Tuesday, December 30, 2008
Update: I see Hershkowitz in his reply to Posen cites the Jewish Obserever article on Mendelssohn that I discussed here. Most of Hershkowitz's response is nonesense so I won't bother discussing it.
The Seforim She'Niskabel section has some particularly interesting stuff and includes a lengthy discussion of a new sefer of R' Y. Ratzhabi against Chacham Ovadiah.
It is interesting that Y. Laufer's "defense" of R' Zalman Hannau uses a similar argument as that which I used in connection to the Torah Temimah.
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שות יביע אומר חלק ו - אורח חיים סימן מח
מופע ראשון: ח"ג (ד"צ ע"ד) שהעולם טועים וחושבים שבנ"ר פוטרת הכל, וליתא, וכמבואר בראשונים הנ"ל. ע"ש. וכ"כ עוד הרבה פוסקים רוא"ח. וכמש"כ להעיר בפנים. וכעת נדפס ס' מענה לאגרות, וראיתי אליו (בסי' כז) שהשיג כן על האגרות משה, (אלא שהיה לו לדבר בלשון כבוד כלפי הגאון הנ"ל, ובכל ספרו מטיח דברים קשים...
שות יביע אומר חלק ח - אורח חיים סימן כג
מופע ראשון: ח"ד (סימן צד) שאף הוא הביא ראיה מפסחים (קו א) לנידונו כעין ראית החיד"א הנ"ל, ודחיתי ראיתו ע"פ דברי ספר המכתם ועוד. וכנ"ל. ושו"ר בספר מענה לאגרות. (סימן עג דף קמט ע"א) שהעיר כן מדנפשיה על דברי האגרות משה. ע"ש. ודו"ק). אשר על כן נראה דשב ואל תעשה עדיף, ולא...
שות יביע אומר חלק ח - אורח חיים סימן לא
מופע ראשון: לקדש תחלה, וכהוראת המשנה ברורה בביאור הלכה, אבל אם די לו במיני תרגימא ובמזון מבושל שאין עליו שם פת, לא יקדש, וכו'. ע"ש. אך בספר מענה לאגרות (סימן נז) כתב לחלוק עליו, ועל המשנה ברורה, ע"פ היסוד שקבע, שלא תיקנו חז"ל מעיקרא לקדש אלא לאחר התפלה, וכשם שהמשכים לקום קודם...
שות יביע אומר חלק ח - אורח חיים סימן לח
מופע ראשון: נוגע לו כלל, הו"ל כמבשל וקוצר שלא לצורך כלל אלא כדי לזרקם ולהשליכם אל הים, לכן נחשבת כמלאכה שאצל"ג וכו'. ע"ש. ובא רעהו וחקרו בשו"ת מענה לאגרות (סי' לו אות יג), וכ' לתמוה ע"ד מהריק"ו, והעלה ע"פ דברי התוס' (שבת צד א) דבכה"ג הואיל והישראל באשר הוא שם זקוק לאותו...
שות יחווה דעת חלק א סימן מה
מופע ראשון: אגרות משה (חאו"ח סי' קס"ו) שדחה ראית הב"ח דההיא דגרדאי מיירי ברגילים בכך וכו'. וזכה לכוין לדברי המהרש"ל בים של שלמה. ובחנם השיג עליו בספר מענה לאגרות (סי' מ"ז) ע"ש. ומ"מ לפ"ד רב האי גאון טעם אחר יש בדבר וכנ"ל. [וז"ל הארחות חיים (הל' ט' באב סי' י"ד): העוסק במלאכתו...
שות יחווה דעת חלק ב סימן כב
מופע ראשון: סימן ד' אות טו), שכשאינו יודע לברך מעין שלש, או כשמסופק, מברך בורא נפשות רבות. ע"כ. ואינו נכון להלכה, וכמו שביארנו. וגם הלום נדפס ספר מענה לאגרות, וראיתי אליו (בסימן כז) שהשיג לנכון על דברי האגרות משה הנ"ל, והעלה שאם אינו יודע לברך מעין שלש, אין לברך בורא נפשות רבות...
שות יחווה דעת חלק ה סימן ז
מופע ראשון: הרגיש מדברי הרמב"ם הנ"ל שמוכח להיפך, שאף באופן שרוב המנין לא התפללו, והמיעוט התפללו כבר, נחשבת תפלתם תפלה בצבור. והניח בצריך עיון. ע"ש. אולם בספר מענה לאגרות (סימן יב ויג) השיג לנכון על דברי האגרות משה הנ"ל, והעלה להלכה שגם כשיש רוב מנין שלא התפללו והמיעוט התפללו, רוב המנין ככולו...
Sunday, December 28, 2008
Maharam of Padua v. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright (Looks interesting - FROM MAIMONIDES TO MICROSOFT; JEWISH COPYRIGHT LAW SINCE THE BIRTH OF PRINT, Neil W. Netanel and David Nimmer, eds., Oxford University Press, 2009)
Here are some interesting photo's from the Matson collection of the Library of Congress. The interested reader will no doubt be able to unearth many more interesting photos at that site.
Here is one of the Kotel at the beginning of the century:
As you can see, there is no Mechitza (they seem to be davening anyway), as the Arabs would not allow it. Attempts to build a Mechitza in 1928 lead to serious conflict.
This is a Samaritan (Kuti) high priest:
Presumably, he would have supervised the Korban Pesach at Har HaGrizim, like this one:
Finally , here are some "alte Yerushalyme Yidden" clearly posing for the Shaygetz:
Once can read a lot more about the Yishuv HaYashan in Nima Adlerblum's (Chaim Hirschenson's daughter) Memoirs of my Childhood, and probably in a lot of other places.
Thursday, December 25, 2008
If the Yerushalmi on that Mishna is in fact permitting the reading of Homer (ספר הומירוס as explained by S. Lieberman, Hellenism) one wonders what can possibly be forbidden?
