Volume 10 Number 46
                       Produced: Mon Dec  6 11:54:03 1993

Subjects Discussed In This Issue: 

Rabbinic Authority
         [Robert J. Tanenbaum]
Shabbas & Yom Kippur - response.
         [Mechy Frankel]
Women and Minyan
         [Aryeh Frimer]


From: <btanenb@...> (Robert J. Tanenbaum)
Date: Tue, 30 Nov 93 10:56:18 EST
Subject: Rabbinic Authority

The discussion about the range and value of rabbinic advice is very
interesting and surely one of the most significant discussions in
mail-jewish to date since it touches a cornerstone of what it means to
be Orthodox.  I think it even goes beyond that and touches what it means
to have faith.

The Chazon Ish in his book "Emunah and Bitachon" (Belief and Faith)
states explicitly that people who believe that having faith means that
we must believe that the preferred outcome will occur are severely
mistaken.  Having faith means that whatever occurs is the will of G-d
and we accept it and use our faith to move on from there.

To extrapolate to our discussion, having faith in rabbinic advice does
not mean that we won't get bad advice. Even in Halacha mistakes are
made, and not only because the rabbi is insufficiently knowledgable.
The Torah provides a special sacrifice for the situation when the entire
Jewish people have erred because the Sanhedrin provided a false
direction. As was pointed out, even Moshe Rabbeinu who was both a
halachic authority and a prophet made mistakes.

Sometimes the best application of our faith in G-d and Torah, is to
continue on even in the face of mistakes, setbacks, and difficulties !!
That's what mature faith is all about.

Sometimes the best application of our faith in G-d and Torah, is to risk
our own mistakes and to make decisions on our own authority.  Other
times it means subjecting ourselves to rabbinic authority.

I take extreme exception to the proliferation of children's stories
where the character in the story is saved from disaster because he/she
did some mitzva or other. This is unrealistic, immature, and worse ---
it is a misrepresentation of the nature of Torah and mitzvos.  I take
even more exception to these notions when they are expressed by adults
as the purpose of Torah and mitzvos.

G-d has seen fit to create a world where troubles, illness, and
accidents appear as random events affecting the G-d fearing and the
righteous to the same degree as the irreligious. Aside from the fact
that G-d fearing people are likely to be more responsible and thoughtful
(at least in certain areas) so they will avoid the consequences of
irresponsible behavior and reap the benefits of responsible behavior,
joys and sorrows are equally distributed around the world.

Tzadikim are just as likely to suffer from cancer, strokes, diabetes, as
anyone else. The purpose of piety and righteousness and Torah observance
is to bring us closer to G-d and usually improves basic character traits
to make living with otherselves and others more congenial.  However, it
does not provide immunity from troubles.  To believe so, distorts the
meaning of faith.

It should be obvious that this is the case in physical illness, yet I
still hear people say that a certain Tzadik who lost some faculties
because of a stroke had prayed for that to happen so he could atone for
certain sins of the community.

It is less obvious that even mental illness can afflict our Tzadikim.
Much mental illness -- like obsessive compulsive disorders and
addictions -- have biochemical origins and afflict people with the same
randomness as diabetes. It scares me to see the deliberate reality
distortions that people go through to convince everyone that Tzadikim
cannot get afflicted.  If a certain Tzadik used to fast from Shabbos to
Shabbos and died at an early age from complications of malnourishment
and self affliction -- it sure does sound like anorexia nervosa obscured
by religious obsession.  Maybe he reached extraordinary spiritual
accomplishments that way, but it's not the way the Mesillas Yesharim
(Path of the Just) says to do it.  If a certain Tzadik performs some
mitzva in an obviously obsessive manner unsupported by any halacha -- it
should not detract from his Torah and mitzva accomplishments to wonder
if he might have an obsessive compulsive disorder -- instead of assuming
he is acting divinely.

If good upstanding members of the community, leave davening early so
they can lead the "kiddush club", consume another couple of bottles at
lunch, and then rush to the rebbe's "tish" and have some more shots,
sleep the day away and waken grumpy and groggy -- there may be an
alcohol problem.  After all, the brain reacts the same whether the
alcohol was consumed in a bar, at the kiddush club, or in the kitchen
while the chicken is cooking.

Let's have enough faith to look at things realistically without
resorting to the fantasy that frumkeit == perfection.

If I ask my Rav whether a certain business opportunity has any problem
with halacha, he can give me a halachic answer. If I follow it, I might
still lose money. If I ask him for business advice and he uses all the
many sources in Gemorra and Poskim which talk about how to be successful
in business -- I might still lose money. But generally the advice should
be good -- becauses the sources knew what they were talking about.

