Wednesday, August 16, 2023

Problems are inherent when using mussar or agada as halacha

 Dr. Benny Brown wrote:

... rules are standards that determine the normative status of concrete actions, while principles determine goals that the actions are supposed to achieve.15 A person cannot perform two conflicting actions, but he can undertake different goals that may be found in conflict in particular circumstances, and nevertheless not forego any of them. These goals may be more abstract (such as ‘‘justice’’) or less abstract (such as that ‘‘no man may profit from his own wrong’’).

Yeshayahu Tishbi and Joseph Dan wrote similarly regarding the relationship between halakhah and musar: ‘‘The halakhah cuts to the minimum that the servant of God is required to do in order to fulfill his obligation to his Creator [...] The musar literature seeks not the minimum, but the maximum the path by which man will reach the zenith of religious life, of approaching and clinging to God.’’21

Maharal (Be’er HaGolah #6): One does not always accept the literal meaning of Agada as our Sages said, “that one does not resolve apparent contradictions in Agada.” That is because it is possible that the idea of the Agada was said in a concealed manner. Therefore, there is no need to ask or resolve contradictions in Agada since by apparently clarifying one Agada a contradiction to a different Agada can be created. It is possible that the original problem was not a problem to those who understand their esoteric nature. In contrast, Halacha cannot be utilized without resolving all apparent contradictions and inconsistencies. Agada on the other hand was not created for the purpose of learning what is prohibited or permitted and therefore consistency is not required. By attempting to create consistency it is possible that problematic elements will be rejected when in fact there was never a problem in the first place to those who are experts in Agada. That is why the Yerushalmi (Peah 2:4) states that one should not learn Halacha from Agada - since it has not been conceptually clarified by the dialectic process of questions and answers…

Nodah BeYehuda (161): Even though the Yerushalmi (Peah 2:4) equates not learning practical Halacha from Mishna, Tosefta and Agada - the reason is not the same for the three. … Medrash and Agada were composed entirely for the purpose of teaching moral lessons by means of allusions and allegories. Thus, they are the source of theological information but were never intended to be used for Halacha. That is why we do not learn at all from Agada to decide practical Halacha.
Consequently problems are created when taking mussar and agada and viewing it as halacha - as we see concerning bein adam l'chavero issues such as lashon harah or tznius.


  1. But what, by their(Maharal & Noda Beyehuda) definition constitutes Agada? Stories do not, as we learn Halacha from stories even more than from Halachic discussions. Maaseh Rav. They are seemingly referring to esoteric passages. But when it is clearly stated that a particular action is prohibited or required etc and there is no lack of clarity in the understanding of the statement, this would not, by this definition, constitute Agada, as the reasoning they give doesn't apply.

  2. Also, the hatam Sofer wrote that one who mixes Halacha and Aggada is like one who mixes kilayim.

    1. I'd appreciate knowing where he said that

    2. I have seen this cited in a few places. I rely on R' Lewittes who cites it
      from Hatam Sofer on Orah Hayyim # 51. The quote is used both for mixing Kabbalah/ halacha and Aggadah /halacha, but i don't have the original to refer to.

  3. DT:

    The C"C himself addresses your concern in his Hakdama:

    ואל יפלא בעיני הקורא, כיון שכל הספר הזה הוא מיוסד על עקרי ההלכה, למה אני מביא בכמה מקומות ראיות מספר שערי תשובה לרבנו יונה, שהוא מכלל ספרי מוסר, כי באמת נראה לעינים להמתבונן היטב במאמריו הקדושים בכמה מקומות, ששמר ודקדק את דבריו שלא יצא מגדר הדין, ובפרט בדיני לשון הרע שלו, בכל ענין וענין שכתב יש על זה מקור מן הש''ס, וכאשר נבאר, אם ירצה השם, בפנים הספר, אך הוא קצר מאד, ולא הביא את המקורות כדרכן של ראשונים, ובכל זאת על פי הרוב לא סמכתי עליו לבד, רק במקום שנשמע מדבריו איזה קולא (וכן כהאי גונא משאר ספרי מוסר), אבל לחומרא כמעט רובו ככולו הבאתי עוד איזה ראיות, כאשר יראה המעין בפנים.

