Volume 46 Number 61
                    Produced: Thu Jan 13 22:47:35 EST 2005

Subjects Discussed In This Issue: 

If Rav Moshe were alive he would - When to disagree with a Gadol
         [Elazar M Teitz]
Out of town Rabbis
         [Daniel Geretz]
Out of town Rabbi's destroying communities
         [Perry Zamek]
When to disagree with a Gadol
         [Binyomin Segal]


From: Elazar M Teitz <remt@...>
Date: Thu, 13 Jan 2005 08:25:33 -0500
Subject: RE: If Rav Moshe were alive he would - When to disagree with a Gadol

Russell Jay Hendel writes, regarding smoking (the ellipses denote
omission of sentences irrelevant to this response):

"Rav Moshe wrote a responsum. . . . In his responsum he gave reasons for
the permissability. He cited the 'excessive fruit' advice of the Rambam
(Character 4: 'A person should not eat excessively harmful
fruit'). Since, argued Rav Moshe, the Rambam did not prohibit the
harmful fruit it follows that we cannot prohibit smoking. . . .

"I showed this reasoning faulty and non-comprehensive. I cite the 'coin
sucking' prohibition (Rambam Murder 12) which prohibits, under penalty
of lashes, the sucking of coins.

"I then point out that fruit has SOME physiological benefit and hence
cannot be prohibited because of its bad nutrients while coin-sucking,
which has no physiological benefit is totally prohibited.  It
immediately follows that smoking is prohibited.

"I think it more fruitful to discuss the idea that Rav Moshe was wrong.
Too often I have had conversations end because it seems to be axiomatic
that Gedolim cant make mistakes. But as pointed out above, Rav Moshe's
mistake in this case was very specific: He forgot to mention another
halachic precedent."

        While it is certainly possible for g'dolim to overlook a
reference -- even of Talmudic sages, the statement is made in the Talmud
"Ishtamitsei" (it escaped him) -- nonetheless, one needs broad shoulders
to take it upon himself to level that accusation.  One must be certain
of his analysis that it was indeed an omission, rather than a source
which is actually irrelevant to the point being made.  If the one
declaring an error of omission on the part of a talmid chacham is
mistaken in his analysis, he is guilty of hubris as well as bizuy talmid
chacham (degrading a Torah scholar).

        I believe the above quote is a case in point.  Rav Feinstein
compares smoking to the eating of food (not, as quoted, fruit) which may
be harmful in excess, of which the Rambam says it should be avoided, but
does not declare it prohibited.  The analogy is obvious: one does not
endanger himself by a single ingestion of a harmful food, nor is there
danger to life from a single cigarette.  Sucking on coins, however, is
prohibited by the Rambam specifically because of possible immediate
danger due to contamination. The Rambam places it in the same category
as water which has been left exposed, which may not be drunk for fear
that it may contain snake venom. As such, it is totally irrelevant to
the question of smoking, and thus was properly omitted from the
discussion.  Furthermore, just as there is physiological benefit from
the fruit (as Dr. Hendel notes), there is a benefit felt by the smoker
from the nicotine, even though it is far outweighed by its harmful
effects, while the coin-sucker has no such benefit.  Incidentally,
contrary to Dr.  Hendel's statement, nowhere in the quote from the
Rambam is the punishment of lashes mentioned for sucking a coin, and I
would appreciate Dr. Hendel's source for his claim.

        I feel that Dr. Hendel would have been well-advised in this case
to follow our Sages' advice: "Chachamim, hizaharu b'divreichem." (Wise
men, be careful with your words.)


From: Daniel Geretz <dgeretz@...>
Date: Wed, 12 Jan 2005 11:13:51 -0500
Subject: Out of town Rabbis

In response to Anonymous' posting on "out of town Rabbi's [sic]", I
understand his/her frustration and can probably name one or two
experiences I have had which, in general, run along similar lines.
These situations are maddening and frustrating. Unfortunately, I have
never been able to find a "pat" answer for what to do.

