[Avodah] Sephardi-ism: some food for thought

[Micha Berger]

On Tue, Nov 25, 2008 at 11:16pm EST, R Richard Wolpoe wrote:
: Bet Yosef, Kar hachaim and ROY all list as many opionions as they can.  It
: is one of my criticisms of MB that at times he cherry picks an opinion.

This is only a gripe with the MB because usually he doesn't. And in fact
both his title page and his haqdamah say that this survey of shitos is
the whole point (or at least a primary point, to avoid some long-stanging
debates) of the book.

Otherwise:
: This is why many Saphardic chachamim seem to feel ashkenaziim are not
: playing straight because they list sources suporting their theses and often
: omit those that do not fit the paradigm.

: Now that does not mean all Seaphrdic methods are better.  Ashkenazim excell
: in getting to the underlying sevara and tend to be more analytical than
: encyclopedic...

IOW, the Sepharadim are complaining that the typical Ashk methodology is
different than theirs. More development of one idea and its justifications
than of the list of shitos.

Of course Seph methodology will rank better by Seph criteria, and
similarly most East European rabbanim would view the more lomdus-based
approach as superior. Yekkish style is its own beryah.


: Micha and I have endless debatges on Halchicc metholody. Regardles of what
: system one uses, it is nice to have a more obejctive system than a
: subjective system...

I even disagree with that. It's nice to think that humans have a more
creative role than that. I would agree that the better defined the limits
of the system are, the more useful it is. But I would hate to think that
the ideal halachic system is one with less autonomy. Subjective within
an objectively defined range of possibilities would to my mind better
balance the notion that both Hashem and the chakham participate in the
creation of pesaq.

RRW seems to be descriing a world in which someday a good peice of
software running atop the Bar Ilan CD might be a better poseiq than
any human.

: Many posqkim are imho all over the place.  One modern poseiq seemed to have
: been a devote of the Rambam in gneral, but when it came to women reading tge
: megillah he apparently advocated a Humra based upon the Magen
" Avraham...

That needn't be an indication of his being all over the place.

Perhaps he gives a lot of authority to the Rambam, but not total. IN
which case:
:                                  It is POSSIBLE that he felt it was the
: logical or correct read in this case, but it has led a lot of people to see
: this as putting subjective concerns over obejctive ones.

It's not only possible, it would be a plausible reason why in this one
case some other consideration actually got to the point of outweighing
the Rambam, even though to his system, such cases are very rare.

He could be unconsciously following very consistent guidelines, and that
"lot of people" simply are misjudging him. (I through in "unconsciously"
because I don't think any poseiq actually sits down and maps a system
and follows it.)



On Tue, Dec 02, 2008 at 10:35:44AM GMT, Chana Luntz wrote:
:> At most, what you have is not a safek but a sfek sfeka.

: Not quite sure how you get to a sfek sfeka, but that usually leads to
: greater leniency, not greater strictness.

I also await RSZ's explanation, he went faster than I followed.

However, the second part of your sentence isn't necessarily true.

Say you have a din derabbanan. Safeiq derabbanan lehaqeil. If you have
a second safeiq breaking the tzad heter on the first one, you would have
a sefeiq sefeiqa lechumera.

Until RSZ fills me in, I don't know if my example applies to what he's
describing.

...
:                                     If faced with a machmir psak *from
: any gadol whom I would not regard as my Rav or automatically follow*,
: surely I am obligated to seek out and determine whether indeed there are
: any comparable gedolim who have ruled l'heter.  Because I don't know
: that the Rav in question really held l'chumra, maybe he was only holding
: so l'safek....
:                   However, this is not usually included as one of the
: rule of ho'raah, which is one of the reasons I don't believe this is
: indeed what Rashi is saying.

Actually, in the case of a shu"t, or a seifer like the MB/BH or AhS, you
usually /do/ know whether the chumrah is mitoras safeiq, or because the
poseiq feels he identified amito shel davar.

One thing about the MB, he tends to jump to laws of safeiq rather than
trying to be mevareir the din far faster than most other sefarim.


On Tue, Dec 02, 2008 at 10:49:35PM GMT, Chana Luntz wrote:
: I am not sure that is fully true.  While shalom bayis may indeed have a
: halachic mandate, it is also (often) the matzav of the shoel that is at
: stake, ie their relationship with their spouse.   Pikuach nefesh can
: also be about the matzav of the shoel (although less often).  B'shas
: hadchak is even more likely to be so and even closer to your hefsed
: meruba example.  Think for example of the halacha that you can rely on a
: minority opinion in such a circumstance.  Horaas sha'ah is one a case
: that has generated has a certain amount of discussion on this list of
: late, in the context of women an serarah (as in, preferring an observant
: woman over a non observant man in a position of serarah).  That example
: too shows how the matzav determines the psak.

: Given the wider context, I would not describe hefsed merubah as "a
: chessed concern for the posek", but rather that the posek is, in
: formulating his psak, looking what one might call "situationally", ie at
: the shoel within his context.  But I think that all psak is really like
: that...

To me, this second paragraph sounds like you're stepping back and
blurrying important distinctions. Yes, of course the poseiq taking into
account the needs of the sho'el is situational, as is the poseiq taking
into acount the BALC requirements of the sho'el.

