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

[Celejar]

On Thu, 15 Nov 2007 12:29:22 -0000
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> 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

Even if we follow Rashi's explanation that the Gemara's
(Kesuvos) question of "v'lidrosh l'hu d'ones shari" means that we
should tell the women that they will be permitted to their husbands, the
Gemara's reason for this is 'ones', to which Tosfos raise the
objection that with regard to arayos there's no exemption for 'ones',
since there's a rule of ye'hareg v'al ya'avor, to which RT answers that
*that latter principle*, of ye'hareg v'al ya'avor, doesn't apply to
non-Jewish aggressors.  There is absolutely no indication from the
Talmudic dialectic that RT meant to say that his novelty in and of
itself is a reason for permitting the women to their husbands; even the
Meforshim who understand RT that way may be inferring it only m'svara,
either by analogy to the bo'el or based on the conceptual innovation of
RT.

The Gemara in Sanhedrin is an involved discussion of the guidelines of
mesiras nefesh for kiddush ha'shem; I see no subtext whatsoever of a
consideration of the subsequent status of Esther or anyone else.

> 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".

Good point, and he's actually just accepting the Avnei Nezer's
interpretation of RT.

[snip]

> 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

Great find.  I took a quick look at it.

> 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

The Hida.  I looked it up, and he incidentally understands the language
of Tosfos as I have, that the Rivam's wording implies that RT doesn't
dispute the fact that there's a prohibition to the husband.  Ultimately,
though, he cites both interpretations of RT, and I didn't see a firm
conclusion.  I also didn't see, in my quick perusal of the responsum,
Hacham Ovadyah reaching a firm conclusion, and in any event he mentions
that the Halachah is not like RT to begin with.

> 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

Cited in one of my previous posts.

> 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. 

The discussion you have cited is mostly among the Aharonim; aside from
Meiri, we know of no Rishon to explicitly understand RT to be permit the
woman to her husband.  I don't think it's meaningful to speak of the
Austreich Gedolim as relying on a minority opinion, since in their time
there had not really been (as far as we know, putting aside the Meiri)
any discussion of the matter!  You should rather say that those Aharonim
who understand RT to be lenient could have explained the Gedolim in that
way.  The DM who did not offer that explanation may simply have taken
for granted that RT didn't mean what some (later) Aharonim thought he
meant; the TH who didn't offer that explanation did indeed understand RT
stringently (although he seems not quite sure about it), as cited in one
of my earlier posts.

> 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.

I don't understand your point here; it wouldn't have been discussed by
the Rishonim, since there was no explicit responsum and in any event
the issue didn't arise until the fifteenth century, and why the Aharonim
don't discuss the DM has absolutely no relevance to its plausibility as
an interpretation of the Gedolim.

[snipped RnCL's characterization of the radicality of this application
of afke'inhu]

[I wrote]

> 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.

I don't understand what you mean by "[not] at all relevant".  As to the
fact that there are other ways to deal with the problem, that's
certainly true, but we still see that the DM believed that
this sort of afke'inhu may be, at least in principle, legitimate.

> 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 don't understand your argument at all; to the extent that he was
mekadesh "according to his daas only", we actually *lose* any ability
that we might otherwise have had to be mafkia the kiddushin, by virtue
of the very fact that he didn't make it contingent on our da'as! In
other words, afke'inhu means that since he made his kiddushin dependent
upon our da'as, he has given us a veto.  You argue that this scoundrel
hasn't done so, so then how do we overturn his kiddushin?  [Even if he
has lied and mislead the woman into thinking that he was mekadesh
a'da'a'ta d'rabanan, that probably isn't sufficient grounds for a case of
kiddushei ta'us.]

[snip]

> 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.

For the record: I didn't mean to approve of the modern innovators at
all; I was simply pointing out the radical implications of the DM.

> > 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 course; in addition to his responsum limiting RT to the bo'el, he
actually struggles with the ruling of the Gedolim in his responsum in
which he records their ruling for posterity - he's the one who brought
it to the attention of the DM in the first place, and to whose rationale
the DM is proposing an alternative!

> 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).

As I mentioned in a previous post, the TH says that he knows of no
'Gaon' who agrees with the Rambam, which is certainly consistent with
his understanding of RT.

> > Yitzhak
> 
> Regards
> 
> Chana

Yitzhak
--
Bein Din Ledin - bdl.freehostia.com
An advanced discussion of Hoshen Mishpat