Volume 35 Number 91
                 Produced: Mon Feb 18 22:41:26 US/Eastern 2002


Subjects Discussed In This Issue: 

Administrivia
         [Avi Feldblum]
Rema 124
         [Mark Steiner]


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From: Avi Feldblum <mljewish@...>
Date: Mon, 18 Feb 2002 22:39:04 -0500 (EST)
Subject: Administrivia

Hello All,

Sorry for the break, it was only supposed to be for about 7-10 days as I
ended out the quarter at work, looks like it went longer than that. I
think I am back again. I'll restart this with a fairly long submission,
something I do not usually do, but I think the work Mark Steiner has put
into this posting makes it a worthwhile full issue posting.

Avi Feldblum
mail-jewish Moderator
<mljewish@...>

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From: Mark Steiner <marksa@...>
Date: Tue, 12 Feb 2002 21:44:02 +0200
Subject: Rema 124

 Recently I described a responsum of the Rema, number 124, presenting an
argument whose conclusion is that it is permissible to drink Gentile
wine (stam yaynam).  I wrote that his motive was to save the Prussian
Jews from hellfire.  Criticism pointed out, first of all, that it was
the Moravian Jews (this is hard for me to take, because my wife's
ancestors were prominent rabbis in Moravia); and second, that the motive
was not this, but to save the credibility of the Moravian Jews
concerning kosher wine (since one who drinks Gentile wine should be
disqualified from supervising Jewish wine).  These points are correct,
though the Rema does, in fact, cite as a reason for writing the
responsum that evildoers are likely to point out that the Moravian Jews
are not being punished by the Almighty for their deeds, and use this
fact as "proof" that drinking stam yaynam is in fact permissible!

 Others cited opinions that 124 is a forgery, on the following basis:
the author of 124 concludes, on the basis of the same argument, that
stam yaynam may be drunk for medical reasons, by a bedridden patient,
even if his life is not in danger.  Yet Rema himself, in his comments to
Y.  D.  155, forbids precisely such a patient from drinking non-Jewish
wine!  Hence Rema could not have written 124.  Of course, anybody could
change his mind, and there are countless examples of rishonim who argued
for contrary positions in different works.  But the strict opinion is
based on sound halakha: a patient whose life is not in danger may not
eat any forbidden food, even if the source of the prohibition is "only"
rabbinic, as is stam yaynam.  For the Rema to change his mind, there
would have to be an excellent argument for leniency, which leads me to
my point:

 Missing so far in the discussion is a discussion of the argument of 124
itself (nobody criticized my account of the central argument, only what
I said concerning its purpose).  Assuming for the sake of argument that
the responsum is genuine, the Rema deliberately constructed an incorrect
argument that it is permissible to drink Gentile wine, and then
hypothesized that Moravian practice is based on the argument, given in
the past by a "virtual" rabbi, though today no rabbi had ever heard of
the argument.  Note that such an argument would have to count for
something (in fact the Rema calls it "ketzat ta`am" (somewhat of a
reason)), otherwise he would have failed in his task of saving the
credibility of those who drink stam yaynam: if the argument were total
nonsense, i.e. if it were not somewhat plausible or "ketzat panim
lehatir" , as the Rema also calls it, believing in it would be
equivalent to acting without any reason at all.  Furthermore, the Rema
himself (or the author of 124) says that his argument VALIDLY leads to
the conclusion that a bedridden patient can drink stam yaynam on the
advice of a doctor even if his life is not threatened.  So we have a
good argument, which, applied to the Moravian Jews, contains a fallacy,
but applied to seriously ill (but not life-threatened) patients, does
not.  Now, what's the argument, and what is wrong with it?

 Let's begin by recalling an idea of the Hazon Ish, concerning Gentile
milk, which I discussed on mail-jewish some time ago.  The problem is
this: rabbinic enactments may not, in practice, be abrogated today, even
if the stated reasons for them no longer apply.  Nevertheless, we find
that the baalei Tosafot and other rishonim did argue for leniencies
where the reasons for enactments did not apply: example, where cheese
was made from vegetable rennet, some rishonim permitted the cheese,
though the prohibition on Gentile cheese is, in fact, an enactment.

