Volume 39 Number 65
                 Produced: Tue Jun  3  5:29:24 US/Eastern 2003

Subjects Discussed In This Issue: 

Apikorus and Tinok Shenishba
         [Ari Kahn]
Bicycles redux
Conservative Conversions
         [Gil Student]
         [Bernard Raab]
Safek bracha
         [Chana Luntz]


From: Ari Kahn <kahnar@...>
Date: Mon, 2 Jun 2003 14:52:08 +0200
Subject: RE: Apikorus and Tinok Shenishba

Janet Rosenbaum wrote:

<Strictly speaking, I doubt that there are more than a few C/R rabbis who
<know enough to qualify as mumarim.  Prior to the decision to attend
<rabbinical school, I imagine that everyone would agree that a future C/R
<rabbi is a tinok sh'nishba [Jew raised in a predominantly non-Jewish
<environment].  The statement that attending C/R rabbinical school
<somehow removes this status seems contradictory since the same people
<state that C/R rabbis are ignoramuses, yet if a C/R rabbinical school
<teaches enough Judaism to make its graduates apostates, its graduates
<must be fairly learned!

While I have heard this type of claim before, I would love to know the
source that to be a mumar or Apikorus you need to be knowledgeable. Yes
this is something called a Tinuk Shenishba (literally a "kidnapped
child" who has no knowledge of his Jewishness), but who is to say that a
Tinul Shenisba can not be an Apikorus. In fact according to the Rambam
(the Ritva argues with this) a tinuk shenishba can later learn of his
heritage and (it seems to me) become quite educated and still be
considered a Tinuk shenishba, because that is the way he was brought up.
Agreed that a tinuk shenishba is treated differently than an apikorus,
but how do you know it is different category and not a sub category?
Furthermore, is every unknowledgeable Jew a Tinuk Shenuishba?

Rav Chaim Solovietchik as cited by Rav Elchanan Wasserman (Kovetz
Maamarim) says "nebech a Apikorus is also an apikorus" which indicates
that the tinuk shenishba may very well be an apikorus, but with one
proviso: you are obligated to reach out to him. The Chazon Ish in a
celebrated passage states that today we shouldn't treat apikorsim as the
halacha dictates since it would cause more harm. That does not say that
the tinok shenishba is not an apikorus.  Let me switch the question does
a Tinuk shenishba have a portion in the world to come? In the Laws of
Teshuva where the belifs which qualify one as a Mumar or Apikorus is
stated,no limitation is made for the Tinnok Shenusba.  While the Rambam
mentions the status of an apikorus in over a dozen different laws, the
only place he gives the qualifying statement is in Mamrim (3:1-3). Had
the Rambam felt that categorically a tinuk shenishba was different that
an Apikorus, he should have stated this qualification in Hilchot Teshuva
where he has the most in depth discussion.

Personally I have heard Rav Yaakov Weinberg say that a person can be a
Tinok Shenishba and a Maysit, persuably he too would agree with the
formulation of Rav Chaim.

Ari Kahn


From: <syaffe@...>
Date: Mon, 2 Jun 2003 14:07:55 -0400
Subject: Re: Bicycles redux

I would suggest that the musical instrument decree is a general decree
that includes similar situations e.g. a bicycle. It is clear that there
are approaches in halachah that take a "Broad" rather than a "narrow"
interpretation of halachot. Broad meaning every halachic matrix includes
a range of conceptually similar issues. We see this in the some of the
in vitro fertilization debates as well as in 18th and 19th century
discussions of abortion. See the Sheilot Ya'avetz and the Darkei Chesed
on these issues.


From: Gil Student <gil_student@...>
Date: Mon, 2 Jun 2003 17:07:40 -0400
Subject: Re: Conservative Conversions

According to R' Ahron Soloveichik, any Conservative rabbi, regardless of
how knowledgeable or scrupulous he may be, is disqualified by his
denominational affiliation from serving on a beit din.  The following is
a summary of R' Soloveichik's position taken from R' J. David Bleich,
Contemporary Halakhic Problems, vol. 3 p. 106 (note that R' Bleich seems
to disagree):

