Sunday, September 22, 2013

Rav Shlomo Fisher - Halachic authority of public acceptance by the masses

The following is a very fascinating and provocative essay by Rav Shomo Fisher explaining the authority of something accepted by the masses - even just as behavior without explicit acceptance. [It is 8 pages long  - this is just the first page.] It is  in his Beis Yishai (chapter 15). In brief he is explaining that halachic authority and creativity can arise from the actions of the masses and not just from the Torah or rabbis. The consequences of this thesis are very significant
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48 comments :

  1. >>>>> If you want to say in fact that they would not have been obligated to keep mitzvos without a bris - then what is the purpose of the bris?

    read this sentence carefully ... it doesn't make sense in the context...
    do you not mean "they would have been obligated" ,... "then what is the purpose of the bris?" ??

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  2. This is a very big issue to cover in a single feedback. However, I have seen here and elsewhere the claim that Amoraim cannot disagree with Tannaim, ie the Gemara doesn't disagree with the Mishna. This seems to be in error - there are many cases where a Mishna gives a halacha, and we learn later that the Gemara gives a different halacha.
    Extinguishing a candle on Shabbes is but one example.

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    1. The claim is that the gemara is reinterpreting the mishnah. Which it has the authority to do.

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    2. It disagreeing with the Mishnah. if it agreed, it wouldn't need to reinterpret it. Yashke also "reinterpreted" the Torah.
      If you claim it has the "authority" to do this, then why not calla spade a spade, and say it has the authority to disagree - which is l'maaseh what it is doing.

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    3. Eddie please explain how the gemora is disagreeing with the halacha of the Mishna and not just giving a different underlying principle?

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    4. In general, if you are bringing a different principle, then you are not in agreement with the incumbent principle. Are you saying that they different principle is agreeing with the one it differs from?

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  3. This goes against the current understanding of "Daas Torah" in which the masses are mindless sheep incapable of and unauthorized to decide on anything for themselves.

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  4. this is a blog by R'Zvi Lampel, with whom I am nto acquainted, but he seems frum.

    http://osdir.com/ml/culture.religion.jewish.avodah/2005-07/msg00283.html

    He wrote a book called Dynamics of Dispute - but he is - with much more erudition - saying that there are cases when Amoraim disagree with tannaim.

    Again, let me be clear about my post - it seems to me that we cannot use Mishna as a "shulchan Aruch" and that the positions of the Gemora are not always the same = are different = disagree.

    It seems also that since the word "disagree" seems politically incorrect, we therefore euphemize and say that they used different methods, and reached different conclusions. But tachlis, they did differ on some occasions.

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    1. Eddie you are seriously modifying your original assertion. Rav Fisher addresses the issue and I hope to post his view on the matter soon. but bottom line is that agreeing with the halacha but for different reasons is not disagreeing with the Mishna

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    2. The discussion is huge - as is every single point in the article by R' Fisher.

      I Quote R Zvi lampel from the link I gave:

      "In Dynamics of Dispute, I argue that there were indeed areas where an
      Amora knowingly disagreed with the Tannaim, and I bring examples of
      such. But in those instances they were open about what they were doing,
      and did not engage in pretenses, claiming the Mishnah meant something they
      knew it really didn't. And the number of instances do not nearly number as
      many the times "hachi ketani" (96) or "chisurei michsara v'hachi k'tani"
      (101) occurs in the Talmud."

      Lampel is saying what I originally said. I am not saying they disagree in every case, but there are examples.

      A lot boils down to what "agreement" actually means.

      I look forward to reading more from R' Fisher.

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    3. I would like to clarify my understanding of the Rambam’s position I presented in Dynamics of Dispute and the comment I made on the Avodah blog. The Amoraim were obligated to conform to the takannnos and gezeyros enacted by the Bes Din Gadol to which the masses were able to comply. Even the Tannaim themselves were prohibited from overturning such laws. This is an explicit mishnah.

      When it comes to laws stated in the Torah, the details thereof that were generated by analysis of the pesukim (using sevara and the hermeneutical rules) were theoretically subject to reconsideration based upon alternate analysis. Thus such details promulgated by a Bes Din Gadol of Tannaim could be overturned by a later Bes Din Gadol of Tannaim, and even by a later Bes Din Gadol of Amoraim.

      However, already in the first generation of Amoraim, it became unclear which of the Torah-law details stated in the Mishnah were derived through analysis of the pesukim, and which were actually transmitted by Hashem to Moshe Rabbeynu and from him to the generations (the drashos associated with the law being indications found for the already known laws after the fact). For this reason, no Amorah or Amoraic Bes Din could overturn a Torah-law detail stated by Tannaim. It may be a detail stated by Hashem Himself!

      Nevertheless, Amoraim were able to differ with pronouncements of Tannaim that were clearly not accepted takkonnos or gezayros, and clearly not matters that were transmitted by Hashem (such as in Kreesos 15a where the Tannaim explicitly state that their ruling was based upon their own analysis of pesukim and it was not a received law). Or they may offer ways of supporting the Mishna’s laws different from the way the MIshnah supports them. Or an Amora may feel capable of understanding a Tanna’s words better than that Tanna’s own tannaitic contemporaries. And of course, Amoraim may initiate chumros on top of the laws stated in the Mishnah.

