Volume 57 Number 91 
      Produced: Mon, 08 Mar 2010 17:23:46 EST

Subjects Discussed In This Issue:

authority of the Shulcan Aruch 
    [Eitan Fiorino]
biblical exegesis 
    [Naomi Graetz]
electronic locks 
    [Judith Weil]
electronic stuff etc 
    [Batya Medad]
halachic relativism (3)
    [Meir Shinnar  Norman Miller  Elazar M. Teitz]
    [Betzalel Posy]
spousal abuse 
    [Russell J Hendel]
why no bracha for every mitzvah? 
    [Avraham Friedenberg]


From: Eitan Fiorino <afiorino@...>
Date: Wed, Mar 3,2010 at 11:01 AM
Subject: authority of the Shulcan Aruch

David Tzohar wrote:

>      Since the Shulchan Aruch was compiled in the sixteenth 
> century it has been considered the definitive basis for all 
> halachic decisions.  No present day authority can pasken 
> (make a halachic ruling) against the Shulchan Aruch.

This statement is inaccurate at best - the shulchan aruch was controversial and
was not immediately adopted as a standard halachic code (obviously this is so in
Ashkenaz).  And even after the Rema, there were important Ashkenazi poskim,
including the Bach and the Maharal, who were opposed to the codification of the
shulchan aruch or codification in general, and the Levushim was compiled as an
alternative code.  Secondly, there are communities which never accepted the
binding authority of the shulchan aruch, for example the Yemenites, who follow
the Rambam.  And the shulchan aruch itself was not intended by its author to
become "the definitive basis for all halachic decisions" - rather, it was
written for "young students" according to the mechaber ["author" --MOD] himself!

Lastly, I would like to understand, according to David, by what halachic
principle a TEXT (by its very nature static) can be viewed as a replacement for
POSKIM who are deciding the issues before their eyes?  Indeed, the rishonim
[early leading rabbis --MOD] (if I recall mainly in Ashkenaz but on this I am
not certain) adopted the principle of hilcheta kebatrai ("the law is like the
later ones") to buttress their own ability to poskin [decide --MOD] against
earlier generations, an innovative and novel application of the concept.  So too
did the RID apply the concept of "dwarves standing on the shoulders of giants"
to lend authority to the later generations in deciding halacha as they saw fit.
 While there is indeed enormous weight given to precedent within the halachic
process, the halachic principles with which I am familiar all empower the
contemporary posek to determine halacha as he sees fit given the circumstances
before him.  I think most poskim worth their salt would not agree with the idea
that their halachic reasoning and creativity is limited by, or rather enslaved
to, the views expressed in a single code.



From: Naomi Graetz <graetz@...>
Date: Sun, Mar 7,2010 at 02:01 AM
Subject: biblical exegesis

Jeanette Friedman wrote in a parenthetical remark:
> (There are some terrible drashes that support heinous ideas...like one that
> says women wear perfume because Chava came  out of a certain hind quarter of
> Adom--needless to say when I read that one in a book about Bereishis I was
> editing, I sent it flying across the room, and when I asked for the source,
> the guy who wrote it told me it was a medrash he heard from his father.
> Gevalt! I advised him to remove it or any woman who read his book would trash
> it.) 

Unfortunately, this is not a midrash he heard from his father and unfortunately
it cannot be removed from anyone's book. I agree that this traditional midrash
is awful--especially the last part which "explains" the three important mitzvot
that women have the precept of menstruation, making hallah and lighting shabbat

Here is the source in its entirety! It is from Breshit Rabbah 17:8
R. Joshua was asked: "Why does a man come forth [at birth] with his face
downward, while a woman comes forth with her face turned upwards?"
He replied: "The man looks towards the place of his creation [viz. the earth],
while the woman looks towards the place of her creation [viz. the rib]." He
asked: "And why must a woman use perfume, while a man does not need perfume?" He
answered: "Man was created from earth and earth never putrefies, but Eve was
created from a bone. For example: if you leave meat three days unsalted, it
immediately goes putrid."

He asked: "And why does a woman have a penetrating [shrill] voice, but
not a man?" He replied: "I will give you an illustration. If you fill a pot
with meat it does not make any sound, but when you put a bone into it, the sound
[of sizzling] spreads immediately."

He asked: "And why is a man easily appeased, but not a woman?" He answered: "man
was created from the earth, and when you pour a drop of water on it, it
immediately absorbs it; but Eve was created from a bone, which even if you soak
many days in water does not become saturated."