See here on the Yaavetz's vast reading. R' Yaakov Kamenetsky is said to have commented that he "read a whole lot, perhaps more then was permitted" (MOAG) but in this he refers to the issue of Bittul Torah, while the issue under discussion is if there are books with forbidden content (obviously excluding דברי חשק).
I know of SA OC 307:17 (and see Mor U' Ketziah there) but even there the matter requires further study. For instance, I am inclined to wonder if the ban against the despised Sefer Immanuel is indeed because of questionable content (as argued by Mekor Baruch) or is it rather a reaction to the author's opposition to Kabbalah?
Comments welcome (For Hungarian posekim, as is obvious, the question doesn't start.)
At the end of a rather silly thread complaining of all the terrible stuff available on Otzar Hachochma, etc. ,etc, I saw a link to the following letter from an OC staff member:
I don't question Otzar HaChochma's decision, at that time, to remove the Seforim that their more close-minded customers would find problematic. But at this point, when we already have a Bnei-Torah and non-Bnei Torah (I would assume R' Yosef Zechariah Stern (and many others) was not a Ben Torah by their standards (see Sdei Chemed Pe'as - s.v. Aba Mezakeh)) versions, perhaps they could place the already scanned seforim back onto the program.
Parenthetically, Levinsohn (Rival - author of Teudah B'Yisroel) seems an odd person to pick as the arch-representative of the evil Maskilim. Levinsohn was highly respected by such famous scholars as R' Dovid Luria (Radal), and R' Mattisyahu Strashun as can be seen by their letters to him in Be'erot Yitzchok and R' Yisroel of Ruzhin even supported the publication of his works.
Monday, December 22, 2008
We are not concerned, however, with the truth of these allegations insofar as they refer to the Middle Ages in Europe, but with the possibility of its having existed during the Talmudic period, and in that respect the undeniable fact is that it has entered massively both into the Halacha and the Aggada. The outstanding example of its halachic aspect is found in the Talmud.
This mishnah attests different matrimonial practices in Galilee and Judea and suggests that premarital cohabitation was sometimes practiced in Judea, but certainly not in Galilee. The Palestinian Talmud interprets the mishnah, obviously apologetically, by assigning the Judean practice of premarital cohabitation to the aftermath of the Bar Kokhbah revolt, as a result of the imposition of the jus primae noctis ("the right of the first night"). The contract from the Babatha archive predates the Bar Kokhbah revolt, however, and thus attests a Judean practice of premarital cohabitation that is not connected to the Roman decree. In the article I shall suggest two possible interpretations for this practice. I shall conclude by arguing that the jus primae noctis in Jewish sources belongs, as has been shown for all other instances of the motif, to folklore and not to history.
Some sources suggest that after the Bar Kokhbah revolt the Romans introduced in Palestine the jus primae noctis, namely, the right of the local governor to deflower all maidens entering wedlock.34 The Palestinian Tamud refers to this "event" when it deals with the mishnah on the husband's residing at his father-in-law's house
This tradition connects the imposition of the jus primae noctis with the 'nr decrees, which are usually associated with the aftermath of the Bar Kokhbah revolt. As a result, the rabbis enacted an emergency measure (nMpn), which was intended to avert the danger of Jewish maidens' losing their virginity to Roman soldiers and possibly even conceiving by them. In such a case, the prospective couple was actually encouraged to practice sexual inter-course and cohabit out of wedlock in the very house of the bride's father. The quasi-historical justification for this Judean custom, the jus primae noctis, belongs, however, in my opinion, to the apologetics of the Galilean rabbis, because in the next sentence the talmudic commentators go on to claim that althought he destruction( '1n) was discontinued,t he custom was not. (y. Ketub. 1.5, 25c) This claim means that in Judea men and women continued to practice some sort of premarital cohabitation before the nuptials.
..question has been tackled by Raphel Patai,37 who formulated a remarkable theory. He was well aware of the fact that all medieval literature that evokes the custom of jus primae noctis has been proven to be folkloristic and has no historical basis.38 On the whole, Patai abided by these conclusions. He argued, however, that a special case should be made for the talmudic sources describing the same sort of custom. He claimed that since all the sources that are now considered legend and depict the practice in Christian medieval Europe were composed much later than the period they propose to describe, it is acceptable to discard them. In Judea, on the contrary, in the aftermath of the Bar Kokhbah revolt, the Romans actually put into practice such a law, as the "reliable" rabbinic sources claim. Patai, as a folklorist, should have known better. If a motif of this sort could have appeared in a sixteenth-century document and upset the entire history of medieval Europe for the next two centuries, the same motif likewise could have cropped up in the fourth- or fifth-century Palestinian Talmud, falsely describing events of the second century.39 In my opinion, the conclusions of the present article, which make the jus primae noctis narrative of the Palestinian Talmud nothing more than an apology for an inconvenient Judaic custom that is described cryptically in the Mishnah, undermine Patai's claim.40 From a large repository of folkloristic material circulating worldwide, the jus primae noctis was conveniently drawn in order to explain and justify a custom that seemed to the rabbis to under-mine their view of proper conduct in Jewish society.
Thursday, December 18, 2008
I know Saul Lieberman has an edition of Midrash Rabbah published by Mossad R' Kook [? - or so I thought, actually by Harry Fischel] but I'ven never seen it [Found it on Otzar HaChochmo thanks to andy - introduction + notes , he is at his most useful when explaining an obscure Greek term] so I don't know what its about. There are critical editions of a few chapters of different Midrashim created as doctoral dissertation but I don't know if any of these have been published. From the traditional sphere, Midrashim are fodder for drash and so their p'shat aspect is very rarely explored. Is the notes to Kasher's Torah Sheleimah worth looking into? How about Ginzberg's Legends, there must be valuable material in the notes there?
So, has anyone got any recommendations?
See no. 2 of this post for a rather interesting comment of his. As I wrote then, I am [still] looking for a Kovetz Beis Halevi V. 3 which should contain R' Berlin's hagahot to Mitpachat Seforim. If anyone has seen this I would be interested to hear something of the nature of thes notes, as these should have important information concerning R' Berlin's Weltanschauung.
