writing it.

: They were still Yehudim.

Oyvei amekha too?

: >All this ties back to your denial (2-1/2 years ago) of the position of a
: >dozen or so baalei mesorah about Chatzi Hallel on the 7th day of Pesach
: >and "maasei Yadai tov'im bayam, ve'atem omerim shirah?"

: I reject it because the gemara in Megillah *explicitly* rejects it, and
: attributes this shita to Haman Harasha, in opposition to Mordechai's
: shita.  

Yes, you know better than Maran Beis Yoseif et al. You're being either
Adar-esque or off the derekh if you think you know the masqanah of the
gemarah better than everyone I named. It would seem the gemara says that
reason alone is insufficient, not that it's untrue. I'm not even asking
you to except their sevara. Rather, only that if the BY considers the
assumption that we feel bad for the need for Mitzriyim to die to be
an acceptable part of his sevara, you should acknowledge that assumption
as being part of Yahadus.

But you won't, we were through this before. And if a dozen mar'eh
meqomos don't prove the point, nothing else will.


Back on topic -- that error feeds this one, as well as your limited
sense of what justice can be based upon. 

Tir'u baTov!
-Micha

-- 
Micha Berger             One doesn't learn mussar to be a tzaddik,
mi...@aishdas.org        but to become a tzaddik.
http://www.aishdas.org                         - Rav Yisrael Salanter
Fax: (270) 514-1507

RZS:
> You omit "et benei amecha". That is not an afterthought, it is the most
> important phrase in that pasuk. We do *not* aspire to rid ourselves of
> the desire for revenge; we are not Xians. What we do aspire to, is to
> gain such over control that desire that we can turn it off when it comes
> to "benei amecha".

Point one: Am Yisroel's internal relationship 


The meta-halacha here aiui is simple

We are one people one big family

That's why we need to be kind to each other
Love one another
Not say LH about each other
Not charge interest to each other
Not avenge each other [with some extreme exceptions]
If "banim atem Lashem"
Then we are after all like siblings and should go out of our way to care for each other.


To me the concept of mamleches kohanim v'goy kadosh is a major
meta-halachic principle, to create a JUST and HOLY Society. This is - in
my hashqafa -paramount. [Note ethics is insufficient, q'dusha counts, too]


Point 2 re: Nochrim

Exactly how these niddos should be used against nochrim is beyond this
post. I can feel for both RZS' povand RMB's pov as both having merit.


Point 3 prison vs. Capital punishment 

I'm not so sure tat substituting if life-inprisonment for execution
is unjust. One COULD argue that permanent exile is tantamount to
execution. Certainly there mst be aggados and midrashim that suggest this.

Parallel: recall that Elifaz was under orders to execute Yaakov avinu
and Yaakov gave him his possessions instead becuase being impoverished
is tantamount to being dead. Also ki meisu ho'anashim hm'vakshim es
nafshecha, Dassan and Aviram were NOT literally dead, either.

OTOH when missas BD is called for, galus would NOT suffice halachically
speaking. For me it's almost a toss-up.

Tangent:
RMB:
> of the position of a
> dozen or so baalei mesorah about Chatzi Hallel on the 7th day of Pesach
> and "maasei Yadai tov'im bayam, ve'atem omerim shirah?"

IIRC the Midrash Rabbah has a different girsa re: this story that does
out a different spin on it. If anyone has a MR handy - plz verify.

KT
RRW
Sent via BlackBerry from T-Mobile

At 12:10 PM 2/18/2010, Micha wrote:

>On Tue, Feb 16, 2010 at 04:49:22PM -0500, Prof. Levine wrote:
>: The end of the post at
>: 
>http://parsha.blogspot.com/2009/06/do-gentiles-have-more-
>teeth-than-jews.html
>: says,
>:
>: "But how can they [the gedolei Yiaroel] really judge this, when they
>: likely would not recognize all the places that Chazal's statements
>: diverge from science, and quite possibly are not familiar with all
>: the relevant sources, not really caring that much about the
>: intersection until it becomes a hot-button issue? ...
>
>"They don't care that much about the intersection..." Now, assume that's
>beshittah, and perhaps that's the answer to your question. The don't see
>the need for a correspondane between reality and halakhah that you're
>taking for granted.
>
>IOW, it's more relevent that Chazal said they have more (or fewer)
>teeth than whether or not they actually do.
>
>Tir'u baTov!
>-Micha

But many things in halacha depend upon a knowledge of science and 
mathematics. You posted in my name all of the topics that R. 
Yehonasan Eybeshutz listed as being important for Torah 
learning.  There are also the statements of the GRA about secular 
knowledge and its importance for Torah.

