[Aspaqlaria] Aspaqlaria

[Aspaqlaria]

Aspaqlaria

///////////////////////////////////////////
R Moshe Feinstein: Blessing the sun - and a child

Posted: 06 Apr 2009 02:05 PM PDT
http://feedproxy.google.com/~r/Aspaqlaria/~3/qYKoF5yJc2k/r-moshe-feinstein-blessing-the-sun-and-a-child.shtml

The following was outright copied from Daas Torah, a blog maintained by R  
Daniel Eidensohn (who, among other things, is the compiler of Yad Moshe,  
the index to Rav Moshe Feinsteins responsa, Igros Moshe). It was just too  
beautiful not to repeat:

Every 28 years there is a special blessing made on the sun. It is in  
commemoration of the sun returning to the position it was in when the world  
was created. On one of those special occasions a large crowd gathered in  
front of Rav Moshe Feinstein’s apartment building on the Lower East Side of  
New York. It was just before sunrise and they had come to say the blessing  
with him.

However shortly before the designated time for saying the blessing, a  
father brought his young son to Rav Moshe’s apartment to receive a beracha  
from the great sage. Time was short but he just wanted to take advantage of  
this opportunity. Rav Moshe greeted them warmly and then seemed agitated  
about something. “I am sure your son – like other children - would like to  
have a candy but I can’t remember where my wife put it.”

He started opening and closing the kitchen cabinets trying to locate the  
candy. The crowd was getting impatient and yet Rav Moshe kept looking. Rav  
Moshe was focused on one thing - the happiness of that child. However being  
short in physical stature he couldn’t reach the upper cabinets. So he  
climbed up on the kitchen counter to reach them and he continued  
systematically searching. Finally he found it and climbed down from the  
counter.
He quickly gave the child the candy – and a beracha - and then hurried  
downstairs. The opportunity to bless the sun - while important - could wait  
a little while. The greater importance was making sure that the child had a  
pleasant and memorable experience meeting a genuine talmid chachom.





///////////////////////////////////////////
Halakhah and Phenomenology - The Actually Perceived

Posted: 06 Apr 2009 02:10 PM PDT
http://feedproxy.google.com/~r/Aspaqlaria/~3/_NftsGT5Ko0/halakhah-phenomenology-2.shtml


In the previous post, I presented the idea that

The Chinukh repeatedly explains various mitzvos by explaining “ha’adam  
nif’al lefi pe’ulaso — a person is affected according to his action.”  
Contemporary hashkafos differ over what halachic life is supposed to cause,  
whether the ideal is better described as “wholeness”, perfecting the image  
of G-d, or “attachment” to G-d. But notice that both agree in describing  
the role of halakhah in terms of the change is causes on the self — whether  
perfecting him in a mussar sense, refining him in a Hirschian sense,  
bringing him experientially in a relationship with the A-lmighty, as  
Chassidim do, etc…

One thing this implies is that halakhah need not be concerned with  
determining an objective reality. Rather, it has to deal with that which  
has impact on the person — the world as it’s experienced. Perhaps this is  
why the realia to which we apply halakhah is called metzi’us, literally  
“what is found”, and substantive elements of the metzi’us are said to have  
mamashus, they can “be felt”.

Then I discussed the cases of where the objective reality was outside of  
the realm of perception (e.g. microscopic mites in our food), or that there  
is a perception that doesnt have an external objective cause, but are  
ubiquitous to human psychology. The latter was more speculative, using this  
notion as a means of explaining what taam is in the halakhos of kashrus of  
mixtures and in understanding the point of birkhas hachamah.

In following posts (with perhaps a break for timely topics, with birkhas  
hachamah and Pesach nearly here), I would like to discuss cases of  
ignorance, how to rule when the realia of a situation isnt known. I believe  
that in this realm too, the notion of identifying the realia with the world  
as people can observe it is helpful in understanding the laws of birur  
(clarification [of doubt]).