Tuesday, December 16, 2008
More serious I think, is the attitude that insists that certain Rabbinic figures were so very great that any attempt to study and analyze their methodologies, sources, etc. is futile, or worse disrespectful.. First, nobody would protest against this mistaken notion as vehemently as these Rabbis themselves, as the Nodah B' Yehuda was fond of saying – דין (להקשות ולדון בדבריו) הניין לי ומסייע אין בו ממש. But even worse, is that the attitude that insists that great men are/were so very great that it is impossible to reach their level is the best way to stifle future greatness. See this very apt quote from G. K. Chesterton, and I once posted something similar from R Kook.
Monday, December 15, 2008
Friday, December 12, 2008
Q. If one receives one of Maimon's books, such as Sarei HaMaios, for a Bar Mizvah gift, what shold be done with it?
A. It should be burned – these books are worse then “Chazir”.
I am not certain if Maimon's role as the propounder of the “Sanhedrin HaGedolah..” and subsequent controversy with the Brisker Rav (leading to the following “clever” retort by a prominent Rabbi – His name (his original name was Fishman) ought to be read with a Mapik.) Or if it is the very strong pro-Zionist bias in his books (for some reason all of the Rabbis he discusses were in some way favorable to Zionism).
In a short favorable review of Sarei HaMaios in Talpiot, Prof. S. Mirsky decries Maimon's decision t leave out the sources (and see note 3 here). My own opinion is that Maimon left out the source because he had none. In his books he writes that he had the custom when visiting any village of conversing with the older inhabitants for any village lore on the famous Rabbis that lived in them. As such, these stories are often unreliable (as anyone familiar with this genre knows, names of famous Rabbis tend to be switched around – the same story (Selling Olam Habah for an Esrog Mehudar, etc.) for instance is told in the names of the Baal Shem Tov, Kedushas Levi, and somewhat ironically, the Gra) but one cannot discount them entirely.
Friday, December 5, 2008
רש"י - קרקעית של אותו הנהר אין מגדל דגים טמאים
This is usually understood as eaning that the earth of the river under discussion isn't a suitable breeding enviroment for non-kosher fish but since Chazal seem to have believed that certain animals are "born" from their surrounding environment (bugs from fruit, worms from fish, etc.) I wonders if this might not be the correct interpretation here and well?
2 - Otzar haChochma has the sixth volume of Kobek's Yeshrun which contains a lengthy letter from Shir on the origins of the charity R' Meir Baal HaNes as well as the alleged ban of Beis Yosef against using money from RMBH for other charities. (See here (fn. 10) for an ingenious explanation on the origins of this term from RR Margolies.)
Thursday, December 4, 2008
Sunday, November 30, 2008
Friday, November 28, 2008
5 - The Seforim of R. Moshe Leiter (search for משה לייטר or לייטער) - I don't know very much about him but the articles I've seen from him are generally very good. His Zuto Shel Yam is not dissimilar to R. Reuvein Margolies's style of Mechkar and his B'Shulei Gilyonei is also worth checking out.
6 - Chiddushei Rachah 1, 2- R' Chaim Hirschenson on Horiyos - Volume 3 contains many interesting letters.
7 - HaMisderonah (search for המסדרונה)- This is the periodical published by R' Hirschenson while still in Yerushalyim. See the end of the 3rd volume for an very interesting letter. In the same volume we have Chiddushim of Michah Yosef Berditchovsky on Kesubos in which I think one can already see some of the ideas that he will develop in his later writings.
8 -Ohel Moshe 1, 2 - R' Eliezer Moshe Horowitz of Pinsk, father-in-law of Torah Temimah (a hesped by the latter of the former is available at Seforim Online). Judging by his hagahot to Shas this should also quite interesting.
1 - Maamer HaTigalachas - Y. S. Reggio - See here for an excellent description of this sefer.
2- Tocho Ratzuf Ahavah - M. S. Gerondi - I don't know anything about this particular book but based on the authors reputation (see M. Hershkowitz's article in HaDarom) it should be worth looking into.
3-Igrot R' Yitzchok Isaac Halevi (Note: All volumes of Dorot HaRishonim are also available there) - This is based on A. Recihel's doctoral dissertation and has been out of print for years. It includes in extensive biography and letters. It is generally believed that Halevi's harsh polemics against the Maskilim was because he was angry at their role in the closing of Volozhin (although it is hard to see a connection between Graetz and the Russian Maskilim who were very different in style). My own impression from the letters is that Halevy had a far too high opinion of his own abilities as in historian and a far too low opinion of anyone elses (see the comments in the letters on R' Dovid Tzvi Hoffmann who was unquestionably far greater then him). In point of fact, little remain of Halevy's theories - S. Albeck (and later Halivni) destroyed his theory regarding the redaction of the Talmud (Sinai), R. YY Weinberg - his theory of Yesod Mishna (Seridei Esih 4), L. Ginzberg - his theories regarding the Geonim (Geonica - English part). Note also that when referring to the German Rabbis he refers to them by their last name whereas the Lithuanian Rabbis are referred to with their proper titles. His Sefer on Sefeikos - Batim Levadim has been published a few years ago.
Thursday, November 27, 2008
Of especial note is pg. 19 ff. which explains a puzzling piece of Talmud as being based on an Akkadian pun.
Friday, November 21, 2008
In many of his earlier Teshuvos (dating from his tenure as a Rov in S. Africa), he demonstrates the sensitivity that Prof. Daniel Sperber seems to value so much in a posek. My favourite Teshuva concerns a Baal Teshuva who was raised for many years by a step-mother before becoming frum. The dificulty is that he is not even able to shake hands, let alone kiss or hug her, something that would obviously casue no few problems. R' Sternbuch suggests that he give half a hand which is not derekh chibah and therefor permitted. Lest this seem like no big deal, note that as opposed to the German posekim, R' Sternbuch considers handshaking to be not only a Torah violation but an actual אביזרייהו דעריות and he is now Raavid of the Edah HaChareidis not well-known for leniency in these matters.
