Volume 19 Number 97
Produced: Fri Jun 9 0:01:07 1995
Subjects Discussed In This Issue:
Blackmail
[Larry Smith]
Jewish courts and Gentile courts
[Jay F Shachter]
Scientific Views of Early Sages
[Michael Linetsky]
Status of Fetus and Rodef
[Joe Goldstein]
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From: <ls@...> (Larry Smith)
Date: Tue, 6 Jun 95 16:49:26 EDT
Subject: Blackmail
Regarding the ongoing discussion concerning a father's permission to
marry off his under age daughter as a means of blackmail:
Shouldn't we examine the more general question, i.e., under what
circumstances, if any, are the results of an ordinarily valid halachic
contract voided if it is determined that the intent of the parties is
solely to extort money or other privileges from a third party? I'm
curious as to how blackmail, in general, is handled by the halachic
process.
Ordinarily, extortion involves an acknowledged threat of harm to the
extortee (?) by the extortionist to force the extortee to unwillingly
perform some action. This is usually expanded to include threats of harm
to family and friends (even innocent bystanders in the case of
terrorism). Our problem seems to be that we acknowledge the threat of
harm being presented by the extortionist to the child, but it appears
that the Halachah (and the Courts?) does not. We have the additional
problem that in cases of extortion, we simply nullify the transfer of
the extorted money or cancel the enforced arrangement (e.g. marriage at
gun point) between the two parties involved, whereas in our case, a
seemingly independent arrangement was made involving a third (the child)
and fourth party (husband?), and it is not clear that this can be
nullified as easily.
The questions are:
1) Can such a marriage be considered an halachically harmful act?
2) If it may, then may this case be considered one of extortion?
3) If it may, then may we nullify the arrangement, even if it involves
'outside' parties?
Even if all this were so, it seems that the process of providing
acceptable evidence that the husband/father was using this as a means of
extortion and not doing it in his daughters best interests might be
difficult. Analyses and thoughts would be appreciated.
Larry Smith
<ls@...>
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From: <jay@...> (Jay F Shachter)
Date: Fri, 2 Jun 1995 12:55:12 -0500 (CDT)
Subject: Jewish courts and Gentile courts
A few months ago I submitted a posting which provoked almost no
responses. I will now try to make it more provocative.
Consider the following halakha. Jewish law states that if a Gentile
brings a cause of action against a Jew in a Jewish court in a land ruled
by secular law, then the Jewish court must examine both the relevant law
under halakha and under the local Gentile legal system. The Jewish
court must then render whichever finding is favorable to the Jew. If
Gentile law favors the Jew, the Jewish court must rule according to
Gentile law and favor the Jew. If Jewish law favors the Jew, the Jewish
court must rule according to Jewish law and favor the Jew.
This is precisely the kind of halakha that we don't want the antisemites
to find out. It makes us appear to be unprincipled, clannish,
dishonest, manipulative -- all the things that the antisemites have
always known we were. In all honesty, doesn't this halakha strike you
as rather distasteful? It strikes me that way.
But laws must be carefully thought out, by clear-thinking people. If
you think about this law, you will realize that it is both necessary and
fair. In the absence of such a law, Gentiles would have an unfair
advantage over us. Consider the situation that would result from not
having the abovementioned "distasteful" halakha. Whenever a Gentile had
a dispute with a Jew, he would find out which legal system favored him.
If the Gentile legal system favored him, he could compel the Jew to
participate in a lawsuit in the Gentile court system. The police power
of the state could then be enlisted to enforce any resulting judgment.
But if the Jewish legal system favored the Gentile, he could sue the Jew
in a Jewish court, and the Jew would be bound by conscience and
community pressure to carry out any resulting judgment. This places the
Gentile at an unfair advantage -- two legal systems from which to
choose, against only one for the Jew -- because if the Jew sued the
Gentile in a Jewish court, the Gentile could not be compelled to comply.
Now let us consider the case that really interests me, and which I claim
is similar in nature: the case of a Jew who brings a case to the Jewish
court after failing to obtain his desired relief in the Gentile court.
