[Avodah] Halacha is about sources. Lo BaShamayim hi.

[Micha Berger]

On Fri, Feb 10, 2012 at 03:07:00PM -0500, Zev Sero wrote:
> But is it valid? Is DdM just another variant on Minhag Hatagarim, or
> even like Choshen Mishpat, stating the default rules from which anyone
> is entitled to deviate? Or does it establish basic realities of baalus,
> so that if DdM says this object belongs to A and not to B, and that this
> doesn't depend on their will, then A may give B permission to use it, and
> may agree not to sue him or challenge him and to act in all ways *as if*
> B owned it, but it remains A's property because that's what the DdM says?

I am not sure that "basic realities of baalus" are different than the
concept of norm.

It reminds me of the discussion near the end of Ymi Taanis about how
hefqer BD hefqer can create a chalos that can impact even terumah. (Which
isn't taken from hefqer.) I'm not sure if it's valid, ie if hefqer BD
hefqer is what you think of as "CM" as opposed to "basic realities
of baalus", it just vaguely feels related.

On Wed, Feb 15, 2012 at 02:47:16PM -0600, Lisa Liel wrote:
>                        Back in the 1990s (I think it was), Rabbi David
> Bar Hayim and Rabbi Shlomo Riskin had a debate, during which R' Riskin
> claimed that "Lo Tirtzach" applied to killing anyone, Jewish or not. He
> supported his claim by reading from the Rambam's Hilchot Rotzeiach,
> where he says [kol horeig nefesh adam oveir belo sa'aseih, shene'emar
> 'lo sirtzach'] R' Bar Hayim got up and took out a copy of the Rambam
> based on manuscripts of the Rambam himself and read [... nefesh adam
> meYisrael...] (and you can see that girsa on the Mechon Mamre site as
> well). He suggested that we'd do better going according to what the
> Rambam wrote with his own hand, rather than the official version of the
> Polish Catholic Church. Note, btw, that he wasn't saying it's okay to
> kill non-Jews, only that it doesn't come from that pasuk. R' Riskin's
> reply was that we pasken by the version in our hands. I didn't think
> that was a kosher answer at the time, and I don't think the answer of
> the Torah Codes folks was any better.

Didn't you recently defend the notion of siyata diShmaya getting us
to the correct text of the Torah, despite relying on the majority of
three manuscripts? Why is that valid for the mesoretic text, but not
other halakhos? Why not argue that we had the girsa we had because
that's the direction Hashem wanted us to orient toward?

I think RMBH lost site of what it means for Torah to be an Orality,
rather than a formal text.

Which ties back to my problem with not having a poseiq. The whole thing
is about having a river flowing from the past. That middle ground between
the classical academic trying to recreate original intent of a text and
the deconstructionist who only cares about the meaning created by his
interaction with the text.

As I blogged:

    Mesorah is a living tradition of a development of ideas. The Oral
    Torah is oral, a dialog across the generations. If we see a quote in
    the gemara from Rav Yochanan, we might be curious about the historical
    intent of Rav Yochanan. But in terms of Torah, important to us than
    what R' Yochanan's original intent is what R' Ashi thought that
    intent was, which in turn can only be understood through the eyes
    of what the Rosh and the Rambam understood R' Ashi's meaning to be,
    which in turn can only be understood through the eyes of the Shaagas
    Aryeh and R' Chaim Brisker. That is the true meaning, in terms of
    Torah, of Rav Yoachanan's statement.

    Definitionally, talmud Torah is entering the stream. Not seeing a
    statement as a point to isolate in time and space, but as a being
    within current that runs through history from creation to redemption.
    ...

    Both the classical academic and the Deconstructionist share
    one thing in common --" they see themselves as encountering the
    text. The idea is that the material is "other", outside, to remain
    objectively studied. One looks for the context for which the text
    was written. The other looks for how the text can be understood with
    minimal assumptions about context.

    Wissenschaft des Judentums, the "science" -- i.e. academic study --
    "of Judaism", isn't inherently evil. It is quite possible, and in some
    circles quite common, to combine Orthodoxy and Wissenschaft. However,
    as implied at the end of the previous section, it is not to be
    confused with Talmud Torah as per the mitzvah.

    The academic's job is the objective study of the material. Trying
    to get to the truth by eliminating personal bias and hidden
    assumptions. Talmud Torah is about internalizing the lessons of
    the Torah. Rather than trying to be objective, the entire goal
    is subjectivity. If mesorah is a discussion down the generations,
    studying Torah is adding one's voice to the conversation.

That's why I speak about legal process, emphasis on the word process,
rather than an attempt to discover some abtract truth.

Tangent: We tend to think of halakhah as law, but it's not the only
valid model, or even necessarily the closest. R' Dr Moshe Koppel writes
about halakhah as language, with the added nuance that unlike law, the
rules of grammar only partly capture everying an accomplished writer can
effectively do with the language. (Judaism as a First Language
<http://www.azure.org.il/article.php?id=588>; also see his book Metahalakhah.)
Halakhah as lifestyle is also a valid mental image. For that matter
"lifestyle" is a pretty accurate literal translation of "Orakh
Chaim".

Tir'u baTov!
-Micha

-- 
Micha Berger             The true measure of a man
micha at aishdas.org        is how he treats someone
http://www.aishdas.org   who can do him absolutely no good.
Fax: (270) 514-1507                   - Samuel Johnson