In D. Horowitz's article on "R. Moshe Sternbuch's Halakhic Novellae", he discusses the innovative nature of R' Moshe's novellae which, as opposed to the novellae of the yeshivos, have direct halachic ramifications.
Prof. Sual Lieberman used to say:
 It is interesting that the difficulty of Yevamos was so well-known that it is even referred to in Karaite polemics - see Shraga Abramson's article in Sinai 52.
 As he signs his name, נין ונכד להגר"א, I saw R' Chaim Kanievsky refer to a "certain Gadol who signs this way and I told him they are both false" - as in Bereishis 21:23 that the terms refers to the 2nd and 3rd generation but not beyond (see here).
Thursday, November 20, 2008
"an Ishmael[ite] who composed a work on the religions; a fool, for he spoke [disparagingly] even of our perfect religion."
B. Naor has recently published the full text of the polemic (available at Biegelesien) - see here for an excerpt.
Sunday, November 16, 2008
Friday, November 14, 2008
On this subject, R' Reinman (One People Two Worlds) argues for the strength of Rabbinic tradition - because even a minor detail like the fact that Avrohoms mother's name was Amatlai bas Karnebo (see end of Ch. 5 of Bava Basra) has been verified by the discovery of a similar name in ancient Sumerian records.
I innocently mentioned this "source" on Wikipedia at one point, to which I got the following response:
"You mentioned that this was the name of Abraham's mother and that it had been found to be a name in Sumerian times. I am interested in following up on this as I can find no Sumerian called Amatlei Bas Karnebo (linguistically it looks very un-Sumerian too). Do you have a reference? "
Does a more scholarly source exist for this claim?
In the same sugya, we have the following cryptic tidbit:
The mother of Sampson, Z'llpunith, and his sister N'shiin. To what purpose was this said? For an answer to the Epicuristen (censored - should be minim - based on the shoddy and overly apologetic - Rodkinson ).
One might understand the need for the names of the mothers as per Rashi but what is the importance of the nameof Shimshon's sister?
R' Yaakov Kamenetsky has the following brilliant interpretation (B'Mechitzos Rabbenu pg. 212 - and this is a foreshadowing of what we can expect from EY on Nach which I am eagerly awaiting):
Minim generally refer to the Christians [Rashi, for instance, seems to learn that it is an acronym for M'Talmidei Yeshu HaNotzri - see the Rashis removed by censor. See the second part of R. Kimelmans diss. for a more comprehensive discussion]. In Judges 13 - it first states
verse 2 - הנה נא את עקרה ולא ילדת והרית וילדת בן
verse 4 - כי הנך הרה וילדת בן
In the first verse we are told that she is going to conceive a child - in the future. The second verse seems to say that she has already conceived - in the past tense. Chazal (Bamidbar Rabbah 10) explain that the seed that was already there "gathered" so as to form a child. But the Christian explain (although I see no nore of this distinction in the AKJV), that we have here mutatis mutandis a beautiful proof for the doctrine of the Virgin Birth - since we see that the word of an angel can cause conception. Therefore, by citing the sister of Shimshon -whose birth was preumably natural - we can prove that Tzlilpones's conception was of the normal kind.
Thursday, November 13, 2008
Saturday, November 8, 2008
The name Yalta is acc. to Kohut - Aruch Ha-Shalem) is derived from the aramaic for doe or mountain-goat. Yalta was the daughter of the Reish-Galusa and wife of R' Nachman (bar Yaakov). Babylonia was the bread-basket of the Sassanian empire and hence of vital importance. The Reish Galusa as head of a significant minority group weilded considerable power (see wiki). Yalta, a princess of sorts, would have had a considerable sense of her own importance. This is crucial for understanding her action in many of the stories cited. She acts not as a proto-feminist but as a princess .
One full-length article analysing one of the Yalta stories is: Yalta's Ruse: Resistance Against Rabbinic Menstrual Authority in Talmudic Literature", in Women and Water: Female Rituals of Purification in Jewish History and Culture,ed. by Rachel Wasserfall, University Press of New England, 1999, pp.60-82 (here).
An over the top typical feminist analysis of the story in Berachot 51b (which I refer to in the title) is in R. Adler's Engendering Judaism (and see here). Adler's exposition involving cups and wombs is all very nice and Da Vinci Code-ish but it is also utter nonsense. It is all too easy to find hidden messages and symbolisms where none exist. I would like to discuss this source in detail in a future post.
There is an interesting thread here that collects R' Nachman's statements about woman whether there is a correlation between these statements and his famous wife is anyone's guess. (I saw one scholar insists that Yalta was not necessarily his wife, etc. ,etc. This is nonsense. It is clear from numerous statements is the Talmud that R' Nachman was the son-in-law of the Reish Galusa (see Graetz's lovely biography)) - or at the very least close to his court.
This is all that I have found of the scholarship on the subject. In the next post, I will discuss some of the other Yalta statements and see what we can make of them.
 I do not have Tal Ilan's - Mine, yours, and hers (see pgs. 121- 129 - basing herself on Shamma Friedman's "good story deserves retelling" hypothesis) but agree with her basic thesis.
Friday, November 7, 2008
I see now that the Aderet in Kuntres Zecher Davar pg. 64 also makes use of this rule.
On the Gemara in Kesubos 40b:
אבוה דשמואל אומדין כמה אדם רוצה ליתן בין שפחה בתולה לשפחה בעולה לשמשו שפחה בעולה לשמשו מאי נפקא ליה מינה אלא בין שפחה בעולה לשפחה שאינה בעולה להשיאה לעבדו ולעבדו מאי נפקא ליה מינה בעבד שיש לו לרבו קורת רוח הימנו
The Aderet explains that לשמשו should actually be read with a Kametz under the Mem - so instead of to serve him, it would be saying for his servant - as per the מסקנה
ודפח"ח-ע' שם לעוד דוגמאות
Thursday, November 6, 2008
He said to them, "If it were useful, their father would produce children already circumcised from their mother. Rather, the true circumcision in spirit has become profitable in every respect."
