Rav Chaim Brisker - . Amora has the power to argue with a Tanna

 Contrary to the view of the Kesef Mishna and clearly at variance with Rav Elchonon Wasserman that the authority of a Tanna is that of Sanhedrin which an Amora can not reject. And also in disagreement with the Chazon Ish that the Tanna had greater knowledge of the truth than an Amora -  is Rav Chaim Brisker's view that theoretically an Amora can disagree with a Tanna but in general don't.

Rav Elchonon Wasserman[i](Kovetz Shiurim Bava Basra 170a #633): Rav said that the halacha is neither that of R’ Yehuda nor of R’ Yochanon. The Rashbam said that Rav was considered a Tanna and thus could disagree with other Tanaim. However Tosfos (Kesubos) says that R’ Yochanon disagreed with this halacha and since we have a rule that in a dispute between Rav and R’ Yochacon that we rule in accord with R’ Yochanon that means that Rav is not viewed as a Tanna and thus cannot argue with Tannaim. But this presents a question. How can it be that Rav is disagreeing with the Mishna here? This question I asked my teacher R’ Chaim Brisker and he answered, “That in truth an Amora has the power to disagree with a Tanna. This that we regularly find the Talmud rejecting the views of an Amora by simply showing that a Tanna rejects it – that is because as a general rule an Amora did not disagree with a Tanna. So if the Amora only knew the view of the Tanna we assume he would not disagree with it. However where we see that an Amora explicitly disagrees with a Tanna it is possible that the final halacha is in agreement with the Amora.”

Itamar massacre solved; 2 arrested

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Itamar massacre solved; 2 arrested

via ynet - News on 4/17/11

Joint investigation of Fogel family murder by Shin Bet, IDF and police culminates in the arrest of two Palestinians. Both suspects admit involvement in terror attack; say they wanted to 'die martyrs' death'

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Reb Elchonon answers Chazon Ish: Bottom up authority

Is It Murder If a Mom Withholds Cancer Treatment From Her Child?

Time

Imagine you are a single mother suffering from depression, overwhelmed with caring for an autistic, nonverbal and developmentally disabled son. If he were diagnosed with cancer, what would you do?

Kristen LaBrie, a Massachusetts mother, chose to disregard a prescribed chemotherapy regimen. On Tuesday, two years after her son, Jeremy, died  at age 9, a Superior Court jury declared her guilty of attempted murder.[...]

Rav Shlomo Fisher - authority is bottom up from acceptance of people

This is the first of 8 pages.

Everything given on Sinai - but not everything was given on Sinai?!

From Daas Torah (2nd  edition) - translations copyrighted - there are obviously many more sources concerning this matter.

Berachos (5a): Rav Levi bar Chama said  in the name of Reish Lakish: What is the meaning of the Shemos (24:12), “ And I gave you the stone Tablets, and the Torah and the Mitzvos which I wrote to teach them.” “The Tablets” is referring to the Ten Commandments. “Torah” is referring to the Five Books of Moshe, “Mitzvos” is referring to the Mishna, “Which I wrote” is referring to Prophets and Writings, “To teach them” is referring to the Talmud. Thus this verse teaches that all of these were given to Moshe at Sinai.

