[Avodah] forums for pesak

[Micha Berger]

On Thu, May 21, 2009 at 09:44:02PM +0300, Shlomo Pick wrote:
: When one calls for changes in orthodox practices beause of za'ar and
: related issues in a public forum, you eventually get aliyot for women,
: maharit's for men and women, you get Conservative hechsherim who are
: more interested in public ethics than kashrus, you get other great things.

Well, except that a number of these things are misrepresented, and others
you're just assuming are a problem which is just begging the question.

E.g. I see nothing wrong with Hekhsher Tzedek in principle, it exists
IN ADDITION to kashrus. (In practice, it appears to be some politicallly
liberal C rabbi's attempt to define a notion of labor relations that isn't
necessarily grounded in anything Jewish.) Similarly, the Tav haYosher
offered by Uri L'Tzedek (a group of YCT students), or the Tev Chevrati
in Israel. Both appear to be more like dina demalkhusa dina audits,
but is that so terrible? (Is DDD less of a halachic issue than na"t bar
na"t of owf bechalav?)

I have no problem with yoatzot. Lehefech -- their availability has
a proven record of increasing shemiras taharas mashipachah. But your
argument would apply to them no less than a mahari"t.

I think the problem I have with RMM's presentation of RMAngel's
description of R' Uzziel's approach (somewhere along that chain) is the
conflation of a number of very different types of chessed within din.

1- In a previous iteration a couple of months back, I mentioned a
distinction between whose chessed. There is the demand of chessed from
the sho'el, such as R' Uzziel requiring a man to pay child care for
his non-Jewish offspring. Then there is the demand of chessed from the
meishiv, such as allowing women to do semichah on their qorban.

This is akin to what I said about our instinct about needing a hechsher
to check nat bar nat of owf bechalav, but no parallel instinct about a
hechsher auditing DDD. Keeping this distinction is also why I would put
Tav haYosher (demanding chessed from the sho'el) in a different box
than the concept of mahara"t (doing chessed for the sho'eles).

2- I already mentioned in this iteration the role of formal legal concepts
that reflect chessed. The chessed that halakhah demands from the poseiq
to have compassion on the sho'eil isn't a watering down of the process,
but actually framed in *formal* legal terms.

If I accidentally treif up grandma's heirloom china, I might be told I
can rely on ben yomah for which the same mistake on a cheap mug would
get a pesaq of "throw it out". (Not "might", that's exactly what my
rav told me when he told me to donate the mug to the company kitchen.)
Hefsed merubah is a halachic principle. As is kavod haberiyos. By being
formal principles, they are brought within the formal halachic process.
One isn't shlepping or bending the process to reach a conclusion based
on chessed.

As I wrote, it's not that halakhah is middas hadin which is then tempered
by chessed, halakhah, the formal process we call din, is the actual
means of fusion. As RYBS put it, halakhah is the tool for navigating
the dialectics of life. Not a side in one of those dialectics.

About this, on motza"sh, May 09, 2009 at 11:41pm IDT, Michael Makovi wrote:
: According to Rabbi Berkovits, hesed/ahavah would be extra-halachic
: insofar as it is not part of the formal halacha. But it'd still be
: internal to halacha insofar as it plays a role in halachic
: decision-making.
...
: So we'd perhaps have three layers:
: 1) formal halacha, according to the technical logic and sources
: 2) hesed/ahava, external to formal halacha, but internal to halacha in
: general....
: 3) anything totally not part of halacha, at all; irrelevant to halacha,
: bichlal
...
: Anyway, my point was, that I've lost count of how many times Orthodox
: polemicists have criticized the Conservative interpretation of Beit
: Hillel's victory, viz. "they were lenient". Since Rabbi Halevy said
: exactly this, I thought it notable...

RAF replied to that post of RMM's on Wed, May 13, 2009 at 2:58pm CET:
: I write the following with great hesitation, R'HDhL was a great TC and
: yerei shamayim.

: Nonetheless, by now, you might understand why R'HDhL isn't always part
: of consensus and some people squirm when thinking of some of his
: famous quotes...

R' Berkowitz's position is a little more complex, as he in general
loosened the line between halakhah and ethics, never allowing the
underlying values to be fully divorced from the formalized law. (And in
fact the tragedy of writing down TSBP was, to his mind, the resulting
exagerated rigidity compared to deciding behavior based on the ethics
themselves.)

But in any case, I would reject these three layers. Rather:
1- Deciisions that can be made solely on technical formal halakhah
2- Those that the formal process allows leeway into which the poseiq
   puts in
    2a- Appeal of non-muchrach formal consideration (I like the Ritva's
	sevara, e.g.)
    2b- mimeticism
    2c- considerations of what is right (yi'rah, chessed, ahavavah,
	his own understanding of the taam hamitzvah, etc...)
3- Irrelevencies, not quite an actual layer at all

That triangle of considerations I wrote of 2 years ago is here as 2a-2c.
Notice that what you think it right to demand of the sho'el, the
chessed/ahavah that went into this discussion, is just one element in a
whole constellation of aggadic considerations. All of which only comes
to play AFTER formal considerations were complete and no one solution
is compelled.

Conceptually after, not necessarily chronologically. The LOR could start
with a "can I allow him to do X?" but the lack of alternative on level
1 would make 2c irrelevent.

The second one allows that to slip, I have to join RAF's discomfort
at having to explain why those who hold such opinions don't fit the
O mainstream. In RCDhL's case, I'm not even sure that's true. Due
to the conflations I describe above, I believe RMM is attributing (or
quoting someone who is attributing) more to RCDhL than he said. In a day
where layer 2 is dominated with 2a non-muchrach formal considerations,
such Brisker chumros, or Yekkish 2b mimeticism, or Chassidish-style
use of taamei hamitzvos for 2c aggadic-value tie-breaking, RCDhL is
advocating one remember the role of chessed in determining the formally
indeterminate case.

(Unlike the case of R' Uzziel, who was talking about the demand of
chessed from the sho'el.)

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 42nd day, which is
micha at aishdas.org        6 weeks in/toward the omer.
http://www.aishdas.org   Malchus sheb'Yesod: Why is self-control and
Fax: (270) 514-1507       reliability crucial for universal brotherhood?