I assume that we are all agreed on the basic premise: a Jew may not, on
pain of "herem" (total exclusion from the Jewish community), initiate a
cause of action against another Jew in a Gentile court, except,
possibly, to obtain whatever relief has already been granted "ex parte"
in a properly convened Jewish court. If there is any disagreement on
this basic premise, then of course I welcome hearing it.
My question is a derivative one. How do we act in the situation wherein
a Jew enlists the Gentile court against another Jew, fails to obtain the
desired result, and then comes to the Jewish court as a second resort?
Do we accept the case, if it has merit, or do we reject it out of hand?
I propose that we must reject the case out of hand. This seems to be
the opinion of the Rema, although the Rema's opinion is not entirely
clear to me. It also seems to be the opinion of the Beyt Yosef on the
Tur, but the Beyt Yosef is even less clear to me. I may be misreading
him.
I propose that Beyt Din must reject the suit, regardless of its merits,
for the same reason as a Gentile's suit must be rejected. This Jew has
already gone to a Gentile court -- in violation of halakha -- and sought
his relief. If he had been granted a favorable judgment against his
fellow Jew presumably he would have enlisted the police power of the
state to enforce it. To allow him to come to Beyt Din after failing in
the Gentile court would give the renegade Jew an unfair advantage over
the pious one, because the pious Jew does not have the option of taking
the renegade Jew to a Gentile court. I propose that the renegade Jew
must, in effect, be treated as a Gentile, and that Beyt Din says, "We
will apply the Gentile law to you, and under the Gentile law, as
evidenced by your failed lawsuit, you are not entitled to the relief you
request".
Please discuss the case in all its complexity. Note, in particular,
that in the general case the Gentile court will not have failed entirely
to act; on the contrary, in the general case the Gentile court has
acted, and it has satisfied the complaining party in some respects but
not in others.
Please submit your thoughts and analyses. My interest in this question
is not entirely theoretical. It is perplexing that almost no discussion
ensued the first time I posted this question; when I posted articles on
male homosexuality and female masturbation, they elicited numerous
replies. I am totally bewildered over this discrepancy.
Jay F. ("Yaakov") Shachter
6424 N Whipple St Chicago IL 60645-4111
(1-312)7613784
<jay@...>
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From: 81920562%<TAONODE@...> (Michael Linetsky)
Date: Wed 07 Jun 1995 14:19 ET
Subject: Scientific Views of Early Sages
In issue #90 Yossei Goldstein writes about the scientific views of the
early sages. First it would be interesting to see some support for his
citations of Hazon Ish and Rabbi Abrham Maimonides. Even if Hazon Ish
had indeed expressed the view that Rabbi Abraham Maimonides is not to be
considered, this by no means permits us to state our open disagreement
with him. Rabbi Abraham Maimonides was a man of great stature with very
great following. Hazon Ish probably knew that (although the new
matertials by Rabbi Abraham Maimonides have only recently surfaced), but
for reasons only he knows permitted himself to differ with him. Just
because Rabbi Eliyahu Cramer said that Maimonides was poisoned with
philosophy, does not permit us to say so.
As for the scientific theories of the Rishonim. It is obvious that all
the Jewish astronomers followed the contemporary perception of the
universe and state that they do not know the answers to everything. I
sent a letter in recent months to Rabbi Joseph Kafih (who is probably
the greates expert on Maimonides alive) asking him if the earth is at
the center because Maimonides states so. He replied that Maimonides
himself has taught us that science should reflect reality, reality
should not reflect science. If this is the contemporary understanding,
then we must live with it he says. The Rishonim did not claim at all
times that their scientific views were infallible. Ibn Ezra complained
that untill his day no one has been able to calculate the exact length
of a solar year. He clearly relied on the progression of
science. Maimonides in Hilkhoth Mishpetei Hannoladh (if I rememeber
correctly) states that he gets his information from the observations of
Arab astronomers. He did not exclude the possibility that his perception
of the universe was incorrect. Should we deny that we live in the United
States because Ibn Ezra, for example and every "scientist" of his day
said so. Before Columbus it was believe that the bottom part of the
world was covered by water. Are we dreaming then? Indeed this view is
found also in Pirqei De Rabbi Eliezer, and no doubt this statement was
used as support by Jewish scientist since it seemed that it conformed to
their world views. Was Rabbi Elie'zer unaware of the fact that the
Americas existed? No one knows, but we may assume that his statement
must now be interpreted otherwise. The statements of the Talmud must now
also be understood somehow else. This is nothing new in Talmudic
studies. It is entirely possible that Rashi considered the world to be
flat, though Kuhn in his "Copernican Revolution" claims that the belief
that in the middle ages the popular notion in Europe that earth is flat,
is a total myth.
