[Avodah] KSA, MB, AhS, Chayei Adam and other codes

[Micha Berger]

On Sun, Aug 03, 2008 at 10:29:26AM -0400, David Riceman wrote:
: Micha Berger wrote:
:>But according to RALichtenstein, the iqar of RYBS's objection is that if
:>one could simply invoke hafka'as qiddushin in this way, we could throw
:>out much of Yevamos, Gittin, Even haEzer, etc...

: I don't understand this.  Didn't Rabbi Soloveitchik rule that we need an 
: explicit tradition about makom hamizbeah, rather than our best 
: deduction.  Why didn't he reject that opinion as well, since it requires 
: us to throw out much of sidrei kodshim and tohoros?

Apples and oranges.

RYBS doesn't believe in two kinds of innovation (at least).

1- The general Brisker belief that only halakhah can create halakhah,
and science without mesorah can't establish din. So, it would take
Eliyahu haNavi to restore techeiles, identify maqom hamiqdash, etc...
(It's not throwing out qodeshim, it's postponing it.)

2- There is a concept of halachic engineering; finding a means to change
the situation to one where an issur doesn't apply. E.g. heter iska. RER
is proposing another example of engineering. However, RYBS doesn't
believe one can accept engineering that oviously must have crossed R'
Aqiva Eiger's mind and that he didn't recommend. That alone is proof
that the engineering doesn't work.

An objection that's only an issue to prove the engineering is no good,
and not about other kinds of innovation.

Anyone can think of annullment. Not a major chiddush. Yet the gemara
has peraqim of how to deal with the problem in more painful ways. This
is proof, in RYBS's eyes, that annullement can't be a real option.

But speaking a little more broadly... Hafka'as qidushin was never invoked
the way RER did, with (1) no maaseh on the part of the husband, and (2)
in a case by case fashion. He's taking an idea that historically was a
declaration saying "from now on, all marriages of tyupe X don't work"
or "from now on, all divorces of type Y are binding", and saying that it
give him right to annull a marriage because the husband is a vindictive
menuval who won't give a get? How are the two similar? One needn't buy
into RYBS's reasonining to say RER has no source for placing this within
the traditional concept of hafkaas qiddushin.


On Sun, Aug 03, 2008 at 06:16:56PM -0400, R Richard Wolpoe wrote:
: On Fri, Aug 1, 2008 at 3:10 PM, Micha Berger <micha at aishdas.org> wrote:
:> If we cared about how people could construe things, then eilu va'eilu is
:> altogether out.

: How so? Specifics please!

I do, in the following text:
:> Once you allow plurality, anyone will argue that their position is simply
:> another "eilu".

: Inded you havearuges just so  many times to me. Please explain how this is
: different?!

Because there are two issues:

how one defines the halachic options, and

if those options embody conflicting desiderata, how do you weigh the pros
and cons. (And I suggested three basic kinds of factors to consider:
the weight of the formal argument, the presence of the mimetic norm,
and what will satisfy the sho'eil's need to find religious meaning iin
his practice.)

Eilu va'eilu says that there are different ways to decide between possible
shitos. Not that one can simply invent any shitah.


And again, just wait for the next line:
: > 1- Considering a later personality change, career failure, or other
: > issue to be "mekach ta'us" rather than "nistapkha sadeihu".

: Imagine personality can mamash CHANGE within  JUST ONE liftime, but human
: nature cannto change in 1,500+ years of history! I am indeed perplexed by
: this paradox!

Where do I say anything about human nature? I'm writing about his claim
of makach ta'us applying to something that wasn't part of the deal when
they got married, and you are replying about "tav lemeisiv". Even if tav
lemeisiv changed, to say that she later found him to be a jerk qualifies
for makach ta'us is a chiddush without prior basis. 

It is not a case where we can make conflicting arguments to weight pros
and cons. It's a case where his detractors claim ein raglayim ledavar
altogether.



:> 2- Hafka'as qiddushin where (1) the husband did no ma'aseh attempting
:> qiddushin or geirushin, and (2) on a casewise basis rather than a general
:> policy set in advance that whenever X, the marriage is annulled.