How can they ignore this? And, how could one think to ask anyone with 
this attitude a sheila about something that requires scientific 
knowledge for a full understanding of the issues involved?

I have read that Reb Yisroel Salanter spent time in libraries 
researching various topics. I believe that Reb Moshe Feinstein often 
asked experts about facts related to medical and other issues. If 
they are not concerned about reality, then what do they think they 
are doing? Paskening for a "virtual" world!

YL
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On Thu, Feb 18, 2010 at 03:36:13PM -0500, Prof. Levine wrote:
: But many things in halacha depend upon a knowledge of science and 
: mathematics...

However, you don't have proof that this knowledge is more fundamental to
halakhah than claims from Chazal about how the world ought to be. What
the tooth thing would show is that regardless of how the world /is/, the
fact that Chazal feel that 33 teeth better describes how the world
should be is more relevent to how we should act.

The rest of your post is simple Torah-and vs Torah-only, and by now we all
(but the newcomers) know both sides' arguments quite well.

-Micha

-- 
Micha Berger             "'When Adar enters, we increase our joy'
mi...@aishdas.org         'Joy is nothing but Torah.'
http://www.aishdas.org    'And whoever does more, he is praiseworthy.'"
Fax: (270) 514-1507                     - Rav Dovid Lifshitz zt"l

R' Micha Berger wrote:
> They don't see the need for a correspondane between reality and
> halakhah that you're taking for granted.
> IOW, it's more relevent that Chazal said they have more (or
> fewer) teeth than whether or not they actually do.

Alternatively, perhaps they do need that correspondence, but they define it
differently than we might presume. I remember a discussion here, perhaps it
was about spontaneous generation, or maybe about killing kinim on Shabbos,
or maybe it was the same discussion. Anyway, IIRC, Chazal said something
wasn't alive, but we feel that it obviously IS alive, and the "davar
hashlishi hamachria" was that things which are too small to see are alive
biologically, but their life has no halachic significance.

Maybe something similar is going on here. Perhaps Chazal knew that men and
women are born with the same number of teeth, but that wasn't significant.
Perhaps the point which Chazal cared about is how many teeth men and women
*have* -- in the present tense -- in practical reality, after losing some
teeth for whatever reasons. Or some other explanation which jives with
reality, but not that they didn't care about reality.

Akiva Miller

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*Yoma^] (23a): *Any scholar who does not avenge himself and bear grudge 
like a snake is not a real talmid chachom. But doesn't the Torah 
(Vayikra 19:18) prohibit bearing grudges or taking revenge? The answer 
is that the Torah prohibition only applies to monetary matters. Support 
for this in found in the following teaching. Prohibited revenge occurs 
when a person asked to borrow tools from a neighbor and was refused. If 
the neighbor then asks to borrow tools from him on another occasion and 
he refuses because he had been refused by the neighbor---that is 
revenge. Prohibited bearing of grudge occurs when a person asked to 
borrow tools from a neighbor and was refused. If the neighbor then asks 
to borrow tools from him on another occasion and he responds: "I will 
lend it to you because I am not like you"---that is bearing a grudge. 
But doesn't the prohibition also apply in cases of personal insult as it 
was taught: Those who have been insulted and yet do not insult in 
revenge....they that love Him shall be as the sun in its might? That 
refers to a person who was insulted and yet does not respond---even 
though he still bears grudge. However Rava stated that whoever forgives 
those who insult him has all his sins forgiven? Rava is referring only 
to the case where the one who insulted him has asked for and received 
forgiveness for the insult. Therefore the prohibition only applies to 
monetary matters