Torah Temima (Shemos 24:12.28): Look at Megila (19b) that learns that G d showed Moshe dikdukei Torah and dikdukei Sofrim and what the Sofrim would generate in the future…. The intent of these statements is that the halachos which would be generated in the future by means of hermeneutic principles and intellectual analysis were in fact inherently contained within the Torah that was given to Moshe. They do not literally mean that also the analyses that were used to generate these halachos were actually said to Moshe as some fundamentalist try to insert this meaning into the drashos I cited. They use these drashos as a banner and insist that the Talmud is saying that all the intellectual analysis as well as the discussion and evaluation that a student would say in the future - were literally already given to Moshe at Sinai. Even though it is self-evident that the intent of these statements is that only the basic laws that were used to generate the details in the future were given to Moshe and not the analysis itself and there is no need to prove this – nevertheless a reliable source that this is true is expressed by our Sages in Menachos (29b). There the greatness of Rabbi Akiva is described in the following manner. “When Moshe went up to Heaven to get the Torah he was shown the sages of every generation. He saw Rabbi Akiva interpreting every detail by means of intellectual analysis and Moshe did not understand what was going on and he got upset. However at some point Rabbi Akiva’s students ask him how he had derived a particular point, he answered that it was the halacha given to Moshe at Sinai. When Moshe heard this he felt better.” Thus we see an explicit proof that our Sages understood that only the fundamental halachos were said to Moshe… and that is why Moshe felt better when Rabbi Akiva said it was halacha given to Moshe at Sinai because that is superior to that which is generated by analysis… A clearer proof that Moshe was not literally given the intellectual analysis that would be used to generate the new halachos is found in Bamidbar Rabba (41), “Did Moshe in fact learn the entire Torah in 40 days. That is not possible since the Torah is described as being greater in size than the earth. Therefore what is meant is that Moshe learned the general principles at Sinai.” This doesn’t need further explanation. There is more to discuss about this general topic but what I have written is sufficient here.

Rambam (Sefer HaMitzvos Shoresh 2): We have already explained in the Introduction to our Commentary to the Mishna that the majority of Torah laws were generated by the use of the 13 Hermeneutic Principles. Furthermore that such laws are sometimes the source of dispute amongst our Sages. However those laws and explanations of the laws which were transmitted by Moshe were never disputed. … The proof to this is Temura (16a) which states that,” 1700 laws derived from kal v’chomer and gezera sheva and dikdukay sofrim were forgotten in the days of mourning for Moshe. Neverthless Osniel ben Knaz rediscovered them through his analysis …” If this large amount is what was forgotten, than obviously the number of unforgotten laws that had been derived by analysis must have been considerably more. This large number of derived laws existed already in the time of Moshe since the forgetting of the 1700 derived laws occurred during the period of mourning for Moshe. Thus we have shown that even in the time of Moshe there were derived laws called dikdukei sofrim (the exactitudes of the Scribes). That is because all that was not heard explicitly at Sinai has been produced by the rabbis….

Rashi (Sukkos 28a): Kalim v’Chomrim – Torah laws deducible by use of kal v’chomer - since they that don’t require a tradition - were not explained at Sinai.

Shaloh (Toldos Adom Beis Chochma): All that which the sages of all generation have discovered was in fact received at Sinai from the Kol (sound) and it is not the result of human intellect and analysis. Thus in truth it was commanded in the Torah by means of Moshe (Devarim 17:11), “According to the Torah which you were taught and the laws which you were commanded to do, do not deviate from that which you were told right or left.” A person who doesn’t obey is deserving of death (Devarim 17:12).  This Kol was the great sound with did not end (yasaf)…In the Yerushalmi Peah (2:6) the Sages said that even what an experienced student would decide before his teacher was said on Sinai. Thus it is clear that all the words of the sages in every generation and all that they innovated and all their analysis is from Sinai. It is not from human intellect but from the divine intellect. They served merely to actualize the potential Torah which had been given at Sinai.

In Financial Crisis, No Prosecutions of Top Figures

NYTimes

It is a question asked repeatedly across America: why, in the aftermath of a financial mess that generated hundreds of billions in losses, have no high-profile participants in the disaster been prosecuted?

Answering such a question — the equivalent of determining why a dog did not bark — is anything but simple. But a private meeting in mid-October 2008 between Timothy F. Geithner, then-president of the Federal Reserve Bank of New York, and Andrew M. Cuomo, New York’s attorney general at the time, illustrates the complexities of pursuing legal cases in a time of panic.

At the Fed, which oversees the nation’s largest banks, Mr. Geithner worked with the Treasury Department on a large bailout fund for the banks and led efforts to shore up the American International Group, the giant insurer. His focus: stabilizing world financial markets. [...]