    Does any accepted Posik dsisgaree with him and hold that Shaarei Teshva is not acceptable? If so -Who?

    The Nodah Beyuhauda you quote would agrre לפענ"ד, since the sefer WAS written Lehalacho, as the R' yona says in שער שלישי, that makes it like תוספתא.

    1. The Chofetz Chaim did address the issue but in reality did not follow it. He is strongly guided by the principle that one should minimize talking and take little if any chance that he is speaking lashon harah. Dr. Brown goes through this in great detail.

      It is also important to note that despite what he says here about Rabbeinu Yonah - he tends to be machmir even against the views of Rabbeinu Yonah.

      Even with what is clearly permitted by the Talmud the CC adds so many conditions that the heterim become irrelevant in practice.

      In short he is not starting with halachic material and organizing it he is taking mussar principles and agadata to reshape the small amount of halachic material.

    2. DT:

      I thought we already covered this topic in another post. I don't recall hearing any specific issue in the C'C's conditions, unless..

      a. You learn that the C"C prohibits anger, which R' karelitz says he does not, or...

      b. You allow bias - as in not making sure a transgression was done or that a benefit will possibly flow.

      In short: Be SPECIFIC.

      Where EXACTLY is the C"C machmir beyond halacha?

      Being careful in halacha isn't a chumra - it's halacha itself. Did you ever see what the Chazon Ish writes at length about דקדוק הלכה in אמונה ובטחון? (BTW, this has NOTHING to do with the C"I's shittos - it's simply an issue of not being flippant when it comes to observance). You can also see the הקדמה of the very popular פתחי תשובה.

    3. Read the Dr. Brown article - he gives many examples

  4. Katche-lab see the N"B - the שואל held a similar סברא - I'm not sure the N"B would, though.

    1. The Shoel wanted to put Agada in the same category as Tosefta that if there is no clear contradiction from the Gemara we follow these sources, and he showed that Tosfot ruled from a Medrash that Haman described to Achashveirosh the Jewish rule that if a fly falls into the wine they just remove it but if the king touches it they pour out the wine and rinse the cup 3 times, so Tosfos ruled that rinsing 3 times is kosher, and on that the N"B explained the difference that we can take from Hamans words that that is in fact what Jews do, and then the ruling comes from the Jewish custom and not from the Medrash, but when we are wanting to rule from the actual Medrash then we must understand that the Medrash is not written as a source of Halacha.

      The interesting thing is that the case that is being discussed in the Teshuva of the N"B is one where the Medrash clearly recites a Halacha, which is not contradicted from the Gemara (That the Mishna which allows The Sha"tz who is the only Kohen in Shul to Duchen if he is confident that he won't get confused, also rules for the Raisha of the Mishna about answering Amen, an issue which isn't clarified in the Gemara) and the Medrash says Limdunu Raboseinu, so why is the testamony of the Medrash in that case not as good as Haman's? Obviously the N"B is Mechalek that when telling of a Minhag it must be the Halacha but when a Halacha is stated, it could be Machlokes, but then the Kasha remains, if we at least find such a Shita and we don't find a Gemara saying the opposite we accept the source. It is for this reason that the Pri Chadash disagrees with the Tosfos Yom Tov and so does R' Akiva Eiger, but the N"B clearly supports it.

      With all of this, we must note that even the N"B allows ruling from the Agada is some cases as with the ruling of Tosfos about the wine.

  5. Katche-lab:
    I think the phsat in the shitta of the N"B is that since Midrash wasn't written mainly for Hlacha it might not be מדויק.

    Similar to this we see in the the רשב"ם on בבא בתרא קל insofar as אין למידין מפי גמרא: The possibility exists that the Halacha wasn't said בדקדוק גמור.