      But let me make it clear that, as I end the chapter (p. 129), “All details in the Mishna known not to be kabballas, and all rabbinical decrees not yet voted upon by a Tannaitic Sanhedrin, were challengeable. On such issues, an Amora could conceivably differ with a Tanna. As we mentioned above, there were rare instances in which Amaraim exercised this power.”

      Note that I stated that such instances were rare, not “many.”

      On Avodah, I pointed out that when an Amorah rephrases or adds words to a mishna, he is not changing the original intent of the mishna, but clarifying its original intent.

      Zvi Lampel

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    4. Thank you for your clarification.

      If it was unclear which laws were L'Moshe mi@sinai, why are there specific traditions that have this label? Are you suggesting that there were others that we do not know?

      if we leave this analysis to only Amoraim and Tannaim, then you accept that as far as D'Rabbanan laws, Tannaim can disagree? And how about the idea of the Judge in charge of your day?

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    5. It was known that for some of His law-details, Hashem did not provide indications in the pesukim, and this subset is called “Halachos L’Moshe MiSinai.” Many other law-details were universally acknowledged to certainly have been “peyrushim mekuballim MiSinai” given by Hashem, such as the non-literal meaning of “an eye for an eye.” for which Hashem did plant hints in the Written Torah. The sages considered it their “melechess Hashem” to discover these hints.

      Other law-details were not received by the sages, and the Bes Din Gadol had to resort to figuring them out through several means, including darshonning the Torah. The results of these efforts were contestable by later Bes Din Gadols. But the “payrushim mekuballim MiSinai" (incuding the subset, “Halachos L’Moshe MiSinai”) were naturally not contestable.

      But soon after the Mishnah was composed, it became unclear whether the other law-details associated to pesukim were initially actually generated by the drashos, or if the drashos were attempts to discover the indications Hashem planted in the Torah for law-details He explicitly told Moshe Rabbeynu. But there was still no question about the identity of many of the extant law-details as having been explicitly told to Moshe by Hashem.

      As far as drabannan laws are concerned, the Rambam explains the Talmud’s principle to be that a Bes Din Gadol can overturn a previous Bes Din’s ruling only if the sages concurring with its opinion outnumber the sages of the earlier Bes Din Gadol’s time who concurred with its decision. Historically, this did not happen with the Amoraim. It may happen in the future, as well as it becoming known once again which previous decisions about biblical law-details are contestable.

      Re: “Following the judge of your day”: In the days when it was known which biblical law-details were contestable, if the members of the Bes Din Gadol decided to contest such a law, the people were obligated to follow. But there still remains areas that are subject to how the deciding authorities need to size up the existing situation, and size up the understanding of previous decisions, to reach conclusions. They are obligated to do so, and we are obligated to follow.

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    6. "It was known that for some of His law-details, Hashem did not provide indications in the pesukim, and this subset is called “Halachos L’Moshe MiSinai.”"

      We had a discussion previously regarding Rambam and deciding halacha by Prophecy. The Kohen with the Khoshen Mishpat - Urim v Thummim would also answer these questions that are not hinted to in the Posuk. I argued, with reference to Neviim, that in fact neviim would also posken halacha. An example is Yechezkel, who permits a Kohen to marry the widow of another Kohen, although this is not explicitly said in the Torah.
      But, yes, you make a very good point that some things are learned by rules, others are spoken of as tradition, and the demarcation is not always clear.

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    7. Hashem may command a prophet to tell the people to do things or to refrain from doing things that are "divrei reshus"--neither commanded nor prohibitted by the Torah. Even a prophet can only contradict the halacha if it is a temporary measure ("hora'ass sha'ah"), and only if it is not a matter of avidah zarra. If it appears from pesukim that a legitimate prophet behaved otherwise and remained legitmate, an explanation is required to show that he did not go against these rules.

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  5. where is the additional material added today?

    Is the last paragraph "However all of these assertions that rabbinic authority is from G-d has no basis."?

    In chemistry, I remember, there are some reactions which are reversible, and some that are irreversible. This is suggesting that whatever was "accepted" became irreversible. But it could easily be argued that nothing is irreversible.
    Rambam makes an overlooked point, that if a Rabbinic decree becomes neglected (as is the case today with 90% of Jews being secular), it can be overturned by any Beis Din regardless of its size and stature. Meiri states that when the reason for a gezeira is obsolete, the gezeira itself just disappears automatically.

    So we are not forced into the irreversible direction of rabbinical law.

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    1. You are apparently raising something that greatly bothered the Chazon Ish in his discussion with Rav Elchonon Wasserman. We will get to this point soon

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    2. The discussion brought now of R' Elchanan ztl, re: the Ramban and "lo tasur" is fascinating.

      There is a tension between a logical analysis - which might be doen by an academic or a philospher, and a Traditional view or interpretation of the pasukim.

      The verse of Lo Tasur, in its contextual form, refers to a dispute that cannot be settled at a local level. Only then, do the disputants go to the "Place that Hashem shall chose", which is Yerushalayim, and this is designated by a navi.

      Even here, there is a deterrent for people to continue in their dispute, and settle it before going to Yerushalayim.

      This makes no reference to Gezeiros or rabbinic law, in the pshat. I wil be even more daring. The clause that is now understood as referring to a Zaken mamre, actually (in pshat context) suggests something else. It suggests that the disputant who does not listen to the ruling of the Kohanim, will be punished - hence adding to the deterrent.