However, I did read a well-written paper forwarded to me by a colleague
about 3 or 4 months ago, and I thought I would pass it along.  Even
though it is quite long, it does touch on the "community Rav" vs. "rosh
yeshiva" issue, and may be of interest to Anonymous as well as other
mail.jewish readers.  I have not re-read it recently, but, as I
recollect, it is less prescriptive than descriptive. Hopefully, though,
at least Anonymous may feel a little better understanding a little more
about various individuals' motivations.

The paper was written by Marc D. Stern, and titled "On Constructively
Harnessing Tensions Between Laity and Clergy."  It is posted on the
"Jewish Law" website at
http://www.jlaw.com/Commentary/ms-LaityClergy.html.  You can read more
about Marc D. Stern's c.v. and the paper on the website.

Danny Geretz


From: Perry Zamek <perryza@...>
Date: Wed, 12 Jan 2005 14:28:37 +0200
Subject: Re: Out of town Rabbi's destroying communities

Anonymous wrote:
>I'm at a point where I want to scream
>We have two shuls in my town and I go to the smaller one.  We have a 
>school on our property that doesn't pay its rent even though it pays it's 
>Rabbi's very well (for teachers) and has two full time secretaries (while 
>our shul can only afford a part 1 part time one) They cry to us that it is 
>ossur to demand they pay their bills because if we evicted them we would 
>be closing a Torah institution.

At this point of the posting, the answer is very clear - change the
locks on the property, and stop them from stealing from the community
(gzelat harabbim).

Also, you could take their out-of town "rabbi" (and I deliberately use
quotation marks here) to Din Torah, and request that the Beit Din ban
him from paskening on matters related to your shule or its property.

And who says that it is forbidden to close down a "Torah" institution,
especially one with such screwed up values as what you describe? I
wonder if they come to you and ask for donations for their school (that
would be the height of hutzpah).

Perry Zamek


From: Binyomin Segal <bsegal@...>
Date: Wed, 12 Jan 2005 17:05:01 -0600
Subject: RE: When to disagree with a Gadol

Russel Hendel raises an important question:
> I believe it is very important to discuss the criteria under which we
> can confidently say that a Gadol is wrong

The question is quite broad, with far-reaching implications.

Let me state emphatically what should be obvious. It is certainly not
HERETICAL to take the position that a contemporary rabbi is wrong. The
bais medrash debate is open. Generally, rabbis have historically avoided
arguing with rabbis from earlier eras. But even that is open to some
exception, especially in the later eras where there is very little with
which to halachikly distinguish eras.

I want to distinguish between the theoretical argument, and the practice
of halacha. The theoretical argument is based entirely on ideas. The
practice of halacha is constrained - at least to some degree - by

I will address in detail the question of the argument, and leave
questions of practice/authority for another day. The status of "gadol"
is primarily one of authority, and so is for the most part not relevant
to this discussion. You may argue with a gadol in the same way you argue
with your chevrusa.

Further, there are certainly times when we KNOW that the gadol made a
mistake. So for example, the Mishna Brura is inconsistent in his psak in
regard to the status after shabbos of food cooked on shabbos by a
non-jew for a choleh (see 318:14 and 328:63). His son R' Aryeh Leib
records that it was an error. (he wrote a biography of his father which
is included in Kitvei Chafetz Chaim, vol 3. The description of this
error appears on page 43.) R' Aryeh Leib explains that he was
responsible for the writing of large sections of the Mishna Brurah. The
discrepancy arose because he wrote one segment while his father, R'
Yisroel Meir wrote the other section. And R' Yisroel Meir did not catch
the inconsistency in his review of the material. (If you ever want to
have fun watching yeshiva boys come up with ridiculous sevaras, show
them the two contradictory sources and sit back and enjoy.)

