Volume 45 Number 31
                    Produced: Thu Oct 21 22:53:20 EDT 2004

Subjects Discussed In This Issue: 

Arukh Ha-Shulhan vs. Mishnah Berurah
Pesak, Was Objections to female rabbis
         [Allen Gerstl]
State of YU (3)
         [Binyomin Segal, Nadine Bonner, N Miller]


From: <Shuanoach@...>
Date: Thu, 21 Oct 2004 00:20:40 -0400
Subject: RE: Arukh Ha-Shulhan vs. Mishnah Berurah

I have heard from a number of gedolim that it is certainly preferable to
study halakha from the arukh hashulhan. This should be obvious from
their different modes of presentations.  (This I heard from Rav
A. Lichtenstein and from Rav Chaim Pinchas Scheinberg. Rav Lichtenstein
did say though that we poskin in machloket between the two like the
mishnah berurah because of the chafetz chayyim's tzidkus,

As to whom to poskin like, R. Yehudah Henkin in his Responsa Benei Banim
includes a teshuva from his grandfather, R. Yoseif Eliyahu Henkin, who
says that it is preferable to poskin like the arukh hashulhan since he
covered all 4 sections of law in shulhan arukh -- he was "mara de-kula
talmuda", while mishnah berurah only on orach chayyim. (he gives a
number of other reasons to poskin like arukh hashulhan there too.)

I have heard some say exactly the reverse: because chafetz chayyim put
in all of his effort on orach hayyim and didnt cover the rest of shulhan
arukh, his is the better work, and we should poskin like it - the arukh
hashulhan's greater scope necessarily led to lesser depth in each topic,
according to this view. (See different biographies of chfetz chayyim on
why he never wrote commentary on the other 3 chalakim of shulhan
arukh. And see the letter from Chafetz chayyim to the former sephardic
chief rabbi of israel, rav yitzchak nissim, published in the beginning
of rav nissim's responsa on this point. It took chafetz chayyim a couple
of decades to write mishnah berurah on Orach chayyim. he didn't have the
time. [his interests in kodshim probably took away a lot of time,
e.g. to write likkutei halakhos - see in letter to R. Nissim])

I think that another factor that might come into play is that the entire
arukh hashulhan was written and completed by R. Epstein, while the
chafetz chayyim did not live to see or complete his mishnah berurah- his
sons and others helped finish the final chalakim (as i think was noted
in the 1st edition of the shemiras shabbas kehilkhasa - though due to
objections of some in benei brak who found this fact offensive, this
comment was removed in the subsequent edition.). If the authority of
mishnah berurah depends upon tzidkus etc. of Chafetz chayyim, that he
did not finish the work surely lessens the authority of the latter
chalakim when compared to the arukh hashulhan.

Finally, the two sefarim are very different - arukh hashulhan defends
minhag ha-makom, particularly those of lithuania, while mishnah berurah
has a different style of psak, one more latzeit yedei kol
ha-shitot. Whom one poskins like often depends upon the tendencies of
the poseik.



From: Allen Gerstl <acgerstl@...>
Date: Wed, 20 Oct 2004 19:07:44 -0400
Subject: Re: Pesak, Was Objections to female rabbis

Ari Trachtenberg <trachten@...>
 >>From: Avi Feldblum <feldblum@...>
 >>The issue of true 'psak' is more complicated.
>I would argue, rather controversially, that there really is no such
>concept of 'psak' any more.  Since we lost the rabbinic chain of
>s'micha, there is no longer any authoritative designation of knowledge.
>As such, when a person is asking a rabbi for a p'sak, he/she is actually
>making a "p'sak" of their own - that this rabbi is suitable for giving
>p'sak halacha.  This is, I believe the central predicament of modern
>Judaism and that which gives it both its diversity and its lack of

IIUC, the SA recognizes the concept of authoritative decision
making. This is not surprising as that there be legal decision-makers is
implicit in the existence of a legal system.

In siman 25 of Choshen Mishpat we find a discussion of what constitutes
reversible error by a beit din when dealing with dinei mamonot or by a
posek as to matters of issur ve-heter and in what cases a dayan or posek
is protected from liability for his judicial error.  (In Dinei Mamonot
we refer to the person as a dayan while in matters of issur ve-heter we
refer to him as a posek.)

