Avodah Mailing List

Volume 34: Number 148

Mon, 14 Nov 2016

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Subjects Discussed In This Issue:
Message: 1
From: Micha Berger
Date: Sun, 13 Nov 2016 11:19:54 -0500
Re: [Avodah] how to pasken

On Sun, Nov 13, 2016 at 5:55pm IST, R Eli Turkel wrote:
:> One of the cornerstones of halachic practice and Jewish law is
:> "mesorah" the tradition passed on from one generation to the next.
:> Naturally Ashkenazim throughout the generations followed the psak of
:> the Rama which is based on the traditions of the lands they came from.
:> The same is true for Sefardim.

: This is true for Orach Chaim and much of Yoreh Deah  and much of
: Even Haezer. It does not seem to be true for Choshen Mishpat and parts of
: YD and EH

Well, CM is defined mostly by what the two parties agree upon. So social
norms have FAR more room to influence outcome.

One of the two meanings of "minhag mevatel halakhah" is the CM usage,
that if both parties expect a qinyan to occur, or do not expect one,
(or one party to have acharyus, or...) that could mean more than whether
by default halakhah, it would.

Tir'u baTov!

Micha Berger             It is our choices...that show what we truly are,
mi...@aishdas.org        far more than our abilities.
http://www.aishdas.org                           - J. K. Rowling
Fax: (270) 514-1507

Go to top.

Message: 2
From: H Lampel
Date: Mon, 14 Nov 2016 00:41:34 -0500
Re: [Avodah] Geonim, Rambam and Other Rishonim on Mesorah and



> Pashut peshat in Chazal is that machloqes is understood in these

> terms as well.


> "Eilu va'eilu divrei E-lokim, vehalakhah keBH."

You take it as '' pashut peshat''that ''divrei E-lokim chaim''means 
''true [despite being contradictory],'' butthe rishonim I will cite 
below hold that what you consider ''pashut peshat'' is not correct peshat.


You invoke the Maharal, but the Maharal (be'er HaGolah, be'er rishon) 
explains that halacha is like Hashem's creations. He gives the example 
of a tree. It is composed of all four elements, but there is an 
overriding one that determines that it is a tree. In halacha, too, he 
says, although there are properties [in things or situations] that point 
to divergent conclusions, ''only one of them is the main, overpowering 
one, and that is the determining factor, and that is the halacha.'' 
(''V'chein, af sheyeish l'davar echad bechinos mischalafos--kulam nitnu 
min Hashem, /rak ki echad mei-hem yoseir ikkar, v'hu hamachria, v'hu 

That Maharal is explaining ''kulam mi-ro'eh echad nitnu.'' ''Eilu 
v'Eilu,'' he maintains, implies that the determining components are 
actually present in equal strength. He says that this is ''sometimes'' 
the case, and such was the case regarding the disputes of Beis Shammai 
and Beis Hillel concerning which the Bas Kol declared that there was no 
machria. Even if you consider this to be supportive of your view (I 
don't), the Maharal applies this to a limited amount of cases, and does 
not make it into the general rule as you do.


You haven't addressed my point that every Gemora's kushya, or at least 
every tiyuvta-tiyuvta, is assuming the Law of Non-Contradiction. If 
Aristotle was wise enough to recognize the truth of this logic, that is 
to his credit. But it is a logic that everyone from Adam to Moshe 
Rabbeynu and on has been expected to use to determine truth. Chazal 
taught the Sinaitic rule that if two pesukim are in contradiction, a 
third one comes to qualify them, to add conditions to one or both of 
them so that they no longer contradict.


Despite what one may think ''pashut peshat'' of ''kulan Kel echad 
amran'' is, Rashi (Chagigah 3b) explains it to mean ''you don't have any 
of the disputants bringing a proof from any god's torah, only from the 
Torah of our G-d.''Parness echad amran'': You don't have anyone bringing 
a proof from the words of a prophet who came to argue against Moshe 
Rabbeynu.'' That's the characterization Rashi gives to the many 
divergent opinions among the chachamim. Not that they are ''all true.''

