Wednesday, February 12, 2014

A few respectful answers for Dov Bear

A recent post on DovBear (and on Facebook) was presumably partly prompted by my own recent post of Rav Schachter's letter regarding women wearing tefillin.

[EDIT, removed a pic and paragraph]

DovBear's post starts as follows:
But I do know how to work both Google and the much maligned Bar Ilan-search, plus I have seen a few pages of shas. And the combination of those experiences have left me with a nagging doubt about the central argument Rav Shachter presented in what the blogs are calling his "tefillin missive" So let me raise my hand, like a good talmud [sic], and pose a respectful question.
DovBear sets up the division between Perushim (who were meticulous about tahara) and Amei HaEretz (who were not). DovBear then equates the year-round rejection of teruma from Amei HaAretz (because of ritual impurity) with what he identifies as Rav Schachter's central argument, avoiding sectarian practices. (I am personally not so convinced that there is a valid equation / analogy.)

But the analogy shatters when you recall that the rules were different on holidays. On holidays the amei haaretz and their food were accepted by the persuhim with love. All stringencies were suspended. Efforts were made within the bounds of halacha to accommodate the ammei haaretz. Why? Because the sages feared that the amei haaretz would go off and start their own sect if they weren't made to feel welcome in Jerusalem on holidays...
My questions, therefore, are as follows: Why is Rav Shachter demanding that we take a stand against Conservative Judaism, when the "offenders" belong to Orthodoxy? Why aren't we concerned, as the Sages were in the example I cite, that taking such a strong stand, and one punctuated with such robust language, might drive the "offenders" out of Orthodoxy, and contribute to the development of yet another sect? And, finally, shouldn't preventing the development of new Jewish sects be our overarching concern? 
But read his whole post.

While I think there are good answers, by which one can distinguish the case of allowing women to wear tefillin and the trusting of Amei HaAretz for teruma during chagim; and further to argue that this is not what the gemara is saying (e.g. rather that the fear of a single Tanna only, was that during the entire year, if they did not accept the wine libations of an Am HaAretz, he would not chas veshalom start his own sect but instead seek another way to libate, by building a private altar, during the time when private altars were forbidden) -- I don't think this is the right response to offer up, at least initially. The right response is methodological.

Though I am not Rav Schachter, I would attempt the following responses, in part drawing from what Rav Schachter already wrote.

והתפלאתי לראות היאך שאנשים בעלי שכל מפלפלים פלפול של הבל בקשר לנדון נשים אם רשאות להתנדב (בתורת אינה מצווה ועושה)לקיים מצות תפיליןוהראו פנים לכאן ולכאן,ודנו כאילו היינו חיים בתקופת התנך(שהביאו ממיכל בת שאול)או בתקופת התנאים(שנחלקו התנאים אם נשים סומכות רשות)או בזמן הראשונים (שפלפלו לגבי בנותיו של רשי)אכן בעוהחיים אנחנובשנת תשעדבתקופת מרד המינים נגד התושבעפ כשהנהגה זו – עטיפת טלית והנחת תפילין – מצויה אך ורק אצל הקונסרבטיביםשכל הגישה שלהם להלכה מבוססת על היסוד שאכן מותר – ואף חיוב יש – לשנות מדרכי המסורה עפ רצונם וניהוגם של העמא דבר” כל עוד שיש להם איזה מקור” לדברודוקא נקודה זו היא היא ההבדל בינם לבין האורטודוקסים.
I was shocked to see how otherwise intelligent people are engaging in pilpulim, vain pilpulim, dealing with whether or not women may voluntarily perform the Mitzvah of Tefillin (in the manner of “not commanded but fulfilling it anyway”). They have marshalled opinions both this way and that way, and judge things as if we were living in the period of the Tanach (as they cite precedence from Michal Bas Shaul), or in the period of the Tannaim (where the Tannaim debate regarding whether women may voluntarily lay on hands), or in the period of the Rishonim (who debated things regarding the practices of Rashi’s daughters).
However, in the abundance of our sins we live in the year 5774 – in the time period of the rebellion of schismatic movements who fight the oral law.
It is a time when this practice of [women] wearing Talis and Tefillin is found exclusively with Conservative Judaism, where their entire approach to halacha is founded upon the principle that it is permitted – even an obligation to change from the path of our traditions according to the whims and practices of “how the nation conducts itself” whenever there may be any trace of a source to the matter. It is this particular point which is the essential difference between them and the Orthodox. 
To extract one point from this, he is saying that it is not legitimate to cite random and rare gemaras ("any trace of a source") in order to bolster a predetermined and pre-desired outcome. What is the mainstream halachic view as it has already been established?