 The Hazon Ish distinguished between two kinds of enactments: (1) those
that prohibited act A, lest one come to violate a Torah prohibition B;
and (2) those which mandated that one cannot rely on high probability
(rov), and must refrain from doing or eating something even if there is
only a small probability (hashash lemi`ut) that it is forbidden.  In
type (2) enactments, the intent of the law can be satisfied by
investigation, i.e. not SIMPLY relying on the law of probability.  Thus,
for example, the Hazon Ish argued that Gentile milk is permitted where
investigation shows that an effective law prevents adulterating cow's
milk with the milk of swine, since the intent of the law (not SIMPLY
relying on the "rov") has been fulfilled.  Type (1) enactments, by
contrast, can never be annulled.

 Now, let's analyze the reasoning of 124.  Rabbenu Tam and other
"French" rabbis allow the sale of Gentile wine, against the rabbinic
enactment to the contrary, because "our" Gentiles do not offer wine
libations today.  (This does not mean that Christianity was not regarded
as avoda zara, but only that most Christians are not priests.)  This
leaves the wine forbidden to drink, because another reason for the
enactment was the fear of social mixing and intermarriage which might
follow from DRINKING non-Jewish wine.  The Rema now says that one could
argue (incorrectly but plausibly), by analogy to other such
enactments^÷Gentile bread, oil^÷which were also enacted to prevent
intermarriage, but which lapsed even in the Talmudic period, that once
the fear of libation is removed from the Gentile wine, leaving only the
fear of intermarriage, the wine would be permitted even to drink,
wherever the fear of intermarriage was unjustified.  Just as there is no
fear of libations today, so too where there is no fear of intermarriage,
the wine would, hypothetically, be permitted even to drink.  This is
certainly a plausible argument, one which could save the credibility of
the Moravian Jews, in case they ship over wine to Cracow (the Rema
writes that Moravia was a one beverage country, and that the only thing
to drink was, in fact wine).

 Now what is wrong with this argument, and why does the Rema warn
against relying on it?  Using the Hazon Ish's analysis, the answer is
simple: the fear of libation is a fear of relying on statistics (a type
(2) enactment).  Hence, since Rashi and Rabbenu Tam ascertained that the
fear "today" is unfounded, we have fulfilled the intent of Hazal and
have not SIMPLY relied on statistics in SELLING any particular bottle of
stam yaynam.  The fear of intermarriage is a type (1) enactment^÷don't
drink their wine because of fear of assimilation^÷and therefore cannot
be abrogated, period.  Not knowing the distinction between type (1) and
type (2) enactment is an excusable mistake, and the Rema's argument is
plausible enough to excuse the Moravians, but not good enough to permit
the wine itself.

 But recall that the Rema (or the author of 124, if you are skeptical)
states that his "invalid" argument is good enough to allow the use of
stam yaynam by a bedridden patient who is not in a life-threatening
situation.  Usually, forbidden foods can not be eaten by such a patient,
and the Rema has stated that stam yaynam remains forbidden even after
his argument!

 The answer is, that the Rema in 124 (though not in Y.  D.  155) holds
that there is another distinction between type (1) and type (2)
enactments with respect to foodstuffs.  Type (2) enactments legislate
that food, which ordinarily would be considered permitted because of the
low probability of their being forbidden, must be categorized as
forbidden food anyhow.  Non-Jewish wine, therefore, must be
regarded^÷rabbinically^÷as though it had actually been used for
idolatrous worship, despite the low probability of that having happened.
Non-Jewish milk must be treated as though it were not cow's milk;
non-Jewish cheese, as though it contained nonkosher rennet.  These
prohibitions, though rabbinic, are nevertheless ad rem (issurei heftza)
prohibitions.