While dealing with those issues, the mechaber must therefore define the
qualifications of a dayan- posek.

Those qualifications are [yirat shamayim and] gemirah (knowledge),
sevirah (insight), and reshuta (official permission) (see also TB
Sanhedrin 5a).  A community or by individual litigants in the case of
matters of dinei mamonot or the community or the shoel (questioner) in
the case of issur ve-heter (religiously prohibed or permitted matters)
may voluntarily accept the dayan (posek) - "kiblu aleihu" (lit. they
have accepted him as a dayan -or posek upon themselves), and such
voluntary acceptance functions in place of official reshut.

So I would differ from Ari as to who is then deciding that the posek is
fit to pasken. Its not the posek but his teachers and thereafter also
the community (and those individuals that consult the Rav) that give him
practical authority.

As an aside I came across an interesting comment that shows the
seriousness and humility that a posek should bring to his task. The
Mishnah in Avot 1:16 states "... asei lecha rav" and the Rambam comments
"...asei lecha rav SHE-TISMOCH ALAV". The Rambam thus interprets this as
being addressed to a dayan or posek and recommending that the dayan or
posek consult with someone else before paskenning in a difficult matter.



From: Binyomin Segal <bsegal@...>
Date: Wed, 20 Oct 2004 14:01:40 -0500
Subject: Re: State of YU

Chevra -

I hesitate to comment on this article - after all, I never attended YU,
and I live in Chicago where the influence of YU is attenuated by the
existence of local institutions (like HTC) and distance. Further, I
imagine that I would be perceived as part of the right-wing problem. All
that said though, I have a few observations.

First off, my IMPRESSION of the article was that it was written with too
much of an emotional edge. It seemed clear to me from the tone that -
even without specific details - there were almost certainly some
exaggerations in the article. The article - IMHO - lacked balance.

Second, I imagine that I would support some of the specific actions that
the author feels inappropriate. I don't know what was happening
on-stage, and what the understood rules were in advance, but censorship
IS - again IMHO - a Jewish value.

All that being said however, I have little doubt that the overall thesis
of the article has merit. There is little doubt that the Orthodox
community has been moving to the right generally. This has had a
polarizing effect on the community. Some parts of the community have not
moved (and some even have moved to the left), and so the distance
between them has grown.

Mail Jewish has often discussed this phenomena. And our opinions are as
diverse as is our online community. (Two Jews, five opinions :)

There are two possible reasons suggested in the article. And I believe
that each has a kernel of truth. And while I find one generally good, if
occasionally painful to the community, I find the other one
troubling. The two types of rightward movement are:

1. Practical change - Now we can, then they couldn't.
2. Philosophical change - We are right, they were wrong.

There is little doubt in my mind that there is at least SOME truth to
the idea that our times have a more educated and committed community,
and so standards can be enforced with more integrity. In a 1952 study of
day schools, Samuel Segal (no relation) found very little practicing
Orthodoxy even in the most traditional day schools in NYC. Of 39
traditional schools in NYC, only TWO schools claimed daily minyan
attendance for ALL their fathers, and only THREE additional schools
claimed daily minyan attendance for a MAJORITY of their fathers. Of
those same 39 schools, only FIVE claimed Shabbos observance for ALL
their families, and only THREE more claimed it for the MAJORITY of their

That is to say, 50 years ago, the most traditional day schools in
America had parent bodies that were NON ORTHODOX (or as the literature
of the time referred to them "non-practicing Orthodox"). The growth of
the practicing educated Orthodoxy in America is nothing short of
miraculous (perhaps mythic, as in a phoenix). And with a more Jewishly
educated and practicing core, the community can take steps that were
simply impossible fifty years ago.

This does not come without pain. And institutions like YU that are
committed to serve the broad strokes of our community diversity will
feel that pain most intensely.

On the other hand, I think it likely that the author is correct that
there is, to some degree, a retreat from the values of Modern Orthodoxy,
especially disengagement from anything secular. Under the guise of "now
we can do this" the fundamental philosophy is being moved in real
ways. I can't say how much of this is happening at YU, but it is
happening as part of the overall move to the right and is (even to my
fairly right wing mind) very troubling.