    The Gemara:
    תנו רבנן אין למדין הלכה לא מפי למוד ולא מפי מעשה עד שיאמרו לו הלכה למעשה שאל ואמרו לו הלכה למעשה ילך ויעשה מעשה

    The Rashbam:
    אין למדין הלכה. כלומר אין למדין לעשות: לא מפי גמרא. שאם לומד הרב דרך לימודו ואמר מסתבר טעמא דפלוני חכם אין תלמידיו למדין משם הלכה דשמא אם יבא לידו מעשה ידקדק יותר ויראה טעם אחר בדבר: ולא מפי מעשה. אם יראה רבו עושה מעשה אל יקבע הלכה בכך דשמא טעה בטעם של פסק דין של אותו המעשה דהרבה טועין בדבר הלמוד כדאמרי' והא דפלוני לאו בפירוש אתמר אלא מכללא אתמר וטעה בסברא

    1. Then why do we accept and rely on the accuracy in connection to the words of Haman?

    2. excellent question. The common factor in the Maharal and others is the fact that there are apparently inconsistencies.

      According to Rav S R Hirsch - aggadata is man made and not from Sinai. This apparently is also the view of the Ramban and the Chasam Sofer.

      It would seem that where aggadata is accepted as halacha it is possible that there was a mesora as to the preciseness of that particular statement.

    3. But the question I originally asked was what constitutes Agada. If a Medrash quotes a Halacha in the name of 'Raboseinu', why would this be considered Agada. That is why The Pri Chadash and R' Akiva Eiger say that in such a case the only Chisoron is that it isn't Gemara, so it would be in the same category as Tosefta, which is reliable Lehalacha when there is no Gemara opposing it.

      What you say about Mesorah doesn't appear to be the issue in the N"B of mention, where the discussion is based on other factors and not Mesorah. I feel more comfortable to leave the N"B (and the Tosfos Yom Tov) with a Tzarich Iyun, as RA"E did, than to try to answer it in a way which doesn't suffice in my small mind.

      What is clear, however, is that Lechol Hadayos, there are instances where Agada is an acceptable source to prove Halacha, as in the above mentioned Tosfos about the wine, and apparently, the Gedoley Hatorah who used this at times, had an understanding that in those cases where they were relying on it, it is indeed reliable Lehalacha. So we, who admittedly don't know the rules are not in the position to dispute Gedolei Olam who, by their own understanding, did.

    4. Katche-lab asked:
      "Then why do we accept and rely on the accuracy in connection to the words of Haman?"

      I think the shita of the N"B is that we can't rely on a Midrash that is מחדש a Halacho, because the midrash wasn't written l'halacha & therefore the halacha wasn't properly researched. We CAN rely on the veracity of a story quoted in the midrash, and Haman did indeed bring מנהגן של ישראל to be מתיר with הדחה ג' פעמים - so we're relying on the MINHAG and not the midrash.

      I'm מסכים that his sevara isn't מוכרח, be he seems to say this:

      אלא שכיון שזה סיפור דברי המן שאמר לאחשורוש מנהגן של ישראל אנו למדים ממנהגן של ישראל שהוא תורה.

    5. You haven't answered my question. If we can rely on the accuracy of the Medrash in what they say in the name of Haman, why don't we rely on their accuracy of what they say in the name of Raboseinu, to know that there is at least one such Man Deomar, in which case we would rule that way in the absence of a Cholek, as we do with Tosefta. In this, I don't understand the reasoning of the N"B at all.

  6. Can you provide a link to the Dr Brown article. The paragraph you quote is very interesting indeed.


    I have added this to a number of past posts as well as comments.

    You can simply search for Benny Brown

  8. I tried skimming through Dr Brown's paper - it's not easy to do so, since it's over 80 pages....

    From the bit I've seen, לפענ"ד it's pretty clear that his MAIN thesis is built on very shaky grounds.

    It would seem preposterous of me to so flippantly dismiss Dr Brown's 80+ page missive, but I feel qualified to do so for two reasons - 1) The bit I've seen לפענ"ד includes some pretty sloppy scholarship, and 2) HE is dismissing one of the pillars of Halacha....

    Firstly, his assumption that Aguda / Mussar can’t be used to deduce Hilchos Loshon Horah ("HL"H) is based on a basic misunderstanding.

    I believe he’s confusing learning NEW Halachos, with FILLING IN GUIDELINES for Halachos already previously known. Aguda can indeed be used to flesh out the DETAILS of ("HL"H),

    This is in no way, shape or form similar to the disagreement among the Poskim which concerns learning NEW Halochos from Aguda / Musar.