      Whether or not my analysis is correct, R' Fisher raises (or R' Wasserman) an interesting point about the RambaN - which surprised me the first time I saw it a few months ago. RambaN is effectively taking a Sadducean/Karaite view regarding the obligation to listen to Chazal! If there is no torah obligation, and the verse certainly does not imply one, then that is what he is effectively saying!

      So this leaves only a few options, i.e. to switch back to RambaM's view, or to find a another source of authority.
      To claim that there is an oral tradition that obligates us to keep the oral tradition, is somehow unconvincing - in logical terms. Hence the only solution left is that what we accept, obliges us.

      One important point - these issues are huge, in terms of Emunah and chas v'shalom apikorsus. the Gedolim have broad enough shoulders to discuss them. I do not. So if my logic somehow is heretical, then I apologise to everyone.


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  6. The solution offered here by R' Fisher, i.e. public acceptance, is actually weaker than the solution that he rejects, i.e. (lack of) a supporting verse in the Torah.

    Public acceptance is limited, and does not oblige the next generation, or even those who do not accept. Furthermore, there is no Verse to support this claim, and it may be oyver the laws of bal tosif/bal tigraa.

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    1. Eddie please read it again - he answers all of your objections

      Public acceptance as bris obligates succeeding generations. He rejected the Torah authority solution because it requires that in case of sofek you must be machmire while rabbinic laws you are lenient.

      how can there be a verse - that would be make it a Torah law. why are you transgressing bal tosif? he says simply that public acceptance can be to treat something on the level of severity of a Torah law. Bal Tosif would only be if you claim the law was given by G-d when it wasn't.

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    2. I am asking the same question, in a different way - where is there a verse that... makes a Bris binding for all generations?


      He says it has force of Torah law, but perhaps this is the way you translate it. Does he mean severity of torah law?


      Bal Tosif - this is Rambam's definition, but he claims it is d'oraita anyway, based on Lo Tasur..

      My point is, if you need a verse to justify Rabbinic Law (ie the point he makes about relying on oral tradition for oral tradition being circular), then you need a verse also for Lo Tosif. So to rely on oral tradition for "allowing" d'rabbanan is as logically absurd as religion on oral tradition for proof of the oral tradition.

      In any case, it is claimed that Rabbinic law was given on Sinai, since very innovation of an advanced student was already revealed to Moshe.

      There is another issue - since this line of inquiry is taking into account what pesukim support the notionof rabbinic Law, then you also have to look at which verses might oppose it. here is one from nitzavim:


      Devarim 30:
      10 if thou shalt hearken to the voice of the LORD thy God, to keep His commandments and His statutes which are written in this book of the law; if thou turn unto the LORD thy God with all thy heart, and with all thy soul.

      But there is also a verse which does give certain parameters to the role of the Sanhedrin - at least in torah terms:

      Devarim 21:

      5 And the priests the sons of Levi shall come near--for them the LORD thy God hath chosen to minister unto Him, and to bless in the name of the LORD; and according to their word shall every controversy and every stroke be.

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    3. Eddie wrote: I am asking the same question, in a different way - where is there a verse that... makes a Bris binding for all generations?

      If bris had a verse that gave it authority - then it would be a doreissa obligation comparable to an oath. Bris seems to understood in the Torah (especially Bereishis) as a relationship which is one participates on a voluntary basis which is mutually binding and which obligates descendants.

      That is why he starts by asking why was there a need for having a bris - it should be sufficient that G-d ordered us to keep the Torah. The answer is that G-d wanted us to want to be bound by mitzvos and that comes from committing oneself to the relationship.

      Something can be accepted on any level of severity. Thus he mentions that a drop of blood like a mustard seed - is a voluntary commitment but it is treated as if it were a Torah obligation - not that it is. Since it is not being claimed to have originated from Sinai -there is no problem of bal tosif.

      Regarding what was given on Sinai - there are clearly those things which are derived by the rabbonim - either halacha or drashos - but which have the lower status rabbonim. For example is a rabbinic asmachachta in the verse? The argument is made that the rabbinic laws are that which the rabbonim were given the option of seeing through hints in the verse. True Torah laws are required independent of the judgment of the Rabbis.

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    4. A Bris that Avraham or Yaakov made, are verlasting, but they are recorded int he Torah and thus have the "Official stamp" so to speak.

      There is some validity, in that a neder is binding, eg is someone chooses to be nazir, but I don't see how this can be binding on future generations.

      What I have heard, but it could be mistaken, is that anytign derived by the 13 principles of R' Ishamel, has D'oraita status, just as the derivatives of the 39 melachos for Shabbat have d'oraita status. Then there is the claim of halacha L'Moshe mi'Sinai - again, not based on any textual proof.

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    5. Eddie you missed my point. A Bris was considered a universal mechanism - independent of the Torah. We are not talking about a neder - which gives it doreissa status. A Bris was considered as binding on future generations.

      Eddie I am surprised at your comment regarding matters learned from the 13 midos. Of course they are doreissa. This is the problem of the Rambam labeling them as divrei sofrim as to whether he meant they were rabbinic or simply that they were doreissa but weren't counted as one of the 613 mitzvos.

