Volume 30 Number 28
                 Produced: Wed Dec  8  6:10:13 US/Eastern 1999

Subjects Discussed In This Issue: 

Previous Generations (4)
         [David Charlap, Daniel Israel, Chana/Heather Luntz, David I.
         [Gershon Dubin]


From: David Charlap <shamino@...>
Date: Tue, 30 Nov 1999 11:49:17 -0500
Subject: Re: Previous Generations

Avi Feldblum wrote:
> David Charlap wrote:
>> Depending on outside circumstances, it is possible that the same
>> actions are OK in one situation and not OK in another.
>> ...
>> Similarly, we can expect that a rabbi, when making a decision for a
>> specific person in a specific situation (which may include his own
>> family) is _NOT_ giving his opinion on what everybody should be
>> doing in every situation.
> Taken to the logical extreme, this says that there cannot be any
> responsa liturature, which assumes that one can ask a halachick
> question, receive and "publish" a response to that question which
> then forms the basis for subsequent halachick questions and answers.

Correct me if I'm wrong, but I always thought that such publications
include a summary of the question.  Presumably, that summary would
include a description of any extenuating circumstances that the decision
took into account.

So, we may not be able to learn a generic halacha, we may be able to
learn the circumstances under which the rabbi was strict or lenient.

> When you have published collections of responsa, where the responsa
> have been chosen by the author for publication, we can take as
> assumed that the responsa were meant to have general applicability.

That sounds like a safe assumption.

> How, however, do we make that judgement call with either "maaseh rav
> - known practices of a posek" or posthumous collections of responsa?

In this case, I don't think we can.  Just as we can assume that a
responsa selected by the posek himself for publication has general
applicability, I think it is also a safe assumption that the responsa he
chose not to publish do not (or at least, might not) have general

When someone else comes along and decides otherwise, and chooses to
publish these, we are no longer seeing the posek's opinion, but the

Maaseh rav is even more tricky.  It is trivially easy to get the wrong
idea about someone by merely observing them without actually asking
detailed questions.  Now, one might argue that all great poskim are
familiar with "maaris ayin" (avoiding permitted actions that appear
improper, so that others won't think the improper action is permitted)
and therefore they are being careful, and therefore we can learn from
these observations.  I would respond to this by saying that it is still
a bad idea - we can't possibly know all the circumstances involved.
There may well have been a circumstance that made it appropriate to
violate maaris ayin.

For instance, suppose you saw a posek driving his wife and children in a
car on Friday after the time he holds Shabbat begins, but before the
time where everybody holds it begins.  Someone might look at this, apply
maaseh rav, and assume that the rabbi personally held a different
opinion about when Shabbat begins.  However, it might actually have been
the case that one of the children got injured, and he's on his way to
the hospital - knowing that violating Shabbat is permitted to save a

-- David

From: Daniel Israel <daniel@...>
Date: Fri, 3 Dec 1999 15:11:52 -0700 (MST)
Subject: Previous Generations

A number of posts have discussed how to react to apparent conflicts
between halachic sources and practices of G'dolei Torah of previous
generations.  Unfortunately, it seems that this is being presented as a
black or white issue, either assume ma'aseh Rav has no status or give it
the status of a psak.  I agree with those who point out that the first
option is effectively loshen hara against the Gadol in question.  But
taking that practice as a practical psak is not the only way option.

In general, if one observes a person who is know to be careful in
halachic observance doing something that appears to violate the halacha,
we must be dan l'chaf z'chus [judge favorably], but as far as what we
assume about the case (if anything) in order to make that favorable
judgement there is a range of possibilities.  For example, if I see
someone eating something I believe is treif, I could assume (a) he is
relying on another shita, (b) I am mistaken about the item, (c) the item
is permitted to him for medical reasons, (d) he was misinformed about
the items status, etc.  Certainly I could not assume that the item is
kosher (choice (b)), since there are so many other possibilities.
Further, I am under no obligation to conclude that it is a particular
one of these cases, it is sufficient that I realize there are possible
reasons for the action and that I assume that one of these reasons (or
perhaps a different reason I didn't think of) is what permitted it here.