Parallels to Thomas 53 are found in Paul's Romans 2:29, Philippians 3:3, 1 Corinthians 7:19, Galatians 6:15, Colossians 2:11-12. (From WP)
"אמר לו (טורנוסרופוס לר' עקיבא) למה אתם מולים, א"ל אף אני הייתי יודע שאתה עתיד לומר לי כן, לכך הקדמתי ואמרתי לך מעשה בשר ודם הם נאים משל הקב"ה, הביאו לי שבולים וגלוסקאות, ]אמר לו אלו מעשה הקב"ה ואלו מעשה בשר ודם אין אלו נאים, הביאו לי[ אנוצי פשתן וכלים מבית שאן, א"ל אלו מעשה הקב"ה ואלו מעשה בשר ודם, אין אלו נאים, א"ל טורנוסרופוס הואיל הוא חפץ במילה, למה אינו יוצא מהול ממעי אמו, א"ל ר' עקיבא ולמה שוררו יוצא בו, לא תחתוך אמו שוררו, ולמה אינו יוצא מהול, לפי שלא נתן הקב"ה לישראל את המצות אלא כדי לצרף בהן, לכך אמר דוד (כל) אמרת (אלוה) [ה'] צרופה וגו' (תהלים יח לא"), ואברהם היה האשון שהוכיח כי מעשי אדם יפים יותר"!
Sunday, November 2, 2008
Saturday, November 1, 2008
Awhile back, I posted on one such internal factor, the relative weight of autonomy and precedent in the decision making process. Although this is an important factor in any judicial system (as can be seen here), in Halacha the question is more complicated since we have the added component of the quasi-canonic status of the texts. This must compete with the posek's own self-perception as an "agent of God" who is empowered to make orginal decisions.
In studying this issue, it is important to differentiate between those parts of Orach Chaim which carry the extra factor of Minhag making precedent much more powerful and Choshen Mishpat issues which as a judicial system has somewhat different rules then the rest of Shulchan Aruch.
In studying this (and any other meta-halachic question), it is important to cite support both from programmatic statements of posekim and from analysis of actual responsa or codes.
An excellent demonstration of the necessity for such double support can be found in footnote 28 here which shows that although in his programmatic statements, the Maharshal insists on absolute autonomy, analysis of his responsa shows a healthy respect for precedent as well.
Background - stages of codification
1 - The Talmud - The debate here centers around the cryptic statement in "Sifra D' Adam haRishon" - רבינא ור' אשי סופר הוראה. This has traditionally been interpreted as referring to the redaction of the Talmud. But according to Tosafos in A"Z (beginning of Ch. 2) this refers to Pesak. In an (un-scientific) experiment here, I showed that the later Saboraim did argue with R' Ashi and Ravina so that it would seem that one should not attribute to much weight to this statement (as Halivni suggests see Mekorot U' Masoret - Bava Basra - Introduction. I mentioned this point to him when I met him and he agreed but unfortunately I didn't take down his exact comment.)
2. Geonim - See the sources in cited in Encyclopedia Talmudit - S.V. Halacha - last section. Note that the Rambam has no qualms of arguing with the Geonim. Since as I mentioned in the previous note the Geonim who authored the והלכתא statements and these argue on the Amoraim, by way of as syllogism of sorts the Rambam should technically be able to argue on the Amoraim!!!
3. Rambam - See Yitzchok Zev Kahana - הפולמוס מסביב קביעת ההכרעה כהרמב"ם סיני, לו-לח
4. Shulchan Aruch - The מאסף לכל המחנות here (as in everywhere else) is Chacham Ovadiah in the various Pesichos and Hakdamos to his Yabia Omer - See esp. Pesicha to Vol. 5 and sources cited there
 Even here external factors can also be involved. Thus, in two seperate studies on the role of precedent in Halacha, the Orthodox writer (Jeffrey Woolf) insists that the judge retains significant judicial discretion whereas the Reform writer says that they do not. This is because of the system itself has a mechanism for change then there would be no need for a large scale Reform. [Taken from Larry Rabinovich, The Judge as Educator, JLA, 04 - Note 52. My thanks to Mr. Rabinovich for making his article available to me.]
G. K. Chesterton
Thursday, October 30, 2008
2 - I saw in Shlomo Spitzer's article on R' Hirsch in Moravia that Bar Ilan has published some of the letters sent to R' Hirsch during this period:
Diese stammen teils aus Mähren, teils aus dem Ausland, besonders aus Ungarn. Hirschs Antworten, die in einem schönen und besonderenhebräischen Stil geschrieben sind, sind größtenteils von Eliahu Meir Klugman veröffentlicht worden; die Anfragen an ihn, die bei Klugman meist fehlen, sind im Jahre 2007 durch den Rabbi Samson Raphael Hirsch Chair an der Bar?Ilan University (Ramat?Gan, Israel) herausgegeben worden (Heft Nr. 8).
If anyone has this or knows where to get it, please contact me (ishimshittos-at-yahoo dot com)? Thanks.]
ברצוני להבהיר כמה נקודות בנוגע לשיטת ההפרדה של הר' הירש כפי מיעוט ידיעתי בענין [ב]. כפי שכתב חמיאל (דף קלג), ר' הירש,"לא כלל את כל הרפורמים בקטגוריה אחת" , הוא מצטט את הרמב"ם ב"הלכות ממרים" פ"ג ה"ב-ג [ג], ובעקבות רבו הרב עטלינגר, מכנה במכתביו הגלויים לבמברגר את בניהם ותלמידיהם של מנהיגי הרפורמים, הרחוקים שנים ושלושה דורות מהמייסדים, במונח "תינוקות שנשבו". הוא מבחין בכך בין המטיפים והאידאולוגים המדיחים, והממסד הקהילתי הרפורמי המאורגן, לבין הפרטים שהודחו. את הפרטים יש לקרב ולנסות להחזיר בתשובה, כי הם עדיין יהודים באופן פורמאלי. אך את "המדיחים והארגון יש לנדות ולהתפלג מהם בקהילה נפרדת
Also cf. L. Levi, “The Relation of the Orthodox to the Heterodox Organizations,” Tradition 9 (fall 1967): 95-102.
