Volume 13 Number 49
                       Produced: Sun Jun  5  8:52:59 1994

Subjects Discussed In This Issue: 

Are all men created equal?
         [Jules Reichel]
Ari Kurz on Equality of Jews and Non-Jews
         [Alan Zaitchik]
Beracha in Mikvah
         [David Charlap]
Dina D'Malchusa Dina
         [Shmuel Weidberg]
Halacha & Chumros/Chumrot
         [Aryeh Blaut]
Hebrew Standard
         [Reuben Gellman]
Pay for Physicians
         [Barry Freundel]
Smoking and Halakha
         [Rabbi Freundel]


From: <JPREICHEL@...> (Jules Reichel)
Date: Thu, 2 Jun 1994 12:12:21 -0400
Subject: Are all men created equal?

In order to justify Jewish writers who somehow lost their way in this
world where justice and mercy are so confusing, Ari Kurtz, chooses to
say that Judaism doesn't believe that all men are created equal. He
points out correctly that we're not equal in talents or power,
therefore, it's a farce, he says, to call men equal. He should remember
that Jefferson's phrase was written by people who were trying to define
the just relationship of a citizen to the state. His argument is that
life, liberty, and the pursuit of happiness cannot be measured by,
controlled by, or given by, the state. These are the things between God
and man. Elsewhere it is said that no democracy can exist without this
religious assumption. The just state must presume that God gave this to
all men equally. Government's just role is "to insure these rights".
It's far from a silly thought, and misunderstanding it is not a useful
way to get rid of wrong statements by Jews in our history.  


From: Alan Zaitchik <ZAITCHIK@...>
Date: Fri, 03 Jun 1994 08:44:31 -0400 (EDT)
Subject: Ari Kurz on Equality of Jews and Non-Jews

This issue of Jewish/nonJewish (in)equality has come up before, and I
think that it poses a real challenge to anyone who is willing to
confront the tensions between halakha and (speaking loosely -- please no
flaming!) contemporary western liberal moral thought. Ari Kurtz (v13 #45
)points out correctly that there is a seemingly analogous situation with
respect to Kohanim, Leviim, and Yisraelim. His point is that since
people differ, each is required to live by rules that best suit and
bring out their particular gifts.

I would reject his account of this, however.

For one thing although individuals differ, the relevant points are:
(a) are these differences morally significant? Being short or tall is not
    morally relevant. Why should one's gender? intelligence? 
(b) are they SUFFICIENTLY morally significant to justify the different
    rights and duties allegedly resting on these differences? It may be
    morally significant that Ari and I are members of the same people,
    and so I must agree that it is morally significant that my friend
    Salameh and I are not. But that does not mean that there should be
    any difference in the penalties for homicide for members or non-members
    of your own group. 
(c) since the moral/legal/halachik rules relate to GROUPS or CATEGORIES
    of individuals (Kohanim/Leviim/Yisraelim, Yehudi/Lo-yehudi, Male/Female, 
    etc) rather than individual people, do the alleged differences between
    the groups hold IN EVERY CASE for ALL the members of the groups? If not,
    you must justify why a particular individual should be subject to
    rules that do not reflect that particular person's nature? For example,
    EVEN IF most women were of a nature that their testimony should not
    be accetable in court, why should a woman who is of a different nature
    not be qualified to give testimony in court?

In fact Ari's formulation is very helpful in highlighting where the
tensions and difficulties lie. Let me run the risk of boring everyone
to death with a brief and tendentious philosophy lecture...

Liberal ( as opposed to totalitarian, Marxist, and of course pre-Modern)
ethical and political thought starts with the notion of the equality
of the individual as a legal, political and moral being. It took a long
time to get to the point where one's social caste, birth caste, education, 
religion or race is not thought to make a difference with respect to legal, 
political, or moral being, at least as far as what people outwardly profess 
(whatever their actual biases in practise). Sex is probably the next to fall. 
This trend has been going on for a few hundred years, with occasional
throwbacks, most of which have been catastrophic in terms of human misery.
Underlying this approach is the idea that only what is common to all
humans can be of moral (hence of legal and political) significance. 
The fact that we all differ in abilities, skills, inclinations, and even the
ability to intentionally change our abilities, skills, and inclinations 
is taken as evidence that moral being has nothing to do with abilities,
skills, and inclinations (except for the bare ability to think and
act morally, with which we are assumed to be equally endowed). (By the
way, note that it is no accident that psychologizing criminal behavior
tends to excuse it.)