    In fact, as I've mentioned in an earlier post, the Noda Beyhuda who doesn't allow learning a NEW Halacho. STILL DOES allow learning ממנהגן של ישראל which is BROUGHT in Midrash. Why? Because the midrash is only narrating the facts known from elsewhere.

    So too, since the basis of L"H is most definitely a Torah commandment, we use the midrash to EXPLAIN the basic halachos we already know.

    All agree that the basic concept of L"H is DON'T BE EVIL. This is the C”S’s starting point.

    "Don't be evil" needs guidelines. The C”C uses the Shaarei Tehuva to EXPLAIN those guidelines.

    An analogy would be that the legislative branch of govt. passes a new law, as only the legislature may do. The Administrative branch of govt. then writes regulations covering the implementation of the law. They are NOT making new law, but they most definitely do define the legislature's law. This we most definitely CAN do from Midrash or Mussar.

    At the very least, learning from Midrash / Mussar is no less than learning from Greek Mathematicians, which the Rambam allows in סוף הל' קידוש החודש, because once we hear what they say it's COMMON SENSE.

    Some of his "sloppy scholarship:

    On pg. 197 he misunderstands the reason why מומר לדבר אחד doesn't apply by Mitzvohs like loving Hashem, and he says that it’s because Loving Hashem is not Halacha, but only mussar. His theory is way off the mark - the real reason is because there's no Din Mumar by מצות התלויות בלב.

    Dr. Brown writes that "we do not find in rabbinic literature the concept of a ‘‘habitual sinner with regard to libel’’ (mumar le-lashon ha-ra)". Wrong. The Rabeinu Yona in שער א' writes:

    (מאמר ו.) ועתה בינה שמעה זאת כי הוא עיקר גדול. .... כל אשר אינו נזהר מחטא ידוע. ואינו מקבל על נפשו להשמר ממנו ... קראוהו חכמי ישראל מומר לדבר אחד ... (מאמר ח.) וראה ראינו כי רבו עונות הדור על זאת. כי יש אנשים רבים שמקבלים על נפשם להזהר מעבירות ידועות וכל ימי חייהם אינם נזהרים בהם. אבל הם אצלם כהיתר. ... כמו ... (ו)לשון הרע.

    We need to remember that the Churban Bais Hamikdosh came about because of שנאת חנם, which is and was fueled to a large degree by L”H and הוצאת שם רע.

    Yes, we need to be very careful – not to talk when we aren’t allowed to, and not to remain silent when we need to talk. Life is complicated. There’s no easy way out, but NO true Gadol would ever ignore the bias so inherent in human nature, which to a large degree is THE most important factor in the many מחלוקת tearing Kllal Yisroel apart today….

    1. You are missing what Brown is saying getting at. Brown notes that the CC uses medrash, agada and Biblical stories in a different way than others before him understood the material - to describe the parameters of lashon harah. For example concerning Miriam

      More striking than the reliance of the Hafetz Hayim on Sha‘arei
      Teshuvah is his use of biblical and aggadic texts to derive halakhic rules.
      The biblical character who is most appropriate for this purpose is
      Miriam, who, according to the Torah, suffered from leprosy because she
      spoke libel against her brother, Moses. The Torah commands that the
      incident be remembered throughout the ages in order to preserve the
      lesson that it teaches (Num 24:9). On this issue, the Hafetz Hayim
      establishes a broad exegetical principle: ‘‘It is known that we deduce
      [laws] from everything that was said about Miriam, as it is written:
      ’Remember what the Lord your God did to Miriam’.’’96 He applies this
      maxim in a list of laws that he derives from the story of Miriam,
      including the following: that to be guilty of libel, unlike gossip, it is
      enough to bring others to speak libel, and it need not lead to a quarrel;
      97 that a person can transgress the prohibition of libel even if he did
      not intend to hurt the offended party, but only meant to speak the
      truth, provided that he did not formally rebuke him prior;98 that the
      prohibition of libel applies to relatives, as well;99 that the prohibition of
      libel applies even if the offended party does not feel offended by it;100
      and that the prohibition of libel applies to women as well as to men.101
      Yet, the Hafetz Hayim learns not only from the incident of Miriam,
      but also from countless other biblical stories, as well as from aggadic
      and midrashic literature. For example, the story of Doeg the Edomite,
      who reported to King Saul that Ahimelekh the Priest had helped David
      when he was fleeing from Saul (1 Sam 22), serves as an importantsource for the Hafetz Hayim. From this story he derives, among others,
      the following laws: that it is forbidden for a person to speak libel about
      another even if his friend entreats him to do so – ‘‘even if his father or
      teacher whom he is required to honor [...] requested that he tell
      something about another person [...] he may not obey them’’;102 it is the
      obligation of a person who hears libel about another to give him the
      benefit of the doubt if there are arguments in both directions;103 and
      that the prohibition of gossip applies even if the offended party would
      not feel ashamed by what was said about him.104 In another example
      from the long list of stories, the Rabbis fault David for listening to
      Tziva’s denigration of his master, Mephiboshet, the son of Saul (2 Sam
      9), even though it was said in front of a large number of people.105
      Based on this source, the Hafetz Hayim sought to limit the permission
      that the Rabbis gave for saying libel in front of three or more people.106