Tuesday, October 28, 2008
Although one must take care in drawing parallels , the appearance of parallels in Avot which contains the oldest Rabbinic traditions  would seem to be important.
In Avot 4:20:
רבי אומר, אל תסתכל בקנקן, אלא במה שיש בו: יש קנקן חדש, מלא ישן; וישן, אפילו חדש אין בו.
In Luke: 5:33-39:
33They said to him, "John's disciples often fast and pray, and so do the disciples of the Pharisees, but yours go on eating and drinking."
And no one pours new wine into old wineskins. If he does, the new wine will burst the skins, the wine will run out and the wineskins will be ruined. 38No, new wine must be poured into new wineskins. 39And no one after drinking old wine wants the new, for he says, 'The old is better.'
It would seem that the use of this particular parable, in the context of a polemic against the Pharisees, using a phrase that we know was adopted by the Pharisees, is particularly significant. But I am not certain how to interpret this? Ideas, anyone.
[I thought of one possibility. Luke was the companion to Paul who is most famous for propagating the the abrogation of Jewish law (satirized in BT Shabbos - Ch. 16) [Since as Kevin notes, it also appears in Mathhew - this is nonesense].
This interpretation depends on the (admittedly questionable) assumption that the Wine parable was current in the circles of the Pharisees before Rebbi. An alternative explanation would have Rebbi differentiating between himself and the Christians by stressing that he is merely changing the form of the law, not the law itself. But the expression isn't formulated correctly for such a polemic.
[Note that the parable of wine and its vessel is also used in the argument between R' Yehoshua ben Chananya and the princess - Taanis 7a]
[1a] The credit for the idea behind that post goes to my friend, SL Rubinstein.
 For instance one cannot deduce anything from the "eye of a needle" parallel as this is likely a popular expression that was in wide use.
 See R' Dovid Tzvi Hoffmann "HaMishna Rishonah". I will discuss this sefer when I continue my series on him at some future time.
According to some commentaries, the connection between this phrase and Rebbi is that Rebbi as redactor of the Mishna was pointing out that despite the "new" form of his creation it is still full of "old"er traditions. This perhaps has important implications regarding the question of Rebbis actions as redactor of the Mishna. Perhaps this is proof that the original form of the traditions were as a Midrash and Mishna is a new form originated by Rebbi. [I erred in ignoring the context in which Rebbi is clearly responding to R' Yosi B'R' Yehuda who says there is no point in learning from a young person (as it is used by Baal HaMeor in his intro). (I am reminded of the Gemara in Bava Metzia (Ch. 4) where Rebbi says - "ילדות היתה בי והעזתי את פני ר' נתן הבבלי" - i.e. he is admitting the deficiencies of youth.]
It is clear that Rebbi didn't originate this phrase since it appears aleady in Luke, before Rebbi was born.
[Update: Potentially interesting book (Google books will only let me see so much), some of his claims in the page linked are invalid. Jesus's anti-divorce sentiment may reflect the opinion of Beis Shammai (see Rosen-Tzvi's article in JSIJ), the fasting is the subject of my discussion here but is not simple (if he believed himself Messiah then, like the later Shabsai Tzvi, he would naturally believe fasts need be abolished - "Can you make the wedding guests fast while the bridegroom is with them " - note the parallel to Mishna Sukkah where guests at a wedding are also exempt from Sukkah).]
 But if the thesis in this book is correct my whole argument has no basis. I don't know waht to do with the preceding parable about clothes and with the concluding statement that "old wine is better".
Perhaps: "The old is good: this saying is meant to be ironic and offers an explanation for the rejection by some of the new wine that Jesus offers: satisfaction with old forms will prevent one from sampling the new." (here) but this is difficult since it is well-know that old is better (and this can be seen in both the Bible (Esther), and Rabbinic documents). This is clearly a Paulian apologetic
2 - Einhorn's article is particularly well argued. Regarding this point:
Only on one point has Dr. Raphall shown a friendly disposition towards the negro; at the expense of his holiest duty, he has failed to call to the attention of the Jewish slave-holders that they must have their slaves circumcised.
I have heard of (but not seen - nor can I find) a Teshuva to the Noda B' Yehuda [?] sent by a Jewish slave-owner in the south. I believe the NY paskened like Dr. Einhorn that circumcision is required. The end of the story is that the slaves heard of this plan and revolted. See also J. Schorsch "Jews and Blacks in the early modern world".
3 - R' Yaakov Kamenetzky said (in a lecture) that the בני כנען also have a צלם אלהים and it is therefore absolutely forbidden to embarass or discriminate against them in any way.
Monday, October 27, 2008
Thursday, October 23, 2008
I believe that this is a basic Kabbalistic doctrine and is not specific to Tanya at all.
For instance from Eitz Chaim (R' Chaim Vital) 48:2 -
אמנם עכו"ם אין בהם רק בחי' נפש לבד מצד הנוקבא של הקליפות
בס' 'אורות', אורות ישראל פ"ה פיסקה י (ע' קנו) כותב הרב קוק: "ההבדל שבין הנשמה הישראלית, עצמיותה, מאוייה הפנימיים, שאיפתה, תכונתה ועמדתה, ובין נשמת הגוים כולם, לכל דרגותיהם, הוא יותר גדול ועמוק, מההבדל שבין נפש האדם ונפש הבהמה, שבין האחרונים רק הבדל כמותי נמצא, אבל בין הראשונים שורר הבדל עצמי איכותי".
And many more - see here
[See LazerA's insightful comment. I saw something similar in the Ben Ish Chai's ShuT Teshuvas Torah L'Shmoh (see the last מקבציאל) in which he suggests that someone with small handwriting is only "b'bechinos nefesh" whereas someone with big handwriting is "b'bchinos neshomoh" and another similar analysis based on the shape of the beard.
