<br><br><div class="gmail_quote">On Wed, May 21, 2008 at 6:35 AM, Micha Berger <<a href="mailto:micha@aishdas.org">micha@aishdas.org</a>> wrote:<br><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<div class="Ih2E3d">On Tue, May 20, 2008 at 09:24:29PM -0400, Richard Wolpoe wrote:<br>
: > And no one knows the technical limitations of derashos anymore -- one<br>
: > of the reasons (perhaps the lack of Sanhedrin is a 2nd) we don't in<br>
: > practice make new ones even lefi haRambam.<br>
<br>
</div>: Except that<br>
: 1. The Taz created a new Halacha of davening Arbis after Tzeis becuase of<br>
: Temimos<br>
<br>
Not a derashah. "Temimos" is being translated.</blockquote><div><br>I call this a distinction without a difference. <br>First any translation is an interpretation [source one of my Yekke acquaintances who translated Hirsch et. al.] <br>
Translating a PASSUK into NEW Halchah is a brand new drasha anyway.<br>If it walks like Drasha and talks like a drasha it cannot be duck. If you can show me sources otheriwise you are welcome to show the nafka mina from making new halacha based upon translation vs. Drasha<br>
<br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;"><br>
<br>
: 2. The Maharil created the concept of sinlges not wearing Tzitzis due to<br>
<div class="Ih2E3d">: semuchos of Gedillim and Ki Yikach ish isha...<br>
<br>
</div>We're discussing the creation/discovery of new deOraisos (lefi<br>
haRambam). Does the Maharil claim this is deOraisa? I don't think wearing<br>
tallis is deOraisa altogether -- it just "looks bad" when saying parashas<br>
tzitzis not to have them.</blockquote><div><br>Ataully the Same Zohar that says NOT to wear TEfilin on Hol HaMo;ed says it is EIDUS SHEKER al atzmo NOT To wear Tzitzis whilst reicting Shema. If the Zohar is normative [I think not aiui but YOU do] then I ask mah nafsach!<br>
</div><div><br>See Darchie Moshe ho'oruch. It is in effect either<br><ol><li>Being mevateil a mitzvas Aseih by not permiting young men to wear them</li><li>If in the case of young men wearing Tallis Kattan, then the problem is the Bracha.</li>
<li>MB points ou it is BETTER NOT to say a brach on teh small arba kanfos, so by NOT wearing a Tallis Hagadol it is a HALCHIC problem</li><li>Maharil is in concert with about 90% of Yekke minhaggim but they reject this one- why?</li>
<li>Ba'eir Heitev AND Mishnah Brura reject this drasha and imply that young men SHOULD wear a Tallis. {it ws the minhag in most American shuls of the 1950's to do so.</li><li>If this is NOT a drasha then what is it and why do people follow this minhag in face of Poskim [such as MB] who rule otherwise? <br>
</li></ol></div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;"><br>
I also am under the belief he was finding a heter for an existing<br>
anomolous minhag, not interoducing new, anyway.</blockquote><div><br>that is true. Which is part of my point. The ONLY reason this drassha exits is AFIK becausing Taleisim [or talittot] were not readily avilalble so it was a limud z'chus. So now this limud z'chus [a hora'as hso'oh perhaps] is bateil umevutal if you take the MB seriously. But people follow Minhag Avos EVEN in the face of evidcne that they are doing so based upon a simple mis-perception.<br>
<br>This actaulyl happend to me in West Hartford circa 1963. on YK the LOR asked boys not to wear a Tallis becuase they wer runnin short<br><br>so I followed his command and I was given a hard time in the obby by one of the Synogogue elders for NOT wearing a Tallis when it wasthe minahg here to DO SO [no good deed goes unpunished] But I DID wear a Tallis except that the rabbi made an exemption based upon an urgency <br>
<br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;"><br>