However, the status of gadol also presents us with an assumption of
expertise in the sources. So while you are allowed to argue with the
gadol, to argue _confidently_ would, I think, be arrogant (especially
when the gadol is not available to respond). Indeed, in the example
currently on the table, IMHO I find it entirely incredible to assume
that R' Moshe missed the source R' Hendel mentions. He had the seforim,
and it is my impression that he was very careful in doing research for
his tshuvos even when he thought he knew the material by heart. So while
I believe R' Hendel has the right to argue, I would recommend that he
not argue _confidently_.

(As an aside, while I find R' Hendel's svara (theory) intriguing. Faced
with these two approaches, I would try to understand why R' Moshe might
not agree with R' Hendel. One possible theory is that while R' Moshe
knew of the danger of smoking, he felt that the described advantages
(e.g. easing digestion) meant that smoking was more analogous to fruit
then to coins. Having made that analysis, I might agree with R' Hendel
that today we know that not to be the case, cigarettes are more similar
to coins. But notice that in my analysis, R' Moshe's error was in the
science - of which he was not an expert, and which has changed in the
intervening years - rather than the Torah about which he was an expert,
and which has not changed.)

I am not saying that this approach is MANDATORY, only that it seems more
reasonable to me, more intellectually honest. (Analogous to the recent
discussion of dan lkav zechus - if the person always acts righteously,
it is reasonable to assume that behavior which appears evil is also
righteous. When a person has consistently demonstrated his vast
knowledge of Torah, it is reasonable to assume that he did not forget
the source, but chose not to mention it.)

On the other hand, I recall R' Kalefsky once spent a shiur answering the
question of the R' Akiva Eiger. Someone challenged him, suggesting that
his answer could not be correct because R' Akiva Eiger would have given
that answer but chose not to. And while R' Kalefsky acknowledged that
some people would indeed make that assumption, his approach was
different. "R' Akiva Eiger asked a question, I gave an answer."

To sum up, I would have to say that a person always has the right to
argue with gedolim. But I would suggest that humility and self-knowledge
should inform that choice.

Beyond the personal choice to disagree with a gadol (or with any rabbi),
comes the question of how an outside observer should evaluate such a
disagreement. That is, while R' Hendel has the right to argue with R'
Moshe, how does that effect me. How does an outsider determine who is
"right". I would suggest the following principles might apply: 1. The
non-scholar should assume that the gadol is correct. This is analogous
to assuming that the doctor who is head of pediatric surgery at
University of Chicago is right, rather than assuming the intern is
correct. Note that this is an _assumption_. That is, it is an imprecise
way of making a fast approximation. But when there is no time to do the
years of research (in medicine or Torah) which would give you the tools
for forming an independent opinion, the flashy talk of the intern should
not generally sway you against the reputation and experience of the head
of surgery.  2. A scholar has the obligation to evaluate the IDEAS
presented. Nonetheless, it would be foolish not to also take into
account the scholarly reputation of a gadol. When an idea that, on its
face, seems ridiculous comes from an intern, it might be fairly
ignored. But when it comes from the head of surgery, it is prudent to
consider why he might make that recommendation.  3. Halacha K'basrai
(the law follows the later opinion). Without going into a long scholarly
discussion of this principle, there is one understanding of it that I
would share. When a later authority writes his opinion, he has the
benefit of earlier works. Taking an analysis one step further is
different than doing the analysis from scratch. And therefore, the later
opinion has the advantage that he can examine earlier analysis and, even
if he is not the equal of the earlier authorities, go deeper.

Ultimately for a scholar, principle 2 is the crucial
principle. Ironically, R' Moshe himself addresses the question, in
trying to justify his own decision to publish tshuvos (Intro to Orach
Chaim I). His conclusion is that every dayan must decide based on his
personal understanding of the facts. And that even if at some ultimate
level he is "wrong" it is still called Torah. (He points to the idea of
elu v'elu as in indication of this idea.) That is to say, R' Moshe
himself would argue that R' Hendel has the right (maybe even the
obligation) to put forth his opinion, and every scholar must evaluate
the ideas as he understands them.

With respect,


End of Volume 46 Issue 61