Reminds me of a joke. A person wants to build a house. He studies the
Gemorra and follows every last detail as indicated in the Gemorra.  Just
as he puts in the last nail, the whole house falls down. He goes to his
rabbi and tells him the story and asks him what went wrong.  His rabbi
answers, "You know, Tosphos asked the same question."

Talking about following rabbinic advice excessively. There once was a
Chassidic rebbe who hated the trappings of his position and wanted to be
treated with less fealty. One day one of his Chassidim sees him cutting
his fingernails after going to the mikve. The Chassid says to the rebbe,
"The halacha says to cut the nails before mikve. Why are you cutting
them afterwards?" The rebbe says, "Before I tell you the answer, I want
you to fast and say Tehillim for 3 days." So the Chassid does this and
comes back after 3 days with great expectation at the spiritual insights
to be learned.  The rebbe tells him, "after the mikve the nails are
softer and easier to cut."

Like Freud said, "Sometimes a cigar is just a cigar."  And sometimes
advice is just advice.

Ezra Bob Tanenbaum	1016 Central Ave	Highland Park, NJ 08904
home: (908)819-7533	work: (212)450-5735
email: <btanenb@...>


From: "/R=HQDNA/R=DNAHQ5/R=AM/U=Frankel/L=DNA HQ, ROOM 227/TN=5-1277/FFN=FRANKELMichael/"@mr.dna.mil (Mechy Frankel)
Date: Tue, 30 Nov 1993 15:31:45 EST
Subject: Shabbas & Yom Kippur - response.

I had a queasy feeling I shouldn't have included that Shabbas/Yom Kippur
comparison paragraph since it was kind of tossed off a bit too quickly,
but here we are -so, in the purely academic interest of furthering a
fuller discussion and Lehagdil Torah Velahaadira (or my wife's
interpretation - yet one more exercize of a childishly atavistic
competitive impulse) I would offer the following observations in
response to a number of your Vol 10 #2 respondents.