He asked: "And why does the man make demands upon the woman, whereas the woman
does not make demands upon the man?" He replied: "This may be compared to a man
who loses something; he seeks what he lost, but the lost article does not seek him."

He asked: "And why does a man deposit sperm within a woman while a woman does
not deposit sperm within a man? " He replied: "It is like a man who has an
article in his hand and seeks a trustworthy person with whom he may deposit it."

He asked: "Why does a man go out bareheaded while a woman goes out with her head
covered?" He replied: "She is like one who has done wrong and is ashamed of
people; therefore she goes out with her head covered."

He asked: "Why do they [the women] walk in front of the corpse [at a funeral]?"
He replied: "Because they brought death into the world, they therefore walk in
front of the corpse, [as it is written], For he is borne to the grave... and all
men draw after him, as there were innumerable before him (Job XXI 32 f)."

He asked: "And why was the precept of menstruation given to her?" He answered:
"Because she shed the blood of Adam [by causing death], therefore was the
precept of menstruation given to her."

He asked: "And why was the precept of 'dough' given to her?" He replied:
"Because she corrupted Adam, who was the dough (hallah) of the world, therefore
was the precept of dough given to her."

He asked: "And why was the precept of the Sabbath lights given to her?" He
answered: "Because she extinguished the soul of Adam, therefore was the precept
of the Sabbath lights given to her." (Genesis Rabbah 17:8)

Naomi Graetz 
Ben Gurion University of the Negev 


From: Judith Weil <weildj@...>
Date: Sun, Mar 7,2010 at 03:01 AM
Subject: electronic locks

> Inconvenient? How long do you have to be locked out of your hotel 
> room before "inconvenient" becomes "intolerable"? Pray tell what halachic 
> guidelines there are to deal with this situation. And please do not tell us
> the guidelines are "avoid such a situation". Our premise is that we live in
> the real world and we are obliged to cope with it.

I am bothered by the word pray in the below. Somehow it makes the posting come
across as a wish to undermine earlier comments rather than as a serious request
for advice. Please correct me if I am wrong.

But, leaving that aside, I have come across a concept called amiro le'amiro.
Anyone for whom this is a practical situation would have to consult a rav first.
The idea would be that if someone who had to stay at a non-Jewish hotel on
Shabbos could not get into his room, he could say to the desk clerk - possibly
pre-arranged before Shabbos - that he couldn't get into his room, because he
couldn't use the electronic key on Shabbos. The desk clerk would almost
certainly not open the door himself, but would ask another hotel employee to do
this. This would be amiro le'amiro, asking a gentile to ask another gentile. In
fact the way I put it, it would be hinting le'amiro. This would be a weaker
situation than a directly asking a gentile to do a forbidden action and this -
according to the source I came across - might be permitted.

Anyone staying at an Israeli hotel over Shabbos should request a Shabbos key,
such that the guest would be able to open the door manually. 



From: Batya Medad <ybmedad@...>
Date: Sun, Mar 7,2010 at 02:01 AM
Subject: electronic stuff etc

Bernie R. wrote:
> My suggested guideline would prevent downloading a book on Shabbat, as
> this would not only involve a remote communications link but the much
> more traditional restriction on commerce. However, reading a book which
> is already in local memory might well be permitted.
Sorry, Bernie R, but you're going much too far.  Please, don't set
yourself up as our posek [halachic decider --MOD].
I wouldn't be so quick to bury paper books.  They've outlived so many
modern information/data storage methods.  Books will be around a long,
long time.  Ebooks will go the way of instamatic cameras,  cassettes,
walkmans, filmstrips etc.
Batya Medad


From: Meir Shinnar <chidekel@...>
Date: Tue, Mar 2,2010 at 11:01 PM
Subject: halachic relativism

David Tzohar wrote:
>     Since the Shulchan Aruch was compiled in the sixteenth century it has
> been considered the definitive basis for all halachic decisions.  No present
> day authority can pasken (make a halachic ruling) against the Shulchan
> Aruch.

David Tzohar, IMHO, is mixing up several different issues, and some of them are
actually quite problematic.
1. First, He says that "no present day authority can pasken against the Shulchan
Aruch".  This is a form of modern karaism, elevating the Shulchan Aruch to the
level of revealed law.  Furthermore, while the Shulchan Aruch is the default
position, and it takes some stature to go against it, anyone familiar with
responsa literature and commentaries on the shulchan aruch knows this is just
not true, and major poskim do go against the shulchan aruch.  It is unfortunate
that halacha is messier than he likes  (RA Lichtenstein, in the latest Jewish
Action, takes R Aharon Feldman to task for a similar statement).