    2. The Hafetz Hayim also derived from the same source a number of laws
      relating to speaking libel in a situation in which the circumstances
      indicate that the report is true.107 Similarly, from the fact that Nathan
      the Prophet spoke to David in a denigrating manner about Adoniyahu
      his son (1 Kgs 1:24-27), even though he had not previously rebuked
      Adoniyahu himself, the Hafetz Hayim learned that in cases where it is
      permissible to speak libel, one is not required to rebuke the person
      beforehand if the rebuke will be disregarded, and will just cause
      harm.108 From the readiness of David to listen to the reports about his
      son’s behavior, and the fact that it subsequently led to a reduction of
      tensions in the kingdom, he learned that the permission to speak libel is
      related to its ability to reduce controversy.109 From the fact that King
      Yehu was punished for destroying the house of Ahab, even though he
      was commanded to do so, the Hafetz Hayim learned that it is forbidden
      to impose sanctions against a person even if it is justified (which includes
      a prohibition to speak libel against him even if the circumstances
      allow it) if he is not on a higher religious-moral level than his colleague.
      110 From the words of Isaiah, ‘‘Woe is me! for I am undone; because
      I am a man of unclean lips, and I dwell in the midst of a people of
      unclean lips’’ (Isa 6:5), for which he was punished according to the
      Midrash, the Hafetz Hayim learns that it is forbidden for a person to
      denigrate another, even if he is at the same time denigrating himself.111
      From the story of Gedaliah (2 Kgs 25:23-26), who refused to believe the
      warnings of Yohanan ben Kareah that Yishmael planned to kill him,112
      the Hafetz Hayim learns that even though the murder eventually took
      place, ‘‘he acted according to the law in that he did not accept it (the
      libel),’’ i.e., that it is forbidden to accept libelous statements even from
      two suitable witnesses.113 From the story of Yehudah b. Gerim, who
      caused the persecution of Rabbi Shimon b. Yohai by reporting his
      disparaging remarks about the empire to the Roman authorities,114 the
      Hafetz Hayim learned, in the footsteps of the Kesef Mishneh, that the
      prohibition of libel applies even when the perpetrator does not intend
      to denigrate the offended party.115 The Hafetz Hayim found in the
      same story a source for the rule that we mentioned above that it is
      forbidden to speak libel even in ‘‘indirect speech,’’ such as retelling what
      someone said to another person.116 From the fact that God did not
      reveal to Joshua the name of the person who had caused the military
      defeat at Ai, but rather forced him to utilize a lottery to identify the
      culprit,117 the Hafetz Hayim concluded that even when it is permissible
      to speak negatively about a person because of a particular benefit, libel
      should be avoided if it is possible to achieve the benefit in an alternative
      manner.118 And from the talmudic story in which Rav Yehudah demonstrated
      to his son the definition of an evil woman by saying ‘‘like
      your mother,’’119 the Hafetz Hayim learned that it is permissible to
      speak libel if the negative traits of the woman are well known, or if it
      helps in understanding the Torah.120
      I again emphasize that the previous are just a few examples among
      many cases in which the Hafetz Hayim uses biblical and aggadic sources
      to derive halakhic rules, the second path that I referred to above. This
      path, which was fruitful in the musar literature as a means of deriving
      principles, was rarely used to derive laws in the halakhic tradition
      Nevertheless, in his work on the issue of libel, the Hafetz Hayim
      transformed it into the primary method of deriving rules, and applied
      the classical halakhic analytical techniques to these sources as if they
      were indeed legal texts.

