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Halakhah and Phenomenology - The Unperceived

Posted: 21 Apr 2009 04:33 PM PDT
http://feedproxy.google.com/~r/Aspaqlaria/~3/iIUwMI4TBg8/halakhah-and-phenomenology-3.shtml


Back on April 6th, I posted my previous entry to this series. The notion Im  
exploring here is that:

(1) Halakhah is about changing the one who performs it (as the Chinukh puts  
it האדם נפעל לפי פעולתו) and therefore

(2) One can understand various aspects of halakhah by thinking of it in  
terms of the world as it is experienced or should be experienced, rather  
than looking at things in more scientific terms.

In part 1, I explored the basic premise and two categories:

Cases where the scientific reality is outside the realm of possible  
experience: e.g. microscopic bugs and maggot eggs.
Cases where a persons associations are normal human nature, not to be  
weeded out, but do not reflect realities. The examples here were the laws  
of milchig, fleishig or treif utensils, and the return of the cycle of the  
sun of birkhas hachamah.


In part 2, I started looking at the rules of birur  how to determine what  
to do in cases of doubt. This topic will continue here (part 3) and in the  
next post in the series (as I now plan things). The introduction, though  
should really be read in full. The key point that must be kept in mind for  
all three posts about birur is:

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 don’t know  
what it is.



[T]wo 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 it’s  
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 “qavu’ah”  
(established), the second “parish” (separated). How does “qadu’ah” 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”

Combining the two: when no one ever knew the situation, we can rely on  
majority to determine reality. But in cases where there were witnesses or  
the state was once known and now forgotten, the halakhah was once  
established (qavuah) and we cannot use majority to determine doubt in  
halakhah.

Part 2 discussed cases of where the reality was once witnesses: actual  
qavuah, testimony (which side has more witnesses doesnt matter, once both  
has a set of at least two),  migo and hapeh sheasar. This post will address  
how halakhah uses the concept of majority in the context of the perceivable  
that wasnt actually perceived.
Rov

Suppose there are three pieces of meat, two of which came from a kosher  
source, and one from a non-kosher source, but we don’t know which is which.  
This is a case of parish, so we can use rov  assume that any given piece  
came from the majority (rov)– it’s kosher.

Heres the strange part: Since each piece is kosher, each can be eaten, even  
one after the other! Tosafos (Chullin 100a), Tosafos Rid (BB 31b), Rashba  
(seen in the Beis Yoseif YD 109) hold that this is true ONLY if eaten at  
separate times., but the Rosh (Chullin ad loc, 7:35) permits even a stew  
containing the three combined! How can this be? After all, when all is said  
and done, wasn’t one of the pieces of meat the non-kosher one? Didn’t the  
person, at some point in time, eat that non-kosher piece?

R YB Soloveitchik (Yarchei Kalah Shiur, August 1982) discussed the topic of  
bein hashemashos (twilight) as seen in halakhah. The case he brought was  
that of an esrog that is used only for part of Sukkos. The gemara concludes  
that since it was sanctified for a mitzvah on a given day, it may not be  
used for personal enjoyment (e.g. eaten) on that day. And bein hashemashos  
(BhSh) is included in that day. However, there is a safeiq whether BhSh is  
part of the previous day or part of the next day. Therefor, since it is  
holy for BhSh, it is not to be used the entire next day either.

Rav Soloveitchik points out the obvious dilemma. There are only two  
possibilities:

Twighlight is part of the first day. In which case, the esrog is holy and  
prohibited until the end of the first day, which would be the end of bein  
hashemashos. Or,
It is part of the second day. Then, the esrog should be prohibited until  
the start of BhSh.


If you want to play safe, then prohibit personal use until the end of BhSh.  
Prohibiting it the entire next day is declaring bein hashmashos to be  
actually part of both days. It continues holiness from the previous day,  
and thereby continues it into the next as well.

According to Rav Soloveitchik, this is not just an oddity about BhSh, but a  
point about safeiq in general. Safeiq does not mean either A or not-A, but  
I dont know which. but is itself a third valid state. Similarly, he writes  
in Ish haHalakhah that halachic logic is multivalent, it isn’t the simple  
true-vs.-false of Aristotelian logic. There is no law of excluded middle  
asserting that every claim must be either true or false and no other  
alternative exists.

We also have indication from the language of the gemara that safeiq is  
treated as a combination of the two options. When describing the widow of a  
kohein that may or may not have lineage that would invalidate him for that  
role, the expression used is “almanas isah”, literally: a dough’s widow.  
(Kesuvos 14a. The rishonim ad loc debate the nature of the uncertainty in  
this case.) The doubt is called a “dough”, a mixture.

We also saw non-Aristotilian nature of halakhic logic when looking at Rav  
Tzadoq haKoheins explanation of eilu vaeilu and halachic plurality. I  
quoted from (Resisei Laila, #17).

Whenever a new thing about the Torah is found by a wise person,  
simultaneously arises its opposite When it comes to the realm of po’al  
(action), it can’t be that two [contradictory] things are true  
simultaneously. In the realm of machashavah (thought) on the other hand, it  
is impossible for a person to think about one thing without considering the  
opposite.

This idea allows us to answer our two questions of birur: how all three  
pieces of meat may be eaten, and how bein hashmashos can be treated as  
though it is the part of both days. In a case of parish, where the physical  
reality was unknown, the person inevitably reflects on both possibilities.  
As Rav Tzadoq said about machloqes  in the world of the mind, we entertain  
both possibilities at once. The questionis therefore not one of unknown  
physics, but one of known perceptive state  the person will be mentally  
conflicted.

In the case of BhSh, twighlight is equally thought of us both days, and  
therefore is both. Thats how we experience it.

In the case of the three pieces of meat, the persons perception of each is  
probably from a kosher cut. That is the reality we must judge. It is true  
for each peice, therefore each peice is kosher. And then the Rosh says this  
is true eternally, while most rishonim say that if we combine them into a  
stew, our perception changes, or at least halakhah wants to encourage it to  
and therefore the halakhah does as well.

The rule for parish is not the statistics of a particular possible  
scientific, objective, realities, its a psychology of probabily good meat  
that is assigned a halakhah of definitely kosher.



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