In the case a ma'aseh Rav, we do see that it does come up in psak, so
there clearly is some authority that can be attached to it.  But it the
light of the above, I think assuming that the practice we thought was
happening is permitted in the situation at hand is not the only way to
resolve the discrepancy (and avoid loshen hara on the Rav in question).
I think it would be useful to discuss the status of ma'aseh Rav in psak
(Sources anyone?  So far we've had a ma'aseh Rav of how to treat ma'aseh
Rav, but I'm not sure how to bootstrap the analysis!)  But until I (we?)
have a firmer understanding, I, for one, maintain that knowing what
someone did, does not imply we know why.

As far as Meir Shinnar's comment:
> Let me ask: I ask rav A whether mixed swimming is allowed, and he says
> yes.  I don't ask rav B, but I go to the beach with him.  Why doesn't
> either one of these constitute a public statement that this is muttar?
> Do I need a detailed analysis of why this does not violate hilchot erva
> to know that this rav does not think that it violates hilchot erva?

Without reference to hilchos erva specifically, from Rav B we can
conclude that he felt it was muttar for him to go to the beach in this
particular case.  From Rav A we (may) be able to determine from the
context of the discussion and the phrasing of the answer under what
circumstances he felt his answer applied.  (And all the more so for a
hypothetical Rav C who wrote a t'shuva on the subject.)  So they don't
all carry identical authority.

Daniel M. Israel
University of Arizona
Tucson, AZ

From: Chana/Heather Luntz <Chana/<Heather@...>
Date: Sat, 4 Dec 1999 20:23:49 +0000
Subject: Previous Generations

Chaim Mateh <chaimm@...> writes (in response, I think to
Meir Shinnar, if it is not Meir Shinnar, please substitute the correct
correspondant below):

>>>Something that a Gadol did in the past that rasies questions as to its
>validity, without that Gadol ever having explained the Hallachic background
>for what he did, is NOT Torah she'be'alpeh.  It is an inexplicable action
>by a Gadol. <<
><<Then you believe the gadol violated halacha.  There is a concept of
>ma'aseh rav.>>
>It means that we don't know if that Gadol did what he did as a
>bi'di'eved or as a le'chatchila, for example.  We don't know the exact
>circumstances under which the Gadol decided to do what he did.  If the
>gadol never explained what and why he did what he did, can we infer a
>lechatchila Hallacha from his inexplicible action?!

Perhaps we could say that Meir is a follower of Rav Abba and Chaim has
the objections of Rav Zerika!  In Baba Basra 130b (as explained by the
Rashbam) Rav Zerika and Rav Abba disagree as to which is better a
halacha quoted in Rebbe's name or a ma'aseh of Rebbe (which includes
where he ruled something in a court case).

And the Rashbam explains the machlokus pretty much as above - Rav Zerika
holds that if it is a case where he merely did something or ruled in
someone's favour, maybe he did it for other reasons than the conclusion
being drawn here, so it is better if you have an explicit statement from
him drawing the halachic conclusion being discussed.

However Rav Abba holds that a ma'aseh is better than a learned

What interests me about this discussion though, is that simplistically,
if Chaim is right, nobody pretty much since matan torah until this
century can honestly say they had a kosher kitchen or kept taharas
hamishpacha.  Because, until this century, there were no schools for
girls in which they learnt principles of halacha.  It was accepted that
girls learnt from watching what their mothers did, or from their
practical (we do this, we don't do that) teachings.  Now at each stage
down the chain, maybe the mother in question did the act in question for
a different reason than the reason the daughter assumed that she did the
act - thuss allowing for a frightening number of places for distortion.
And yet most gadolim (eg the Chofetz Chaim) embraced the Bais Ya'akov
school system only reluctantly as an unfortunately necessary measure
because girls were no longer learning by this "ideal" method.