*Minchas Chinuch^ **(241:1): Do not take revenge - *Look at the Rambam 
(Hilchos De'os 7:7). However in Yoma (23a) it explains that this 
prohibition only applies in monetary matters but not matters involving 
bodily pain there is no prohibition of not taking revenge or not being 
spiteful. In the case of bodily pain it is only an act of piety not to 
hold a grudge. But the Rambam and also the Chinuch omit mentioning of 
this distinction and in fact it appears that they hold that one 
transgresses the prohibitions in all cases and this is a contraction to 
the gemora. Also look at the Rambam (Hilchos Talmid Torah 7:13) where he 
states that a talmid chachom that has been publicly embarrassed should 
take revenge and hold a grudge. See also the Kesef Mishna and the Lechem 
Mishna. Nevertheless no one commits a sin for taking revenge for 
personal suffering. I found in the Semag (11-12) who states that for 
personal suffering one does not transgress the prohibition of revenge 
and that this is learned from Yoma (23a). Therefore the question remains 
why the Rambam and the Chinuch apparently rule contrary to the gemora.

*Shabbos^ **(63a): *Reish Lakish said: Even if a talmid chachom is 
vengeful and bears a grudge like a serpent -- cling to him because [you 
will benefit from his learning -- Rashi], in contrast even if an 
ignorant person is pious -- do not dwell in his vicinity [because his 
piety is faulty and you end up learning from him -- Rashi].




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On Thu, Feb 18, 2010 at 11:09:35PM +0200, Daniel Eidensohn wrote:
: *Yoma^] (23a): *Any scholar who does not avenge himself and bear grudge 
: like a snake is not a real talmid chachom. But doesn't the Torah 
: (Vayikra 19:18) prohibit bearing grudges or taking revenge? ...

As you cite the Minchas Chinukh quoting Hil Dei'os 7:7, this is for
public humiliation, and has to do with defending HQBH's honor, not
"revenge". See the Kesef Mishnah ad loc, who ties the berabbim to
this explanation.

As I wrote, neqamah is a broader concept than revenge.

The rishonim discuss this gemara by contrast to Megillah 28a, where Mar
Zutera forgives everyone who wronged him before going to sleep.

The Maharsha says as the gemara here explains Rava's position -- this is
only those who asked Mar Zutera for mechilah.

The Ritva finds this problematic, as Mar Zutera was chayav to forgive
them immediately when they asked. He writes similarly to the Rambam,
that the gemara here is speaking of slights to him as a representative
of Torah. Mar Zutera forgave personal slights.

Then there is Shabbos 88b:
    hane'elavim ve'einam olvin
    shom'in cherpasan ve'einan meishivin
    osin mei'ahavah usemeichin beyisurin
    aleihen hakasuv omeir,
        "ve'ohavav ketzeis hashemesh bigvuraso"!

Tir'u baTov!
-Micha

-- 
Micha Berger             Feeling grateful  to or appreciative of  someone
mi...@aishdas.org        or something in your life actually attracts more
http://www.aishdas.org   of the things that you appreciate and value into
Fax: (270) 514-1507      your life.         - Christiane Northrup, M.D.

RRW:
> IIRC the Midrash Rabbah has a different girsa re: this story that does
> out a different spin on it. If anyone has a MR handy - plz verify.

See Midrash Rabbah
B'shalach 23:7 the story re: "Bikshu Mala'chim Lomar Shirah" is quite
different

The night BY crossed..
Bikshu 1 Amar HKBH
Ligyonosai n'sunim batzara...?

V'Keivan she'yatz'u
Bikshu 2 Amar HKBH yakdimu banai t'chilah

Ayein sham

GS
RRW
Sent via BlackBerry from T-Mobile

<<"They don't care that much about the intersection..." Now, assume that's
beshittah, and perhaps that's the answer to your question. The don't see
the need for a correspondane between reality and halakhah that you're
taking for granted.

