[Avodah] Just what ARE the rules of p'sak anyway?

[Yitzhak Grossman]

On Sun, 11 Nov 2007 23:19:36 -0000
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> > > RYG writes:
> > > 
> > > > --- Begin Quote ---
> > > > 
> > > > [Quoting the T'rumas Ha'deshen:] But in the [aftermath of
> > > > the] decree of Austreich they [women who had been captured by 
> > > > gentiles - see the previous section of the DM] were 
> > > > permitted, on the authority of Gedolim, to their husbands 
> > > > too, even to Kohanim ...
> > > > 
> > > > [The DM himself:] And it seems to me that perhaps the Gedolim
> > > > who permitted did not do so Mi'dina but for a Zorech Sha'ah, 
> > > > for they saw that we must be concerned for future women, that 
> > > > if they were to know that they would be unable to return to 
> > > > the husbands of their youth, they might sin, and so they 
> > were lenient.
> > > > 
> > > > And do not say, can we be lenient with regard to an Issur
> > > > De'oraisa? It seems to me that they relied on that which it 
> > > > is stated "kol d'me'kadesh a'da'ata d'rabbanan m'kadesh" and 
> > > > Beis Din has the authority to nullify their Kiddushin and 
> > > > they are therefore as single women and even if they have 
> > > > strayed they are permitted to their husbands, so it appears to me.
> > > > 
> > > > --- End Quote ---
> > > > 
> 
> ...
> 
> > You seem to be referring to the celebrated opinion of Rabbeinu Tam.

[snipped my sources about whether RT would permit the woman to her
husband (many, perhaps most say that he would not) and whether the
Halachah is in accordance with him in any event (apparently, it is
not).]

> This seems all very odd to me, because the reference to the view of
> Rabbanu Tam as brought in Tosphos in Kesuvos 3b, and again in tosphos
> Sanhedrin 74b, is brought as an explanation as to why a woman is not
> (and in the case of Sanhedrin particularly, why Esther HaMalka was not -
> to tie in two threads) required give herself over to death (given that
> adultery is one of the big three that is yarog v'al yavor).  And clearly
> the subtext of that discussion is that Esther was not thereby making
> herself forbidden to Mordechai.  And that is precisely the Rivam's

I don't see as clearly as you do that that is indeed the subtext of the
discussion.

> criticism of Rabbanu Tam in both places that in such a case the biah of
> an oved cochavim should not assur her to the baal (for which he quotes
> Kesuvos 26b) and specifically vis a vis Esther what was the kasher
> avaditi - ie if this was the reason it was OK for Esther, why did it
> make a difference if she actively went to the king or not.  I agree that
> it then goes on to say that on this basis Rabbanu Tam permitted a woman
> to her gentile captor who later converted, but that is not the thrust of
> the discussion in either place.

Whenever a Talmudist cites a law as a proof of his position, we always
have two possibilities; either the dissenter differentiates between the
proof case and the disputed one, or he counters "arvach arva zarich"
and refutes any arguments for the assumption of his opponent.  [I
don't mean to be condescending, merely pedantic :).] You assume the
latter is the case here; many of the sources I cited apparently assume
the former.

> Is it possible (and I don't know the DM's position on this) that he held
> like the Mishna and gemora on Kesubos 26b, which seems to imply that a
> married woman in general even if not the wife of a cohen becomes
> forbidden to her husband on captivity  on being violated and not like
> the gemora on 51b which seems to hold that a captured woman who is not
> the wife of a cohen is permitted to her husband, even if she is seen
> doing things to help the bandits like hand them arrows, on the ground
> that she is doing this because she is afraid of her life, in which case
> it is considered like anus and hence she is permitted to her husband?

I am not that familiar with this Sugya, but as far as I can see,
everyone accepts the Mishnah on 26b, but there's a disagreement between
the Rishonim whether to accept the implication that you mention, that
even an eishes yisrael becomes forbidden to her husband; Maran rules
like the Rambam that she doesn't, while the Mapah cites (as a Yesh
Omrim) the opinion of Tosfos, Rosh and Ran that she does [0].  As to
how to reconcile the latter position with other Halachos that state
that we aren't hoshesh for consensual relations with the captors, see
Beis Shmuel [1] and the sources he cites.

> Because this situation as you describe it above in the time of the
> Trumos Hadeshen seems rather odd vis a vis the women married to
> Yisraelim - because prima facie as you describe it it would seem to fall
> fair and square within the gemora on Kesubos 51b - so, unless the DM did
> not hold like the gemora on Kesubos 51b (as it would seem the Rivam
> might not have, given his citation of 26b), then there must have been
> some other factors which took the case out of the gemora on Kesubos 51b
> - unless of course the key question was the wives of the Cohanim, which
> prima facie would be forbidden on the basis of the gemora on Kesubos
> 51b, but then it is hard to see how afkinu helps any better.

The TH [2] is indeed ruling within the context of the Gemara on 26b,
according to the opinion of Tosfos et. al., cited above.  [He claims to
know of no 'Gaon' other than the Rambam who disagrees, and considers it
impossible to rely on him against what he considers the consensus
view.]

> > H)  I am unfamiliar with the responsa literature on the 
> > subject, and I haven't seen the S'ridei Aish; where is it?
> 
> Sorry, this is a reference to a letter of the Sridei Aish (which I do
> not have a copy of, but read one time or other) in which he discusses
> difficulties he has with various aspects of Yiddishkeit, and
> particularly the phraseology and the way non Jews appear to be dealt
> with.  I am sure R Marc Shapiro would  be able to direct you to a
> source.  However it is not a halachic reference.

We have, then, independent of the question of whether RT would
actually permit the woman to her husband, no Halachic source that
RT's view is accepted at all by the Poskim, and the SA implies that we
do not accept it, as per my previous mail.

> BTW, I am not sure if this is necessarily related, but there is a modern
> day scenario that may also be sourced in Rabbanu Tam's position.  That
> is, mother marries Orthodox, then divorces civilly and never receives a
> get.  She them marries civilly a non Jew and has a child by that second
> marriage.  Is the child a mamzer?  Now this was a kind of halacha
> l'ma'ase situation for my husband in his single days, as there was a
> girl loosely in his social circle at university who was precisely in
> this situation.  And he was told that technically she was not a mamzeret
> and technically he could go out with her and marry her (I don't think
> they were compatable for a whole host of other reasons, but that is
> another story).  But she did subsequently get married, and while I think
> she found it difficult to find somebody in the UK who would marry her,
> she did in the US, and I believe had an Orthodox wedding.  Now how else
> do you explain this if not by way of Rabbanu Tam?   Or am I jumping to
> conclusions here and can you derive it directly?

I can, indeed :); the SA rules [3] that the offspring of a non-Jewish
man and a Jewish woman, even a married one, is not a Mamzer.  RT's
opinion is only needed to permit the mother to stay married to her
erstwhile paramour after his conversion; the children, even those that
were products of adultery, are not Mamzerim in any event.

> > Yitzhak
> 
> Regards
> 
> Chana

[0] SA EH 7:11
[1] ibid. 22
[2] I 92
[3] EH 4:19

Yitzhak
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