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

[Chana Luntz]

RYG writes:

> 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.

I think not just m'svara, but also from the context of the discussion in the
gemora which is all about whether a woman is going to be assur to her
husband or not.  I can now see how you could read it the other way, but I
guess I still feel that my reading is the most straightforward one, and that
the other reading is a bit of a dochek (although I can understand it because
the straight reading does seem hard to believe in the light of other
gemoras).  

> 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.

In any event I am somewhat relieved to say that this s'vara appears not to
be some chiddish of my own, but that, inter alia, Rav Moshe appears to read
the Tosphos that way: see Iggeros Moshe Even HaEzer chelek 4 siman 44 first
paragraph "d'hu hadin shehaya matir Rabbanu Tam otah gam l'ba'ala".  The
heading of this section is entitled "b'ma shyashev hagaon Evnei Nezer shitas
Rabbanu Tam shebias nochri aina asures l'baal".

The whole thing really felt very odd, because I sent you an effectively off
the cuff posting merely referring to what I thought was a widely discussed
position that keeps cropping up (so that even I had heard of it, even though
I did not know any sources inside).  It is not generally the sort of thing
one does a major reread of a Tosphos about without even looking - ie I was
pretty sure I knew what I was going to find when I went back to look at the
sources, which suggests to me that I must have been told at least something
about this somewhere, but I could not, and still cannot, work out where in
my travels I have come across this.

So anyway I went off to try and search it out, and while I still have no
idea where I heard about this discussion from, there is quite a lot around,
as I had thought.  Not just this Rav Moshe, but Rav Ovadiah Yosef has quite
a bit on it in Yabiat Omer chelek 3 Even Haezer siman 7, have a look at
si'if 20 and following.  And it is not clear to me that ROY himself holds
this way (not that I confess, I have been through the whole teshuva, but
that is where I think he is going), he, in his own inimitatable way, brings
various people who have held similarly that Rabbanu Tam applied his din ot
the husband as well, including the Meiri and somebody called the Chayim
Sha'al who apparently believes it is clear that inter alia the Mordechai
holds this (although ROY says he cannot see clearly where this is said).
And he also brings the Hafla who says that Rabbanu Tam only holds that the
issur of a woman to her husband is d'rabbanan, and so safek d'rabbanan
l'kula.  And the Sri Eish (chelek 2 siman 147) also holds that Rabbanu Tam
holds that the issur to the husband is d'rabbanan, and that Esther was
engaged only in midus chassidus.  Interesting ROY brings the Rema in Even
HaEzer siman 20 that shekol sheain chiyuv misa al oso biah, muteres
l'ba'ala" (this is the focus for his discussion, really, trying to
understand this Rema - ie the dependency linkage you refer to above).

> > > 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?

Well perhaps minority is not quite the right word - but you see, and it can
been seen now reasonably clearly from the sources I cited above, that there
has been a lot of discussion of Rabbanu Tam and his heter, with a fair
number understanding this also to extend to the ba'al - so such an
understanding is within the traditional debate, despite many holding the
other way - so holding on what might be the minority side given a shas
hadchak does not seem non normative.  Whereas it seems to me that afkinu in
this context comes from left field, its not picked up before and not picked
up after, whereas you would expect this to have been tussled over and
discussed this way and that way (just the way this Rabbanu Tam has), so at
least we know all the possibilities.  It just doesn't fit here.

> 
> > 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- egmarried 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?  

> 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.

Yes but using something which doesn't seem at all relevant, and where there
is a lot of discussion as to how to deal with the problem in other ways, and
where it just seems to be a surmise on the part of the Darkei Moshe, doesn't
seem to me to get you very far.

It seems to me that the case for using afkinu to solve the modern day
problem of a mesorev haget is a fair bit stronger than this, and doesn't
seem to be helped by the reference, as all you are going to do is get bogged
down in discussions of its applicability to the situation of the time. The
case as I understand it for using afkinu vis a vis a modern mesorev haget is
precisely that he has, and has been adjudged to have acted, shelo k'hogen
(however that has been determined by the relevant authority) in failing to
listen to rabbinical authority that has told him he ought to give a get (I
agree you then get into the mess as to who is a rabbinical authority, but
let us step aside from that at the moment and assume you could theoretically
get the gadol or gadolei hador to speak unanimously).  That is why I don't
quite understand RYBS's concern that it will undermine the whole of hilchos
gitten.  Normal decent, shomrei halacha (one of which is to listen to the
chachamim, at least on such matters - especially as hilchos gitten and
kiddushin are d'orisas, so depending on how you hold on lo tasur today ...)
aren't going to get into this, and the sort of person who is happy to flout
rabbinical authority in this way was pretty clearly lying through his teeth
when he said he was being mekadesh the woman k'daas Moshe v'Yisroel - Rather
he was pretty clearly being mekadesh her according to his daas only.

I am not saying you have to buy this argument, but I don't see the Darkei
Moshe helping.

Now if you want to get the gedolei hador to say that because of the modern
tendency towards znus and intermarriage, and also because of Chillul Hashem
aspects, people should give and receive gitten more easily and perhaps
freely than in days where this was less of a problem, and where the non Jews
felt that divorces were immoral, rather than their modern position where
they feel that not to give a divorce is immoral, then that is another
argument too, based on socio-religious concerns (which could then be tied
back into the above about listening to the chachamim).   But I just can't
see how one could do a general uprooting today in the manner that the DM
wants to posit (and even the DM is only talking about a pretty defined
subgroup of women).  Just doesn't seem to me to make any sense.

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

Well the only thing is, it seems clear from the sources I have just been
looking at that the Terumos HaDeshen is one of those in the foremost camp of
saying that Rabbanu Tam did not mean to include the husband.  So at best one
would have to say that this was the reason of the "Gedolim" but not the
Trumos Hadeshen.  Note by the way that most of those who explain Rabbanu Tam
in the way I have, understand him to also be poskening like the Rambam vis a
vis the Mishna in Kesuvos on 26b, ie that this Mishna only relates to the
wives of Cohanim (which I gather from you, although I confess I have not had
time to look up the Trumos HaDeshen myself, the Trumos HaDeshen rejects, as
a Rabbanu Tam and Rambam agreement would make a pretty powerful
combination).


> Yitzhak

Regards

Chana