Volume 19 Number 53
Produced: Thu May 11 23:28:30 1995
Subjects Discussed In This Issue:
Din Torah
[Michael Muschel]
Outside Influences
[Eli Turkel]
Rav Auerbach
[Eli Turkel]
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From: <LMuschel@...> (Michael Muschel)
Date: Mon, 1 May 1995 23:31:03 -0400
Subject: Din Torah
The daf yomi is now doing sanhedrin, and reviewing the gemara there
helped bring into sharper focus some halachic issues that have long
troubled me. Any guidance, answers, or references to peruse would be
really appreciated. I know these questions seem naive but I really don't
know the answeres, obvious though they may be to others.
1)The gemara in sanhedrin 2b-3a,5a et al rules that "mumchin/semuchin"
(expert,ordained judges) are needed for "k'nasos" (litigation involving
punitive damages), "gezeilos" (cases of theft). but not for "hoda'os
v"halvo'os." (Litigation regarding a disputed loan). It is therefore
understandable why the former cannot be judged and enforced in
contemporary dinei Torah, since we do not have the unbroken chain of
ordained "semuchin" to judge these punitive-type cases. But since we do
not lack for "hedyotos" (ordinary learned judges, albeit not part of an
unbroken chain of ordained judges dating back to Moshe Rabbeinu) and
they may judge "dinei hodo'os v'halva'os", why is this not routinely
done? When we go to court for a civil dispute involving contested sales,
business agreements, loans etc., shouldn't we have to go to a din Torah
instead? Shouldn't Torah law reign supreme here since the required
"hedyotos" are readily available (and most eager) to adjudicate these
disputes? From whence our license to bypass din torah for civil court
when the judges needed to adjudicate Torah law are accesible?
2) Our purchases and transactions don't employ the required "kinyanim"
(legal mechanisms of transferring ownership) defined by the Torah but
rather the full civil system of contracts, agreements, and all other
dictates of civil law. (Consider, for example the methods used in our
purchase of a home or a car). Why? Why do we suddenly "awaken" before
Pesach and sell our chametz to the Rabbi with the
halachically-sanctioned "kinyan suddar" (using an exchange of a
handkerchief as a halachic means of transferring property), while on the
other hand the civil system and its system of monetary law suffices for
our ownership and transfer of other possesions? Why should our sale of
chametz suddenly require a different standard?
3)I have heard it said that the answer to the above questions is that in
monetary matters we have a right to rely on the civil system because
there is an implicit mutual agreement by both parties to confer full
"gemiras da'as" (imparting our full assent)on the civil mode of
transaction employed. Therefore the transaction is not circumventing
Torah law, since "kinyanim" merely serve as expressions of "gemiras
da'as", and here the parties are essentially stipulating that the
protocols of civil law will be their vehicle of signalling their
assent. If this is true, then what is a din Torah all about? Do we
suddenly tell our co-litigant that we want a new arbiter, the rules of
Torah law, and we're now demanding judgement by beis din when until now
we've been happy to rely on civil law and protocol? And if so, how does
it work? How can the beis din step in and rule on (e.g.) a loan dispute
if the loan was accompliished not according to the halachic criteria for
oral or written loans e.g. a "sh'tar", 2 witnesses, and the creation of
a lien on properties(for written loans), but according to the dictates
of civil law? How is the beis din supposed to intervene in a dipute and
suddenly try to re-interpret a civil, non-halachic transaction according
to Torah law? I could go on and on, but I think I've made clear what
bothers me. Again, the answer and appropriate sources may be obvious,
but I could use some help.
Michael Muschel
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From: Eli Turkel <turkel@...>
Date: Tue, 9 May 1995 10:28:09 +0300
Subject: Outside Influences
Hayim Hendeles writes
>> I vehemently object to those who have responded by claiming that all
>> of our Torah leaders have always (sic) approached the Torah with their own
>> preconceived notions. In the words of Rabbi Moshe Feinstein zt"l:
>> "My outlook is based only on knowledge of Torah, whose ways are truth,
>> without any influence of secular ...".
Nevertheless, Judaism has frequently been influenced by the outside
culture. I shall also bring examples to show this simple point
1. Many words in the Talmud and even parts of the Bible are Persian,
Greek etc. It is not simply the words but the concepts that were
imported. It was previously pointed out that the concept of nature
(teva) is a Greek concept and not originally Jewish.
2. Rav Saadiah Gaon, Maimonides, Yehuda Halevi etc. wrote on philosophy
(even in Arabic). It is no coincidence that these all lived in the
Arab world and no Rishonim from Xtian Europe developed this kind of
Jewish philosophy. Similarly rishonim from Spain were involved in
poetry, grammar etc. These were highly prized by the Muslims in Spain
but were non existent in Northern Europe.
3. "Chasside Ashkenaz" stressed the idea of self-punishment and the
denial of wordly pleasures. It is not purely incidental that similar
ideas were popular at the same time in the non-Jewish world.
4. There are major differences in outlook between Ashkenazi Jewry and
Sefard Jewry throughout the ages. Many are influenced by differences
between Poland and Turkey. Some historians claim that the differences
between the two in the laws of the 3 weeks and 9 nine days before
Tisha Ba-av arises from the persecutions that existed in Europe but
were rare in Arab lands.
5. Rav S.R. Hirsh, in Germany, had a more favorable attitude to secular
culture than did his compatriots in Poland. In General rabbis in
western European countries like Germany, France, Netherlands and
England were positive to nonJewish culture than those in Eastern
Europe. This was no doubt caused by the higher level of culture in
Western Europe.