<br>
We're also discussing whether they can be wrong, or if they define<br>
"right". This is a tangent; which is okay if it doesn't leave the first<br>
issue unresolved.</blockquote><div><br>Of course Hazl CAN be wrong. But we may have to accept their p'sak anyway. This si the yamin us'mol point.<br><br>UMpires blew THREE hone-run calls in ONE WEEK last week<br>
<ol><li>Delgado agaisnt the Yankees</li><li>Somebody in Houston</li><li>A-Rod<br></li></ol>Every decision STOOD as Halcha, but the umps admitted their errors on the record in the newspapers at least for #1 & #3. #2 wound up to be a n inside the park HR so no nafka minah lehalachh/<br>
<br>POINT? The umpires have the authority to call it and thier p'sak STANDS. it does NOT mean they are infallible. If a kohen says a Tzaru's is or is not it does not mean infalliblity only authority to make the call<br>
<br>In YOUR universe, I would not only have to accept the p'sak of the umpires, but I would have to believe that they ruled correctly! I never heard of such a hiyyuv to believe that since their authority to make the law is not challenged, that I cannot argue against their decisions or at least question their logic.<br>
<br>If this IS the case pleas e state sources, that one must consider hazal as not only having binding authority but infallbile lopivc <br><br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<br>
<br>
: Most of the Bavli era lacked a Sanhedrin anyway yet drashos AFAIK still took<br>
: place..<br>
<br>
We have discussed this in the past. The gemara discusses the end of<br>
gezeirah shava (that has no mesorah), it was early tannaim. The Tosefta<br>
then takes out the possibility of anything but qal vachomer. The later<br>
tannaim themselves state that it ended before their day.<br>
<br>
Perhaps the same answer, asmachta, applies here.<br></blockquote><div><blockquote style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;" class="gmail_quote"><br></blockquote>
</div><div><br>I dunno. I have not studied this....<br><br>Rambam mamrim 1:1 states that Beis Din Haggadol [BDhG] is IKKAR TSBP. AIUI that is the end for all such drashos. You wanna call it "early Tann'im fine." Why early vs. late? I can answer- the hurban is the ONLY major break. Everything Afterwords is a continuum [more or less] <br>
<br>If the Mesorah for Gzeira Shava works from BDhG insted of Misinai literally, then you obviate the kasha on how can prazzi prazzi be a Gzeria Shava in Megillah. Is Esther miSinai? yes according to Brachos but unlikely to make a Gzeira Sahva misinai literally.<br>
<br>However, if you tak out Sinai nad go back to the last BDhG this all works. ti also answers the Rash on HLMM etc. <br></div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<br>
<br>
<br>
<br>
In any case, Rebbe dies in 220 CE R' Hillel II died in 385, Ravina died<br>
in 399. (Rav Ashi lived until 427, but the gemara persumably had to be<br>
written when both were alive.) So, by the narrowest definition, there<br>
were 180 years of amora'im, of which only 14 didn't have a Sanhedrin.</blockquote><div><br>But Amoraim in Bavel were w/o Semicha. And there is LITTLE evidence that Hillel II ruled on 99% of the drashos in Bavel.<br>
<br>There are only a handlful of pieces of leigslation fomr this late body<br><ol><li>YT sheini</li><li>Acorrding to Rashi = Gentile oil</li><li>Rashi is shver because R. Yehuda quotes Rav on this matter and it is unlikely that Rav FOLLOWED R. Yehudah nesi'ah [see kesubbos about Rabbonsseinu]<br>
</li></ol><br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;"><br>
<br>
However, aside from the mesorah about R' Hillel heading the last Sanhedrin<br>
which is why they had to make the calendar, historians generally believe<br>
