Volume 24 Number 92
                       Produced: Wed Sep 18  2:39:51 1996

Subjects Discussed In This Issue: 

Science and Halacha
         [David Glasner (<dglasner@...>) (David Glasner)]
         [Harry Maryles]
Using a Baby Monitor on Shabbat
         [Michael J Broyde]


From: David Glasner (<dglasner@...>) (David Glasner) <DGLASNER@FTC.GOV>
Date: Mon, 19 Aug 1996 20:41:40 -0400
Subject: Science and Halacha

A recent posting by Steve Gross and several others responding to him
have raised the interesting and absolutely fundamental question of the
status of halachot (such as the permissiblity of killing maggots on the
Sabbath) that are based on scientifically incorrect premises (maggots do
not procreate *einan parin v*ravin* B. Shabbat 107b).

The question is fundamental because it can*t be correctly answered until
one properly understands the nature and origin of the Oral Law, the
sources of its authority, and its historical (yes, historical)
development.  The source of its authority is the following passage near
the beginning of parshat Shoftim (Deuteronomy 17:8-13)

	8. If there arise a matter too hard for thee in judgment,
between blood and blood, between plea and plea, and between stroke and
stroke, even matters of controversy within thy gates; then shalt thou
arise, and get thee up unto the place which the Lord thy G d shall
choose.  9. And thou shalt come unto the priests the Levites, and unto
the judge that shall be in those days "ha-shofet asher yihiyeh ba-yamim
ha-heim"; and thou shalt inquire; and they shall declare unto thee the
sentence of judgment.  10. And thou shalt do according to the tenor of
the sentence, which they shall declare unto thee from that place which
the Lord shall choose; and thou shalt observe to do according to all
that they shall teach thee.  11. According to the law that they shall
teach thee "al pi ha-torah asher yorucha", and according to the judgment
which they shall tell thee, thou shalt do; thou shalt not turn aside
from the sentence which they shall declare unto thee, to the right hand,
nor to the left = "lo tasur min ha-davar asher yagidu lecha yamin
u*smol". 12. And the man that doeth presumptuously, in not hearkening
unto the priest that standeth to mnister thee before the Lord they G d,
or unto the judge, even that man shall die; and thou shalt exterminate
the evil from Israel.  13.  And all the people shall hear, and fear, and
do no more presumptuously..

The passage evidently gives unlimited discretion to the judges of each
generation (the Sanhedrin of 70) to interpret the law.  It also imposes
an absolute obligation to follow their rulings (*lo tasur min ha*davar
asher yagidu l*cha yamin u*smol*).  The rabbis interpreted this to mean
that you must obey their rulings even if they say that right is left or
left is right (i.e., even if their decision is based on an objectively
false premise).  The absolute authority given to the Sanhedrin of each
generation implies that each Sanhedrin was authorized to change the law
as established by judges of a previous generation.  The Rambam so
codifies in Hilchot Melachim 2:2.  For example, a Sanhedrin could
theoretically have applied lex talionis literally.  (The Rambam in his
introduction to his commentary on the Mishnah asserts, without citing
any source, that historically this never did happen, but he cannot have
meant that it never could have happened.)  Indeed based on the verse *lo
ba*shamayim hi* the Sanhedrin overruled the Heavenly Court as recorded
in B. Bava Mitzia 58a-b.  The only limitation on the authority of the
Sanhedrin is that an edict (gezeira, takanna) of an earlier court may
not be rescinded by a later one that is not greater in number and wisdom
than the earlier one.  Hilchot Melachim 2:1.