I won't go into any more detail. But it is clear that halacha has some
tension here with the above! And what's perhaps equally problematic,
we get little help from our traditional Medieval philsophers, all of whom
are pre-Modern in their outlook, working with some form of Aristotelian
or Platonic orientation. So the job of reinterpretation falls to modern
Jewish thinkers, such as Krochmal or S.R. Hirsch, who are at home in
the liberal philosophical outlook which dominates our thinking, and yet
committed to Torah. Unfortunately for us, 19th century thinkers can help
us only part of the way. The changes of the last 50 years in our thinking
about race and sex are not problems they had to deal with as we do.



From: <david@...> (David Charlap)
Date: Wed, 1 Jun 94 19:31:49 -0400
Subject: Beracha in Mikvah

<turkel@...> (Eli Turkel) writes:
>2. There is a major discussion among Rishonim and Acharonim when one uses
>   the active (le-) or the passive (al) in a "berachat ha-mitzvah"
>(blessing over a mitzvah) . Does anyone know of a discussion of when 
>"al mitzvat" is used in a passive berachah.
>    Some examples:
>    al mitzvat tefillin, al mitzvat tzizit, al mitzvat eruv
>    but
>    al ha-shechita, al ha-tevilah, al mikrah megilla, al achilat matzah,
>    al achilat maror, al netillat yadaim, al tevillat keli, al sefirat ha-omer,
>    al netillat lulav, al ha-mila.

It seems obvious to me.  The first ones "al mitzvat ..." all have a
noun for the "..." part.  The second ones "al ..." all have a verb for
the "..." part.

You aren't blessing God for the t'filin, the tzitzit, or the eruv -
you're blessing him for the mitzva of using these objects.

On the other hand, for the latter bunch, you are blessing God for the
actions themselves.


From: <shmuel@...> (Shmuel Weidberg)
Date: Thu, 2 Jun 1994 00:41:38 -0400
Subject: Dina D'Malchusa Dina

>I remember hearing that one is supposed to follow the law of the
>land--provided it doesn't contradict halacha.  So bringing up another
>topic I've seen mentioned recently--speeding--I guess the rabbi would
>probably also agree that it's O.K. to speed since it's the general
>accepted practice.
>None of us is perfect.  We all do things we shouldn't do.  But we
>shouldn't justify doing these things based on how others are behaving.
>If Judaism is a religion of absolute truth, then in assessing what we
>should be doing, we should ignore what others are doing.  Otherwise...
>you might as well give it up entirely--after all, it's only a small
>percentage of Jews that keep the majority of the mitzvot, or even just
>Shabbat or kashrut.   

Evidently the halacha is that the law of the land not of the law books
is the law. The laws of the Torah are laws because Hashem made them so
we don't care who keeps them, they are still in force. The laws of the
government are only laws because of people. The fact somebody wrote it
into a book doesn't make it into a law; it has to be followed.



From: Aryeh Blaut <ny000592@...>
Date: Thu, 2 Jun 1994 00:58:31 -0400
Subject: Re: Halacha & Chumros/Chumrot

There is another side to this chumra discussion.

While I understand that there is a spectrum of levels of observance (in
my resent family case: kashrus/kashrut/keeping kosher--although the same
question can be asked about Shabbas/Shabbat) when someone extends an
invitation to their house/event, the inviting party must understand that
an inquiry to the level of observance is not a value statement.  Allow
me to explain:

A couple of my daughters recently had birthday parties to attend.  We
did not know the families well.  My wife, children and myself have
little problems attending these parties and, if need be, abstaining from
eating certain foods.  Due to the fact that we did not know these
particular families well, we were forced to ask about the
kashrus/kashrut of the foods to be served.  One response was that "we
keep kosher just like you do".  From what little we did know of the
family, we knew that they used certain hashkachos/hashkachot/kosher
supervision agencies that we do not use.  I feel that this person should
not be offened that I inquired.  I was not asking that anything special
be given to my daughter.  I just needed to know in order to instruct my
daughter what she could eat and what not to eat, but she certainly could
attend and have a good time.

In the second case, the family got very insulted that I shoud ask.  I
don't understand.  Am I the only one who thinks that it is good to be
questioned by someone who cares about what s/he eats?  I am not offeded
if I invite someone to my home or someone invites him/herself to my home
asks me about my kosher/Shabbas knowledge or level of observance .

