[Avodah] Seeing G'zeiros Everywhere

[Chana Luntz]

RRW writes:
> Rn Chana:
> "halacha Moshe m'Sinai, "
> 
> Ironic choice of words here
> 
> R Shimshon of Sens [Rash] proves that several cases Of HLMM cannot be
> taken lliterally. FWIW This was posted on avodah this past year

And there are endless discussions amongst the rishonim and achronim as to
whether things are d'orisa or d'rabbanan.  That does not mean that there is
no difference between a d'orisa and a d'rabbanan, or that the distinction is
irrelevant.  In fact the very fact that these terms can be and are fought
over is precisely because they are meaningful and important distinctions.
Not that the one should in fact be called the other and blurred into one
another.

> [email #2 -mi]
> 
> Rn Chana:
> > This is a standard deconstructionist theme, that words are ultimately
> > empty of meaning. If you want to get into deconstructionism and
> Humpty
> > Dumpty (which was Lewis Carol's version of it, "words mean whatever
> > I say they mean"), you can do so, but at that point there is no point
> > talking about halacha, and you might as well go off and join the
> Reform.
> > After all, as I pointed out "melacha" is certainly an elusive word,
> > if you want one, so why not go on what one "feels" Hashem wants when
> he
> > wants us not to do melacha -- and whatever feels right in terms of
> your
> > understanding of the word is what you should do (or not do) on
> shabbas.
> 
> Why not see this as complex rather than deconstructive?

Because of the consequences, ie what is then concluded.  Melacha is, agreed,
a very complex concept.  But that does not mean that you and I can then look
at something and decide off our own bat that it is a melacha if it isn't (or
vice versa).  Saying something is not a melacha when it is has the obvious
consequence that if you act on what you say you will be over an issur
d'orisa.  But even saying something is a melacha when it isn't is (a) almost
certainly over on baal tosif and b) if you were then to bring a korban for
your violation of the non melacha b'shogeg you would be bringing chullin to
the azarah.

> A Chaveir just sent me this offline.
> 
> I will BEH take a look at these articles soon
> 
> Meanhwile the Chaveir wrote
> > I looked in the local beis medrash, and there's an article in the
> > Encyclopedia Talmudit titled "Gezera", in volume 5. It has a section
> > titled "sugei (types of) gezeira" from columns 533 to 537.

Yes, and as you note below the second to last paragraph in this section
deals with the question about whether there can be a gezera today, and
quotes the identical sources to those quoted by ROY.  That is the point I
was trying to make.  Not so much that ROY himself said it, I am more than
happy if you can find an achron of similar stature who disagrees.  The point
I was trying to make was that there are rishonim and the Beis Yosef who say
that we cannot make gezeros today, and as far as I am aware, nobody
disagrees.  If you prefer to get those references from the Encyclopedia
Talmudit then that is fine.  It is not that ROY is "my favourite gadol" and
that I can't see how anybody could hold differently.  What I like a lot
about ROY is that he is encyclopaedic - he does for you what the
Encyclopaedia Talmudit does (and sometimes more, I have found numerous times
where he brings more sources than the Encyclopaedia Talmudit, but I very
rarely find less).  But if you are more comfortable with the Encyclopaedia
Talmudit I am happy to quote that instead. You still have a problem with how
to deal with the rishonim and Beis Yosef.

> Also See Enc. Talmudit vol. 5 column 540
> 
> 3 eras delineating "sof g'zeira":
> 
> > One opinion: Only up thru AKHG and BD hag'dolim see fn 163 tshuvas
> Rav
> > Sar Shalom Gaon - tshuvos hag'onim "chemda g'nuzah" 77
> 
> Not to be gozeir after the g'onim fn 164 Maggid Mishneh hametz umatza
> 5:20
> 
> And some say even the g'onim lacked this right after the Talmud Fn 165
> [Rosh shabbas ch. 2 siman 20;
> 
> 
> Tiyuvta on RRW? Maybe so or maybe no

That is precisely what I was trying to say quoting ROY, but am happy to
quote the Encyclopaedia Talmudit.

> Ok, assuming the above is correct then how can my colleague also be
> correct?
> 
> Namely:
> > A beit din can decide to enact a ban on anything it thinks needs
> > to be banned, and the ban is only enforceable in the community which
> > recognizes the beit din as its authority for such matters, and only
> to
> > the extent that that beit din has the power to enforce its rulings or
> > to the extent to which people follow the ruling anyway in the absence
> > of enforcement power
> 
> [EG g'zeira against bigamy and qitniyyos on Passover Also how can these
> posqim nullify a 'mishnah brura' {pun intended} of "asu s'yag
> letorah"!?]

Because these are not gezeros, they are something else.  This is where I get
back to the fact that precision is important, and just as it is important to
know the difference between a d'orisa and a d'rabbanan, it is important to
know the difference between what is a gezera and what is something
different.

Partly of course this is because the consequences can be different.  For a
real genuine gezera, there is little question that one who violates it is
poretz geder and is liable b'yadei shamayim to be bitten by a nachash (see
eg Encyclopaedia Talmudit page 533 the first full paragraph on that page)
and one is permitted to call such a person an averan. 

It is not at all clear that this is true of many of the other types of
things that you keep wanting to call gezeros that I am insisting aren't.  In
particular, as you can see from what your Chaver said above "the ban is only
enforceable in the community which recognizes the beit din as its authority
for such matters and only to the extent that the beit din has the power to
enforce its rulings ..."  If there is no such power, is such a person an
averan?  Are they liable to death by way of snake bite? Are they Poretz
Geder? Almost certainly no.