    3. This is what happens when piety replaces common sense. The halacha is not some "minimum". It is the expected standard of behaviour. Yes one can go beyond the letter of the law but one is then outside of the law, albeit in a positive way. There is no obligation to go in that direction.
      What has happened is that the idea of "Do the very best you can" has changed from a statement of encouragement to one of obligation. Now the pious position isn't simply an option for the dedicated but the new "minimum standard" since it's the best you can do and you have to do the best you can!

  9. DT:

    I don't see how your long quotes from Dr. Brown's paper address the issue that I raised:

    The C"C isn't learning any NEW halachos from midrash / mussar, just filling in the guidelines.

    I don't see where any ot the voluminous examples you mention show otherwise.

    And you surely didn't address the examples I brought of Brown's sloppy scholarship!

    1. The filling in the guidelines parameters etc is the issue. No one is saying that lashon harah is not a sin. But the many conditions that the Chofetz Chaim states are halacha don't have any mesora and they lead to extremely restrictions on normal conversation - especially that needed for a society to function properly. The 7 conditions that must be fulfilled according to the CC are a clear example of this problem. Dr.Brown goes into great detail on this.

      Not sure the relevance of your claims of "sloppy scholarship". Finding one reference in Rabbeinu Yonah clearly indicates that it is missing in other discussion of lashon harah.

      You seem to be cherry picking.

    2. DT:

      You write "The filling in the guidelines parameters etc is the issue".

      Actually, the issue is that he confuses learning guidelines with learning out new Halachos.

      "they lead to extremely restrictions on normal conversation" - well, that's why I mentioned the Chazon Ish's אמונה ובטחון - he says that Halacho governs ALL aspects of life... it works only with forthought!

      Not quite cherry picking. I hardly read through all 80+ pgs - just noticed some things right away.

    3. We are not on the same page. No one is disagreeing that halacha governs all aspects of life. the issue is saying that speaking is prohibited unless certain conditions are met - and claiming that the sources and reasons which have no precedent in Chazal or Rishonim for these conditions are requried.

      i also have a problem with your condemning Dr. Brown for poor scholarship when you either haven't read or digested what he actually wrote - but judged him after "hardly read through all 80+ pages"

    4. What meant about Halacha governing every aspect was that it takes schooling to know what to talk about and what not to talk about.

      I believe I've made my position very clear in my past comments on your blog that I believe that people are erroneously refraining from talking when the NEED to talk. I am simply stating very clearly that the CHofetz Chaim is only a SCAPEGOAT in this unacceptable behavior.

      The c"C himself, on more than one occasion - DID speak negatively. Besides for the famous story of the lay leaders in Vilna, see Walach's חפץ חיים החדש על התורה.

      Are you aware of the story he brings of the C"C's talking against those that couldn't be bothered to care about working buchorim - the "at risk" youth of Vilna?

      Should I email you a copy? (He brings SEVERAL stories... I don't remember where all of them are).

      In my original comments I made full disclosure about not reading the whole thing - and explained why I felt it was acceptable to comment anyway.

      I wrote "It would seem preposterous of me to so flippantly dismiss Dr Brown's 80+ page missive, but I feel qualified to do so for two reasons - 1) The bit I've seen לפענ"ד includes some pretty sloppy scholarship, and 2) HE is dismissing one of the pillars of Halacha...."

    5. No one is scapegoating the Chofetz Chaim. After all he succeeded in accomplishing the goals he set for himself in writing his sefer.

      The issue is the legitimacy of his halachic conclusions in the light of the mesora and in light of the restrctions in communication and information that has directly resulted from his psakim

    6. @DT "The issue is the legitimacy of his halachic conclusions in the light of the mesora"

      I wish to ask if there is a universally accepted definition of what the Mesora is? I am not disputing your argument, but I have seen this term used, but not sure what it embodies.