Nor is it obvious to me how to distinguish between these. No one comes
out and says, "The great rabbis of the previous generation were wrong."
Rather they use the cover of "now we can" to hide the subtle (and
sometimes not so subtle) changes in approach. There is, I am sure
something of a slippery slope relationship between these two things -
once we admit that we need to fix somethings, how do we decide what
should or shouldn't be changed.

In my estimation the community - even the right wing community with its
roots in Eastern Europe - began to engage (some might say reengage) the
secular world here in America. This engagement is, in my mind, crucial
for the survival of an Orthodox community living within a highly
educated and open secular community. (Rav Schwab pointed out in the 60s
that America is more like Hirsch's Germany than like Eastern Europe and
so even for those who felt that Torah im Derech Eretz was a compromise,
it was an appropriate and needed compromise for America.) The
disengagement which has begun in the past few years is, IMHO,
wrongheaded and dangerous.

Mind you, the engagement I would advocate is, almost certainly, FAR to
the right of the author's engagement. As I said before, I expect that on
any (every) item he mentions I would side with the Rabbis. I am not
saying I agree with him in any particular. But I do think that his broad
strokes outline a real development in the entire Orthodox community, and
I do agree that - even if at YU the movement is a needed correction -
the overall movement is troubling.


From: Nadine Bonner <nfbonner@...>
Date: Wed, 20 Oct 2004 12:54:11 -0400
Subject: State of YU

I read the article that Janice suggested, and my first thought was that
this guy has an ax to grind. Someone who is upset by students going to
Bais Medrash at night really belongs at Brandeis not YU. The essence of
YU is still Torah.

Is YU moving to the right? Probably to some degree. Students coming from
their seminary or yeshiva year in Israel want a more observant
environment.Although they want a college degree, they also want to
continue as much as possible the spiritual level they experience in
Israel. And that is why they choose a college based on Torah values--not
just a Jewish atmopshere. College is a competitive market. Students who
aren't committed to Torah values can go anywhere. For YU to continue to
be successful, it has to meet the demands of the new crop of student
consumers like my children who want to stay immersed in Torah while
getting a college education. From my daughter's point of view, YU was
not strong enough on the Torah side.

My oldest daughter spent two years at Stern College after seminary.  The
first year she lived in the dorm. By the second year she was
married. Her biggest complaint about the dorm was the group of girls who
were not interested in being observant. They played the radio on Shabbos
(before they were stopped) and posted inappropriate photographs on the
walls in their rooms, which caused their roommates to seek other
accommodations. Obviously the school isn't moving that far to the right
if they are accepting these students and not expelling them. She had her
own crowd, including a group of friends from seminary who gathered once
a week for a shiur, but she discouraged her sister from attending Stern
for this reason. And she didn't.

Her other complaint was the lack of respect that the secular faculty
showed to the observant students and to the religious values of the
university. She finished at Stern about three years ago, so I don't
think her perceptions are too out of date.

As for her secular education, she studied business, and she is now
trying to come up with a plan to start her own business in Israel. So I
guess she obtained the secular education she needed.

As a parent, I don't think the Bible as literature is a course that
should be taught at a Torah-based college. There are plenty of other
places, both here and in Israel, where those types of classes can be
taught. The Torah is our sacred law, not a Shakespeare play. I don't
think I would send my child to YU if those courses started to pop up.

 I also think when you decide to go to college, you evaulatue the
college's values and your values in advance. I think YU is still middle
of the road--too religious for some, not religious enough for
others. I'm giving YU another chance--I'm taking my son to the open
house next month.

Nadine Bonner

From: N Miller <nmiller@...>
Date: Wed, 20 Oct 2004 17:57:06 -0400
Subject: State of YU

I certainly hope that Nachum Lamm is right, that the article in question
is full of errors, and more specifically that the allegations in the
article are false.  It would also be reassuring to know that members of
mail-jewish can at least momentarily take their eyes off questions of
ritual and ask how such behavior, if true, can go unremarked--let alone
reproved or punished.

Noyekh Miller


End of Volume 45 Issue 31