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    6. I am simply arguing along the same lines as the discussion of R' Fisher. I think we are having 2 different discussions.
      I am reading the article as a philosophical or ontological discussion of the status of the Oral Law, or various aspects of it. So, I feel at liberty to ask whether these 13 principles are based on the written Torah, just like it is asked by Ramban, whether rabbinic law in general is based on a posuk.

      Your discussion is limiting the Ramban and the subsequent comments to the specific options of the bris or the verse.
      That is why the questions I am asking could be dangerous, since they are looking for stronger proofs for the other aspects of Oral Law.

      Regarding Bris, again, perhaps we are misunderstanding each other.

      we cannot make Bris for whatever we choose and say it has Torah status. many Jews may have made a Bris on other things, and other religions. But that bris is worth nothing. So what exactly is the source for the Bris in discussion?

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    7. Eddie you are raising an important question. I am simply pointing out that the term bris seems to be accepted as a legal mechanism that is independent of the Torah. This understanding was widely used in ancient times - not only in the Torah but in the Middle East in general. So I think we are understanding each other - you are simply asking why bris should be binding and I am simple noting that it was widely accepted as such and didn't need further justification.

      As similar question raised by Rav Fisher is obeying G-d just because He wants us to. You can ask the same question there also

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  7. Also, there is basis in the Neviim, which opposes innovations, even if the people have accepted them:

    Zechariah 7:

    ה אֱמֹר אֶל-כָּל-עַם הָאָרֶץ, וְאֶל-הַכֹּהֲנִים לֵאמֹר: כִּי-צַמְתֶּם וְסָפוֹד בַּחֲמִישִׁי וּבַשְּׁבִיעִי, וְזֶה שִׁבְעִים שָׁנָה--הֲצוֹם צַמְתֻּנִי, אָנִי. 5 'Speak unto all the people of the land, and to the priests, saying: When ye fasted and mourned in the fifth and in the seventh month, even these seventy years, did ye at all fast unto Me, even to Me?

    This is contrasted by the remedy - which is back to basics (of those days):

    9 'Thus hath the LORD of hosts spoken, saying: Execute true judgment, and show mercy and compassion every man to his brother;
    10 and oppress not the widow, nor the fatherless, the stranger, nor the poor; and let none of you devise evil against his brother in your heart.


    So the argument of public acceptance is not convincing.

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    1. I don't understand your point. There are many things which have been accepted. I don't see the prophets are stating that minhag is unacceptable - but rather that it is important to have proper motivation. They speak the same way about sacrifices which they obviously were not trying to abolish.

      The Rambam also states that the Babylonian Talmud is binding because it was accepted by the people.

      Rambam (Introduction to Mishna Torah):… We are obligated to accept and observe all that which is found in the Babylonian Talmud and each city and land can force its residents to conduct themselves in according with the practices as well as the decrees of the Talmudic sages. That is because they have been fully accepted by the Jewish people. Furthermore these sages who made decrees or prohibition or practices or decided laws or learned the meaning of the Torah – constituted all of the sages of Israel or most of them at the time. They are the ones who heard the Tradition of the essence of the entire Torah – generation after generation – all the way back to Moshe.

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    2. The sacrifices are prescribed in the Torah, so the way they were performed was questioned.

      The fasts, were a sh'eialh that the returning exiles put to Zechariah, and he gave a halachic response. Much to the disdain of the Rambam, who would have a Navi executed for paskening halacha via nevua, Zechariah is critical of these new laws, and instead he tells people to follow the ways of the old prophets, i.e. justice and mercy.

      Another example is Yechezkel, who speaks against the Kohanim wearing shaatnez, which is what the rabbonim claim to be the case - despite it being agasint the Torah. Some meforshim suggest that Yechezkel is referring to Yom Kippur only, but RaDak demolishes this theory in his peirush.

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    3. Eddie you are not answering my objections to your comments. The prophets were not in general opposed to minhag. There were certain specific cases that they objected to because of the way things were done - that is all.

      Where does the Rambam object to the prophets instituting takanos? That is a gross distortion. A navi is also a chochom. What he objected was for a navi to announce that he was poskening a shaila based on nevua - instead of chochma.

      Bottom line Eddie you are trying to weave a bunch of disparate events together and claim it is a shitta. you are misreprsenting these events in the process.

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    4. No, Rambam objects to Prophets poskening halacha through nevua, as you correctly state.

      What happened with Zecharia in Ch7?

      2 When Bethel-sarezer, and Regem-melech and his men, had sent to entreat the favour of the LORD,
      3 and to speak unto the priests of the house of the LORD of hosts, and to the prophets, saying: 'Should I weep in the fifth month, separating myself, as I have done these so many years?'


      This is the She'eila, asked of Hashem thru the Navi.

      how does Zechariah respond?

      4 Then came the word of the LORD of hosts unto me, saying:
      5 'Speak unto all the people of the land, and to the priests, saying: When ye fasted and mourned in the fifth and in the seventh month, even these seventy years, did ye at all fast unto Me, even to Me? (Here Ibn Ezra, and others comment that Hashem never commanded these fasts).

      7 Should ye not hearken to the words which the LORD hath proclaimed by the former prophets, when Jerusalem was inhabited and in prosperity, and the cities thereof round about her, and the South and the Lowland were inhabited?'


      This is a Prophetic teshuva.
      8 And the word of the LORD came unto Zechariah, saying:
      9 'Thus hath the LORD of hosts spoken, saying: Execute true judgment, and show mercy and compassion every man to his brother;

      This is explicit that the Shu'T in the days of Old was doen through Nevuah.

