[Avodah] Hypocrisy in halakhah

[Micha Berger]

On Sun, Nov 02, 2008 at 6:15am GMT, R Elazar M. Teitz wrote:
: In the opinion of many Rishonim, the cherem d'Rabbeinu Gershom is
: not applicable bimkom mitzva, of which two examples are mentioned by
: the RM"A in EH 1: yibum, and one who has been married ten years without
: children. It would be extremely odd if the takana was made as a result
: of Rabbeinu Gershom's personal experience, yet did not apply in that
: very circumstance.

Well, it didn't apply then anyway, because (according to the story)
R Gershom made the charamim after it occured.

Perhaps he just realized the pain, and wanted to eliminate it where
possible. Because there is a din that would be contavened by the taqanah
in the case of a childless couple who were married 10 years, he simply
felt he shouldn't address the case that brought the whole matter to
his attention.

Li nir'eh, though, the taqanah was about something else. Not that we
necessarily wanted to assimilate Xian marriage ethos, but in reflection
of the fact that we already did. IOW, once the norm and expectation was
to have a monogynous marriage, Rabbeinu Gershom might have felt that the
few violations still left were cruel to the wife who came to be expect /
assume exclusivity.

This portrays the change as being a change in din reflecting a change
in realia, rather than changing the din to reflect a change in desired
morality. Which brings me back to the original topic (and which is why I
returned to the original subject line).

On Thu, Oct 30, 2008 at 7:17pm EDT, Rich, R Joel replied to my post:
:> The phrase "our understanding of the Torah's ethos" isn't the same thing
:> as claims that it was in response to not liking the racism we saw in the
:> mirror of that expressed against us. You're again teetering very close
:> to Historical School.
...
:> You do what halakhah tells you to do. If it seems unfair... then it's
:> a matter of learning how one's instincts are wrong. Not simply ch"v
:> rewriting din in response to prevailing moral zeitgeist.

: I think we've been down this road a number of times before. The
: statement "You do what halakhah tells you to do" is true but not
: complete since a posek has to decide what the halacha is and there is
: not an algorithm that gives one and only one answer irrespective of who
: is asked to give the psak.  In fact it is the "instincts" (lev shel
: torah etc.) that we rely on.  

How about:
You do what halakhah tells you to do, which is a range of eilu va'eilu
which you must winnow using "leiv shel Torah" and other "fuzzy-edged"
considerations?

In either case, my objection to the notion that the halakhah was tweaked
due to an import of enlightenment liberalism/humanism stands. It could
be, as RSRH said about Schiller, that the enlightenment shined a light
on values already expressed in the Torah that were being neglected.

Or, in parallel to the answer I gave above, it could be that the
enlightenment, by changing their attitude toward us (and making ovedei AZ
less frequent in relation to less problematic beliefs than they were),
changed the metzi'us to the point that a different pesaq applied. This
wasn't a shift from a shitah being accepted only by a mi'ut to becoming
that of rov poseqim as much as a new pesaq for a new situation.

Tir'u baTov!
-Micha

-- 
Micha Berger             I slept and dreamt that life was joy.
micha at aishdas.org        I awoke and found that life was duty.
http://www.aishdas.org   I worked and, behold -- duty is joy.
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