If Talmudic authority is result of acceptance - where is evidence?

from Daas Torah - translaton copyrighted

Mahretz Chayes (Toras Neviim #3 Maamar Lo Sasur): The Kesef Mishna (Mamrim 2:1) raises a very strong question against the Rambam. The Rambam says that where there is a dispute based on sevora or drasha concerning a Torah law, a later generation can reject the view of an earlier generation - even though it is not greater in wisdom and number. If so then why don’t Amoraim disagree with Tannaim and in fact we find many instances that an Amora’s view is rejected because his view differs from that stated in a Mishna or braissa. The Kesef Mishna answers, “It is possible to say that from the day that Mishna was completed it was accepted and established that later generations would not be permitted to disagree with the earlier generatons. Similarly when the Talmud was completed, no one had the right to disagree with it.” But there is no evidence in either the Talmud Bavli or Yerushalmi that there was such binding agreement. One can not find the slightest hint in the Mishna or Talmud and the Kesef Mishna’s questions are very solid… However I saw something similar in the Rambam’s Introduction to the Mishna Torah, “However all those matters that are found in the Babylonian Talmud are obligatory for all Jews and they can be forced to observe them… And all these matters were agreed to by all Jews.” We see that the Rambam also writes the reason for the obligation is that all Jews agreed to it. However I don’t know where there is evidence that such an agreement occurred.

Claims of bribed witnesses in Baruch Lebovitz abuse conviction

Daily News

Baruch Lebovits, 60, received a sentence of 10 2/3 to 32 years in prison last year for sexually abusing minors.

Prosecutors stood by a Brooklyn rabbi's child-molestation conviction Wednesday, even as they charged a Hasidic man with shaking down his family and bribing someone to make false accusations.

Baruch Lebovits, 60, received a sentence of 10 2/3 to 32 years in prison a year ago, based on the testimony of a 22-year-old man who said the rabbi sexually abused when he was 16.

The trial and stiff penalty sent shockwaves through Borough Park's tight-knit Jewish community.
But Samuel Kellner, 49, who brought the victim to prosecutors' attention, was charged with paying another man $10,000 to accuse Lebovits of abuse.

Oral vs Written:Without writing there is no logic, or philosophy or mathematics

I am presently reading The Information by James Gleick . It is an astounding series of revelations about the nature of information and the significance of how it is available for what its meaning and how it is thought about. This is obviously of significance for the distinction of Oral and Written Torah. It perhaps also answers the question of why the gemora was not written in the form of the Mishna Torah. etc etc

chapter 2

"Logic might be imagined to exist independent of writing - syllogisms can be spoken as well as written - but it did not. Speech is too fleeting to allow for analysis. Logic descended from the written word, in Greece as well as India and China, where it developed independently. Logic turns the act of abstraction into a tool for determining what is true and what is false: truth can be discovered in words alone, apart from conceret experience. Logic takes its form in chains: sequences whose members connect one to another. Conclusions follow from premises. These require a degree of constancy. They have no power unless people can examine and evaluate them. In contrasst an oral narrative proceeds by accretion, the words passing y in a line of parde past the viewing stand, briefly present and then gone, interacting with one another via memory and association...".

Should childhood sibling sexual abuse be revealed to one's wife?

The following letter was forwarded to me by the recipient with permission to publish without identifying information.

Dear Rabbi

When I was a young child I was molested by an older brother over a  protracted period of time.  He was only a young teenager at the time  and therefore I do not harbor any resentment or bad-feelings toward  him now.  In fact, our relationship is very good.  I am now a happy  father and husband learning in kollel. The molestation affected and  continues to affect my life in many ways.  I recieved therapy when I  was a bochur, and have recently gone for a tune up over the last few  months because I was dealing with depression and other unwanted  feelings.  My wife knows about that I was victimized as a child and I  have been very open with her about many of the issues I have faced.  However, I never told her that it was done by an older brother.  However, there are times where I feel that her knowing that  information would be helpful in her ability to understand my  occasional difficult times.  I am very wary to tell her because  although she is very level-headed and understanding, I do not want her  to have negative feelings towards my brother.  It could be that if she  sees my lack of negativity, she would follow suit.  It is also a  lashon harah shayla whether it is permitted to tell her.

