[Avodah] Halachic Texts: More Background

[Richard Wolpoe]

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!

> 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?!

>
> Bottom line is that R' Rackman innovated two things that have no basis,
> regardless of our differences in how to trate things that do:
>
> 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!

Maybe Rackman holds taht a sociopath NOW was ALWAYS so, jsut like tav
lemieisav cannot change. how about that counter-argument?!

Just last nigh's Star Trek had varous officers debating whether Captain
Kirk's persona had been swapped. Despite no objective evidence, Spock
realized he MUST be differnet, [a mind meld with the later ego did help] yet
McCoy certified the Captain as fit. Lema'aseh huvrar davar lemafrei'a that
the persona HAD bee nswitched after all!

>
> 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.


>
>
> 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 find dancing on Shabbas mroe obejctively outside the pale than Rabbi
Rackman's p'sak ecause this is LITERALLY to'eh bidvar hamishnah.



> 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!

Whe'res' the Taz's Meqor for making late Ma'ariv on Shavu's?   Indeed we may
daven early Maa'riv on Sahbbas itself!



> Our debates over how do
> decide between answers that actually have mechanics which trumps which
> and how has nothing to do with this.


Really? how so?



>
>
> RER's belief that he has justification doesn't change the fact that
> according to everyone else's rules, he doesn't.


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?

Who besides RYBS read teh Rambam literally taht one must sit for Ashbrie at
Mincha? The Tur/BY quote the Ramba w/o metnioning this prat which implictly
means they agree wtih Rambam but do not consture sitting as a requirement,
but perhaps as an option.
One MAY sit NOT one  MUST sit. This is obvous, but RYBS changed that read
w/o aFAIK any meqor.


>
>
>
> : Or he could say that any woman protesting her fate vociferously is part
> of a
> : minority that prefers isolation to suffering an abusive relationship.
> ...
> : The point is taht RYBS said that tav lemseisav is an aboslute. WADR, I
> : disagree.
>
> The essential issue is NOT tav lemeisav, although that came up in part
> of the mekach ta'us argument. Everyone discusses RYBS's reply about it
> because his reply has philosophical content and is therefore more
> interesting than the lomdus.


OK

>
>
> 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


> The Chasam Sofer and CI
> didn't simply resolve problems through hafka'as qidushin. Are we wiser
> than them?


See remakrs about innovations above by Kitzur, Taz and RYBS. Were they
wiser?
Why on the page of the Tur re: Hilchos Shavu'os the
Tur/BY/DM/Drisha-Presiha/BaCh
ALL omit davening Ma'ariv late!  Magen AVraham did not Know of it either
because he requires repeating Shema ayain sham!


> 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

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. Certailny it is w/o precedent in eidi
ishus to allow a woman but to mattir agunos the Talmud says it's OK.
Halachic preecedent is trhown wawy provding itself in turn anew haalchic
preceent allowing one to throw away Halachic precdent because of the
over-whlming nautre of the suffering entailed.

And since kol demkeidsh ada'as derabban mekadeish, if rabbis dems it so, it
IS so. So says Rav Ashi re: the case of being mevateil qiddushin that was
done vai shtarr or bi'ah

The requirement of having to process at least a Passul Get IS in Rashi and
Rishonim but not explicit in Shas. Why not ignore Rishonim?


>
>
> To put it in my own words: lo ra'inu eino ra'ayah doesn't apply to
> cases where someone claims there is something 3 feet across sitting
> three inches in front of your face. -Micha
>
>
See YD 1:1 the machlokes BY and Shach on lo ra'inu eino raya. I'm not sure I
get your mashal [or nimshal!]

RYBS certainly had no eye witnesses for sitting for Ashrei. and Lo Ra'ainu
is certainly the case for Techeiles. I don't know how ANYONE can revive this
w/o a definitive masorah, and RYBS and I are in agreement on this [as well
as many many psoqim] but some have found the ability to refresh TEhceiles
w/o any certainty of what a hilzaon is. Perhaps we can over-ride problems
re: birds and Chagavim based upon research instead of masorah/qabbalah, too!


Or to put it another way, if resarch can ID a chilazon w/o a precedent -
why not Chagavim?



-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
see: http://nishmablog.blogspot.com/
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