[Avodah] Minhag Yisroel and Gra on 2 Matzos vs.3 Matzos/Rabbi shopping

[Chana Luntz]

RAF writes:
> On Sunday, 28. October 2007 13.31:03 Chana Luntz wrote:
> > Or they did teshuva I guess.  I am not sure that this is really a
case 
> > of manipulating reality though.  Here the women have demonstrated
two 
> > things to the beis din a) they have somehow sufficient  control of
the 
> > captors to be able to get them to wait at a distance and b) their 
> > state of purity was important enough for them to arrange for all
this 
> > to happen and they were clever enough to do so.
> 
> No, in the case of the women who originally came to 
> Neharda'ah, it was Mar Shemuel's father who arranged for the women to
come sans 
> captors to beit din.

Obviously I am understanding the gemora differently from the way you are
- but I understood the bit about the captors standing at a distance as
only applying to Shmuel's daughters, and not to the women from
Neharda'ah.  Rather, as I understand it, what happened with the women
from Neharda'ah ws that Shmuel's father arranged for them to be given
protection to prevent their captors violating them, and then Shmuel went
and asked what was the point, as they were assur to a cohen anyway given
that they were known to have been captured, and Avuha deShumuel answered
that if they were your daughters, wouldn't you want me to do this?  In
other words even though according to the halacha they are deemed to have
been violated from the time they are known to have been captured, and
hence are ineligible for cohanim, still, they might in reality not have
been, and even if they were, giving them additional protection will
prevent them being violated again, and wouldn't you want your daughters
to have that kind of protection, regardless of their formal halachic
status?  Does not Tosphos bear this reading out - by making it clear
that they are in the category of assur from the time they were
recognised as captured.

It is thus only in the case of Shmuel's daughters that the captors stand
far away, and allow the women to be ruled permitted to marry a cohen.
And the reason for that is, as I understood it, on the basis of the peh
she'assur principle - ie since the only way the beis din knew that the
women were captured was from the mouths of the women themselves, they
could not take only half the testimony, and had to accept all of it,
including the bit about them being tahor.  And that meant the captors
couldn't come to beis din, because once they came to beis din, and
testified that they had taken the women captive, then then the beis din
would not be relying solely on the women's testimony, and hence could
and would disregard their testimony regarding tahor ani.  Agreed, once
beis din has ruled, then that ruling overrules any subsequent witnesses
that come and testify that the women were captured, because the beis din
knows that already from the woman and have already ruled to permit her
so the witnesses are not bringing to the attention of beis din anything
they don't already know, and that means there is nothing to allow them
to overturn their judgement to permit (at least according to Avuha
deShmuel).

Note by the way, that the way I am reading it, this whole business about
Shmuel and his daughters could be understood as a punishment of Shmuel
for his insensitivity towards the captured women from Neharda'ah.  All
Shmuel was looking at was the hard halachic reality, and failed to
consider the plight of the women, and as a punishment he found himself
in the situation of finding out what it feels like to have daughters who
are captured and taken far away (they were taken all the way up to Eretz
Yisroel).


> BTW, manipulating reality isn't necessarily bad. If Avuha 
> diShemuel did it, it  was right (as the Gemara implies with the story
how Shemuel's 
> own daugthers eventually were taken prisoners).

I confess I don't think I understand your reading.
> 
> Regarding the captors, I frankly doubt they did teshuvah,  otherwise
the sugya 
> would have been about whether a captor-turned-BT can testify  about
things he 
> did before repenting, and how ein adam meissim 'atzmo rasha' applies
here.

Not if the whole point was that the captors could not come before beis
din, and had to wait at a distance so that the beis din can hear from
the women themselves that they were captured and not from any external
method.  In which case, whether the captors could themselves testify as
to the capturing, or the capturing could be deduced by witnesses who saw
the women with the captors in beis din, the women had to prevent the
captors coming.

 I 
> am rather inclined to believe that this was a standard  practice by
the 
> government appointed tax collector or otherwise some form of  Jew
harrasment 
> by government forces.

Could be - but note that the daughters of Shmuel were taken all the way
from Bavel to Eretz Yisroel (which is why they found themselves in front
of the beis din of Rav Chanina - a beis din who did not know who they
were and where Rav Chanina had to deduce that they were the daughters of
a tlamid chacham from the way they acted).  Given what we know about the
governmental forces of the day, Bavel and Eretz Yisroel were not often
(if at all) under the same government.  It is also noteworthy that the
captors took them from Bavel to Eretz Yisroel - would that not also
imply that they were Jews?  The situation with the women from Neharda'ah
would seem to be different. That would seem to be a case of only one
kingdom, given Shmuel's location, and, at least according to my reading,
they allowed additional protection to be provided to the women so that
it could be made clear that the women were not being violated.  However,
that is not so inconsistent with a capture for the purpose of redemption
- after all, at the point you are seeking money for redemption, it does
not seem unreasonable to agree to allow additional guards to ensure that
the property to be redeemed is not further damaged.

> 
> Regarding your [here unquoted] argument that we should not 
> only worry about  the yirat shamayim of the shoel, but also of the
meishiv, I 
> am sure we all agree. However, that would not bear as much on the
general 
> issue of the nature of pessaq, which we have been discussing here 
> (remember, we started with the fact that there can be two seemingly
conflicting 
> rulings given to two similar people, and yet both are valid. This was
to 
> research whether pessaq halakhah is "mathematical" or not), but rather
on a 
> different issue, of whether an erroneous pessaq renders it nonbinding,
which 
> is treated in the halakhic literature. (ta'a bidevar mishnah etc.

But I think it does have a bearing, because a lot of psak is a lot more
grey and fuzzy than that.  Even this case of Shmuel and his father -
Shmuel was not wrong, but the gemora describes it as shegaga.  Of course
part of the question is - how often is there a genuine elu v'elu case
when it comes to individual psak, and how often is there really a better
answer - ie where the psak, because of its limitations and lack of
consideration, could legitimately be described as shegaga?  The
assumption that is being made in this discussion is that there is an
awful lot of elu v'elu and very little b'shegaga.  But I am not sure
this is the case.  Take again this story brought about the woman and the
egg and Rav Diskin. Whether it is a true story or not, assume the
following: - a) it was an egg not a chicken (so it is not surprising the
other rabbaim did not take hefsed meruba into account); b) the egg was
only kosher according to a daas yachid, so you did need a hefsed
meruba/be sha'as hachak situation  to matir it.  Still, is it not fair
to say that this is actually not an elu v'elu situation between the Rav
who permitted it and the others around the table who were certain it was
not kosher?  Is it not rather the case that the other Rabbaim were not
capable of accurately taking into account the fact that the woman had
walked so far to ask a question about an egg and understanding that this
meant that the egg was a hefsed meruba to her?  In which case, is it not
fair to say that if any of the other Rabbaim had ruled on this egg, that
would have been a ruling b'shegaga?  Even though it would have rendered
the egg assur as a cheftza shel assur!  But in the din emes, I think any
such Rav would have to account for having taken an egg from a poor
woman.  And hence while the egg may have thereby been rendered non
kosher, the psak cannot be understood to be a legitimate psak about
which an elu v'elu discussion can legitimately be held.

Doesn't it make a difference in your theoretical discussion about
mathematics and the nature of psak, to know what we are talking about in
the real world - and whether we are talking about a relatively small
subset of machlokusim that actually would result in different rulings
being given to the same or similar people if they were given correctly,
taking all relevant factors into account, or you are talking about a
relatively much greater subset?  


> 
> [now really back to lurking...]
> 
> -- 
> Arie Folger

Regards

Chana