I would prefer keeping three things very distinct, because while they
are all situational, they are different enough to warrant different
treatment -- or to explain why they don't. "Situational" covers so much
terretory, I think it doesn't say anything.

1- A pesaq relates to a given metzi'us. In this sense, every shu"t is
a situational pesaq. It's halakhah applied to a particular metzi'us.
Whether winding is makeh bepatish relies on whether you expect to
let your baby swing unwind or not expect to let your watch unwind.
Or a pesaq about saying shema in the presence of a woman who doesn't
cover her hair could change based on whether such things are common in
your mileau or not. The issur involves violations of das yehudis, and
therefore the two cases are different in metzi'us because the culture
is part of the metzi'us.

Where there is a straight BALC concern, and the situationalism is the
metzi'us. Same thing.

2- The mitzvah that is getting the majority attention conflicts with
a BALC. This too will create situational kulos. But that's not even
really a qulah -- it's the flipside of a chumrah in a more serious din
(that happens to be BALC).

Shalom bayis doesn't motivate qulos. It's a chiyuv BALC whose chumros
happen to often outweigh kulos in the din you thought we were discussing.
Relying on kasrus heter XYZ so as not to offend the inlaws isn't motivated
by human oncerns over choices in din, but rather a chumrah in the BALC
of shalom bayis outweighing the kashrus issue.

3- What I really thought we were discussing is this third category:

The rav chooses a pesaq based on what challenges the person is willing
to face (not asking him to throw out grandma's heirloom fleishig pot
after he got milchig on it), and what xchallenges it would actually be
in his best interest to face (baal nefesh yachmir).

And within 3, I would make a chiluq between:

3a- dinim where the rav happened not to be so firmly convinced of the
chumrah (or qulah) as to apply it objectively.

3b- dinim where the rav is supposed to seek out qulah.

All this tangent started when I wrote about agunah and eiruv as cases
where chazal explicitly tell the rav to try to be meiqil.

Agunah isn't a case where the rav is necessarily choosing between the
woman's conflicting duties. Rather, hataras agunos is a case where keeping
the halakhah is a huge burden, one the rav should be trying not to impose.

I then tried overreaching twice.

First case was because I couldn't, and still can't, understand how a
rav could be asked to seek out qulah when dealing with a deOraisa. The
kulah seeking teshuvos on agunah that I've seen (that RARR led me through,
usually with the aid of a Bar Ilan CD to see it inside) seem to all be of
the form of proving it's a case of derabbanan (typicall mei'eiver layam)
and then piling up the senifim lehaqeil.

And if you believe that only deOraisos refer to ontological realities,
and deRabbanans are about pragmatic advice, then there is no problem
understanding how the rabban don't want the pragmatics to outweigh a
woman's happiness or a community's unity.

Whereas if you believe that a deRabbanan does create a spiritual "thing",
e.g. that eating of vechalav is both deRabbanan and is metamteim es haleiv,
then you can still say the original taqanah was limited to only creating
the chalos in certain cases.

I'm referring to an earlier conversation of ours of yet another RARR recording
that led to my blog post at
<http://www.aishdas.org/asp/2007/07/safeiq-derabbanan.shtml>.

But that claim is guesswork, and I couldn't defend it against questions.
I don't know enough to know if I guessed correctly.

My second overreach was when I tried adding hefseid merubbah to the (3b)
hunt for a qulah list. I don't even know why I tried that --

(i) Do we look to save people from large hefseid, or is it limited to
cases where the poseiq did the usual thing, and then simply isn't
convinced? Why did I think the former?

(ii) You can have a she'eilah in agunah or eiruv, but you can't have a
she'eilah in hefseid merubah. It's not a chiyuv or issur, it's an
attribute of a situation. Lumping them together is apples and oranges.

I would now put hefseid merubah in 3a, and now, after all this, would
re-ask which items on your list would be put there too.


Piqu'ach nefesh is more of my class 2 -- it's a second chiyuv whose
chumros outweigh the first.
I already put shalom bayis in that category in my example above.

Yes, they're situational, but only because din relates to a particular
metzi'us.

Beshe'as hadechaq is tough because it's so wide... At times it's
synonymous with "ein danin es ha'efshar mishe'i efshar" -- your least
of evils where the right thing is entirely impoa ssible.

Horaas sha'ah also requires an "eis la'asos Lashem" -- having a fine
tuned instinct for which path will cause the fewest aveiros. Again a
least of evils.

I don't think serarah for women is claimed to be a hora'as sha'ah
issue. Rather, it is potrayed as a change in culture causing a relevent
change in metzi'us. Much like Beis Yaakov. Yes, the CC used the words
"eis laasos". However, his sevara was that the original heter applied to
teaching anything necessary for her to grow up to be an observant Jew,
and that with universal secular education, that definition now includes
far more Torah than before. Same criterion, new situation, new pesaq.

SheTir'u baTov,
-micha

-- 
Micha Berger             A cheerful disposition is an inestimable treasure.
micha at aishdas.org        It preserves health, promotes convalescence,
http://www.aishdas.org   and helps us cope with adversity.
Fax: (270) 514-1507         - R' SR Hirsch, "From the Wisdom of Mishlei"