      Now I respect Rambam, but he can't go running around executing Neviim, just because they spoiled his party.


      Now, you wrote explicitly what Rambam objected to [in Intro to commentary on Mishnah]:

      "What he objected was for a navi to announce that he was poskening a shaila based on nevua - instead of chochma."

      The Neviim did precisel this. Moses also did the same, with the daughters of Zelophachad, with the gatherer of firewood.
      I presume that in the back of Freud's mind were the dangerous comments of maimonides, that it is Ok to kill a prophet, when Freud wrote Moses and Monotheism.

      I don't know what a "shitta" is. If we reject/deny the neviim, and say that only the talmudic method is valid, this is really Kosher Christianity or Glatt Islam. Rambam knows this, and in Hilchot teshuva Ch 3 he says that a heretic is one who says that Neviim are not valid or the Torah has changed, even if that person claims it was from G-d. So he has shot himself in the foot, since in his Commentary he does precisely that.

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    5. Eddie you are making major charges against the Rambam based on what? I am not familiar with a single instance where the Rambam accused the Neviim of improperly poskening. Nor am I aware of anyone other than you who makes this assertion. Please tell me where I can find this "important" crtiticism? You are arguing from your understanding of what the Rambam is saying. Apparently no one else in history has understood the Rambam in this way!

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    6. The discussion on Prophecy in the Source: Maimonides' Introduction to His Commentary on the Mishnah , Translated by Fred Rosner. Aronson:1995

      P;32 "However, he who ties a permanent knot on that Sabbath while performing these tasks and does not need the knot as an aid in the fulfillment of the command that the prophet instructed is culpable of death by stoning. Should the prophet himslef who commanded us what he did on that Sabbath, whose order we complied with, now claim that the Sabbath limits are two thousand cubits minus one cubit or two thousand cubits plus one cubit, and if he attributes this statement as having been told to him by way of prophecy and not derived through deduction and reasoning, then he is a false prophet and shall die by strangulation." ...

      p.33 "They [the Sages] further stated "If Elijah should come and declare that Halitzah may be performed with a shoe he would be obeyed; with a sandal, he would not be obeyed."
      Thus they mean to say that under no circumstances can one add to or delete from a Torah precept through prophecy. So too, if a prophet claims that the Holy One , Blessed be he, told him that the final law concerning that commandment is so and so, and that the opinion of so and so is correct (sic.) such a prophet shall be killed because he is a false prophet, as we established above. this is because no Torah was given after the first prophet, and one may not add or delete from it as it is written : it is not in heaven.


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    7. Also on P.34 of the above reference:
      "The Holy One Blessed be He, did not permit us to learn from prophets; rather fromt eh sages- people of deductive reasoning. It is not written "and thou shalt come to the prophet that shall be in those days; rather "thou shalt come unto the priests, Levites and unto the Judge that shall be in those days. the sages dwelt at great lengths on this subject, and it is correct."

      Now, the Rambam is talking about prophets, but obviously is unaware that the Neviim of Israel, as recorded in the Tora and Neviim, did posken final halacha via nevuah,
      I have seen references to Rav Kook, opposing this view. I am not sure where this was, but possibly in Bleich's "With Perfect faith" which i shall try to dig out later.

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    8. Eddie wrote: The fasts, were a sh'eialh that the returning exiles put to Zechariah, and he gave a halachic response. Much to the disdain of the Rambam, who would have a Navi executed for paskening halacha via nevua, Zechariah is critical of these new laws, and instead he tells people to follow the ways of the old prophets, i.e. justice and mercy.

      Now I respect Rambam, but he can't go running around executing Neviim, just because they spoiled his party.
      ============================
      Eddie you have making very strong condemnation of the Rambam and accusing him of saying that prophets should be executed. That is your own wild reading and is not what the Rambam said. I asked you where the Rambam says that any of the Prophets were deserving of death for poskening from nevuah. Please show me anyone else in the world who claims what you have.

      All your accusations are simply the result of your misunderstanding of the Rambam

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    9. Eddie wrote: Now, the Rambam is talking about prophets, but obviously is unaware that the Neviim of Israel, as recorded in the Tora and Neviim, did posken final halacha via nevuah,

      Don't you find it strange according to you that the Rambam wasn't familar with Tanach? A more reasonalbe explanation is that the Rambam did not consider what the recorded prophets did as being a violation of his principle! This obviously is the correct approach since no one criticizes the Rambam - as you have.

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    10. "Eddie you have making very strong condemnation of the Rambam and accusing him of saying that prophets should be executed. That is your own wild reading and is not what the Rambam said. I asked you where the Rambam says that any of the Prophets were deserving of death for poskening from nevuah. Please show me anyone else in the world who claims what you have."

      When you say "the Prophets" which prophets are you referring to?
      In this commentary that i have cited, he clearly states that an accepted prophet
      who makes a halachic statement or psak, via prophecy rather than intellectual maasah u matan, is a false prophet and should be executed by strangulation.

      Now you are asking me where does he say this about the neviim in the Tanach? he doesn't say this, obviously, since he would not have survived as an Orthodox rabbi if he did. But he says If navi X does Y, he should die.
      I have shown that Neviim in the Tenach did precisely Y.