his son R' Gamliel IV headed the last generation of the Sanhedrin until<br>
he was killed by Theodosius II (for building new shuls) in 425. After<br>
the writing of the gemara.</blockquote><div><br>See Above <br></div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;"><br>
<br>
The Rambam may be dating the end of the Sanhedrin similarly when he<br>
discusses the authority of sha"s and mentions it being endorsed by<br>
the Sanhedrin. </blockquote><div><br>BDhG is in Yerushlayyim. Post Hurban BD are not REAL Sanhedrin See R. Akiva in Makkos Mishna 1:10 [ilu hayyinu beSanhedrin]<br><br></div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
(However, he rests the authority on "nispasheit lekhol<br>
Yisrael", not this point, so one needn't accept it to accept the Rambam's<br>
model of halakhah. This is relevent when discussing the SA, which was<br>
nispasheit -- most of its pesaqim -- but no Sanhedrin. Then again, maybe<br>
the SA was directly related to the attempt to restore the semichah,<br>
and that really was what Maran Bet Yosef was trying to do???)</blockquote><div><br>Tehre is no Sahnedrin. But with SAan dother Halchos post Talmud the poskim Say KAYMA LAN - what does THAT mean<br><br>See IM on Dancing on Shabbos and Taz in orach chaim 46 re: haNoseif Laya'eif Ko'ach<br>
<br>even w/o Sanhedrin there is a concept of NIMNU v'GAMRU<br>see also Sefer Hanicnuch on Acharei Rabbmn leHattos and BY re: 2 vs. 3 matzos<br>That is the point of the TWO teaneck Rabbis I conculted, -following hee consensus of Poskim . But that is ONLY when the amtter hads been decided. If the matter is STILL in dispute, then it is probably stil l open ofr debate [ e.g. tefillin on ChhM] According to Y - aisi - 3 matzos was a closed p'sal [p'sak means to cut off the other opinion] Tht is why I do not by GRA's ability to reverse a nimnu v'gamru EVEN IF THEY WERE WRONG!. But of course, he can question the validity of the p'sak ! Questionin [as I wrote above] is always OK<br>
<br>re: Ta'am k'ikar, whther this is d'orraisso or derabban is a machlokes Rishonim but virtually ALL acharonim I have read say KAYMA LAN kerabbeinu Tam. HOW?<br><br><ol><li>Nispashiet? maybe but this is not assur vs. muttar but d'orraiso vs. derabban. So this is hard to pinpoint on puk Hazei</li>
<li>Sanhedrin? - Where?</li><li>SA/Rema? Maybe</li><li>Nimnu v'gamru - seems like consensus is the best model here<br></li></ol><br> <br><br><br> </div><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<br>
<br>
114 years of the gemara's era was post-Sanhderin. But since the technique<br>
was lost before the compilation of the Tosefta, it's not overly relevent<br>
to our discussion.</blockquote><blockquote style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;" class="gmail_quote"><div>
Tir'u baTov!<br>
-Micha<br>
<br>
--<br>
Micha Berger <br></div></blockquote><div><br>As above I do NOT buy that model at all<br>AISI all of Mishna Talmud was post Beis Din hagadol in Yerushalyyim<br>RYBZ's Yavneh was l'havdil like Cromwells' Rump Parliaent - a vestigal but not totally authoritative. Certainly for Lu'ch purpsoes there is no doubt. But they lakced ko'ach for a LOT of mattters. and if they wer REALYL a Sanehdrin in the Amoraic era, their being bound by Tannaic literature makes ZERO sense<br>
<br>It is obvious from the facts that even LATER amoraimwere boudn by earlier ones. this kind of generational precedent deos nto bind a bon fide Sanhedrin<br><br>The modle I learned simply fits the facts better<br><ol><li>
Sanhedrin before Hurban was legilsative as well as judicial<br></li><li>RYBZ started a new paradigm - namely Rabbinic Judaism [successors to Pharisaism]</li><li>Halchah began to be based upon binding precedent as oppose to new legislation</li>