"In a separate responsum addressing another matter, appearing in
/Ha-Pardes/, Heshvan 5747, Rabbi Aaron Soloveichik argues that even a
Conservative clergyman who is not only scrupulously observant but also
'believes with absolute faith in the Written Law and the Oral Law...
and is highly knowledgeable, proficient in Talmud and Codes' is
disqualified from serving on a /Bet Din/.  The Gemara, /Sanhedrin/ 26a,
relates that Resh Lakish sought to disqualify R. Hiyya bar Zarnuki and
R. Shimon ben Yehozadak from serving on a /Bet Din/ convened to add an
intercalary month to the year.  Resh Lakish criticized a number of
individuals whom he observed performing acts which, ostensibly, were
violations of restrictions pertaining to the observance of the
sabbatical year.  R. Hiyya bar Zarnuki and R. Shimon ben Yehozadak
attempted to defend the actions of those persons.  Thereupon Resh Lakish
sought to disqualify those scholars from serving on the /Bet Din/ on the
grounds that, in defending sinners, they had entered into a '/kesher
resha'im/,' a confederacy of transgressors.  Rabbi Soloveichik opines
that the Gemara herein posits an otherwise unidentified disqualification
from holding judicial office, viz., defense of, and hence identification
with, transgressors.  Accordingly, concludes Rabbi Soloveichik, even
assuming the Conservative clergyman in question to be a person of
exemplary faith and piety, he is disqualified on the grounds that his
identification with the Conservative movement and its ideology
constitutes participation in a '/kesher resha'im/.'  However, since none
of the codifiers of the Halakhah cite identification with transgressors
/per se/ as a disqualification for holding judicial office, Rabbi
Soloveichik's interpretation must be regarded as novel..."

Gil Student


From: Bernard Raab <beraab@...>
Date: Mon, 02 Jun 2003 18:21:41 -0400
Subject: Re: Kitniyot

 From: Akiva Miller
>>I do not believe that kitniyos has expired. There are *many* reasons for
this particular custom, and I responded <<< Which reason for this gezera
has expired? When looking at wheat flour, corn starch, and potato
starch, I can't tell the difference. >>>
>>1) If today's city-dwellers can tell them apart, then certainly it was
simple for the pre-industrial folk who dealt with these things
constantly, and often in the pre-ground state. Surely they could tell
the difference between a grain of wheat and a lima bean! But they
accepted this custom anyway, so there is obviously a deeper reason which
might still be relevant to us nowadays.<<

This is NOT a "chok" from the Torah which we accept even if we cannot
"divine" the reason for it. This is a Rabbinic gezera. If there is a
"deeper reason" which *might* be relevant to us, let us seek it. Perhaps
from this discussion it will emerge.

My argument does not hinge on whether one can or cannot tell the
difference between raw flour and, for example potato starch, or even, in
the other example Miller brings, between chicken and veal. My argument
is that for the entire totality of our diet today, and particularly for
Pesach food, we simply do not rely on our senses to tell us whether
ANYTHING is kosher l'Pesach or kosher at all! We rely almost entirely on
labeling, and on our trust in the validity of the label and the
authority quoted, and the security of the packaging and the
distribution. There was a time not so long ago (at least still in my
lifetime) that such labeling was not universally trusted and some
machmirim ate only meat and fresh fruits and vegetables on Pesach,
presumably from suppliers that they knew and trusted. Unless that is
still your practice today, then you too rely on the validity and
security of labeling. Ipso facto, if one buys a box of matzo meal or
potato starch labeled kosher l'Pesach with a trusted hashgacha, one
assumes that it does NOT contain even a speck of wheat flour. One does
not, in general, open the box to inspect for possible chametz before
taking it home as you would be obliged to do if you wanted to rely on
your senses!

Today in the US, there are supermarkets which sell packaged kosher meats
with reliable supervision in freezer cases right next to non-kosher
products of really identical appearance. They may be separated by a
divider (easily breached by any shopper) but if you were not careful
with the label, you could easily take home "that other white meat"
instead of the chicken breasts or veal cutlets you thought you had
selected! We simply do NOT rely on our senses for our food supply
anymore. This is a real change in our practice over the last decades and
needs to be factored into our thinking about kitnoyot.

Bernie R.


From: Chana Luntz <Chana@...>
Date: Mon, 2 Jun 2003 19:04:02 +0100
Subject: Safek bracha

>All this talk about safek bracha got me to think.
>The brocho on the tfila shel rosh is in dispute.  Those who make it even
>follow up with "baruch shem..etc" which is said after a brocho l'vatala
>(unnecessary brocho)
>Why is this disputed brocho different from other disputed brochot ??