As for the statement that the medicinal remedies found in the Talmud no
longer work because of the change in biological composition, I believe
is also found in Maimonides medical works (I will look that
up). However, although Maimonides medical works are sensible, if we look
at a medical treatise attributed to Ibn Ezra we will probably come to a
readicaly different conclusion. Grinding bear testicles, mixing them dog
manure and placing it on your chest may clear your nose, but did Ibn
Ezra really think it could do more? True there is some doubt that he
actually wrote the book, but are these exotic medical practices of no
avail because of a change in biology?
SHALOM and Tel Hai Michael Linetsky CSU BETAR/TAGAR
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From: Joe Goldstein <vip0280@...>
Date: Thu, 01 Jun 95 12:05:46
Subject: Status of Fetus and Rodef
In response to Heather / Channa Luntz's questions in V19 # 68 and Mr Ben
Yudkins comments in V19 #60.
Until the fetus is born it does not have the status of a human. (see
Tosefos Yom Tov on the mishna OHALOS Ch. 7 Mishna 6 who quotes Rashi)
and therefore if the pregnancy poses a threat to the mothers life it may
be aborted. The terminology of "rodef" may have been a term I remembered
being used in this context but I do not remember where I saw or heard it
in this context. However, the points brought up by Ms. Luntz need to be
discussed.
Ms. Luntz makes the assumption that if the inhabitants of Schem would
have caught Schem in the act of kidnapping they would have been
obligated to stop him, even to the point of killing him. I do not know
that this is correct. We DO find a concept of stopping an avairah from
occurring by killing the person who is GOING to commit the crime.
However, that is a law pertaining to Yidden. Rather than allowing a
person to commit a crime "NITTAN LEHATZILO BENAFSHO" He is given to be
saved with his life. (This does not apply to every sin! but it would
apply to murder, rape and other sins see Sanhedrein 73A and rambam
HICHOS ROTZAYACH CH 1 HAL 10 ) There is no rule that allows one gentile
to kill another gentile as a pre-emptive measure! If a gentile would do
this it would be murder! (Note: the reason a Jew would be REQUIRED to
kill another Jew to prevent him from transgressing a Torah law is
because of LO SAAMOD AL DAM RAYACHO which applies to one Jew has for
another. This, of course, does not apply to any one else) Therefore, it
is true that the city of schem was CHAYAV MISA because they neglected to
bring shchem to trial, however if they would have seen him GOING to
kidnap Dina they would not have been justified in killing SHCHEM. Once
he did kidnap her they would have been justified and in fact obligated
to kill him. Therefore, the HETER, or allowance, to kill a rodef is not
one that applies to Goyim. The Rambam you quoted may refer ONLY to a GOY
killing in self defense. Not allowing one goy to kill to save another's
life. This would be consistent with the RAMBAM and his understanding of
the gemmorah upon which this halocho is based.
Therefore, it is very possible that even in a case where the mothers
life is in danger a gentile may not be allowed to have an abortion.
(PLEASE NOTE: I AM NOT A HALACHIK AUTHORITY AND I DO NOT EVER PASKIN
HALACHA LEMAASEH, {Practical halacha}) The mother may possibly abort her
OWN fetus if she was in danger.
In summation, Goyim are required to set up judicial systems. However,
they can not set up laws that contradict the law they are required to
uphold.
As far as the fetus stealing from the mother, another point made by
Ms. Luntz, I would assume that if someone is invited a house guest for
several months at a time the assumption would be that the guest was
welcome to free access to the fridge and pantry, and that this would not
constitute stealing. Well a fetus, whether halachically a human or not
is no worse than an invited guest and therefore not considered a thief.
Thanks
Yosey (Joe) Goldstein
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End of Volume 19 Issue 97