: Se Hoshen Mishpat [2-5] where BD has great powers to make a hora'as sho'oh
: EVEN w/o precedent when things are considered to be out-of-hand. Such powers
: are always within the purview of a BD when there are abuses withi nthe Torah
: [naval birshus hatorah]. If hte Halachah has a loopwhole that is explitable
: a BD can at least temporarily enforce a closure, EVEN if it is not based
: upon Halachic norms.

In ChM, where they have hefqeir BD hefqeir, or to go beyond halachic
norms (taqanos). Here it's lehatir, it's not ChM, I don't see relevence.

:> Both of us should agree that places his position objectively outside the
:> fold.

: I fail to understand how your heuristic read of Halachic Judaism how ANYONE
: is completely objectively IN or OUT of anything normative.

I don't see how your algorithmic read includes the majority of baalei
mesorah as engaging in halachic process.

:> There is no maqor. It's his own invention.

: Yes I saw that the Kitzur Misgeres hashulchan accused the Kitzur SA of the
: same a few days ago. He says [in the R. Mordechai Eliyahu edition]  Taht
: there is NO MAQOR in poskim fro this decision.  And what does that prove?  A
: snif here and a snif there and presto it's Halachah!

No maqor means no senifim. Not by implication, by identity. If there
were senifim, they would each be pieces of a maqor. Here, there is just
reasoning that was never used before that would provide a more derekh-noam
solution that thousands of pages of gemara, rishonim and acharonim.
Saying that reasoning must be wrong, not a factor to be added, is quite
strongly supportable.

This is what I'm talking about, that your algorithm doesn't include the
majority of baalei mesorah. Look through Otzar haPoseqim in YD. "A snif
here and a snif there" is lemaaseh the normal way to do things. Either
you accept the concept, or you have to exclude the majority of shu"t
from your notion of the halachic process. I would faster conclude your
model is wrong.

: There are a lot of "Da'ss Yachid" types out there. Does being a Da'as yachid
: preclude eilu v'eilu?  WAs the B'al Hama'ors biur hametz erev Pesach via
: eating outside Eilu v'eilu?

: Does consensus count in p'sak And ven if it DOES count, who says there can
: be ZERO dissent?

It counts for a lot. Not for everything, eg hefseid merubah allows
looking for an al mi lismokh and other senifim lehaqeil, but a lot.

But here it's not Beis Shammai saying Beis Hillel is wrong. It's saying
RER is wrong the way the Issiim were wrong. Not employing the heuristic.

:> But according to RALichtenstein, the iqar of RYBS's objection is that if
:> one could simply invoke hafka'as qiddushin in this way, we could throw
:> out much of Yevamos, Gittin, Even haEzer, etc...

: ein hachi nami, in a hora'as sho'oh you MAY throw them all out.  But I do
: belive R. Rackman never meant to throw it all out

He did! He may have not meant to, but the agunos who came to him didn't
need eid echad, eid mipi eid, or any of the other super qulos in birur
Chazal allowed to permit remarriage.

:> RYBS described it as cutting off the branches of the very
:> tree one is sitting in. IOW, there is a basic problem of precedent and
:> halachic process here.

: since when have you yourself subscribec to ANY prescirption or dexcription
: of Halchic process. AISI, it is all the eyres of the beholder or poseik to
: quote the paytan

No, I spelled one out repeatedly. It's not an algorithmic process, but
a heuristic is a process too. My original posts (written in Oct '07)
were honred by your objections and others' he'aros in the blog entries at:

http://www.aishdas.org/asp/2007/11/halachic-process-part-i.shtml
http://www.aishdas.org/asp/2007/11/halachic-change.shtml
http://www.aishdas.org/asp/2007/11/halachic-process-interlude-what-it-isnt.shtml
http://www.aishdas.org/asp/2007/12/halachic-process-part-ii.shtml
http://www.aishdas.org/asp/2007/12/halachic-process-addenda.shtml

In particular, in the interlude about what the halachic process isn't, see
#4.

: Hinei Hadin beyad haposeik
: Birtzoso mechazeik uvirtzoso memacheik

: In a heuristic system one may WEIGH Heter agunost to trump other principles
: wbecasue even in the Talmud itself heter Agunos trumps the requiremetn for 2
: iedim mamash and allow an isha etc...

Heter agunos, though, is why do choose one tzad, why to find senifim
lehaqeil. It's not a senif in and of itself. It tells you how to weigh
your option, it doesn't create options.

