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

[Yitzhak Grossman]

On Tue, 13 Nov 2007 18:15:33 -0000
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> Iwrote:
> 
> > > 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.
> 

[snipped RnCL's citations of various citations of RT's opinion and
their contexts.]

> So I don't understand how you are reading these tosphosim and saying
> this is not the subtext of the discussion.  Tosphos is bringing a
> question - why is it not required for a married woman to give up her
> life rather than be violated and states that Rabbanu Tam answers this
> question by saying that the  biah of an oved cochavim is like the biah
> of a behama and therefore there is no such requirement.  How do you read
> the words "v'terutz Rabbanu Tam"?  It then goes on to say "mitoch kach"
> - ie because of this explanation Rabbanu Tam - either was prepared to or
> did permit a ger who had previously had relations with a married women
> to marry her, but, at least as Tosphos understands Rabbanu Tam, the
> explanation is an explanation of the actions of Esther, who after all
> was understood to be a married woman (who went back and forth to
> Mordechai) and then mitoch kach.

There are three Halachic questions pertaining to a married Jewish woman
and her relations with a non-Jew: i) is she obligated to give up her
life rather than sin with him, ii) if she engages in such relations,
does she become forbidden to her husband and iii) as ii. but vis-a-vis
her paramour.  The primary context of the discussion of RT is i., and
iii. is also discussed, with RT lenient on both because of a certain
unflattering Halachic status of non-Jews.  I still fail to see a
compelling argument that ii. is also being discussed.  It seems to me
that you feel m'svara that ii. is dependent on i. and particularly
on iii., in light of RT's argument about the status of non-Jews, but I
still maintain that there is no indication of this from the comments of
the Rishonim.  I do agree that your s'vara is quite reasonable; my point
is merely that there is no irrefutable proof from the semantics
of the discussions of the Rishonim.

> Now that is not to say there are not other explanations for why what
> Esther did and what the tznios do is OK (other Rishonim bring them), and
> the same is true for the heter for the goy who was megayer (the Rosh
> says explicitly that he approves the heter but not for the reason of
> Rabbanu Tam) but it seems pretty straightforward to me from the language
> of the text that Tosphos understands Rabbanu Tam's explanation as I have
> articulated it.

Of course the explanation of RT is as you have given it; the Rosh
himself concedes that, as he states that he's defending RT's ruling
but "lo mi'ta'mei".  What you and I disagree about is whether RT's
permissive rationale for i. and iii. above necessarily implies a
permissive stance on ii.

> Now you can say, as other commentators have said, that Rabbanu Tam would
> have other reasons to prohibit the wife going back to the baal, and
> hence the heter only applies to the boel.  The counterargument to that
> is if that were the case, then a) Esther would be prohibited to
> Mordechai, and b) the tznius women would have a point.  It can then be

Whence the assumption that she wasn't?  That (i.e. question ii. above,
as opposed to i.) isn't the issue under discussion in any of the sources
about which we are debating, as I have tried to make clear above.

> argued that Rabbanu Tam accepts both that it has to be anus for the
> woman to allow her go back to the husband, as well as this reasoning
> which only applies to the boel - which I think is the point of various
> of the commentators.  However, the Tosphos does not read like that -
> because the tosphos is specifically commenting on the situation of the
> tznios and of Esther.  There is absolutely no need to bring Rabbanu
> Tam's terutz here regarding sussim otherwise, it is completley
> superfluous.   Now it is also possible that whoever put together the
> tosphos misunderstood Rabbanu Tam, but taking the Tosphos as written, I
> struggle to see how such an interpretation is tenable.

I am not claiming that the author of Tosfos misunderstood RT.  I am
claiming that Tosfos and RT are concerned solely with the question of
the permissibility of Esther's actions, and not with her subsequent
status vis-a-vis her husband.  'Ones' is irrelevant to the former, hence
the need for either RT's innovation or the other approaches of the
Rishonim.

> > > 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.
> 
> But continue to read the Tosphos inside - "v'ain nire l'Rivam d'ha al
> yadei bias oved cochavim nesra l'baala kdamar ...  - ie this terutz of
> the Rabbanu Tam does not seem correct to the Rivam, because it says in
> various sources (and he brings proof texts both from Kesuvos 3a and
> 26b)that the biah of an oved cochavim makes a woman assur to her husband
> ... Now how could the Rivam object to Rabbanu Tam on this basis if he
> did not understand Rabbanu Tam as saying that the biah of an oved
> cochavim did not make her husband assur.  I agree that there are these
> two possibilities in general when a Talmudist cites a law as proof of
> his position, but as you can see from the language of the Tosphos,
> Tosphos did not  bring Rabbanu Tam's ruling and then cite the law as a
> proof, they brought the law and then as a by the by, brought the halacha
> l'ma'ase that Rabbanu Tam derived from the law.  And the whole context
> of the Rivam's rebuttal is about the law and the application to Esther.

I actually see the opposite as indicated from the language of Rivam;
by saying "d'ha ..." he is implying that even RT would certainly agree
to what he's about to say.

> I do agree that vis a vis the heter for the boel, since there are other
> reasons, such as the Rosh's, to allow the boel even disregarding Rabbanu
> Tam's reason, if all we had was Rabbanu Tam's heter, we could
> distinguish between the proof case and the case of the husband, but that
> is why I keep going back to the language of the Tosphos, and not the
> discussion on whether a goy boel can marry her on conversion in the
> Shulchan Aruch.