Some time ago on another list I posited that :

the fundamental machlokus [dispute] between Ashkenazim and Sephardim
over brochas stems from whether or not you hold that saying a bracha
l'vatala [unnecessary brocha] is a vadai issur d'orisa [torah
prohibition] (Sephardi position) or the reference to the posuk [of lo
tisa] in the gemara in relation to this question is merely an asmachta
(Ashkenazi position) ie the issur is only rabbinic.  Depending on which
way you hold, the question of what you do in safek situations follows
the general rules, d'orisa l'chumra, d'rabbanan l'kula {for a torah
prohibition we rule stringently, for a rabbinic one we rule leniently].
In this case [ie the case we were discussing on the relevant list], if
we have a safek as to whether to follow Rabbi Yehuda or the Rabbanan on
sof zman tefila [the time at which one can no longer say the blessings
in the morning] which impacts on whether or not we should say brachas
that we would otherwise not say we would expect (as seems to be the
case) that the Sephardim would go l'chumra [stringently] and take the
more limited shiur (of Rabbi Yehuda and hence limit the saying of these
brochas to four hours) while the Ashkenazim would go l'kula (ie until
chatzos [midday]) (as in fact happens).

Somebody then queried me off list as to where I got this idea from as to
the distinction between Sephardim and Ashkenazim.  I responded:

Tosphos Rosh Hashona daf 33a s'v "ha" (in the middle, ie the discussion
of this particular point really begins with the wide lines). [This is
the discussion in which Tosphos allow women to make brochas on positive
mitzvahs which they are not obligated to perform (such as sukkah or
lulav.] The Torah Temima also brings the Rosh in the first perek of
Kiddushin as holding like this (on the pasuk in Shemos). (I can't off
the top of my head remember exactly where the discussion in Nedarim that
first alerted me to this whole thing is, but it impacts there as well,
ie the machlokos between Tosphos and the Sephardi Rishonim is extant
there as well, which I think makes it clear that, as the Gra says, and
contrary to the Torah Temima, the Rambam does indeed hold that it is an
issur d'orisa).

The point is that the whole position allowing women to make brochas on
mitzvas aseh she hazman grama [positive mitzvas dependant on time] is
predicated on the assumption that there is no torah prohibition (that is
why the Sephardim are against it) and why Tosphos has to deal with it,
because whether it is nice or not, it is not a *necessary* brocha, since
women are not mechuyav, and hence aino tzricha.

My correspondent queried whether one or two examples make a universal
distinction. I then responded:

  A couple of other examples of the same issue off the top of my head,
but there are at least several more:

a) saying one brocha or two on tephillin (Robert [my Sephardi husband]
only says one because the second is an ano tzricha and hence prohibited
while Ashkenazim say two);

b) saying a brocha over half Hallel (Robert doesn't, Ashkenazim do).

c) saying a borei pri hagafen four times at the seder (Robert only says
it twice, once for kiddush and once for the cup after benching) - again
because it is a brocha sheano tzricha (I would imagine you made four
such brochas each night).

In each case, when the Sephardi poskim discuss the issue, the cited
reason for not doing it the Ashkenazi way is because of concerns that by
doing so you are over on the d'orisa of lo tisa (just as they do when
discussing and justifying, which a number of them, eg R' Ovadyah Yosef
have had to do in recent times regarding why women do not make brochas
over eg lulav and sukka), but it is by no means limited to this
particular issue of women).  That is, the Sephardi poskim reject the
Ashkenazi minhag based on the argument that the Ashkenazi minhag is over
on the d'orisa issur of lo tisa.

I am less aware of what more modern day Ashkenazim say in response, ie
how they deal with this charge on all these issues.  However, my
impression is that it is not only one or two Ashkenazi poskim that hold
that the answer to the Sephardi charge is that the issur is only
d'rabanan (if you don't give this answer, you clearly need another one
for each of these cases listed above, as well as the others that have
slipped my mind, not just for the women case).  I will have to check the
Rosh in Kiddushin, but it is not clear at all to me that this reference
by the Torah Temima is a reference to him holding that it is an asmuchta
b'alma davka in the case of women saying brochas (although that is
clearly the Tosphos reference).

In any event, the Torah Temima himself, appears to believe it to be a
general principle (ie that a brocha she aino tzricha is not over the
d'orisa issur) not limited to the case of women making brochas.

Hope this helps

Chana Luntz


End of Volume 39 Issue 65