1) David Charlap suggests that Karet, after all, is a pretty dire punishment
and his impression is that it was considered in some ways worse than Sekilah
(because of Karet's post-mortem efficacy).  The following arguments would seem
to indicate the contrary: 
a) The Gemara Megila Daf 7b, where a dispute is brought down oncerning whether
a sinner who is liable to the punishment of Karet may be given Malkot (lashes)
as well. The Rabanan, according to the Maskana of the Gemara,  did allow Malkot
in such cases - and by so doing also removed the Karet liability entirely. (see
rashi). (That the Karet liability is removed is related to a Pasuk referencing
the word "Achicha" (your brother) in relation to Malkot. Someone receiving
Malkot must henceforth be considered  Achicha,  i.e. no longer liable Karet) So
it was possible, in a practical sense, to substitute Malkot for Karet. I would
argue that the inability to similarly  find an out for the punishment of Sekila
is indicative of greater Chumra. I realize that this interpretation is
(endlessly) arguable and so I will move on to more explicit arguments.
b) The Mishna in Megila  (Chapter 4, Mishna 2 in the Yachin UBoaz edition)
relates the number of those called to the Torah for weekdays, holidays, Rosh
Chodesh, Yom Kippur, and Shabbat - with 6 called on YK and 7 for Shabbat. The
greater number called on Shabbat is very specifically identified by the
Tifereth Yisrael (R. Yisrael Lifshutz - the Yachin commentary) as being due to
the greater Chumra of the Shabbat death penalty as compared to the Karet
penalty of a YK violator  "Shabbat Chamure Yotair MeYom Kippur Shechayav bo al
kol melocha sekila" - Shabbat is more Chamure than YK since one is liable for
every impermissible activity sekila.) The Gemara text on this Mishna, though
not specifically mentioning the word "chumra" connects the number of Aliyot
with the (presumed severity) of the punishments (BeYK di-anish karet sheesha,
shabbas dieeka sekila shiva, see also Bartenura).  i am also indebted to my
son-in-law Binyamin Edinger for pointing out that a modern Mishna commentary
(Kahati) similarly identifies the relative Chumra of punishments as reasons for
the different number of Aliyot. This latter explicit argument is, of course,
nothing less than a shameless appeal to prior authority, which, however, is
usually considered acceptable methodolgy of proof in these contexts. 
c) The Gemara Shavuot 33a recounts "Hidleak gedaisho shel chavero, beshabbos
poture metashlumin, uveyom kippurim chayov" (If a man lights (fire) his
neighbor's field on Shabbas he is free of monetary payment while on YK he is
liable) The reason is because we apply the principle of "Kam ley bederaba
menay" (we apply the more severe penalty) and thus application of the death
penalty (which is very chamure) for the Shabbas violation obviates the need to
extract a monetary penalty, while on YK which has "only" karet, the monetary
penalty remains. 
d) Finally, an explicit reference to relative chumra in the text of the Gemara
(Yevamot 2b) in a discussion of the ordering of cases by the Mishna (Vechee
taima tana chomreh chomreh nakat?) and explicit remark by Tosephos there
that...dibechol hanach lekah meesah elah karet lichuday (in all these (cases)
there is no capital punishment involved but only karet), very explicitly
identifying karet is less chamure than sekilah. 
q.e.d (please)
Finally, I did NOT translate Karet as "excommunication" and thus feel no need
to defend it. However, I do have some problems with the suggested translation
of Cherem as excommunication, especially considering its ancient provenance and
context. see e.g. Devarim 3-6, 7-2, 20-17, 26-7, Vayikra 27-28, Joshua 7-8,
2)  Benjamin Svetitsky writes that YK vs Shabbat should not be considered a
question of "Doache" but rather is consistent with the principle that an aseh
is not doache a lo taaseh + karet. (Yevamot 3b) Nice shot, and on reflection
might be basically correct.  If so, and however, I believe the better generic
principle to cite would be "Ain aseh doache aseh vilo taaseh" (an aseh does not
supersede an aseh + a lo taaseh. ) This is because fasting on YK is actually
counted as a positive Mitzvah (Rambam, Hilchot Shivitat Asor, also Sefer
haMitzvot)) which also involves a lav for its violation.  Nevertheless, I am
still a bit confused about this whole issue of applying  generic "doache" rules
to fasting on a Shabbas YK . I'm not sure we're properly, and exhaustively
counting all the positive and negative Mitzvot involved.   I am also uncertain
of the weight given to Derabanan's (Rabbinical ordinances) in "doache rules" .
e.g. It would seem that the Rambam in Hilchot Yibum Vechalitza (Ch. 6 Hal. 10)
indicates that the  principle originally cited by Benjamin (of non-doache when
a karet is involved) is actually a Derabanan (since the Rambam doesn't
differentiate between Karet and other "Chayavei Lavin", indeed the cases under
discussion there specifically seem to include Chayevi Karet (those liable for
karet)) . If Derabanan's are included in such doache rules (a conjecture based
on the Gemara's inclusion of the Karet component in the formulation of a
general rule in Yevamot 3b coupled to above diyuk in the Rambam) it is
relatively easy to find a few extra lavin (prohibitions) to add to the Shabbas
side of the scale (e.g. it is forbidden to fast on Shabbas) thus we could have
"opposed" the aseh and lotaaseh of YK with an aseh and lotaaseh  (derabanan) of
Shabbas.  Or perhaps my entire "diyuk" from the language of the Rambam is
fatally flawed. (in fact its quite new to me, so i don't quite believe it
myself) I'd welcome correction/enlightenment on this issue.
3) A. Roth responds that the fasting of YK is actually in the nature of a
"non-interruption" of the YK exhiliration and thus should not be compared to an
ordinary fast. While I certainly agree that that the fast of YK is not because
of any element of mourning I believe that precscription "ViEeneesem es
nafshoseichem"  meant something more positive than passive non-interruption of
other important religious business. Finally, I do not off hand know a source
for the claim that the more holy  the day the greater the number of Aliyot, but
the gemara in Megilah 22b has a similar sounding formulation "Kol ditifay ley
milta mechavrei, tifay ley gavrei" (all that are greater/have more thing(s)
than the next, (also) has greater numbers of people (called to the Torah)) but
this principle doesn't specify what is the "more than the next", indeed the
Gemara seems to interpret the "more" here as greater Oanesh (punishment for a
violation) rather than greater kedusha.