It is also interesting that one of the differences that seem to me to
exist between the English and American communities (although this is
just my impression, and i would be interested to here from people who
have lived longer than my couple of years in America and who have a
different impression) is that in England, it is a much more critical
question as to whether a Rav has "shimush" or not - shimush being where
a Rav has spent time watching and learning how the Rav from which they
have shimush conducted himself and ruled in practice (it literally means
to serve, and the idea was, at least once upon a time, that the talmid
would literally serve the Rav while gaining this kind of knowledge).  I
have heard a number of people here in England speak disparagingly about
Rabbaim who posken without having had shimush, while I never heard that
kind of a talk in America.

Shimush, of course, is a classic apprenticeship, and part of the mimetic
tradition, so if Dr Chaim Soloveichik is right, it would not be
surprising if it was dying.  However I also wonder if, if there is
indeed an English/American difference, it reflects the secular culture
in these countries.  After all, in my own profession, namely law, in
England one cannot qualify as a solicitor without spending two years as
a trainee in a law firm (often equalling the amount of time spent
actually studying law) while in the US, you need a university based law
degree, followed by a bar course (more learning and exams) and then you
join a law firm already qualified.  For those of us raised in an English
type system, the thought that they let lawyers loose on the world based
merely on academic learning, no matter how bright the student is, is a
terrifying one. One of the issues I grapple with all the time is how to
transmit the practical experience I have built up to trainees (and
believe me, my first takes very bright trainees, many with top law
degrees).  You need people to know something about the academic side of
the law, but you also need them to have something indescribeable that
seems to come with experience of watching and learning and helping and
no other way.

So I suspect one resolution to the problem as to "how can we rely on the
ma'aseh of a Rav/gadol" given the challenge that Chaim articulates that
there may be other reasons for the act in question, is to differentiate
between a once off contact (where it is more than likely the student
misinterpreted and there were other reasons), and where  this act was
part of an ongoing relationship in which the Rav knows the student is
learning from him and where understandings of methodology are
deliberately being built up in this fashion, precisely because they are
not very easy to articulate and transmit in an academic "teshuva" form.

Shavuah tov

From: David I. Cohen <BDCOHEN613@...>
Date: Tue, 30 Nov 1999 08:58:18 EST
Subject: Previous Generations

In Vol. 30 # 25 Chaim mateh writes:
<<It's clear (to me at least) that the Gedolim of then (and in Lithuania)
knew quite well that uncovered hair was a Torah prohibition, but could
not do much about it (for whatever the reasons), except divorce their
wives, which they felt they couldn't or didn't have to do.>>

 I don't get it. If a married woman must cover her hair or violate a
D'orayta (Torah level) prohibition, the it makes no sense that Gedolim
would allow their wives to do so and not divorce them. Would they allow
their wives to eat treif? to violate Shabbat? If the situation was one
wear the wife's uncovered head was allowed halachically due to some
extenuating circumstance, is it not incumbent on the Gadol to publicize
those circumstances, just so people would understand the halacha. After
all, despite some posted opinions, "maaseh rav" does have significant
halachic implications, even if it's not the final word. Can someone
explain this?


From: Gershon Dubin <gershon.dubin@...>
Date: Tue, 30 Nov 1999 16:57:13 -0500
Subject: Teshuvos

<<> On Mon, 29 Nov 1999, David Charlap wrote:
> > Depending on outside circumstances, it is possible that the same 
> actions are OK in one situation and not OK in another.
to which Avi wrote,
> Taken to the logical extreme, this says that there cannot be any 
> responsa liturature, which assumes that one can ask a halachick
> question, 
> When you have published collections of responsa, where the responsa
> have been chosen by the author for publication, we can take as assumed
> that the responsa were meant to have general applicability.>>

I don't know about other teshuva seforim, but I believe that Rav Moshe
specified in the Igros Moshe (If R' Daniel Eidensohn is on this list, he
can corroborate/refute) that this was not to be used as a halacha sefer.
The implication was that it was to guide the moreh horo'oh in his
situation how to approach, not to use it as an elaborate Kitzur Shulchan
Aruch. Reb Daniel?



End of Volume 30 Issue 28