[Avodah] kitniyot

Meir Shinnar chidekel at gmail.com
Sun Mar 31 08:36:40 PDT 2013

On Mar 31, 2013, at 7:32 AM, avodah-request at lists.aishdas.org wrote:

>  what gives a ruling authority, not what makes the most sense from
> :> a historical or scientific perspective.
> : Wadr, while the Sanhedrin, & probably tannaim & amoraim, are viewed as
> : having real legislative powers, the legislative authority of I rishonim
> : & achronim is in general viewed as quite limited to communal takkanot -
> : & is normally NOT applied to the general halachic process.
> Legislation and interpetation. In general I was careful to write both.
> You picked up one of the few times I didn't remember / bother. As above,
> I'm following RYBS in the assertion that the pesaqim in the SA have
> [non-absolute but real] authority because the Rambam's statement about
> a community accepting a halakhah applies to both new legislation and
> to interpretations of existing law.
> : The question of trying to understand what the Gemara & poskim meant -
> : especially in terms of realia - has a long history - & I doubt you will
> : find anyone prior to, say, 1800, who will so readily disassociate Halacha
> : from objective truth or discounted attempts at discovering past practices
> : - whether search for artifacts or manuscripts...
> I though I forestalled this argument by (1) showing how many rishonim
> were Constitutivists, ie believe that the law is defined by pesaq,
> not pre-existing to be discovered by posqim; and (2) even the sole
> known (to me) non-Constitutivist rishon, the Rambam does himself follow
> the authority of the qabbalah of the ge'onim over the computed year
> for shemittah.
> If you can explain why you do not believe Shemittah 1:4-6 isn't a
> pre-10th cent example of accepting halachic process produced results
> over a computation of truth, I would appreciate it.
1) Bayit sheni is irrelevant, because anshe knesset hagedola HAD legislative power and ultimate power of interpretation.
2) You are, IMHO, completely misunderstanding the rambam - which is actually a ra'aya listor.  
 The rambam does not, in general, give the post amoraic geonim automatic credence, and frequently paskens against them.  However, their authority derived from two different (albeit related) sources - 1) Personal stature 2) As transmitters of traditions from amoraic times - and amoraic traditions are binding.....
In shmitta The rambam has a textual understanding and chronology which leads him to one understanding.  However - there is a massoret hageonim. 

It is precisely in the latter sense that the rambam is defering to them here - as they have a tradition (ish mipi ish) about WHAT actually happened and the halacha, and he also says that the talmud in avoda zara is like them (note - it seems that  is not satisfied merely with the fact that it is kabbala and ma;ase, but at least one talmudic source seems to agree with them...)  His textual understandings are not enough to undermine the  kabbala and to suggest that it is wrong - .  As he says hakkabbala vehama'ase amudim gdolim behora'a . - but this kabbala and ma'ase are of a very different order than the kabbala and ma'ase of, say, shiur of large  kezayit - whose origin is clearly traceable, and which contradicts previous kabbala and ma'ase....

Remember he also argues for the utter freedom of a bet din to reject the understandings of previous bate din after the talmud....

finally, framing the debate in terms of constitutive versus nonconstitutive misconstrues the issue.  yes, there is interpretative freedom (eyn lebet midrash bli hiddush), and there is debate about the extent of how  much the interpretative efforts of predecessors actually bind us.  However, even the constitutive proponents are not post modernists - there is some objective truth traceable to Sinai, and it is not merely the invention of creative halachists and our deferral to communal norms (catholic Israel anyone??)- and the freedom to interpreted is limited by the principle that one may err.  Ashkenaz, faced with differences between communal minhag and talmud bavli, were perhaps the closest to RMB's position - but even there, there were limits of interpretative freedom - which is why the emphasis on textual accuracy and traditions - and times when they declared minhag wrong.....

The issue with a kezayit is that we know the textual basis (the noda biyehdua) - and most of us accept that one basic assumption he made - that people could not have gotten bigger, so therefore our olives are smaller.  I would also argue that accepting his shitta as normative actually undermines the validity and continuity of tradition...

Again, how often one is actually willing to argue that someone was wrong is a different issue (the ramban's hakdama to milhamot hashem, arguing that in general we can't achieve mathematical certainty in halachic reasoning, is relevant - as it suggests that it is rare that one can show that someone was actually wrong, and therefore puts into play other halachic issues such as  continuity and humility - but the notion that there is no notion of error is quite problematic and difficult to find before 1800.

Meir Shinnar

> I also mentioned the mizbeiach in bayis sheini that was based on a pesaq
> about nisuch which would invalidate the mizbeiach in bayis rishon. And,
> for that matter, the tubes in the mizbeiach in bayis sheini also would
> be excluded by pesaq in use during bayis rishon. Were AKhG not yotzei,
> because they didn't know the old-style mizbeiach? And if so, why didn't
> chazal switch back once they realized the switch happened?
> ...
> : The closest to rmb's position comes from the chazon ish's position that the fate of certain manuscripts, texts,& practices reflect divine  hashgacha - which is thematically related to
> : the idea of continuous revelation..
> Or the source I gave -- the Rambam's haqdamah, as explained by RYBS.
> Which has nothing to do with siyata diShmaya. Not that I am denying the
> notion -- just saying that I didn't go there. My whole point was that
> halakhah is created by communal endorsement of a textual halachic-process
> based pesaq, not by Divine Approval, not by historical study of prior
> states of halakhah, etc...
> : The idea of the community being able to determine its own norms to
> : achieve meaning & redemption is appealing, but has a history. I doubt
> : RMB is truly willing to endorse it..
> I think you are inviting me to conflate textualism and mimeticism more
> than the Rambam would.
> :-)||ii!

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