 Type (1) enactments, on the other hand, are merely ad hominem (issurei
gavra).  They devolve on the Jew^÷he is not permitted to eat certain
foods, lest eating them lead to transgressions such as assimilation,
intermarriage.  Such is the example of non-Jewish bread (before the
enactment lapsed).  Non-Jewish wine, aside from being originally a type
(2) enactment, was ALSO a type (1) enactment, because drinking stam
yaynam can lead to intermarriage.  If we accept Rabbenu Tam's argument,
that non-Jews today don't "know how" to make libations, then their wine
is only under a type (1) enactment, and only ad hominem.  Thus, the Rema
(if he indeed wrote 124) concludes the responsum by an explicit
comparison of drinking non-Jewish wine, to instructing a non-Jew
explicitly to turn on the lights on the Sabbath (amira lenokhri) which
is an ad homimen, type (1) enactment known in Hebrew as a "shvut."  (Has
the same root as Shabbat.)

 Now the author of 124, whether the Rema or not, holds that ad hominem,
type (1) enactments are subject to a certain degree to the discretion of
the "moreh" as he calls it (what we call the LOR).  There are, he holds,
extraordinary circumstances in which Hazal never intended the enactment
to hold.  One of them is pain, suffering, illness (mishum tza`ara).  A
bedridden patient may violate, for example, a "shvut"^÷asking a non-Jew
explicitly to turn on the light.  If this principle is accepted, AND if
we further hold that in our days, non-Jewish wine is a type (1)
enactment, similar to a "shvut", then the wine is not intrinsically
forbidden by the rabbis, but only the act of drinking it, and this "ad
hominem" prohibition can be set aside in the case of serious illness,
even if not life-threatening illness.  The Rema in Y.  D.  155, on the
other hand, holds that even type (1) enactments on wine remain ad rem
prohibitions (issurei heftza), such that no discretion exists on the
part of the LOR to set them aside as long as life is not in danger.

 We see then, that the author of 124 has: succeeded in constructed an
invalid argument for drinking Gentile wine, which (a) is plausible
enough to save the Moravians (if we attribute, hypothetically, the
argument to their past local rabbis) from the label of sinners whose
supervision on wine is not to be trusted; (b) is VALID enough (once you
accept its basic premises, which the poskim do NOT) to allow seriously
ill patients who need to drink stam yaynam to drink it; (c) cannot be
relied upon by anybody else.  I find it hard to believe that anybody but
the Rema could have constructed such an argument, but note that even if
the Rema did write 124, there is ABSOLUTELY NO IMPLICATION that to drink
non-Jewish wine for a healthy person is in fact permitted; this is made
absolutely clear by the author of 124, Rema or not.

 I believe, in conclusion, that Responsum 125, the very next one, sheds
some light on the question whether Rema wrote 124.  125, which was
clearly written by Rema, was a defense of an extremely controversial
action of his, namely performing a wedding late Friday night!  Aside
from the boldness of the conclusion (which shows that Rema was capable
of fierce independence of thought, in some ways greater than the author
of 124), the reasoning behind 125 is germane to our topic, because the
Rema caused, even instigated, the violation of a "shvut" (type (1)
enactment concerning the Sabbath) on a discretionary basis against an
explicit Mishna (Betza, Chapter 5).

 This act, as he writes, caused a tremendous uproar in Cracow and, I
suppose, other places, but he did it in order to prevent the
cancellation of the hupa and to prevent the public humiliation of a
Jewish woman whose only sin was poverty (for details, read the
responsum).  Here, again (i.e. again, if 124 was written by Rema), Rema
argued in great and learned detail, that the gedolei hador were given
discretion (by the Talmud, of course) to argue that a type (1) enactment
(shvut), conducting a wedding on Shabbat, was never meant to apply in an
emergency situation where the marriage is at stake and also the dignity
of a daughter of Israel.

 It is now possible to speculate as follows: the Rema wrote both 124 and
the comment to Y.  D.  155, except that in 124 he was willing to say
that a type (1) enactment, not to drink non-Jewish wine, lest
intermarriage result, does not create a prohibition ad rem (issur
heftza) on the wine itself, and thus the usual rule, that a bedridden
patient whose life is not in danger may not eat even rabbinically
forbidden food, is set aside, at the discretion of the LOR (moreh).  In
Y.  D.  155 he obviously did not accept this reasoning, and I have not
come across any of the usual poskim who agree with 124, so it would
appear that the bottom line is, that even a patient whose life is not in
danger can NOT drink any but kosher wine even for medical reasons.

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End of Volume 35 Issue 91