6. Rav Soloveitchik already has noted similarities in thought between
Kant and Rav Chaim Brisk. The two did not know of each other but
obviously the time was ripe for such approaches. I do not think that
the "Brisker" approach could have been invented in the middle ages
even though there is nothing intrinsically non-traditional in
it. Certainly it would be hard to believe that Rav Soloveitchik was
not influenced by his stay in Berlin.
To make things absolutely clear I am not claiming that in any of the
above cases that the rabbis consciously copied nonJewish culture. What I
am claiming is that Jewish tradition allows for different approaches to
the same problem. The rabbis were naturally conditioned to choose those
attitudes in the tradition that more closely conformed to the world
culture that everyone absorbs. Again some examples:
1. In the Talmud there are conflicting attitudes towards the
Nazir. Either he is holy or considered to be a sinner. Chachmei
Ashkenaz who lived in an era of ascetism chose to consider the Nazir
as a holy model for the rest of us. Maimonides and modern culture
play down this aspect.
2. In the Talmud there are different attitudes towards women, some
stressing the teaching of Torah to them and some limiting
it. Similarly, for other aspects of man/woman
relationships. Different societies have based themselves on different
statements in the Talmud. Again, Ashkenaz and Sefard communities have
different attitudes towards women in society based on the Talmud but
also based on local culture.
3. There are arguements in the Talmud about the importance of earning a
living versus devoting one's life to the Torah. As noted above
various societies have opposing viewpoints on secular education and
both sides can bring Talmudical statements for support. However, much
of the disagreement is not really based on the Talmud but on basic
attitudes towards life, much influenced by one's attitude towards the
outside world.
In summary, there is no such thing as Torah without any influence of
secular society. Anyone who reads rishonim is affected by secular
society since they were. The influence of the secular society is not so
much in direct copying but in the choice between alternatives that
already exist in Jewish tradition.
Eli Turkel
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From: Eli Turkel <turkel@...>
Date: Sun, 7 May 1995 12:45:11 +0300
Subject: Rav Auerbach
In one of the Israeli religious magazines I read an interview with
Rabbi Hetzberg one of the close students of Rav Auerbach with many
stories about Rav Auerbach Zt"l. I am enclosing some of them.
1. Rav Auerbach main principle was "The custom of Jews is the Halachah".
Hence, he felt that the job of a posek is to discuss only new issues
and not ones that have been around many years. For old questions one
should go and see what the people do. He was asked about opening a
soda bootle with a plastic cap&ring on shabbat. He answered that it
was certainly permitted. When the questioner pointed out that Chazon Ish
was "machmir" Rav Shlomo Zalman answered "but the father of the Chazon Ish
would open this bottle on shabbat".
2. When asked whther one could open a bag of "Bisli" (an Israeli snack) on
shabbat he again answered that if that is the custom then it is
allowed. Someone mentioned that Rav Moshe Feinstein didn't allow it and
Rav Auerbcah answered that the psak of Rav Moshe was meant for America
and not Israel.
3. Rav Auerbach did not consider himself a "makil" but he was not a believer
in "frumkeit". He also refused to answer theoretical questions only
ones with an immediate use. Once when asked about moving plants to a
new apartment during the shemitta year he answered "come back in a few
months when you are ready to move (the end was that the move was postponed
until after the shemitta year).
4. Rav Hertzberg once brought an etrog to some posek who took out a
magnifying glass, found a dark speck and "poseled" the etrog. For some
unclear reason he nevertheless brought the same (expensive) etgrog to
Rav Auerbach. He put the etgrog 30 cm (a foot) away from his face,
without any magnifying glass, and said "I don't see any black specs,
it is kasher-lemadrin with a beracha"
5. Rav Shlomo Zalman said there is no need to overfill a cup of wine for
a beracha. A full cup is what the people call full even if it is
filled to slightly less than the brim.
6. He avoided giving opinions about medical questions (from the medical
side not the halachic side) and made fun of "segula" (charms). However,
he did not want to prohibit smoking because the Chaftez Chaim and
Oneg Yom Tov smoked.
7. He would learn Gemara only with Rishonim. Only when he felt he
completely understood the "sugya" would he look up what some achronim said.
8. He greatly stressed the importance of charity but insisted that running
a "Gemach" should not be done in "learning hours".
9. He insisted that one was not allowed to hit children. If they do something
wrong its because the father is not a real tamid chacham and so the
father should hit himself instead of the child.
10. Rav Hertzberg's son was born 3 minutes before sunset on friday
night. Rav Auerbach "paskened" that is already considered "ben
hashamoshot" and the brit should be on sunday but he adviced to ask
Rav Eliashiv (also his mechutan(in-law)). Rav Eliashive said that
according to his calendar it was still friday and the brit should be
on friday. Rav Auerbach agreed to be sandek even though accrding to
his own opinion it was being done on the sixth day which is not
permitted.
11. Rav Lichtenstein in his hesped quoted Rav Auerbach as telling him
that the verse says "Lechu Banim Shim-u li yirat hashem
alam-de-chem" (go sons) and not "Bo-u Banim" (come sons) to teach us
that there are many different ways to worship G-d, many different
correct models and that one must let one's children choose their own
path as long as it is accompanied by fear of G-d. He also told rav
Lichtenstein that he couldn't believe that there were religious
people in the US that didn't pay their full taxes. Rav Shlomo also
quoted a story about Rav Aharon Kotler that he would avoid speaking
with someone wearing a hearing aid on shabbat. Rav Shlomo said that
the story must be false. It is inconceivable that a gadol could act
that way to someone who already was punished with being hard of
hearing.
Finally with regard to the story that I and others brought that at his
wife's funeral he said that he had never done anything to upset her and
so he did not ask forgiveness. The beginning of the story is that when he
was first alone with his wife in the yichud room he told her that he was
a very nervous type of person and she should please ignore things that he
said when he got angry
<turkel@...>
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End of Volume 19 Issue 53