IOW, it's more relevent that Chazal said they have more (or fewer)
teeth than whether or not they actually do.>>

Except that in many cases these questions have practical questions.
Without attempting a complete list whci would be very long some sample examples
debated by many include

can a pregnant woman menstruate?
Can a 8th month fetus live?
How old of a cow can give birth?
health of a baby after being born and making hot water on shabbat

Even on non-halachic issues many have struggled with gemarot that
incorrectly give the anatomy of a woman's uterus area or the separation of
a man's semen and urine tracts etc. Certainly CI did not simply
dismiss the issue by declaring that modent anatomy is irrelevant


-- 
Eli Turkel

<<I am searching for the earliest and most authoritative sources that
advance this principle. IIRC there is a Rosh on this. Any more sources
from Shas and Posqim that establish this principle even outside BD?>>

I believe there is a long Maharatz Chajes that strongly disagrees and says that
rov does not apply outside of bet din. i.e. we dont pasken by taking a majority
of shitot (which shitot would be included?)

-- 
Eli Turkel

On Fri, Feb 19, 2010 at 01:03:10PM +0200, Eli Turkel wrote:
: I believe there is a long Maharatz Chajes that strongly disagrees and says that
: rov does not apply outside of bet din. i.e. we dont pasken by taking a majority
: of shitot (which shitot would be included?)

OTOH, I see from the intro to the SA, in contrast to what R' Yoseif
Caro actually does, that acharei rabim lehatos does have some weight in
deciding halakhah. But even the SA doesn't say it is a deciding factor.
Otherwise there wouldn't be so many cases where the SA takes the mi'ut
position among his triumverate.

That's where I came up with the notion that pesaq is a heuristic process
(in the computer science sense of the term); most of the rules are
rules of thumb, and where they produce conflicting priorities, it takes
shiqul hadaas to decide between them. The SA's haqdamah and its rule
about pasqening according to the triumberate is clearly a loose rule,
not a hard algorithm.

See the 2nd shitah in Tosafos, Eiruvin 6b, which deals with the conflict
between the tanur shel achnai story where we apparently ignore the bas
qol, and "eilu va'eilu divrei E-lokim chaim vehalakhah keBH"  -- where
we DO listen to the BQ. Tosados's first answer says that the BQ saying
that R' Eliezer is correct was for the kavor of R' Eliezer. It doesn't
mean it's halakhah. (I think they mean that since R' Eliezer called down
a raayah for Shamayim, likhvodo HQBH showed that his words were "Divrei
E-lokim Chaim". But said nothing about pesaq.)

The second answer says that the whole point of the BQ saying "halakhah
keBeis Hillel" was to affirm the authority of the larger school. And we
listen to the BQ only because we ought to have pasqened that way by
halachic process anyway.

Why did we need confirmation? Perhaps Tosafos are saying that the whole
point of the bas qol was to say that acharei rabim lehatos has authority
even outside of nimnu vegamru.


R' Shimon Shkop, in Shaarei Yosher (sha'ar 3), discusses how we learn the
various forms of rov from acharei rabim lehatos. The pasuq is about BD,
and yet we apply rov for birur and for bitul. RSS says that there are
two kinds of rulings in BD:

When two people come with a question in Choshein Mishpat, one person
owes the other money whether or not BD reaches a conclusion. There role
is to determine the metzi'us. In the case, the rov dayanim create a
kol deparish meiruba parish -- and we assume the metzi'us follows the
conclusion of the rov.

However, WRT oneshim, the BD creates the chiyuv. In that case, the mi'ut
is bateil to the rov, as the BD as a whole creates the chiyuv despite
containing dayanim who disagreed.

Benidon didan, I would like to add...
It would seem that we can only learn deruba deleisa leqaman from acharei
rabim lehatos only IFF there were cases of hora'ah that involved a rov
that couldn't stood up and be counted.

:-)BBii!
-Micha

-- 
Micha Berger             For a mitzvah is a lamp,
mi...@aishdas.org        And the Torah, its light.
http://www.aishdas.org                   - based on Mishlei 6:2
Fax: (270) 514-1507


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