Rav Aqiva Eiger (teshuvah #136) divides these laws into two types:

ways of applying the halakhah to an uncertain situation and
resolving what to do when the halakhah is uncertain


In other words, the doubt could be about the reality, and now we need a  
halakhah, or the halakhah could have once been set, but now we dont know  
what it is.

Before looking at each category separately, lets look at the problem Rabbi  
Aqiva Eiger was addressing. There is an oft quoted beraisa that contrasts  
two kinds of halachic uncertainty.

[A city has] nine stores all of which sell shechted meat, and one store  
that sells neveilah meat (meat killed in other ways). Someone buys from one  
of them, but he doesnt know which of them he bought from. His doubt makes  
the meat prohibited.
But if the meat were just found, one may follow rov (the majority).
-Pesachim 9b, Kesuvos 15a, Chullin 95a, Niddah 18a


The beraisa contrasts two principles. The first is “kol qavu’ah kemechtzah  
al mechtzah dami” (anything that’s established is like half against half).  
It is specitically this rule that we There is no playing odds, a doubt is a  
doubt whether its 50:50 or 90:10. For Torahitic laws we would have to  
assume the stricter possibility, and for Rabbinic ones, the more lenient  
side.

The other rule is “kol deparish meirubah parish” (anything that leaves the  
group [can be assumed to have] left the majority). Here we see that  
majority is a deciding factor. The first case is called qavuah  
(established), the second parish (separated). How does qaduah differ from  
parish? When is majority ignored, and when is it a determining factor?

Tosafos (Zivachim 72b, “Ela amar Rava”) write qavuah only applies to a  
thing that is known.  Rabbi Aqiva Eiger explains that the piece of meat  
bought from the known store had an established halakhah. The buyer knew the  
state of the meat. We therefore call the halakhah qavuah  established.  
However, now it got mixed up, and we dont know what that halakhah is.  The  
doubt is in the halakhah.

However, if the meat is simply found, then the uncertainty begins one step  
earlier. We dont know the state of the meat. The doubt is in the reality,  
what part of the set this item was parish  separated from.
The Perceived but Unknown - Qavuah Logic
Two are like 100

When a matter of issur veheter (permissibility vs. prohibition) is to be  
resolved, we can rely on the testimony of a single witness. Without that  
witness we would have a situation of safeiq, of not knowing the situation  
to which we need to assign the halakhah.  lose, we need a greater level of  
testimony. The pasuk says, al pi shnayim eidim o al pi

sheloshah eidim yaqum davar – by the words of two witnesses or three  
witnesses the matter shall be established (Devarim 19:15). Why must Hashem  
write or three witnesses? If two witnesses were sufficient, then of course  
we would believe three! What does the Torah teach by using the extra phrase?

The Gemara Makos (quoted by Rashi ad loc) concludes that the extra words  
teach us that if more than two witnesses were to arrive, they are still to  
be treated as one kat (set). As a single set they have no more credibility  
than any other set. In the terminology normally used, terei kemei’ah, two  
witnesses have the same credibility as even 100. If a case comes to court  
and two witnesses testify on behalf of one side and a hundred on behalf of  
the other, beis din (court) gives equal weight to each testimony.

The Shev Shmaatsa says about cases where each side presents witnesses in  
its support, Since we have two [witnesses] and two [witnesses] in all cases  
our sqfeiq is an equal safeiq, even where we have a majority.(Shma’atsa 6,  
ch. 22)  This wording echoes the rule for qavuah, “it is like a half vs. a  
half”.

When two witnesses face one hundred, and we’re trying to determine which  
side is telling the truth, we are assuming that one of the sides is being  
honest. In other words, at least two people were there to perceive the  
reality. Our doubt over who to believe is similar to a doubt in qavu’ah, in  
that it’s doubt about the halakhah, not reality-as-experienced. Therefore,  
although it is more probable that the 100 are telling the truth, we ignore  
the odds.
Migo