      However, your second post actually follows my claim. the only way you able to defend the rambam in that post, is to suggest that his principle does nto apply to the published Neviim, but only to later ones. In other words, you are agreeing with the sevara I have presented, and are trying to limit the application of the Rambam's principle.

      Next, you ask if anyone else in the world has brought this argument agasint this specific notion of the rambam? Well, a few years ago, I brought another argument, which is that the rambam states in his 8 chapters, it is impossible for a metal ship to fly in the air like a bird. Yet, since the Wright brothers this has become possible. So, why do Orthodox Jews fly in lanes? is it not heresy to do so? Why is this shameful act of frum jews, who fly, any more brazen that my contradiction of the rambam here? (that is quite apart from the trouble they cause on ElAl flights so as to avoid sitting next to women).
      Next, as Chemist, I can tell you that the Rambam is WRONG in his Yesodei haTorah, when he claims there are only 4 chemical elements.
      Again, any medicine, or indeed any manufactured product from toothpaste, to silicon chips , which Orthodox Jews use, are based on a rejection of the ancient 4 elements theory used by the rambam (and the Zohar) , by Modern chemistry which recognizes at least 100 elements. Thus the aspirin, the ventolin, and any other meds that frum Jews take, if they are ill, is also a wild and brazen act of heresy agasint the rambam and the Holy Zohar as well.

      But that is not all. the rambam himself rebels agasint himself. His early comments on the Shiur Komah, which he said was a wonderful midrash, was later reversed, when he calls it heresy,a nd demands that the book be expunged from the records.

      The point you make about truth being determined by whether or not a question has been asked before is similarly fallacious. the Torah has specific sacrifices for errors which become known later on. If you presented this argument to the Torah, it would be ridiculed. Why would the Torah speak of a correction for errors if errors cannot be accepted on the grounds that had they been really errors they would have been reported earlier?

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    11. Well the Rambam writes this in his introduction to the Mishneh Torah:
      ד אף על פי שלא נכתבה תורה שבעל פה, לימדה משה רבנו כולה בבית דינו לשבעים זקנים; ואלעזר ופינחס ויהושוע, שלושתן קיבלו ממשה. וליהושוע שהוא תלמידו של משה רבנו, מסר תורה שבעל פה וציווהו עליה; וכן יהושוע, כל ימי חייו לימד על פה.

      ה וזקנים רבים קיבלו מיהושוע, וקיבל עלי מן הזקנים ומפינחס; ושמואל קיבל מעלי ובית דינו, ודויד קיבל משמואל ובית דינו. ואחייה השילוני, מיוצאי מצריים היה ולוי היה, ושמע ממשה, והיה קטן בימי משה; והוא קיבל מדויד ובית דינו.

      ו אלייהו קיבל מאחייה השילוני ובית דינו, ואלישע קיבל מאלייהו ובית דינו, ויהוידע הכוהן קיבל מאלישע ובית דינו, וזכריהו קיבל מיהוידע ובית דינו, והושע קיבל מזכריה ובית דינו, ועמוס קיבל מהושע ובית דינו, וישעיהו קיבל מעמוס ובית דינו, ומיכה קיבל מישעיה ובית דינו, ויואל קיבל ממיכה ובית דינו, ונחום קיבל מיואל ובית דינו, וחבקוק קיבל מנחום ובית דינו, וצפניה קיבל מחבקוק ובית דינו, וירמיה קיבל מצפניה ובית דינו, וברוך בן נרייה קיבל מירמיה ובית דינו, ועזרא ובית דינו קיבלו מברוך ובית דינו.

      ז בית דינו של עזרא, הם הנקראין אנשי כנסת הגדולה. והם חגיי זכריה ומלאכי, ודנייאל חנניה מישאל ועזריה, ונחמיה בן חכליה, ומורדכיי, וזרובבל; והרבה חכמים עימהם, תשלום מאה ועשרים זקנים. האחרון מהם הוא שמעון הצדיק, והוא היה מכלל המאה ועשרים, וקיבל תורה שבעל פה מכולן; והוא היה כוהן גדול, אחר עזרא.

      ח אנטיגנוס איש שוכו ובית דינו קיבלו משמעון הצדיק ובית דינו, ויוסף בן יועזר איש צרידה ויוסף בן יוחנן איש ירושלים ובית דינם קיבלו מאנטיגנוס ובית דינו, ויהושוע בן פרחיה וניתאי הארבלי ובית דינם קיבלו מיוסף ויוסף ובית דינם, ויהודה בן טבאי ושמעון בן שטח ובית דינם קיבלו מיהושוע וניתאי ובית דינם. שמעיה ואבטליון גרי הצדק ובית דינם קיבלו מיהודה ושמעון ובית דינם. והילל ושמאי ובית דינם קיבלו משמעיה ואבטליון ובית דינם. ורבן יוחנן בן זכאי ורבן שמעון בנו של הילל קיבלו מהילל ובית דינו.

      So it would appear that he felt that at the very least these prophets were sages and the heads of Batei DIn(if not the Sanhedrin). Further that Sanhedrin and the Torah that we have in the Mishnah and Gemmara was received from them.
      English translation can be found here:
      http://www.chabad.org/library/article_cdo/aid/901698/jewish/Part-1.htm

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    12. Eddie your understanding of the Rambam is very problematic. I am not aware of anyone who understands the Rambam in such a conflicted, hypocritical fashion. That would indicate either you are vastly more intelligent and learned than anyone in the last 1000 years or that you are misreading the Rambam!