So what is the correct terminology for what your Chaver is describing?  I
would have thought it was probably a form of takanat hakahal.  Which, as
always, stretches only to the kahal under its control.  I agree that
Menachem Elon's Mishpat Ivri is a masterly presentation of the powers to be
found under takanat hakahal.

Nobody is suggesting (not ROY, not me) that takanot hakahal cannot exist
after the time of Shas or the geonim.  My fundamental concern is that to
call a takanat hakahal a gezera is wrong in the same way as to call a
d'orisa a drabbanan or vice versa is wrong, or to mix up different types of
d'orisa (note that it is pretty universally agreed that if a witness is
giving somebody hasra, if they tell them the wrong lav then the hasra is not
valid and thus the person is patur from mitas beis din or malkos or whatever
penalty they would otherwise be liable for.  Precision is a torah value and
it matters.  It is wrong to give something the wrong label, especially when
there are different kinds of consequences).

Similarly I believe you are also confusing gezeros with the concept of
minhag (minhag k'din hu).  While some of the cases you cite are in fact
takanos hakahal, some of them are minhagim.  Kitniyos is a classic but
numerous others of these are minhagim.  You spend a bit of time in one of
your postings arguing that ROY is being inconsistent in arguing that
Ashkenazim still can't eat kitniyos on pesach.  But ROY is only being
inconsistent if you say gezeros equals minhagim.  ROY would hold, as I am
arguing, that gezeros and minhagim are different things and it is important
not to confuse the two.  Minhagim are binding, including ones that came into
existence post shas.  Gezeros are not.  The classic distinction between
gezeros and minhagim is that gezeros are top down, and minhagim are bottom
up.  Minhagim are things that the people (or a group of people, such as the
Ashkenazim) have accepted upon themselves and that acceptance becomes
binding on future generations.  It is not something that any rabbi has
decreed, at most a rabbi can document it.  The issue then becomes are there
circumstances where a rabbi can mevatel a minhag if in fact that minhag is
baseless, based on mistaken assumptions, or is detrimental to spiritual
growth.  This is a complicated issue which is in and of itself discussed in
the poskim.  But if you confuse minhagim with gezeros you are also going to
get very confused as to how if it is possible to reverse it. For a gezera
you get into questions of needing a beis din greater in number and in wisdom
(or possibly, as per Tosphos and some others, if the reason for the gezera
as stated in Shas is no longer applicable).  For minhagim you are looking at
other considerations (but certainly if the minhag is completely abandoned it
would seem to have become null and void, which is by no means necessarily so
for a gezera).  Whether you are over poretz geder if you are over on a
minhag, and which minhag, is also a complicated question, but there is
definitely an argument to say not (given the source and the way it is
generally used, although there are exceptions). But if you don't maintain
the definitional differences between minhag and gezera, then none of these
discussions can take place (and the discussions that do take place would
seem to be endlessly contradictory), ie you just end up with a confused
mishmash. 

Your example regarding judging is I think, something completely different
again, ie yet another completely different issue and if I have the time to
do the research I will try and post on it specifically, but I may not have
the time as it will involve my relooking up a whole bunch of partially
remembered sources.

And of course a further question is one of applying gezeros (but it is not
just a question of gezeros) to modern issues.  There are issues of how you
deal with a microphone or tape recorders (CD player etc), is it a klei shir
and hence within the gezera or not.  But this is no different to issues of
how to deal with electricity, and filament light bulbs.  The posek looks at
a new technological development and says - is this something that eg
violates a d'orisa on shabbas?  That is not them "making a new gezera"
regarding light bulbs, that is them applying their knowledge of what is
havara or bone or whatever it is to the modern technology and seeing if it
fits.  When they do precisely the same in relation to a rabbinic
prohibition, that does not suddenly involve them making a new gezera.  They
are applying the old gezera in the same way they are applying the d'orisa.
Again this does not involve new gezeros, but a number of the cases you bring
when you see gezeros everywhere fit within this category.

And again, this kind of applying of the old gezera has a different
consequence to that of minhagim and that of takanos.  Because just as when
applying the d'orisa, if they agree that a filament light bulb is indeed
havara, then if there was a beis hamikdash and one did classic havara
beshogeg, one would bring a korban, so too if one turned on a filament light
bulb.  Similarly if they decide that a microphone is a klei shir, then the
consequences will be the identical consequences as if one had indeed played
a Talmudic era musical instrument on shabbas.

So perhaps to articulate my concern about what you are doing more clearly, I
believe you are confusing a whole bunch of different halachic concepts, with
different parameters and different consequences and different histories and
trying to call them all by the one term, gezera, which has a specific
meaning.  And you are then trying to argue, by mishmashing these different
concepts together, that actually we have a whole lot more halachic freedom
than we actually do. Ie not only are you not being precise in the way that I
believe one is halachically required to be, but you are then arguing for
consequences that are both wrong, and (except that I don't believe anybody
is really going to take you seriously) potentially dangerous.  And no, I
don't think it is me or ROY who is being "revisionist" [or perhaps even a
radical revisionist] and that people like you are actually supporting a
restoration of a more traditional approach - or at least, the traditional
approach that it seems to me you are really calling for is to go back to the
time of the Talmud and open up all the questions again.  That is something
that I have heard calls for at times, but not within the Orthodox world.
The Orthodox world is governed by the history of psak as it has developed
over the last 2000 years, and in particular how it developed amongst the
rishonim.  And if the rishonim say we don't make gezeros, I don't believe
this is something that can be overturned by us now, at least absent real
smicha and a Sanhedrin.

But that does not mean that we cannot make takanos, that we do not have
minhagim, that we do not have psak.  But each of these have their own rules,
which are different rules to that of gezeros, as they are different
categories within the halacha.  Within them is still much room for
creativity, but in my view it assists no-one to get these concepts confused.

Regards

Chana