This might suggest that the halachah that allows the killing of maggots
on the Sabbath should now be changed to reflect the current state of
objective knowledge.  But that is no longer possible, because the Oral
Law of which the Sanhedrin was the absolute arbiter no longer exists.
Instead, we have only the version redacted by R. Judah Hanasi (the
Mishnah) supplemented by the two subsequent versions of the Gemara --
primarily the Bavli redacted by Ravina and R. Ashi.  Once the Mishnah
was redacted, later authorities (amoraim) could no longer disagree with
Mishnaic authorities (tannaim).  This was a revolution in Jewish Law and
directly contradicts the Rambam*s codification cited above.  See the
Keseph Mishnah on this codification who is troubled by the contradiction
between the codification and the authoritativeness of tannaitic opinions
relative to amoraic opinions.  Why was it revolutionary?  Because until
then there had never been a public (i.e. authoritative) text of the Oral
Law.  As long as it was not reduced to a cannonical version, the Oral
Law remained (as it was supposed to) in a continuous state of flux, so
that authorities of one generation would never be bound by earlier
authorities.  The redaction of the Mishnah violated the cardinal
prohibition against committing the Oral Law to a written
(i.e. authoritative) test from which the law could be derived (*d*varim
she*baal peh i ata rashai l*kotvan*) a prohibition based on the verse
*al pi ha-torah asher yorucha.* The revolutionary nature of redaction of
the Mishnah was certainly recognized at the time and it was only
justified on the basis of *horaat shaah* an emergency decree based on
the verse *eit la-asot la-hashem heifeiru toratecha* "the time has come
to do for G d to annul your Torah", i.e.  to annul the very essence (the
indeterminate character) of the Oral Law.  The codification of the
Rambam Hilchot Melachim is thus an ideal or Platonic codification.  The
current reality is that we are subordinated to the opinions redacted in
the Talmud even if they are based on false premises, because after
redaction of the Talmud the Talmudic authorities became *the judge that
shall be in those days* for all succeeding generations.  Although there
is probably nothing wrong with one chosing as a chumra not to kill a
maggot on the Sabbath just as one may as a chumra choose not to eat a
dish into which a non-kosher substance was accidentally mixed (the
non-kosher substance is halachically nullified by the majority that is
kosher.but objectively it is still there), there is all the difference
in the world between chumra and halachah.  And the halachah remains that
killing maggots on the Sabbath is permitted based on the principle of
*lo tasur min ha-davar asher yagidu l*cha.*

Some readers may find this explanation novel and doubt its validity.  So
to provide scholarly credibility to the explanation and to fulfill the
precept of *kol ha-omer davar b*shem omro meivi geulah la-olam* I should
mention that the explanation is entirely based on the introduction to
Dor Revi*i, a commentary on B. Chulin, published in 1921 by Rabbi Moshe
Shmuel Glasner z.l. (my great-grandfather).  The volume is unfortunately
no longer in print, but an abridged translation of the introduction was
published by Prof. Y. Elman in Tradition (Spring 1991).  I hope in the
near future to publish a couple of essays about the life and work of
this extraordinary individual.

David Glasner


From: <Harrymaryl@...> (Harry Maryles)
Date: Thu, 8 Aug 1996 23:59:04 -0400
Subject: Tuitions

In his response to my post on tuitions Sholom Dov Rothman says:

>    I too, like Harry Maryles have spent a number of years working on
>tuition committees, and trying to help a local yeshiva meet its budget
>through fund raising and other means. It can be a very frustrating
>experience. There are a number of ideas I would like to mention, but
>first I must take exception to an idea proposed by Mr. Maryles.
>    He wrote "It is my suggestion here to have as a goal in modern
>yeshiva chinuch, to combine the two staffs into one; to eliminate if
>possible entirely the need for a seperate secular staff.  In other words
>to have the rabbeim, mechanichim, and mechanachot educated in secular
>studies in all fields so that they could teach both limudei kodesh and
>limudei chol."
>   First,I don't understand how that would help meet the yeshiva's
>budget.  Wouldn't the rebbeim need to be paid for their work in the
>afternoon anyway. Why Would they be paid less than the current secular