To try to apply it to this case -- it is great that DovBear has found a source for how they may have conducted themselves in an inclusive manner in the time of the Tannaim. But we live in 5774. And finding an arbitrary Tannaitic or Amoraic source is not sufficient. Which of these sources have been applied in practice over the centuries, until the present day? It would be more persuasive had DovBear demonstrated that this has been applied in practice. E.g. can one incorporate an am ha'aretz into a mezuman, against the gemara in Berachos? According to one Tosafist (Chagiga 22a d"h כמאן), yes and this is based on Rav Papa's application of Rabbi Yossi's reason of איבה in the gemara DovBear refers to. But according to another Tosafist ad loc, that is not the reason for the exception. So what has been the pesak hamekubal? Otherwise, one is just finding a convenient source from the myriads that exist ("any trace of a source") to support the conclusion to which he is already philosophically committed.

At the end of this post, delineated by a horizontal line, I examine the gemaras in question, whether we rule like them, and thus whether they are comparable with the sources (which have been concretely applied) regarding distancing oneself from sectarian practices.

2) So assume we have source A (reject sectarian practices) and source B (accept the halachically questionable so as not to drive them to sectarianism). And then we have a case X, which might be comparable to A and might be comparable to B.

How should we rule?

This is a skill. We may call it מדמה מלתא למלתא. Is case X best compared to seif 1 in Shulchan Aruch, where the answer is assur, or best compared to seif 2 in Shulchan Aruch, where the answer is muttar. People who are unskilled in pesak can very easily be incorrectly מדמה מלתא למלתא and come to the absolutely wrong conclusion. Knowing the underpinnings of the various laws (rather than just their surface structure), as well as being able to accurately assess the reality of case X, is critical in this regard.

And this, one might argue, is the skill of a developed posek, who lives and breathes the sources.

Which is why it is a good thing DovBear was asking Rav Schachter these questions... Unless of course it was meant rhetorically?

3) Let us assume that DovBear has identified the correct approach to take, of inclusion. This may be so. Even so, that does not (IMHO) take away from the seriousness of the shayla, or excuse the Google / Bar-Ilan experts for failing to even take this aspect into account, and instead focusing on the narrow halachic question.

That is, the conclusion may be that X is like B, not A. But first realize the stakes, and that it might indeed be A, and then discuss why it is like B instead.

4) There is also what to argue in metzius. I wouldn't necessarily agree with DovBear's assessment of the social reality and the fallout from taking approach C vs. approach D. But that would have to be the subject of another post.


What now about the sources?

Well, there is Chagiga 22a:

ומאן תנא דחייש לאיבה רבי יוסי היא דתניא א"ר יוסי מפני מה הכל נאמנין על טהרת יין ושמן כל ימות השנה כדי שלא יהא כל אחד ואחד הולך ובונה במה לעצמו ושורף פרה אדומה לעצמו אמר רב פפא כמאן מקבלינן האידנא סהדותא מע"ה כמאן כרבי יוסי
"And who is the Tanna who takes account of animosity? — It is R. Jose. For it is taught: R. Jose said: Wherefore are all trusted throughout the year in regard to the cleanness of the wine and oil [they bring for Temple ??offerings??]?20 It is in order that every one may not go and give and build a high place21 for himself, and burn a red heifer22 for himself. R. Papa said: According to whom is it that we accept nowadays the testimony of an ‘am ha-arez? According to whom? According to R. Jose.23"

Rabbi Yossi is the yachid who argues with the Rabanan in Pesachim 42b on this matter. Do we rule like Rabbi Yossi? One opinion in Tosafot opines that we do (as mentioned above):
כמאן מקבלין סהדותא מע"ה כרבי יוסי. הר"ר אלחנן אומר דקיימא לן כרבי יוסי וחיישינן לאיבה לפיכך מזמנינן עכשיו בכל ע"ה אף על גב דאמרינן בברכות (דף מז:) אין מזמנים על ע"ה וגם רב מנשיא בר תחליפא לא רצה לזמן עליהם והר"י מפרש דלא כל הרוצה ליטול את השם להחזיק לעצמו כתלמיד חכם שלא לזמן על ע"ה בידו ליטול ואין אנו מחזיקים עצמנו כתלמיד חכם לענין זה:

Rambam (Hilchos Metamei Mishchav Umoshav 11:1) says we do accept their word about the wine and oil. However, he does not give the reason of eiva for this:
א  כְּבָר בֵּאַרְנוּ שֶׁעַמֵּי הָאָרֶץ נֶאֱמָנִין עַל טַהְרַת פָּרַת חַטָּאת:  מִפְּנֵי חֻמְרָתָהּ, אֵין מְזַלְזְלִין בָּהּ.  וְכֵן נֶאֱמָנִין הֶן עַל טַהְרַת יַיִן וְשֶׁמֶן שֶׁלַּנְּסָכִים--אִם אָמְרוּ טָהוֹר הוּא, הֲרֵי זֶה בְּחֶזְקַת טַהְרָה:  מִפְּנֵי חֻמְרָתוֹ, נִזְהָרִין בּוֹ.
Rather, it is because of its stringency, the Amei HaAretz are believed regarding it, מִפְּנֵי חֻמְרָתוֹ, נִזְהָרִין בּוֹ. (See also the Mishna on 24b.)

What about Rav Papa's din, assuming he was saying it lehalacha rather than merely explaining that that opinion was in accordance with Rabbi Yossi? Well, you can see Shulchan Aruch Choshen Mishpat 34:17 for yourself and decide whether we rule like this. It certainly seems that we do not accept the testimony of your average Am HaEretz off the street. But see Beis Yosef on the Tur, who cites attempted resolutions between these two (e.g. from the Rif), such as that they are speaking about two different classes of Am HaEretz, or, that this is why we accept him after establishing his good character.Or -- as I wrote above, and would logically prefer -- Rav Pappa is not trying to establish halacha.

There is a later gemara, Chagiga 26b:

The Mishna:


ובשעת הרגל אף על התרומה:
מנהני מילי אמר רבי יהושע בן לוי דאמר קרא (שופטים כ, יא) ויאסף כל איש ישראל אל העיר כאיש אחד חברים הכתוב עשאן כולן חברים:
"And at the time of the festival, [they were believed ] even on Terumah":
Whence is this deduced? — R. Joshua b. Levi said: Scripture Says: So all the men of Israel were gathered against the city, associated26 as one man:27 thus the verse made them an Associates.28
One could say that this was as part of an inclusive trend, as voiced by Rabbi Yossi. After all, we have the words כאיש אחד and חברים. Alternatively, it could be a mere play on words, since Chaveirim was the technical term for someone who accepted these stringencies regarding sanctity of foodstuffs, to the exclusion of the Am HaAretz.

But an inclusive trend is not the same as "lest they sacrifice on altars". Indeed, if this were the true reason, it would not be only the yachid, Rabbi Yossi, who says this. And further, while not accepting their terumah might cause animosity, unlike libations, it will not cause them to go off and libate on their own.

An alternate explanation is that during the regel, with the great influx of people, insisting on this stringency would cause undue hardship, and so it was relaxed. This is similar to the relaxation on purchasing earthenware vessels for hallowed things mentioned immediately above -- because of the hardship that would otherwise occur:

ובירושלים נאמנין על הקודש:
תנא נאמנין על כלי חרס גסין לקודש וכל כך למה שאין עושין כבשונות בירושלים:

The Rambam seems to hold understand that the Amei HaAretz accept the stringencies upon themselves during the regel:

יא  [ט] טֻמְאַת עַמֵּי הָאָרֶץ בָּרֶגֶל, כְּטַהְרָה הִיא חֲשׁוּבָה--שֶׁכָּל יִשְׂרָאֵל חֲבֵרִים, בָּרֶגֶל.  וּכְלֵיהֶן כֻּלָּן וְאָכְלֵיהֶן וּמַשְׁקֵיהֶן, טְהוֹרִין בָּרֶגֶל--מִפְּנֵי שֶׁהַכֹּל מְטַהֲרִין עַצְמָן, וְעוֹלִין לָרֶגֶל.  לְפִיכָּךְ הֶן נֶאֱמָנִין בְּכָל יְמוֹת הָרֶגֶל, בֵּין עַל הַקֹּדֶשׁ בֵּין עַל הַתְּרוּמָה; וּמִשֶּׁעָבַר הָרֶגֶל, חוֹזְרִין לְטֻמְאָתָן.

At the end of the day, I don't see any clear proof from these gemaras that in established practice we should relax halachic standards in order to prevent Amei HaAretz from founding their own religion.

However, of the many commenters and readers of that blog post and Facebook post, how many do you think took the time to look at the gemaras, Tosafot, Turs, Shulchan Aruchs, and so on, inside? How many are capable of doing it, even with Google-ing. Yet how many were persuaded by this solid argument, which so persuasively challenged Rav Schacter?

Note: Not halacha lemaaseh. I just did some quick Googling and quick skimming of sources to get the above. :-)

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