[snip]

> > 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.]
> 
> OK so basically what you are saying is that if the TH had held like the
> Rambam and the Shulchan Aruch, at least the wives of the Yisroelim would
> not have been assur in the first place, but because he held the other
> side of that machlokus, suddenly you need to introduce afkinu.  If
> however he had taken the position b'shas hadchak we rely on the Rambam,
> despite it not being the consensus, then there is no need to introduce
> afkinu.  Does the TH ever mention afkinu, or is that just the DM's
> understanding of it?

The TH doesn't mention anything about afke'inhu; he suggests a different
understanding of the 'Gedolim'.  The DM prefers to understand their
ruling as based upon afke'inhu.

In my previous message, I actually conflated two different
responsa of the TH.  My citation about the impermissibility of relying
on the Rambam was from 2:92; the responsum discussing the Austreich
tragedy is 1:241.  See both for detailed discussions of when we permit
women to non-cohen husbands and when we don't.

> > 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.
> 
> Agreed.  The point is that here were are clearly scurrying around
> looking for minority opinions to rely on.  And afkinu seems much more
> monority than Rabbanu Tam.  To posit afkinu in this kind of case,

Certainly odd, and most provocative, but not necessarily a minority -
who disagrees?

> without any kind of citation at the time seems very odd - particularly
> as it seems completely out of character for afkinu.  In the cases of
> afkinu in the gemora, the point is that the husband did something wrong
> as the gemora states in Yevamos 110a, he acted  shelo k'hogen- eg
> married improperly or sent a get improperly  and therefore, as the
> gemora states, asu bo shelo k'hogen, they the rabbis acted shelo k'hogen
> by uprooting the kiddushin.  But here, what did the poor husbands' do?
> They married intending a marriage and then found their marriages torn
> apart by gentile capture. And further, afkinu works, as is made clear in
> Yevamos 110a, by, if he made kiddushin by way of kesef, by the use of
> hefker beis din hefker, ie they take away his property retrospectively
> so he was never able to effectuate kiddushin, and in the case of
> kiddushin by way of biah, by deeming his biah a bias znus.  Now these
> poor husbands, not only have they lost their wives to gentile capture,
> but you are deeming the rabbis to have deprived them of their property
> rights and/or deemed their biah biat znus?  Now if you want to argue

All this is certainly true, which is why I characterized this DM in my
original post as:

> the most sensational account of a post-Talmudic afke'inhu,
> and the only one I know to have occurred without a preexisting edict,
> and justified solely by a perceived Rabbinic fear of a potential future
> socio-religious catastrophe

This is also why some consider this comment to be pregnant with
implications for modern day solutions to certain Halachic problems.

[RnCL again]

> mekach taus, then maybe they thought they were getting a marriage, but
> if they had known their wives were going to be captured they would never
> have married (somewhat similar to Rav Moshe in the last Teshuva in
> Iggeros Moshe Even HaEzer vol 4 ie if the wife had known the husband was
> going to die when called up for his army service in a few days time, and
> she would fall for yibum to a mumar who refused to do chalitza out of
> political conviction, and so he not get thrown out of his political
> party, she would never have gone ahead with the marriage, so it is a
> mekach taus).  Nor does afkinu help the Cohanim.  Whereas the Rabbanu
> Tam is a rishon, and the fact that the SA does not accept his position
> is not so relevant to the time of the Trumas Hadeshen.  What is more the
> SA does accept that the wives of Yisroelim should have been able to go
> back to their husband's m'dina, and the Trumos HaDeshen rejects that, so
> why is it not more likely that he is relying on a position that was at
> least in his line of tradition, even though there was some considerable
> opposition to it, than on some reference not brought by either him and
> based on completely different kinds of cases in the gemora and which
> center on punishing the husband.

I concede that the possibility that the 'Gedolim' [0] were really
relying on RT is quite an interesting one.

> > 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.
> 
> Yes but why?  Because kiddushin is not tofes b'hem (see the gemora in
> Yevamos 46).  But why is kiddushin not tofes b'hem?  You get a lot of
> this from various psukim which are explained to say that the grandson by
> way of your daughter is your [grand]son, ie you can ignore the paternity
> of the non Jew (but not the maternity).  Arguably this links in to this
> idea that their biah does not count, making your grandson fully Jewish.

I was discussing the narrow question of whether we rule like RT and
whether we can use his opinion as a leniency to permit such a woman to
her husband. You had suggested that this situation "may also be sourced
in Rabbanu Tam's position", and you asked "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 merely pointed
out that this is an unexceptionable Halachah that has no bearing on
whether we rely on RT. 

> Don't think it is quite necessary, but seems to be one of the ideas that
> could be underlying all this (on a theoretical level - although in
> general we follow the mother where there is a pgam, except when it comes
> to mamzer - but this is the exception vis a vis mamzer.  I am not sure
> by any means this though).  Remember of course that Rabbanu Tam didn't
> pull this idea out of thin air.  It is stated explicitly in Yevamos 96a
> as the reason why twins whose mother converted after they were
> conceived, but before they were born, do not do yibum one for the other,
> because of this principle and even though we know that the father is the
> same - so there is it specifically a yichus question and accepted by
> everybody.  Don't know if it would make any different halacha l'ma'ase
> in this regard either.
> 
>  
> > > > Yitzhak
> 
> Regards
> 
> Chana

[0] The TH writes "kol gedolei ha'dor she'ha'yu ba'yamim ha'heim"; the
events occurred between 10 Sivan 180 [1420] and 9 Nissan 181 [1421]

Yitzhak
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