[Avodah] rape

[Micha Berger]

On Thu, Sep 18, 2008 at 01:14:17AM +0300, Eli Turkel wrote:
:> where do you see that 'the Ran's theory is innovative, and not
:> necessarily the consensus view'

: The Ran's view is very controversial because it implies the need of
: a system beyond halacha. Why learn choshen mishpat or
: meschet Sanhedrin if the king will set up his own laws.

I think a dual attitude is not just incorrect, but wrong. It's "render
unto Caesar" and "separation of church and state", alien ideas to
Yahadus. That doesn't have to mean that society was left unprotected.
Rather, we can question whether such protection is "beyond halakhah".
"Uvi'arta hara'ah miqirbekha" is a pasuq. WRT benei Noach, it's
acknowledged as halakhah. Yes, the details are left to man.

The situation parallels a taqanas BD, where the values derive from the
halakhah and the legistlation extends halakhah, rather than considered
a second system in addition to it.

This touches on what I like to call the "barrel paradox". To quote
myself from v11n53:
> In BM 83a, when Rabah bR Huna hired workers to carry barrels of wine for
> him, and they accidentally (apparantly through a lack of care) broke
> them. Rava, who served as the posheir between them, required Rabah to
> (1) return the shirts he took from the workers as collateral; (2) not
> bill them for the loss. When challenged on it, "Is that the din?" Rava
> replied yes, based on "lema'an teileikh bederekh tovim" (Mishlei 2:20).

> The workers then complained that they were broke and couldn't buy
> dinner, so Rava orders Rabah to (3) pay them for the day's work? Again,
> "Is that din?" To which Rava quotes the rest of the pasuq, "ve'orchos
> tzadiqim tishmor".

> This involves a basic paradox about lifnim mishuras hadin. There exists
> a chiyuv in din to go beyond the exact letter of the din. (Obviously
> you can't apply this recursively, im kein ein ladavar sof.)

Menuval birshus haTorah is also a "barrel paradox" -- since it's assur
to be such a menuval, it's not really birshus haTorah.

Similarly, here we have a chiyuv to preserve the law beyond the
requirements of the law. And, like pirsumei nisa, shevus beshabbos,
melakhah on ch"m, humans are left to decide what that means in
particular. Just as Rava pasqens on "derekh tovim".

Tir'u baTov!
-Micha

-- 
Micha Berger             Despair is the worst of ailments. No worries
micha at aishdas.org        are justified except: "Why am I so worried?"
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