Aryeh Blaut


From: Reuben Gellman <rsg@...>
Date: Wed, 1 Jun 1994 21:59:40 -0400
Subject: Hebrew Standard

"Tsereh bitten the dust?" "Accent on the first syllable?" Dunno who made
that claim, but I sure know many speakers of ivrit who don't subscribe
to that. Would one say that the -ly ending of English adverbs has gone
the way of the dodo? Methinks not. Laziness & ignorance is just that. So

Reuven Gellman
(who believes not only in tsere-segol distinctions, but even, as do
many on this list, in sh'va nach vs nah, mil'eil - milra, and sometimes
even tries aleph - ayin etc)


From: <Dialectic@...> (Barry Freundel)
Date: Thu, 2 Jun 1994 15:09:48 -0400
Subject: Pay for Physicians

Hayim Hendeles writes:
> Before any physicians out there decide to become "more frum", and extra
> pious, and adopt greater stringency in these matters by charging
> more :-), don't forget the Halacha brought down in the Shulchan Oruch
> that it is forbidden for a physician to charge for his services !!!
> (For those who are interested, I heard a lecture from Rabbi Frand - on
> tape - discussing the heter for physicians to charge. Needless to
> say, this is a non-trivial question. His tapes are available for purchase, 
> and I highly recommend them.)

The actual quote in the Talmud is "Asya Bezuza, Zuza shavya" - a doctor
who charges $1 is worth $1. I have never stopped to think about it
before, but now I am not sure how to reconcile this statement with the
aforementioned Halacha

The post is inaccurate in several ways and it is the inaccuracies that
create the problem

1)The Talmudic quote is Asyah Demagem Bemagen Magen Shaveh (a doctor who
heals for nothing is worth nothing Baba Kamah 85a). It is said in the
context of the following: A injures B and is held liable for medical
expenses. A says I have a doctor who will heal you pro-bono. B is
entitled to respond Asyah Demagem Bemagen Magen Shaveh and insist
instead on being paid reasonable medical expenses.
 One cannot extrapolate from this to regular Physicians fees and it is
not so brought down in Shulchan Aruch in the section on physician fees.
In fact the only extrapolation that I know of is in the practice of
Jewish community physicians who were required to take care of the poor
as part of their service. Often they were not allowed to serve in this
capacity for free for fear that they would neglect their duties. In that
context this statement would be quoted in support but not on the general
question of physicians fees. As a result Doctors would be paid a small
fee or be given tax breaks or other perks for their work with the poor.
The majority of the time would then be spent in their own private
practice which followed the rules I am about to describe
 2) The citation from the Shulchan Aruch (Yoreh Deah) is also inacurate.
The Shulchan Aruch NEVER says that Doctors may not charge. In pg. 2 he
says that a doctor may not charge for HIS KNOWLEDGE but may charged for
his expenditure of energy (torach) and for bitul. Sechar Batala is a
frequently encountered term in halachah best conceived as follows: if
you make $100k would you take $90k to stay home and not work ? would you
take 80? would you take 15? There is some number that would satisfy the
average person and that is the sechar batala number. Rabbis and others
involved in mitzvah performance in their professional lives are often
paid this way.
 In pg. 3 the Sulchan Aruch goes beyond this and tolerates even the
imposition of very high physician fees for the Doctor's knowledge as
long as agreement on the fee is reached prior to the service being
performed. The halachik history of the source is too long for here ( see
my upcoming article on Health Care Reform in the next issue of The
Orthodox Forum (gee I always wanted to quote myself its soooo pompous
;-)>) but Im sure it also reflects a concern that without adequate
compensation, adequate Doctors will be unavailable to serve
 I urge Hayim to go back and rehear the tape and if in fact it says
would he reports it to say to discuss the sources with the author.


From: <Dialectic@...> (Rabbi Freundel)
Date: Tue, 31 May 1994 17:13:22 -0400
Subject: Smoking and Halakha

Despite the prominence of those who permit smoking I find the permissive
stance imposssible to understand except as an attempt to keep people
from willful disobedience. R. Shmuel Boylan in an article in Or
Hamizrach some years ago points to two chiyuvim [obligations - Mod.]
related to the preservation of life. The first is the avoidance of
danger and the second is the acting in healthy ways. While one can as J.
David Bleich has done argue that the first is vitiated by the danger
being only statistical as it is in the case of smoking one cannot
vitiate the second as it is only a statistical requirement(I can live
the healthiest life and still get hit by a truck). Nothing can mitigate
this requirement without specific Torah license (e.g. circumcision or
normal work related risk) smoking hardly fits in these categories and
should be understood as assur. In connection with this the RCA has
called on all shuls to be declared smoke free zones


End of Volume 13 Issue 49