It is further important to note that many of the peasants in pre-modern times were "illiterate, unwashed, permanatly drunk" and similar adjectives and so it is not hard to understand where the above sentiment is coming from. (cf. the following from H. Soloveitchik's - Halacha, Hermenutucs and Martyrdom:
Then there was the revulsion. Franco-German Jewry saw themselves as living among murderous barbarians, little different from beasts [emphasis mine - W.]. The pride of place given to the warrior in feudal society was in their eyes an endorsement of violence and bloodshed. Judgment by ordeal revealed a people bereft of rational thinking and a society devoid of justice. Christians of the Midi, proud heirs of a millennia old Roman culture, despised the northern barbarians, Jews even more so. Perhaps the view of the ‘‘natives’’ held by white settlers in Africa in the late nineteenth century came closest to those of Jewish parents in the medieval German Empire. The thought that their child might grow up a murderous savage must have filled them with horror.)
See Kevin's post for an excellent, nuanced presentation of the position of the Gentile in the world-view of the Sages (based on J. Neusner's Theology of the Oral Torah).
See also Emes L'Yaakov Genesis 9:25 for a very sharp refutation of the claim that Judaism is a "racist" religion.]
J. Neusner - Jews and Judaism Under Iranian Rule
Wednesday, October 22, 2008
R' Shlomo Zalman Auerbach's stance on heter mechirah is fully clarified. R' Posen (author of a great book on Targum Onkelos) has a fascinating letter in which he discusses changes in Tefillah,Mendelssohn (note esp. the letter from R' Yonoson Eibschutz in fn. 12). He mentions as an example the correct pronounciation of Geshem, there is quite a useful post on the subject here.
On the issue of fixing the nusach of tefillos, given the difficulties with the nusach that is called Sefard, I am surprised that no effort has been made to fix this. (See ShuT Minchas Eliezer for a fascinating responsa in switching nuschaos)
[Hat tip: Rav Tzair]
Monday, October 20, 2008
In the recent volume of the journal (אלול תשס"ח) Nezer HaTorah, several letters of R' Yaakov Schorr (wiki is excellent but see the intro to Mishnas R' Yaakov by Tzvi Michelson) to Rav Dr. Chanoch Ehrentrau (wiki on grandson only)  were published. In one of them he castigates R' Ehrentrau for offering a "strange and impossible explanation" of Beitzah 4b on Yom Tov Shein (that it refers to the time in which Kiddush HaChodesh was through testimony) which opens a door to those who want to abrogate it, etc.
 There are fascinating letters from both of these great Geonim in Parnes L' Doro. See eg. in letter 108 - he has a fascinating chiddush that the Bavli cites Mishnayos from those Mesechtos for which there are no Gemara in order to explicate them. (See more recently Y. Sussmans studies of the sugyos of the Bavli conecrning Zeraim and Taharos in Mechkarei Talmud 3) Schorr was very much the critical scholar. See for example his Mishnas R' Yaakov on the Tosefta and its relation to the Bavli (see more recently Y. Elman's doctoral dissertation).
From R' Ehrentrau we have a fascinating explanation of the machlokos in Pesachim 53a concerning the ripening of olives. Based on Josephus and Gesenius, he shows that each of Tanna was explaining based on his specific geographical location. We also have a lengthy mathematical exposition on the shiur of revi'is acccording to Tosafos. Parnes L' Doro is a fascinating intellectual treasure house for 19th-20th century Rabbis and a must-have for anyone interested in the subject.
Sunday, October 19, 2008
1 – There are significant theological differences between different parts of the Oral Torah.. For example, Yaakov Elman has shown that the Bavli and the Yerushalmi have different attitudes regarding the question of theodicy.
2 – An essential point to any discussion of Jewish theology is the fact Jewish thought is always concentrated primarily within the exegetical form. This is as opposed to the Greeks whose thought was primarily systematic. This suggestive point was discussed at length by Yeshaya Wolfsberg in an important article in Talpiot 5 pgs. 288 ff. (see also Talpiot 6 pgs. 179 ff. - and also the article following by G. Churgin).
As is well known, Neusner is notorious for his harsh polemical articles (and books!!) against many of his colleagues and teachers . In his criticism of such well-respected figures as Prof. Saul Lieberman or R' JB Soloveitchik he harps on the fact that their major works of scholarship is in the (old-fashioned) exegetical rather then the (modern) systematic form and this reflects some type of failue on their part to engage with modern scholarship. I do not understand why Neusner considers the systematic form to be inherently stronger then the exegetical form as each accomplishes a different task.. But in any event, this has nothing to do with the conflict between the old and the new but rather, as Wolfsberg explains, with Jewish as opposed to Greek methods of thought.
 See for example “When Paradigms meet...”. Interestingly, the same people who he castigates so harshly in these later articles are praised and held up as models to emulate in his earlier articles (see his Bibliographical reflections..”). I believe the key to understanding this surprising about-face is in an article in BAR. ואכמ"ל
[Update: My thanks to Kevin for his informative comment.]
Friday, October 17, 2008
Zimmer attributes to the colder climes of Poland the desuetude, in many Hasidic circles, of sitting in the sukkah on Shemini Azeret. If climate were a sufficient explanation,there should have been a disappearance of sitting in the sukkah on Sukkot itself. Climate, then, is a necessary but scarcely sufficient condition for this deviation from the norm. I would suggest that sukkah-sitting on Shemini Azeret was established on an original fault line, and its observance ultimately cracked under the joint pressure of colder climate and the change in religious calendar that occurred in eastern Europe as the Safedian kabbalah made ever greater inroads, especially among Hasidim. Allow me to explain. The Talmud( Shabbat2 3a), when discussing the second day of yom tov (yom tov sheni shel galuyyot), states that, strictly speaking, one shouldn't recite a blessing on the commandments performed that day,a s, for example, the second night of the seder. However, were the rabbis to have instituted the second seder, for example,without the appropriate blessings over matzah and maror, people would not take the second-day ceremonies seriously (de-lo 'le-zilzulei bah). They made one exception to this policy, sukkah on Shemini A zeret-where they instituted sitting without the blessing, and, in the fullness of time, the exception prove the wisdom of the rule.