E.g. hand clapping on Shabbos. Looking at it from the meta-level we're
on, there is actually a three way machloqes:
1- Mutar
2- Assur, but leheter is within eilu va'eilu
3- The folk who clap are simply wrong.

That third group have an opinion that parallels RYBS's description of
RER's BD. The only difference is that RER's stakes are mamzeirus, not
a shevus derabbanan.

On Thu, Aug 07, 2008 at 12:47:20AM -0400, R Richard Wolpoe wrote:
: If Tanu Achnai was a physical reality that R. Elizer was correct within the
: confines of the Divine Creation, then the rest of Hazal who argued with him
: can be seen as wrong as scientisists.

: Or to put this in plain English: assuming that R. Eliezer had the objective
: truth than the Hazal who disagreed  were wrong by THAT standard.

Halakhah isn't science, it's law. That's the whole point of the story
-- Hashem gave us a legal system, and we are to use the system, not
experiment.

It's still unclear the story says we do use process over bas qol,
no matter how often contemporary writers take that side of things.
<http://www.aishdas.org/asp/2005/01/legislative-authority-of-bas-qol.shtml>
It could be the BQ was saying the halakhah is usually like RE, as a
kelal (R' Nssin Gaon). And in fact RNG continues that had the BQ said
that in this case it was like RE -- we would indeed hold like the da'as
yachid! just as we follow the bas qol that said "... vehalakhah keBeis
Hillel". Or that it was just for RE's kavod (Tosafos).

The Ohr Samei'ach (YhT 9:4) says the BQ was saying that the halakhah is
like RE but not to the exclusion of the halakhah being like RY and the
rov. It was asserting that his da'as yachid is still eilu va'eilu. On
a "science" level, both were right.

On Thu, Aug 07, 2008 at 03:28:16PM +0000, kennethgmiller at juno.com wrote:
: Alternatively, what if you want to follow a particular shita which
: is contrary to "your received chain of precedent", not because of your
: general respect for this author, but because his logic and argument is
: stronger than the opposition?

As I described it, the decision between eilu va'eilu comes down to
weighing the options according to three general areas of criteria:

1- The weight of the process for each -- does one shitah have more
supporters (assuming it's not nimnu vegamru, which would altogether close
off the mi'ut from further use), is one a more accepted baal mesorah (I
guess that's is he seen as a "gadol mimenu bechokhmah" to the previous
"uveminyan"), the soundness of the formal argument (how muchrachim are
his ra'ayos), etc, etc, etc...

This is where Brisk tends to place its emphasis. Or, in a different way,
the MB.

2- Aggadic concerns -- what aids the sho'el in connecting what he's
doing to his ultimate life-goal?

Now we're in the terratory of the Isms -- chassidus launched an
explosion of new pesaqim (and a set of new nusachos) on this ground.
The Gra was both into these kinds of things but more so the formal
process textualist.

3- Mimetic traditional practice

Maharil's primary factor. Yekkes tend to reside here too. Where RRW
leans.


So, if I take the liberty of recasting your question into my model,
you're asking how much one can veer toward the first two corners of the
triangle, and still be doing halakhah?

Adding one more keneitch:
: This is another phrasing of my long-held question: What constitutes
: a minhag, such that one follows his father's practice? And what is not
: a minhag, such that one follows his posek's direction?

Recasting again:
Given today's shift from minhag hamaqom (in the sense of local pesaq)
with its supporting concept of avoiding agudos agudos to a minhag avos
(based on one's patrilineal ancestor's pre-migration locale's pesaq), does
one have more leeway away from the common practice corner of the triangle?

My own inclination is that given this weakness of mimeticism today,
combined with the drastic need to de-ritualize our view of halakhah, we
should push as far to the 2nd corner -- pasqening based on taam hamitzvah
(between procedurally viable eilu va'eilu, not talking antinomianism!) -
as we can within the system.

Tir'u baTov!
-Micha

-- 
Micha Berger             A cheerful disposition is an inestimable treasure.
micha at aishdas.org        It preserves health, promotes convalescence,
http://www.aishdas.org   and helps us cope with adversity.
Fax: (270) 514-1507         - R' SR Hirsch, "From the Wisdom of Mishlei"