 Thank you.

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My response to this letter is as follows

If he wants to maintain a positive relationship with his brother he should not tell his wife. However he in fact had no obligation to forgive his brother and even if he did forgive him - his wife doesn't have to forgive him for what he did to her husband.

If he feels that there is a need for his wife to fully understand the horrors of what he experienced - then he has every right to tell her as long as he accepts that she will have negative feelings to his brother. It is not likely that these will be eliminated by his positive attitude towards his brother.

However it is likely that his need for periodic tuneup indicates that he has not actually forgiven his brother and that he remains strongly conflicted over the matter. Adding his wife into the mixture is likely to make the situation worse - but might ultimately lead to a better resolution of the problem with a proper therapist.

The issue thus is the relative importance of his need for his wife to fully understand him versus the desire to have a positive relationship with his brother. It is not likely that he can have both. In addition there is the question of maintaining the status quo versus a more complete resolution of the matter. There is no "correct" answer to this question. The lashon harah question is subordinate to the above and does not exist as an independent issue.

Rosh (55.9) No one's view - not even Rashi's - is automatically accepted

from Daas Torah - translation copyrighted

Rosh (55.9): You wrote that because of the perfection of the distinguished scholar Rabbi Yaakov ben Shushon no one would think to question his views and reject his explanation. That is not a reason for not disagreeing with an authority. Who is greater than Rashi who illuminated our eyes in the darkness of exile with his commentaries and yet his own descendants Rabbeinu Tam and Ri disagreed with him concerning many issues and rejected his words. That is because it is the Torah of truth and we submit to no man because of his status and authority. And this that you said he was perfected in reasoning or language – it doesn’t matter because Yiftach in his generation is like Shmuel in his (Rosh HaShanna 25b)… Furthermore the Gaonim (Seder Tanaym and Amoraim #25) have said that from Abaye and Rava the halacha follows the more recent authority – not the previous ones…

High medical costs:Surgeons get kickbacks for spinal fusion surgery

Wall Street Journal

A Portland, Ore., neurosurgeon who performed multiple spinal fusions on the same patients lost his operating privileges at the hospital where he did many of his surgeries and is under investigation by the Oregon Medical Board.

The latest developments came as new information emerged about the medical-device distributorship that supplies Dr. Makker with spinal implants. The distributor, Omega Solutions of Fresno, Calif., sometimes pays surgeons to use its products, according to a document reviewed by the Journal that Omega recently sent to surgeons it sought to recruit.

The document says that the company enters into partnerships with surgeons who agree to use its products and pays them "dividends" based on the number of surgeries they perform. Critics say such arrangements are controversial because they can skew medical decision-making.

The document details the cash payments made to one of Omega's partners, an unnamed spine surgeon in Los Angeles. From Jan. 1, 2009, to May 19, 2010, the surgeon received a total of $519,674.35 based on his use of Omega implants in two to three surgeries a week, the document says.

Rabbi accused of bribing witness to testify against Baruch Liebovitz

NBC

A Brooklyn rabbi is under arrest and facing charges of bribery and witness tampering for allegedly paying an individual to accuse another rabbi of sexual abuse.

Sources tell NBC New York that Samuel Kellner was arrested Tuesday night. The Brooklyn district attorney has scheduled a news conference but has declined comment ahead of the announcement.

Kellner is accused of paying a witness to say he was abused by Rabbi Baruch Lebovits, who was sentenced a year ago to 32 years in prison after he was convicted of child molestation. [...]