2.  However, the greater problem is that he mixes up two very separate issues:
	a) How should we pasken [make legal decisions --MOD] for us and our
communities? There, he is on more solid ground in pointing to the "judges of the
generation", although exactly who they are may be disputed.  It is also clear
(and Rav Broyde agrees) that the majority opinion does hold for hair covering.
	b) How do we relate to those, both of the past, and of the present ( a slightly
different issue) , who hold differently?

Question b is a very different question than question a - and the answer may be
very different.  Indeed, given the fact that, as is known, it was the norm in
the Lithuanian RABBINATE for most wives not to cover their hair (even though
this fact is now denied and airbrushed out of photos) - answering it the way
that David Tzohar does is halachically problematic in being mevaze (heaping
scorn on great scholars who are the source of our tradition).  Indeed, there is
a well known position of Rav Soloveichik that one who heaps scorn on the pillars
of the tradition has the status of a heretic, even if one strongly believes that
the majority position and normative psak TODAY is for hair covering..

Again, it is unfortunate that halacha is so messy, and positions that some do
not understand - and may seem to suggest a door for halachic relativism, are
within the tradition - but we live with the Torah that was given as interpreted
by our rabbis - not the one we wish for - whether we wish for a more liberal or
more stringent torah....

Meir Shinnar

From: Norman Miller <nm1921@...>
Date: Tue, Mar 2,2010 at 11:01 PM
Subject: halachic relativism

David Tzohar misspells my name and writes:
[This could well have been my fault in editing ... sorry! --MOD]

> Noyech Miller wrote :

>> It seems to me that the burden is on
>> David Tzohar's shoulders.
>> Let us hear from him how 'recognized halachic decisors' have
>> ceased to be basar v'dam [flesh and blood --MOD] and subject like the rest
>> of mankind -- and womankind -- to the social climate of the time
>      Since the Shulchan Aruch was compiled in the sixteenth century it has
> been considered the definitive basis for all halachic decisions...

To which I reply: hmm, but it doesn't even begin to answer my 
question (see above).

Noyekh Miller

From: Elazar M. Teitz <remt@...>
Date: Sun, Mar 7,2010 at 07:20 PM
Subject: halachic relativism

David Tzohar writes: 
> There are relatively few instances where halacha has been changed
> significantly because of changes in the social or cultural climate. A few
> examples:
> 1-abbi Yehudah Hanassi writing down the oral law
> 2-Hillel the elder enacting the prosbul(a bill permitting the collection of
> private debts by the courts during the sabbatical year)
> 3-discontinuing the practice of levirate marriage
> 4- The outlawing of bigamy by Rabbenu Gershom Maor hagolah (accepted only by
> Ashkenzim)
> 5- Mechirat Chametz (the selling of baked goods to a goy before pesach)

     His first example is not so much a change in halacha, but a knowing
violation thereof.  It was based on a pasuk (Biblical verse) whose
interpretation permitted such a violation when the Torah is in danger of being

     The other cases, however, in no way change halacha.  Taking them one by one,
     Pruzbul: This was not a change of halacha, but rather the utilization of a
halachically valid circumvention of a prohibition.  The letter of the halacha is
served; its spirit, however, is not.  Nonetheless, it was enforced because in
the absence of the obligations of Yovel (jubilee year) due to the exile of the
majority of the Jewish nation, the requirement for cancellation of loans in the
Sh'mitta (Sabbatical) year is not Biblical but rabbinic, while the refusal to
make loans for fear of being unable to collect is Biblical.  Hillel felt that it
was better to violate the spirit of a rabbinic law rather than the letter of a
Biblical one.
     Yibbum (levirate marriage): marrying a brother's ex-wife is normally
prohibited.  Indeed, such a marriage is invalid, and the children of such a
union are mamzeirim (illegitimate, in the sense that they cannot marry any other
Jew but one who is him(her)self illegitimate).  However, when a man dies without
leaving descendants, the Torah requires that his brother either marry the widow
or perform chalitza (literally, removal of a shoe, part of the procedure the
widow and the brother perform in the presence of a rabbinical court).  
     The Talmud states that if yibbum is done other than for the sake of the
mitzva (e.g., because of physical attraction or because of the estate, which the
Torah granted to the brother doing yibbum), it verges on an illicit marriage. 
It has therefore become the custom (and a fairly recent one) not to give a
choice of yibbum or chalitza, but to insist on the latter.  Thus, the law is
fully observed, but in only one of the two permitted ways.
     Analagously, kiddushin (betrothal) can be fulfilled by cohabitation, if
prior to their seclusion for that purpose, the man declares in the presence of
two kosher witnesses that he is betrothing the woman by that act.  Nonetheless,
because of its obvious breach of tz'niut (modesty), it was decreed that this
method not be used.  Would anyone claim that this was a change in halacha? 
     Polygamy: It is not a mitzva.  Polygamy is Biblically permitted, not
mandated.  Its prohibition is akin to g'zeira (decree), wherein otherwise
permitted actions are prohibited -- and it is one-way: prohibited actions cannot
be permitted.
     M'chirat chametz: This is no change at all.  The prohibition is for a Jew
to be in possession of chametz belonging to him.  If it is owned by a non-Jew,
there is not, nor was there ever, any prohibition.  It is hardly a change of
halacha to utilize a loophole given in the halacha itself.