It did not have to happen, and in most lands, ideed, it did not happen. In Poland, however,t he frequently, bitter autumn cold made sukkah-sitting a genuine burden. Jews had sacrificed much for their religion, and no one dreamed that severe chills suspended the demands of religion, and Jews dutifully sat in sukkot throughout the Sukkot holiday. Shemini Azeret,however,was a different matter.Sukkah-eating on that day was clearly a second-class commandment. Evidence-it did not even merit a blessing,unlike all other second-day misvot.And by the 1640s,t he laxity in sukkah-sitting on Shemini Azeret was widespread in Poland,as the remarks o f the super-commentators on the Tur and the Shulhan Arukh clearly indicate (pp. 168-169). Common though it was, it was not yet characteristic of any group. In the course of the next century, the growing influence of Safedic kabbalah transformed HoshanahR abbah into a day equal to-indeed, greater in its momentous irreversibility than Yom Kippur. On this day, the final and irrevocable judgment on every individual was rendered. The tension of Judgment Day stretched now, not from the first of Ellul (when selihot began) to Yom Kippur, but some fifty-two days-all the way to Hoshanah Rabbah. Just as mos'ei Yom Kippurin Temple times became an occasion of celebration, as the accumulated tensions of that awesome day found release, so mos'ei Hoshanah Rabbah, the night of Shemini Azeret, became an eve of Hasidic celebration. Haqqafot were shifted from SimhatT orah,a nd the festivities of Shemini Azeret far exceeded those of its sister holiday. Such celebrations could scarcely be held outside in the cold October nights, and the festive eating and drinking could take place in the sukkah only with difficulty And so sukkah-eating on Shemini Azeret fell into desuetude among large bodies of Hasidim. The northern climate, indeed, played a role in this disuse, but without the original fault line of "no-berakhah"and the shift in date of the religious climax of the year, the sharp autumn cold, by itself.I would suggest, would have been insufficient to effect any large-scale change .
Pp. 163-74. In his treatment of sukkah on Shemini Azeret,our author has omitted the characteristically original position of R. Judah ben Kalonymus in his Yihusei Tannaim ve-Amoraim( ed. Y. L. Maimon),p p. 329-330. It deserves wider currency, as it is the most cogent argument ever made for eating indoors on Shemini Azeret
Notes (from me):
1 - The postion of Yichuse Tannoim is that since the V'Hilchsos are a later Saboraic\Geonic they may be disregarded. This position if accepted has major halachic implications. (Y. S. Spiegel said in a lecture that he left his doctoral work on Saboraic additions because he did not want to get involved with these halachic problems.)
2 - See B'Mechitos Rabbeinu pg. 135 and Emes L' Yaaov Vayikra 23:24 for an interesting explantion from R' Yaakov on why Hoshana Rabbah is not mentioned in the Talmud. (Note his comment that the question is a קנטור נגד הזוהר. I have an email R' Nosson about his fathers relation to Kabbalah but I would have to ask him before placing it here.)
I also noticed that in MA 284:7 he writes:
..כי בכל העולם יש יהודים - ע' מאור עינים
The relevant quote is in the Meor Einayim (de Rossi) in Imrei Binah 3:55. Not a source that one usually associates with the MA.
 I don't own part 3 of C. Tchernowitz's Toledot HaPosekim but I would imagine he has useful information. (NB - It is surprising that Tchernowitz doesn't discuss the Mishna Berurah, although he does discuss the Aruch HaShulchan. TP was reviewed by J Katz in KS.)
Wednesday, October 15, 2008
Saturday, October 11, 2008
2 - On Precedent and Autonomy - In a letter to R' Zevin the Rebbe cites ShuT Divrei Nechemiah that the Alter Rebbe admitted that he placed to much weight in the opinion of the Achronim (especially the Magen Avrohom) and that he later decided to follow his own opinions to a greater extent (usually for Kabbalistic reasons - this is why his Siddur which was written later is considered more authoritave)
3 - I am surprised that so little attention has been given to the discussion of the conflict of Torah and Science in the thought of the Rebbe (this is what Rambi has I , II). I believe that it was in order to investigate this that the Rebbe went to Berlin.
In the first letter in Igros Kodesh V. 1 to the Rogatchover  he points out that all the Rambam's science is taken from the Aristotle  . I erred in my previous post when I wrote that he believed the Rambam's science infallible. It seems his desire to defend the Alter Rebbe was so very great that he was even willing to violate his own anti-apologetic stance .
The Rebbe's use of medievel scientific concepts is in general in need of clarification. For instance, he has a really brilliant explanation of the Mishna in Pesachim 2,1 based on the Greek idea of four elements and the fifth element of the "hylic matter". The explanation is eminently plausible and quite possibly an excellent example of "Hellenism in Jewish Palestine" but I can't quite see the Rebbe taking a "positive-historical stance".
There is an entire book on the subject of Emunah U' Maddah in the Otzar HaChochmah (and one in English as well.)
I'd also like to point out that in all of the letters that I looked over I didn't catch a single Messianic reference (except for one negative statement about Messianism). Contrary to Deutsch, I believe the Messianism must be a relatively late development in his thought. 
 Interestingly, the Rebbe realized right away that the letter of the Rogatchover in Dovev Sifsei Yeshonim was a forgery see his sharply worded letter (there are two) to Bloch in Igrot Kodesh (V. 19 or thereabouts)
 R' Deutch, Larger then Life printed several fascimiles of the Rogatchover's letters I don't remember if he has the reply to this one.
 In a different letter he writes that the Hirschian model of "raising difficult questions and providing insufficient answers" is no good either for Israel or the US. It is true that apologetic was very important to German Orthodoxy (see Prof. Breuer's book on the subject) but I don't know why he identifies R' Hirsch as the founder of this approach.
 It is almost impossible to engage extensively in Kabbalah without involving some level of Messianism - cf. R' Avrohom Abulafia, Ramchal, R' Kook, the Rebbe. etc.