<ol><li>Granted even BDhG had SOME limitations on legislation</li><li>but withinbounds it had that authority</li></ol><li>Post-Hurban TSBP was about recollecting [in boht sense of the word] what was lost before the Hurban</li>
<li>So any Law fro mthe old BDhG was MISINAI in the sense it was AXIOMATIC and not subject to change ]except hor'as sho'oh]</li><li>Altera Tann'im and aAmoraim were boudn to follow precedent but had jdicial authroity to "interpret" that was there</li>
<ol><li>There fore the Taz has apassuk but NO PRECEDENT AFAIK TO legislate anew</li><li>he therefore over-stepped his bounds.</li><li>I'm NOT Anti-Taz his explanation of hanoesin layo'eif ko'ach is instiructive for my entire system [Orach Chayyin 46]<br>
</li></ol><li>Evey generation can make g'zeiros [harchkos] to defend the Torah</li><li>Both BY and Rem follow the precedent/consensus model for the most part</li><li>Meharshal/Gra/Rambam and others more or less see the Bavli as a virtual Sanhedrin and appeal to it to trump Halachic precedent</li>
<ol><li>I disagree with the above. TSBP as a WHOLE trumps all.</li><li>Bayamim hoheim means we msut follow basra'im - at least to an extent</li><li>ther is a possiblity for to'eh bidvar mishnah</li><li>But the test of time helps sort this out. <br>
</li><li>That is how "OLD" precedent [old minhag] is superior to new ones</li><li>Long term slilence is construed as acquiesence - short term not</li><ol><li>Dancing on Shabbos has always had those who protested it.</li>
<li>E.G. Kehillas Amsterdam stopped hakfaos on Simchas Torah because of this concern</li></ol><li>Even i you over-rule precdence based upon Bavli turmping majority you need some kind of ratification</li><li>Therefore see Kaf Hachayyim on 2 vs. 3 matzos - even though Gra protested, kol ho'acharonim did NOT concur! <br>
</li><li>So Despite GRA trying trump precedent of BY/Rema later Acharonim did NOT buy into this <br></li></ol></ol></div></div>in an iealized Hurban<br>Had BDhG been able to rule on a CANONICAL legal docuemnt [such as a Mishnah, a Mishenh Torah, A Talmud, a Shulchan Aruch] that docuemnt WOULD be cannoical and subject to limitted interpretaion but never over-ridden. It could NOT be trumped [but yest could be set side by hora'as sho'oh]<br>
<br>However, BDhG died intestate. All we have is RYBZ and his Talmiddim trying to reconstruct it. There are rules within that univser but AISI thsee rules are NOT hard and fast but guideline. It was the Ga'onimtht TRIED to codify hard and fast rules about the Bavli NOT any BD in EY. [In fact the triumph of Bavli over Minhag EY seemst to show a tension between the 2 if anything. FWIW "Porkoy ben Bavoy" in a letter from the Genizz - decries those who in EY DARE to follow the yerushlami etc. he was the ultimate "Bavli Biggot." But, later Ga'onim and Rabbeinu Hanan'el and Rif elevate the yerushalmi's status as opposed to <br>
the earlier Ga'onim.<br><br>Look you may have a different system .Certainly Rambam did and he held that minhaggim by and large were of not much value in the Halchic universe. Ashkenazim hold otherwise<br><br>If you read Ta Shma you will see that Rabbeinu Tam articulated a LOT of what I wrote. In Seer hayashar he notes that all of the Minhaggim and Seder Rav Aram Ga'on etc. Al s tem from TORAS EY. and he says that if you don't accept THEM then don't accept Bavli either<br>
[to be intellectually honest, he NEVER suggests that these other minhaggim TRUMP a Bavli, jsut that they are alos valid,]<br><br>However, THEN Ta Shma cites the Or Zaru'a who goes BEYOND Rabbeinu Tam and states empatically that various other sources DO trum pBavli in Ashkeanz [e.g .Pesikta etc.] Certainly masechess Sofrim<br>