When Rashi (Kesubos 57a) explains eilu v'eilu by saying /sometimes/ this 
consideration is appropriate and /sometimes/ that one is, because the 
considerations change over according to /slight changes in 
circumstances/, he is working with the logic that ''2 or more 
contradictory statements cannot both be true in the same sense at the 
same time not (A and not-A).'' And that is why he says that if there two 
Amoraim are arguing over what their mentor held, one of them is saying 
''sheker,''and we /cannot/ apply ''eilu v'eilu divrei Elokim Chaim'' to 
such a situation.

When TOSEFOS on the same daf says that if there two Amoraim are arguing 
over what their mentor held, one of them ''erred,'' it is because he is 
working with the logic that ''2 or more contradictory statements cannot 
both be true in the same sense at the same time not (A and not-A).''

When RITVA on the same daf quotes Rashi as the correct peshat, it is 
because he too is working with the Law of Non-Contradiction .(Yes, the 
same Ritva who elsewhere quotes the kabbalistic teaching about Moshe 
being told 49 considerations pointing to opposite conclusions,  but who 
concludes that ''that is correct by way of drash, but in the derech 
ha-emes there is ta'am v'sod ba-davar.'' And pardon me, but I cannot 
accept that any one of us can decipher what he means, either in the 
beginning or the end.)

RAMBAN on Devarim 17:11 says that one should not be afraid to follow 
Beis Din Gadol even if one thinks they erred, and that one must accept 
the interpretation of pesukim by the Great Sanhedrin of Yerushalayim 
whether they received it from Moshe from Hashem, and whether they say it 
is so according to the mashmaos or intent of the mikreh. He is working 
with the assumption that the mikreh has a specific intent that is 
subject to error.

TOS RABBEYNU PERETZ (Eruvin 13b)begins by taking eilu v'eilu as you do, 
but cannot accept it because it is illogical. "If something is assur it 
cannnot be muttar, and if something is muttar it cannot be assur." He 
too is working with the Law of Non-Contradiction. He therefore concludes 
that Eilu V'eilu merely means that one must follow the chachmei hador. I 
take it that he means that both shittos of a machlokess are worthy of 

SEFER HACHINUCH states that by commanding us to follow the majority 
opinion, the Torah teaches us the fact that the majority opinion will 
always conform to the truth more than the minority.

> Yerushalmi Sanhedrin 4:2 (a similar passage in Tractate Sofrim

> 16:5): R' Yanai said: Had the Torah been given decided, we wouldn't

> have a leg to stand on. Where? "And Hashem spoke to Moshe." He said

> before Him: Master of the World, tell me what is the halakhah. He

> responded "Decide according to the majority...." So that the Torah be

> interpretable 49 ways tamei and 49 ways tahor.

I don't have peshat in why we would be at a disadvantage if we were 
explicitly given a pesak for each and every situation that may arise. 
Probably the thought is that it would be beyond out ability to carry all 
those details and instead we were given klallim through each situation 
could be halachically solved. This does not contradict the fact that 
there is a correct conclusion to reach for.


> And then there's the problem of explaining the Tanur shel Akhnai

> story if we're seeking the One True Pesaq. We got the siyata

> diShmaya; if it was telling us the One True Pesaq, how could we

> possibly choose rabbim over siyata diShmaya?

The object is to uncover the original intent, but Hashem in His wisdom 
imposed upon us the requirement that our endeavor to do so must be 
restricted to what we can arrive at through our own  minds' use of the 
interpretive tools he gave us, and not through any new revelations. 
Heavenly revelations are no longer valid for determining halacha.Why 
then was there a bas kol by tanur shel Achnai? Among the explanations 
given are two by Rav Nissim Gaon ( (Brachos 19b). (1) When the Bas Kol 
declared the halacha follows R. Eliezer b'kall makom, it meant usually, 
but not necessarily here, or someting similar. (2) It was a test for the 
Chachamim to withstand the temptation to transgress the principle of lo 
bashamayim hee, similar to when Hashem grants a false prophet the 
ability to perform a miracle (or the appearance of one).