Normally the claims of each of the litigants are treated equally  
skeptically. One exception is the rule of migo. If a person has a choice of  
two claims to win his case, and he makes the weaker of the two, he is  
believed. We say that had he wanted to lie, he would have chosen the best  
of his alternatives. For example, one litigant claims that a person borrows  
money without a contract. The other says he borrowed it but had already  
returned it. If there was not reason for the second party to admit the loan  
ever occurred, beis din accepts his claim. Had he wanted to lie, he would  
have denied the entire incident. The Ba’alei Tosafos (Bava Kama 72b) rule  
in the case where one side has witnesses in its support, and the other has  
both witnesses and mido. Had the second side come with two sets of  
witnesses, he would have no more credibility than the first (terei  
kemei’ah). Since migo is has less evidential power than witnesses, they  
conclude that adding migo to his case could not help him any more than a  
second set of witnesses would. This conclusion supports the idea that migo  
does not operate by some special mechanism, but rather is a modified form  
of testimony, a means by which the testimony of a litigant is rendered more  
credible.
Hapeh sheAsar

A second situation where we abide by a litigant’s claim is hapeh she’asar  
hu hapeh shehitir (the mouth that prohibited, that is the same mouth that  
permitted). Suppose we had a situation where there were three claims:

A woman claims “Yes, I was once married, but I received a divorce in a  
given location”.
Two witnesses arrive and say that there was no divorce performed at that  
location.
Another two witnesses come and discredit the testimony of the first  
witnesses.


“We live by her mouth”, and she may remarry. (Yerushalmi Kesuvos 2:5) The  
reason being that the only undisputed claim is hers, and if we are to  
believe her that she was married, why not believe her that she received a  
divorce as well? And if we discredit her testimony, then there’s not  
grounds for saying she was ever married to begin with.

Unlike migo or the other situations, in the case of hapeh she’asar we need  
not assume the claim is true. The logic is that since discounting the  
testimony in its entirety would lead to the same result as believing it,  
there’s no reason to resolve the honesty of the claim. What hapeh she’asar  
tells us, though, is that we need not consider the possibility that half  
the claim is true, but the rest is not. (e.g. The woman was telling the  
truth in that she was married, but the divorce was false.)
Summary:

In the first section I explored the difference between looking for the  
world-as-it-is and addressing the world as we are capable of relating to  
it, objective reality vs. perceivable reality. Now we started exploring  
beyond what could be perceived to discussion how observation, the fact that  
something actually was perceived, changes how we related to that fact.

The Tosafos identify the case of qavuah as being one where the halakhah is  
established. Rabbi Aqiva Eiger makes a distinction between doubt in the  
reality about which we are ruling, and doubt in the ruling itself. His  
classification places the line at situations that were observed, in which  
there is a halakhah, those which were not. Thus we find that majority  
doesnt play a role where the reality was observed  whether were speaking of  
the majority of similar cases or the majority of those who claim to have  
been observers. This will serve in interesting (I hope!) contrast to cases  
where the matter is perceptible, but wasnt actually observed. In the next  
post well discuss the question  why in these case does majority matter?

All of this relating back to the original point, the notion that regardless  
of how we expect the mitzvos to influence the person performing it  
(refining him, perfecting his intellect or his middos, brining him close to  
G-d, etc) they can be explained in terms of impact on the person. And  
therefore, we should be able to explain specific halakhos not in light of  
the thing-in-itself but in terms of both how we relate to it and also how  
we ought to relate.

(Im going to end here. My original plan was to cover both types of birur in  
one post, but I now see Im going to need three. In the next post I shall  
cover cases where we use parish logic and consider issues like majority.  
And I see that my notes on chazaqah (presumption) in particular are long  
enough to warrant its own posting.)



--
You are subscribed to email updates from "Aspaqlaria."
To stop receiving these emails, you may unsubscribe now  
http://feedburner.google.com/fb/a/mailunsubscribe?k=bJRCtxyFauyvhdrBWsCS2-ZLPEc

If you prefer to unsubscribe via postal mail, write to: Aspaqlaria, c/o  
Google, 20 W Kinzie, Chicago IL USA 60610

Email delivery powered by Google.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.aishdas.org/private.cgi/aspaqlaria-aishdas.org/attachments/20090407/1a251292/attachment.htm>