<br>I am not sure where Rashi stands. he seems moe Bavli-Centric. But Tosfos is far LESS bavlki centric and this is evident in MANY places and IMHO was influenced by Rabbeinu Hananel who apparently gave Yersuhalmi equal status to Bavli<br>
<br>Also Ashkenaz says BeHaG is Bar Samcha. Rach uses this to refer to Rav Yehudah the Amroa because a queston is made on an Amorafrom a meimra of Rav Yehdua and R. Hannn'el uses the term bar Samcha to imoply Rv Yehuda was quoting Tannaitic material- hence the kasha.<br>
<br>See also Rabbi Yochan in Arvei Peshachim who he uses NAHGAU HO"OM in 2 places, one of them as EQAUL to a Tanna [while Rabbi Yochanan was not himself a Tanna - though in Tosday's daf he is quoted ina Braissa BESHEIM ben Azzai] <br>
<br>I have been toying with this model of Halahca since 1972 and I have seen nothing that is as clear and in concert with the sources. Many of the other models are simply forced. Rav Sherira Gaon tries to make Ravina [via. I] and Rav Ashi not Rashi and Ravinu [viz. II]. Clearly he is dachuk by the chronology.<br>
<br>Rambam's model is VERY shver. But like a lot of what Rambam writes, it is VERY easy to comprehend but really hard to fit tht round peg into a number of square wholes. the Rambam rejets Ga'onic authority at times and accepts it in others. Go figure.<br>
<br>Bach shows Rambam follopwing the Bavli WITHIN limits [se EVen Ho'ezer 6] in Fact R. MS Feldblum went on to show when the STAM of the Bavli was difficult he folowed he yerushalmi or something to that effect. {I have not seen the article] <br>
<br>The fact that Tosafos says Minhag X is not to be surrendered in teh face of a Bavli, is indicative of this kind of TSBP as a klal trumps any prat -even the Bavli at times. [see Tsoafos on Arachin 3 re: Behag and women reading the megilah and his use of Tosefta]<br>
<br>I never heard of this late Sanehdrin stuff wrt Bavli etc. If this were so,it implies that Mishna itself would have been canonical and that would mean the Bavli was rebelling when it uses Braissos to trump mishnayos. The BAvli does this wilyl nilly. and Ashk. Rishonim trump ONE amroa with another Amora - even if the 2nd is not in the Bavli, which suggests a simlar model to braysso turmping a mishna when an Amroa Says so. And this is not only Yerushlmi, but Pesikta, too [see sugya on women wearing tefilin - Michal bas kushi]<br>
<br>So the bottom line aisi, is that not text is superior becuase after all TSBP is non-textual. owever, statements by Tann'aim, amora'im etc. have a leigitmate hierarchy of autority based upon precedent. So it is the STATEMENTS behind the text that coutn NOT THE text. The Bavli - to me - is the first Encycl. Talmudis, it is a reource treasure of statments NOT a Law Book. <br>
<br>And AISI, acharei Rabbim lehattos is NOT limitted to jsu within a Sanhedrin, but even in a post BDhG world there is such a thing as concensus and kayma lan's which means we CAN establish one opinion as normative <br>
<br>That is why I am compelled to protest abuses of Halachah [right and left] lest a bad precedent take effect.<br><br>Examples:<br><ol><li>Zli keidar [too machmir]</li><li>Dancing on Shabbos [too meikil]</li><li>Not wearing Tallis for unmarried Boys</li>
<li>Not wearing Tefilin on ChhM [for Ashkenazim]</li><li>Daveing Adbis late on Sahu'os [unauthorized and too machmir and in dispute see MGA and AhS who demand ONLY saying Kiddush late]<br></li></ol>Of course I am too late in many cases. But hopefully things will right themselves. And maybe new texts will show that some tings I consider in error are quite defensible.<br>
<br clear="all"><br>-- <br>Kol Tuv / Best Regards,<br>RabbiRichWolpoe@Gmail.com<br>see: <a href="http://nishmablog.blogspot.com/">http://nishmablog.blogspot.com/</a>