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    13. Micha - Yirmiyahu says 2:8 וְתֹפְשֵׂי הַתּוֹרָה לֹא יְדָעוּנִי

      Rashi comments on this as referring to the Sanhedrin!

      So it seems in this context, the Neviim acted as a kind of Ombudsman for the Sanhedrin, although it doesn't preclude the possibility that he also sat in it.

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    14. And what is the "accepted" understanding, and how does it differ from mine?
      So far, you have suggested that my understanding is valid, but applies only to post-Tenach Neviim.
      However, Rambam writes that even if he hears something (contrary to what is written in his Yad) from Joshua Bin Nun, or Eliyahu HaNavi, he will not accept it.
      If this statement made by a navi is through Nevuah, he would be liable to onesh mavet. This is clear from the Rambam. That nobody else has not raised the problem is not my fault. If I wanted to be a parrot, I would enrol in some brainwash yeshiva and make parrot noises and raise no questions.

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    15. BTW, this current discussion is closely related to the issues raised in the Tannur of Akhnai, i.e. the view of the majority sages vs., in that case, the Bat-Kol support for R' Eliezer, which was rejected by the Sages. This was not prophecy but the closest thing available at that time.

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    16. Actually I don't think they are that close.

      Of more relevance there are views other than the Rambam that ruach hakodesh or prophecy can be used for halacha.

      Kusari says the prohibition of adding to the Torah is permitted by the prophets and is only prohibited to the masses.

      3:39 Our law is linked to the 'ordination given to Moshe on Sinai' or sprung' from the palce which the L-rd shall choose (Is 2:3) 'for from Zion goes forth the law and the word of G-d from Jerusalem. It s mediatiors were th Judges, Overseers, Priests and the memer of the Sanhedrin. It is incumbent upon us to obeythe Judge appointed for the time being, as it is written; "Or to the judge who will be in those days...and thou shalt inquire and they shall thell thee the senstence of judgment and thou shalt do accroding to the world which they tell you.....The bulk of our laws however, derives its origin from Moshe as an 'ordination given to Moshe from Sinai' this also explains how a people obtained during forty years sufficient food and clothering in spite of their large number. Moshe was with them, and the Shechina did not forsake them, giving them general as well as special laws. It is not absurd to assume that they refrained from inquiring occationally into the details and handing down their explanations and subdivisions?...
      40. How could this be made to agree with you should not add?
      41. This was only said to the masses, that they should not conjecture and theorise and contrive laws according to their own conception as the Karaites do. The were recommended to listen to the post Mosaid prophets, the priets and judges as it is writteein (Devar 18:18...The words you ahll not add refor to 'that which I commanded you through Moshe' and any "propeht from among your brethren' who fulfils the conditons of a prophet. they futher refer to regulations laid down in common by priests and judges 'from the place which your L-rd shall choose'. For they have divine assistance, and would never on account of their large number, concur in anything which contradicts the Law. Much less likelihood was there of rerroneous vieews, because they ahd inherited vast learning, for the reception of whch they were naturally endowed. The members of the Sanhedrin as is known by tradition had to possesed....Now suppose we allow the Karaite interpretation of the sentence 'from the morow of the Sabbath till the morrow of the Sabath (Lev 23:11,15,16) to refer to Sunday. But we reply that one of the judges, priests or pious kings in agreement with the Sanhedrin and all Sages, foudn that this period was fixed with the intention of creating an interval of 50 days between the 'first frutis of harvets' and to observe 'seven weeks' which are 'seven complete Sabbaths' the first day of the week is only mentioned for argument's sake in ...Perhaps this was done under the influence of divine inspiration. It was quite possible and it saves us from the confusion of thsoe who endeavour to cause confusion.
      4:3 The holy ark is alluded to as 'the L-rd of the whole earth' because miracles happened as long as it existed, and disappeared with it. We say that it is the eye whch sees, whilst in reality it is the soul that sees. Prophets and pious Sages are spoken of in similar terms, because they too are original instruments of the divine will which employs them without meeting with unwillingness andperforms miracles through them. In illustration of this the Rabbis said, "Thou shalt fear the L-rd your G-d" include the learned disciples. He who occupies such a degree has a right to be styled "a man of G-d".

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    17. Eddie wrote: And what is the "accepted" understanding, and how does it differ from mine?
      So far, you have suggested that my understanding is valid, but applies only to post-Tenach Neviim.
      However, Rambam writes that even if he hears something (contrary to what is written in his Yad) from Joshua Bin Nun, or Eliyahu HaNavi, he will not accept it.
      If this statement made by a navi is through Nevuah, he would be liable to onesh mavet. This is clear from the Rambam. That nobody else has not raised the problem is not my fault. If I wanted to be a parrot, I would enrol in some brainwash yeshiva and make parrot noises and raise no questions.