     As for what he claims are modern day examples, 
     "The hetter mechira of Rav Kook which allowed "selling" the land in Israel
to goyim in order to circumvent the prohibition of working the land on the
sabbatical year."  If the quotation marks around the word "selling" were meant
to indicate that the sale is a fiction, then even its proponents would not abide
by it. It is valid only to the extent that it is a true sale, since the sh'mitta
(Sabbatical year) prohibitions apply to Jewish land only.  If it is a full,
binding sale, then it is sanctioned within the halacha, just as is the sale of
chametz.  If not, it is meaningless.  Should the Arab who purchased the land
decide that he wants to convert, say, an orange grove to a parking lot, if the
owner can stop him, them it is no sale, and all -- chareidi and non-chareidi
alike -- would not rely on it.  This is, in fact, one of the two key reasons the
sale is objected to by chareidim. 

     The hetter of Rabbi Moshe Feinstein allowing use of milk from non-Jewish
dairies.  Here, too, there is no change in halacha.  It is not a non-Jewish
dairy that the Talmud prohibited; it is milk that is not milked in a Jew's
presence.  However, the Talmud states that it is not the Jew's presence that is
needed; if the non-Jew is afraid to adulterate the milk with milk of a
non-kosher species beacuse a Jew might walk [in on] him and catch him
red-handed, that suffices.  Rav Feinstein held that the key was not a Jew's
possible appearance, but rather the fear of adulteration that appearance
generates, and therefore, fear of USDA penalties suffices.  Indeed, in countries
where there is no equivalent of USDA, all agree that milk from unsupervised
dairies is prohibited.

     In summation: halacha cannot be changed.  In order to effect change in
practice, it must be done within the framework of what halacha permits and


From: Betzalel Posy <kbposy@...>
Date: Thu, Mar 4,2010 at 11:01 PM
Subject: sotah

> > This is also connected with the ceremony of Sotah
> > where a married woman must publicly uncover her hair as a sign of
> > her >immodest behavior.
> IIRC, the Sotah is innocent until proven guilty!  And furthermore,
> doesn't the commentary imply that she was never found guilty by this
> trial by ordeal in actual fact?  Hence...what "immodest behavior"?

I believe IIRC means "if I recall correctly", so IIRC, this is actually not the
case.  A sotah only reaches the point of uncovering her hair and preparing to
drink from the water AFTER she has had a confirmed, and proven by witnesses,
immodest encounter with a man who was specifically identified by her husband as
a potential rival for her affections. This is referred to as "Kinui V'stira".
Her successfully navigating the waters means that she was innocent of actual
adultery with the suspected paramour.

Betzalel Posy


From: Russell J Hendel <rjhendel@...>
Date: Sun, Mar 7,2010 at 07:19 PM
Subject: spousal abuse

A brief comment to responses of Shoshana and Leah to my posting on Spousal
abuse. My PRIMARY intent was to alert people to the rich literature out there.
As is often the case with rich literature coming to one conclusion can be
difficult. I therefore have no problem with the disagreements pointed out (in
context). I would urge other people interested in this topic to also review the
literature out there.

Russell Jay Hendel; Phd ASA; http://www.Rashiyomi.com


From: Avraham Friedenberg <elshpen@...>
Date: Sun, Mar 7,2010 at 07:20 PM
Subject: why no bracha for every mitzvah?

During davening this past Shabbat, the gabbai was making his "pre-laining"
[pre-Torah reading --MOD] announcements prior to reading parshat Zachor about
how we are fulfilling a mitzvah, how we need to be quiet and listen, etc.  The
thought popped into my head - why don't we make a bracha over reading this
particular parsha? On my walk home, the thought expanded - why don't we make a
bracha over every mitzvah - or at least the positive ones?

Avraham Friedenberg


End of Volume 57 Issue 91