Mechy Frankel


From: Aryeh Frimer <F66235@...>
Date: Tue, 30 Nov 93 13:13:47 -0500
Subject: Women and Minyan

   I would like to respond to Aliza Berger's comments on my criticism of
Judith Hauptman's latest article in Judaism. Firstly, I'd like to note
that I am not an anti-feminist. The exact opposite is true as my article
on Women and Minyan and my years in the formal and informal rabbinate
have proven. In fact my wife has said that G-d blessed me with three
daughters because he wants me to either "put up or shut up".  But I do
stongly believe that in attempting to widen the Halachic horizons of
Modern women we have to sure that we don't destroy or misrepresent
Halacha. Ultimately our concern is to fulfill the divine will and for
Orthodox Jew Halacha is our only guide.
   I am fully aware that the Conservative movement and "Judaism" is not
bound by Halacha - but the Conservative movement has gone to great
lengths in its responsa to demonstrate that they are guided in part at
least by it. Hence, in using Halachic arguments a Conservative scholar
must have the intellectual honesty not to misrepresent halacha. Rabbi
Feldmann and many others of his colleagues in the Conservative movement
made this very point in their published deliberations on the questions
of counting women to a Minyan or giving them ordination. If indeed the
Conservative movement believes that these innovations are called for by
the social conditions - do as you like, but be honest enough to say
that they are a drastic departure from halachic precedent.
     This, to a great extent, is what irked me most about Hauptman's
articles. As a student of the Talmud, she recognizes its authority and
attempts to derive from it Halachic guidelines for action. That is the
thrust of her articles. Yet Aliza tells us that she cannot be held up to
the scrutiny of the Halacha. I read Hauptman as trying to revise halacha
via an "objective" re-examination of the sources. She expects her
conclusions to effect behavioral change in the halachically committed
community. If so, then her arguments must stand up to halachic scrutiny
and hence my criticism is valid even if she is not aligned with the
orthodox camp. The fact is that many in the orthodox camp believe, or
would like to believe, that her article is solid talmudic scholarship -
which I have attempted to demonstrate (perhaps unsuccessfully) is far
from the case.
    Let us move from philosophy to substantive issues:
In Prof. Hauptman's first article, she proceeds to "prove" that
Women are obligated in private prayer - like men. She has rediscovered
the wheel.  Be honest enough to say that the Ramban and the vast
majority of Rishonim and Aharonim said this hundreds of years ago!
The fact that religious women choose to ignore the Majority opinion
proves little, other than they find it convenient to rely on the Magen
Avraham's problematic interpretation of the Rambam's position. (see
e.g., Mishnah Berurah to Orakh Hayim 106:1 subsec. 4)
     Aliza's defense of Hauptman's claim that the Shulkhan Arukh is the
first source to say that women can't count for a minyan is lacking.

1) Firstly, even Aliza would acknowledge that the Tosafot I cited
(Brakhot 45b, s.v. "ve-Ha") is relavent to the discussion. Yet it
goes uncited by Prof. Hauptman. Is this good scholarship?

2) The Tosaphot and the tens of Rishonim (and scores more of Aharonim) I
cited, refer to the Talmuds statement "100 women are like two men". Upon
which Tosaphot et al. comment that this refers to prayer and all matters
requiring ten. Sounds to me that Women don't count at all - neither with
men or by themselves - according to this view.

3) The Rambam in his discussion of a Minyan by Zimmun be-shem clearly
states (Hilcho Berachot 5:7) that women can't join with men for a zimmun
and that 10 women do not constitute a minyan for zimmun. (see footnotes
51-53 in my article for other Rishonim who say the same thing).

4) Whether one or two women can be counted in a Minyan as an Adjunct is
discussed by the rishonim (see my article section H and references cited
Therein). Some permit, The vast majority rule against it. Hence 10 means
only 10 men.

5) Many of the above sources are cited by Rabbi Yosef karo, Author of
Shulkhan Arukh in his commentary to the Tur.  R. Karo doesn't generally
make original statements. His sources are found in the Beit Yosef -
Rishonim who preceeded R. Karo by hundreds of years - yet Hauptman
doesn't cite them or find them relavent! This is not good scholarship.

     By the way, I don't want to give the erronious impression  that
women never count for a minyan. The whole thrust of my paper on Women
and Minyan was to prove that there are clear cases where women do count
for a Minyan - but public prayer is not one of them.
     There is much more to say, but I'm tired. Perhaps, I will take up
Aliza's challenge and write a critique of Judy Hauptman's article. But I
am finishing up a long-overdue article on women's services (tefilla
groups) and that has highest priority right now for my free time. As
some of you know, I'm supposed to make my living as a Prof. of Chemistry
but like most if not all mail-jewish subscribers I love Torah More.
      Which brings to mind a beautiful and to my mind very relavent
comment made by Rabbi Eliezer Waldenberg Shlita regarding Rav Moshe
Feinstein zal with whom he had a lengthy give and take on the question
of grounds for abortion: "I Deeply love Rav Feinstein - but I love truth


End of Volume 10 Issue 46