      Eddie I am not chas v'shalom suggesting that you should be a parrot. However I would suggest stronlgy that you tone down your rhetoric and arrogant tone. In fact I would have no problem with your questions if they were expressed a story if your comments were worded as questions rather than inflammaory in your faces

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    18. My argument is not that the Prophets are adding , even if Kuzari deems that permitted to them (an interesting variation, but not sure if it makes sense).
      The issues that the Rambam contends with is if a Prophet disagrees with the traditional interpretation, then he claims it is adding. The example he gives is using a sandal for Halitza instead of a shoe. But he would allow a logical proof brought by a navi, as opposed to a supernatural one. This is what happened with the Bat Kol, and it is no coincidence that Rambam uses the "Lo b'Shamyim hi" verse in this context.

      Yechezekel, for example, through prophetic vision, disagrees with the view of the Rabbis that the Kohanim would wear shatnez garments,

      44: 17 And it shall be that when they enter in at the gates of the inner court, they shall be clothed with linen garments; and no wool shall come upon them, while they minister in the gates of the inner court, and within.

      Here is a hypothetical question:

      If one day a Sanhedrin decides that actually the Torah does intend that we count the Omer from the morrow of the Shabbat (as opposed to the first day of the Chag), would that be valid? It seems even the Rambam would accept this, as it is coming from a Sanhedrin.

      So what he would not and could not accept, was if Navi made such a claim. In such a case, the Navi would be subject to strangulation, according to Rambam. However, that is an extreme case. What if a Navi enquires on the Kashrut of a matter or a regular halachic question?
      And where does this leave the Kohanim with the Choshen Mishpat and Urim and Tumim.? these questions they ask are not done by reasoning, but by supernatural means.

      In Sefer Nechemiah, the Knesset Gedolah were unable to resolve certain complex issues of halacha and yichus - so the question is deferred until the Urimand Tumim are reinstated!

      Neh:7
      סד אֵלֶּה, בִּקְשׁוּ כְתָבָם הַמִּתְיַחְשִׂים--וְלֹא נִמְצָא; וַיְגֹאֲלוּ, מִן-הַכְּהֻנָּה.
      סה וַיֹּאמֶר הַתִּרְשָׁתָא לָהֶם, אֲשֶׁר לֹא-יֹאכְלוּ מִקֹּדֶשׁ הַקֳּדָשִׁים--עַד עֲמֹד הַכֹּהֵן, לְאוּרִים וְתֻמִּים.

      How would the Rambam's principle apply here, since he claims the Torah is no longer in heaven!

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    19. Toning down rhetoric and arrogance is always a good suggestion.
      My question remains, however, if I am misunderstanding the Rambam, then what is a clearer understanding of these principles. I am quite happy to be proven wrong, but I need a good sevora in doing so.
      My question is, how do we understand Rambam's view, and yet not see it as a limitation or critique of Prophecy? In his Yad, and more so in his Guide, he writes a good deal about Nevuah and how it is the ultimate state of intellectual and mental perfection.

      My "parrot" comment was reacting to the idea that "all questions have been asked , and answered" - which seems to me to be incorrect.

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    20. I found an interesting article on our discussion here, if you scroll down to the bottom of the page: http://www.halachabrura.org/parsha-e.htm

      I am pasting the article , as it discusses different understandings of the Rambam, by Maaseh RekaCh and Pri Chadash;

      ===============================================

      " Deciding Halacha by Prophecy or Bat Kol
      (based on Birur Halacha, Bava Metzia 59b)

      When there was a dispute between R' Eliezer and the Sages (Bava Metzia 59b), and a Bat Kol from heaven declared that the Halacha is always as R' Eliezer says, R' Yehoshua brought the pasuk in our parsha "It is not in heaven", to show that a Bat Kol is not to be relied upon.

      On the other hand, in Yevamot (14a) the gemara states that the rule that Halacha is like Bet Hillel against Bet Shammai is based on a Bat Kol.

      Tosafot give two explanations to reconcile the sources: A) In the case of R' Eliezer it was clear that the Halacha was like the Sages since they were the majority, and a Bat Kol cannot overcome a clear Halachic rule; whereas in the case of Bet Hillel, it wasn't clear if Halacha is like Bet Hillel since they were the majority, or like Bet Shammai since they were more sagacious, and a Bat Kol is decisive where the halacha is unclear. B) In the case of R' Eliezer the Bat Kol came out only to honor him, after he requested "Let heaven prove me right", and not as a true decision, and therefore it is not to be reckoned with.

      R' Nissim Gaon explained that in the case of R' Eliezer the Bat Kol was disregarded since it was worded generally: "Halacha is always like R' Eliezer", which could be construed to mean that Halacha is always like him except here. This can explain why the Bat Kol in the case of Bet Hillel is decisive: because it had exact wording.

      The Rambam brings the pasuk "It is not in heaven", to show that a prophet cannot add or omit a mitzvah, nor interpret a mitzvah in a manner not delivered by Moshe Rabbenu. Ma'ase Rekach explains that the Rambam agrees with the first opinion in Tosafot, that where Halacha is unsettled, a Bat Kol or prophecy can be used to settle the halacha, since this does not contradict anything in the Torah. But Pri Chadash holds that in the Rambam's view, in no case can prophecy decide Halacha, and the reason for the rule that halacha is like Bet Hillel isn't because of the Bat Kol, rather because they were the majority, and the Bat Kol came only to honor them. "

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  8. The Conservative movement has drawn on similar ideas for over a century, which may justify their radical changes (ignoring the laws of taharat mishpacha and tzniut, cancelling the kohanim marriage restrictions, etc.) Is there a way to define this principle so that it cannot be abused?

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