> ...


To support your take that --

>Divrei Elokim Chaim is described as going beyond the Law

> of Contradiction. Majority opinion isn't advocated as a way of

> maximizing the chance of getting the One Right Answer, but the given

> methodology for picking /a/ right answer.

--you invoke the RAN, and cite RMH's translation, which ends

Yet [God] also gave him a

> rule whose truth is manifest, i.e., 'Favor the majority

> opinion'....as the sages of that generation saw fit, for the decision

> had already been delegated to them...

I feel frustrated because in my last post I already pointed out that 
this is a mistranslation, and the correct translation contradicts the 

The last sentence reads, in Hebrew,

/aval massar lo klall yivadda bo ha-emmess/.

Translating  ''klall yivadda bo ha-emmess'' as  ''a  rule whose truth is 
manifest'' is wrong, changes the meaning,. The correct translation is

  But [God] gave him a rule /through which one knows the truth/, 'Favor 
the majority opinion'...

And the context removes all doubt that the Ran explicitly denies that he 
is referring only to ''Emes leHoraah.vs Emes leAmito. To wit (and this 
is again something I already cited last time but repeat again.

In Drash 5 and 11 the Ran poses a quandary:

Since the words of those who declare something tamei and those who ?

declare it tahor are intrinsically contradictory, it is impossible for ?

both sides of the dispute to be conforming to the Truth. How then could ?

we say that they were both told to Moses by G-d? Does G-d have any ?

doubts as to what the Truth is?!

And he then suggests the approach that the sages only established ''Emes 
leHoraah.vs Emes leAmito." But he then goes on to  reject it for the 
overwhelming majority of cases:

Now, this approach will satisfy those who hold that there are no reasons ?

behind the mitzvos at all and that they all simply follow the ?

?[arbitrary] Will of G-d .... But we do not choose this approach. /We ?

believe that everything the Torah warns us against is indeed ?

?[intrinsically] harmful to us, and creates a negative imprint on our ?

souls, even though we may not know the mechanics behind that process. ?

Therefore, if the consensus of the Sages is that something [that is ?

tamei is] tahor, so what?!/ Won't it still harm us and produce its ?

natural effect, whatever it is? ?...It would therefore seem that we ?

preferably /should/ follow the revelation of a prophet or Bas Kol, which ?

would tell us the true nature of the thing.?

The Torah took means to prevent a misfortune that can always arise, and ?

that is the divergence of opinions and the creation of machlokess, ?

almost creating a situation of two Torahs. The Torah's remedy for this ?

ever-present danger was to hand over to each generation's Sages the ?

right to resolve halachic questions. /For in the majority of cases this ?

will result in both a remedy [of the problem of machlokess] and the ?

correct decision/.... And even though there is the extremely remote and ?

practically absurd possibility that they may make a mistake, the Torah ?did

not concern itself with that remote danger. The risk is worth taking for ?

the benefit accrued.?

So the Ran's take is that as a rule ''Divrei Elokim Chaim'' does /not/ 
go beyond the Law of Contradiction. He /does/ advocate majority opinion  
as a way of  maximizing the chance of getting the One Right Answer, and 
does /not/ merely advocate it as the given methodology for picking /a/ 
right answer.

Down to the Yam shel Shlomo, who wrote (Introduction to Bava Kamma) 
''Never did two opposite predicates for one subject escape the lips of 
Moshe'' (''shelo yatza hadavar mipi Moshe l-olom lihyos shnei hafachim 
b-nosei echad''), and the acharonim, the various explanations of ''eilu 
eilu'' avoid conflict with the Law of Non-Contradiction.

So as far as the consensus of rishonim is concerned, I'm making my case 
from Rashi, Tosefos, Tos. Rabbeynu Peretz, Ramban, Ritva, the Ran and 
Sefer HaChinuch. That's 8 rishonim. Do you have 9 that say otherwise?

Zvi Lampel

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