[Avodah] Some thoughts on Shemonah Perakim

[Yitzhak Grossman]

On Fri, 21 Nov 2008 11:47:57 -0500
Micha Berger <micha at aishdas.org> wrote:

...

> I didn't say you intended to mislead, just that it does mislead, and in
> fact, I approached the whole topic with a false assumption about where
> you were going. I think I would have avoided offending you had I written
> "I was misled, and I think I wouldn't be alone".

As I wrote to RMB off-list, God wrote (or caused to be written)
"na'aseh adam", even though the phrasing allows for heretical
misinterpretation, because He had a point to make.

...

> It is clear R' Uziel writes in terms of the case at hand:
> > Rav Toledano apparently felt that the desparate circumstances of such
> > children born out of wedlock should motivate the Posek to find a basis
> > for obligating the putative fathers to support them, in spite of ...
> > the earlier precedents...
> 
> That it's an issue of "vedal lo tehedar berivo". The question is whether
> that's R' Uziel's only point, or is he saying something beyond cases of
> competing litigants.

I'm not sure if we're really disagreeing at this point.  I agree that
distortion of Halachah is completely unacceptable, and you agree, if I
understand you correctly, that there's an additional problem when the
judge is partial to a litigant and attempts to manipulate the Din in
his favor.

> Because of the title line, I was predisposed to find such things in
> R' Uziel's words, so perhaps he doesn't. (A partial retraction of my
> earlier email.) I see the paragraph beginning "Sanhedrei gedolah" to be
> an argument for a more objective attitude toward halakhah in general,
> not just in cases of two litigants. A search for amitosan shel hadevarim,
> yiqov hadin es hahar, even though ein ladayan mah she'einav ro'os. Even
> though the paragraph has the words "baalei din", the argument has
> nothing to do with it. It's a straightforward statement of an obligation
> to get as close to Truth as possible.

I agree that Rav Uziel is also exhorting the reader toward objectivity
in Halachah in general, but I don't accept that his argument has
"nothing to do" with adversarial proceedings, since he constantly
interweaves Biblical and Rabbinic dicta concerning Din into his
discussion. as I have argued.

...

> I don't understand R' Zevin's citation of RYESpektor, since the gemara
> already singles out hataras agunos as one of the few special cases, and
> therefore I don't see how it can be proof of what to do in general. Just
> as citing an example of a din Torah between two parties can't be used as
> a proof for objectivity in general.

To which Gemara do you refer?

...

> As for whether he refers to "a broader spectrum of Agunah" rather than
> the derabbanan case -- actually, of real agunos, nearly all cases of
> question are derabbanan, particularly once the telegraph was invented.
> As for mesarvei get, there one gets into deOraisos, but ones caused by
> "kol hameqadeish..." and therefore gives chakhamim some power as well.

Rav Zevin refers to "misas ha'ba'al, gitin, kiddushin, sotah, etc."  It
seems to me that these encompass many situations of De'oraisa, unless
Rav Spektor's lenient tendencies are limited to those cases where there
is at worst only an Issur De'Rabbanan.

> But regardless of how we justify Chazal having the power to say "search
> for ways to avoid an agunah", they do. And so RYES's attitude toward
> agunos could be explained entirely by the gemara's known statement that
> hataras agunos is one of a few special cases. For that matter, because
> Chazal have a need to give this rule WRT agunos, eiruvin, perhaps a
> subsection of mamzeirus (any other cases?), I would actually conclude
> that the general rule in the rest of Torah is not to engage in this kind
> of seeking!

Again, which statement?
 
> : I do concede that the matter is not quite as simple as I originally
> : claimed, since, as RMSS pointed out to me off-list, Rav Uziel does
> : mention the illegitimacy of distorting the Halachic process to be
> : lenient in a question of bastardy. which certainly seems to be an issue
> : Bein Adam Le'Makom.  Nevertheless, I stand by what I said, that his
> : primary concern seems to be the unfairness of non-neutral application
> : of Halachah to one litigant's detriment.
> 
> And I would say he is addressing that case, where the argument is
> stronger, but is mentioning along the way that hunting for leniency is
> wrong in general (except for a couple/few special topics, as per above).

Once again, we do not diverge that widely anymore, although I
(following Rav Zevin) don't accept your distinction between Agunos and
the rest of Halachah.

> Micha Berger             For a mitzvah is a lamp,

Yitzhak
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