As I indicated in my original post I did not intend for this suggetion
to be the complete solution to the problem of high tuitioins.. It is
only a step in that direction.  The benefits to be gained are more than
just financial, as I pointed out in my original post.  The way this
would save money and therefore help reduce the budget is by cutting in
half the benefits packages.  Assuming pension plans, health benifits,
free or reduced tuitions, and numerous other perks, (e.g. daycare for
their young children etc.) are given to both General studies teachers
and Religious studies teachers, by letting those same rebbeim who teach
in the morning also teach in the afternoons, you automaticaly reduce the
payroll expense.  Also, asumming equal pay for equal time worked, as a
general rule, it would be cheaper, in my opinion, to pay one emplyee a
full time salary than to pay two employees each a part time salary.
Rebbeim are often paid a lot more than a half day salary, eventhough
they only work a half day, because most boards in most schools
understand that no Rebbe could afford to live on a half day salary.  So
they are in reality, paid a very high "per hour" salary, but can't often
make ends meet because they are not paid a full time salary.  A full day
of teaching would increase their salary to a livable wage, but it would
not double it.  e.g. a rebbe making $25,000 per year (I am using
arbtrary numbers for purposes of illustration) for teaching in the
mornings might increase his salary to $40,000 per year for teaching both
in the mornings and in the afternoons. If you have two teachers teaching
each a half day than each one might be paid $25,000 per year totaling
$50,000 per year increasing the payroll for the same amount of time
taught by $10,000.  Plus the additional benefits expense incurred by the
second teacher. Multiply this by eight grades, and sometimes, multiple
classes per grade, depending on the size of enrollment, and the amount
of money saved could be quite significant!  Now, It's true that I'm
oversimplifying to make the point, general studies teachers are, as a
rule, paid less than rebbeim nevertheless, I think there would be a
significant savings to the school.

>Secondly, many of them currently do work in the afternoons,
>either teaching at day schools that have Hebrew studies then, or in
>Talmud Torahs, or teaching secular studies in "Cassidishe" yeshivas who
>prefer rebbeim teaching secular studies even though (or especially!)
>since they have not gone on to college.
>    For while we no longer paid "starvation" waged to Rebbeim, we don't
>pay wages that most of our parents would deem adequate for their own
>lives. How many parents expect $40,000 (at an upper range) to make due
>for a family of 6 - 8 children (the average in a "yeshivishe" family
>today). Therefore most Rebbeim are working two jobs already to
>supplement their income.

Teaching in Talmud Torah's is not a very good way to suplement one's
income, Every teacher I know who does this hates it.  They come home
late, have virtually no time to spend with their children.  The kids in
these Talmud Torah's hate being there and often take it out on these
very rebbeim.  Most of these kids couldn't care less about anything they
are learning and can't wait to be "bar mitzvah'd" so they can never have
anything to do with judaism again!  Furthermore, these schools are
drying up! Every year Afternoon schools are either closing or merging
with other shrinking schools so, ultimately, Rebbeim will be unable to
find supplementary income in this way.

>  I will save my own ideas in how to work toward solving the yeshiva 
>budget gap problem for a later posting.
>     Sholom Dov Rothman

I'd like to hear them.
Harry Maryles


From: Michael J Broyde <relmb@...>
Date: Mon, 9 Sep 1996 09:42:04 -0400 (EDT)
Subject: Using a Baby Monitor on Shabbat

On the question of using a baby monitor, one writere asked:

> How would this [the unintentional transmission of adult footsteps]
>differ from using an electric voice activated microphone to project the
>rabbi's voice in shul?

This is a very important issue.  Hilchot Shabbat recognizes the
difference between intended actions and unintended actions, and whether
one benefits from the actions.  In a case where one derives no benefit
from an action, and it is a secondary action, and it is only a rabbinic
prohibition (in hebrew, psek resha delo neechai lay al issur derabanan)
one will find many many poskim who argue that such conduct is mutar.
While one derives benefit from the transmission of the child's cry's,
one would not derive benefit from hearing a mother or father sing or
speak to a child.  What would be categorically prohibited would be
speaking to the transmitter so that the other parent could come to help.
Thus, this differs from an electronic mike in that there is no intent
and no benefit to the reproduction of the sound. Many poskim still
maintain that such conduct is prohibited.
 (For those who are intereested, although Mishnah Berurah is sometimes 
cited as prohibiting psek resha delo necha lai beissur derabbanan, in 
fact, it is a stera beetween various portions of the mishnah berurah; 
compare mishnah berurah 321:57 (shar haziyun 68) with mishnah berurah 
340:17, shar hazuyun 337:2 and shar hazuyun 337:10).
A ketiva vechatima tova to all. 
Michael Broyde


End of Volume 24 Issue 92