  10. I must admit, I for one, and I am sure there are many more, look forward to Rav Eidensohn compiling a sefer that shows various other approaches to the laws of loshon horo. It may open our eyes to a new perspective of an more traditional approach to these laws which allow for more normal interaction between husband and wife, parents and children and society in general. Any time you move from a very general principle to specific halachos governing particular sitautions, you can often cause more injustice than justice. The specific can begin not to reflect the general at all.

  11. DT: I emailed you privately a few stories about the "real" Chofetz Chaim.

    1. thank you for the stories - but you really don't understand what I am doing or why I am doing it.

    2. Avraham's comment above accurately summarizes the situation.

  12. i only hope that your "new perspective" won't cause more...

    ..... peeved business partners blinded by self-interest to cheat their partners....
    .... women brainwashed into seeing their husbands as demons to false spousal abuse charges based on exaggerated fears....
    ...children who are raised on the mantra of "unconditional love" to file charges against their authoritative parents....

    In other words - i hope you'll remember the need for checks on the biases and distortions inherent when emotions combine with self-interest.

    I know I've said this before, but i think it's worth repeating!

    1. As I have noted before but it's worth repeating being machmir in lashon harah means that many times people will not communicate information that will prevent harm. This is clearly stated in Pischei Teshuva 156. The verse for lashon harah is the same as that of "not standing idly by the blood of your fellow man". Clearly the verse calls for a balance between speaking lashon harah and helping others. I think it is obvious that balance has become lost as people focus primarily on not speaking lashon harah and not on the issue of helping others.

      If you view that mistakenly speaking lashon harah is a far greater disaster than not helping another human being than it is obvious that fewer errors will be made regarding speaking lashon harah - but many more will be made regarding helping others.

      In short I am simply calling for a return to the traditional understanding of lashon harah that is inherent in the Torah and Chazal and Rishonim and Achronim.

    2. I agree wholeheartedly share your goal & understand the urgency of educating people on what the Pischei Teshuva says; in fact, I have personally done so myself, although it cost me much pain and agony...

      I disagree, however, on the method proposed.

      Most people erroneously believe that מוות וחיים ביד לשון means that it's always better to be quiet, so as to "play it safe".

      You want everyone to know that sometimes מוות וחיים ביד לשון means that we MUST talk, so as to play it safe.

      The truth is - nothing is safe.

      כל העולם כולו גשר צר מאוד

      Not just in speech, but also in SO many areas of life. Being too nice to children spoils them, being to mean damages them.... Giving too little Tzedoko is obviously a sign of קמצנות. But giving too much is פזרנות.

      The solution to this dilemma, imho, is NOT to make it easier to talk - but rather to educate that we have no choice but to do our due diligence and serious fact-checking.

      We need to know all the dangers of false accusations, and we need to know the dangers of allowing our society to grow lawless because evildoers suffer no social repercussions.

      We need to differentiate between habitual evildoers & those that suffered temporary lapses. We need to define more clearly what constitutes "evil", especially if we're relying on the faulty pseudoscience on which much of mental health today bases it's decision making process.

      And last but not least, we need to remember what the Yerushalmi says: ילפון מקלקלתא ומתקנתא לא ילפון (מו"ק פ"ב הל"ב)
      The chances are that the people that will embrace your message will be specifically those who will be מקלקל and NOT those who are מתקן.

      Did you forget that ORA is also convinced that what they are doing is a tremendous Mitzvah? They simply left out a few details - and they end up forcing Gittin שלא כדין.

      The solution is not L"H specific - It's a "global" one: Find a few good men - and women - who are ready to follow Torah guidelines, as defined by Gedolai Haposkim (the authentic ones), Find people that understand the importance and have learned the skill of proper reasoning skills - anything anybody claims needs to be checked out עד הסוף. You'll be surprised how quickly darkness vanishes once a bright light is hined.

      Individuals suffer repercussions, but there IS strength in numbers...

      But please, please DON'T be part of magnifying one problem, because of your good intentions to solve another!

      A mature view of not only the issue of L"H, but also ALL matters, is that LIFE

    3. I am curious how you came to the conclusion that your caricature you just described was my view? I have repeatedly said that one has a dual obligation 1) not to speak lashon harah 2) to speak that which is for to'eles.
      Vayikra (19:16).

      You are adding a dimension that one needs to be an expert before one can open his mouth. Sometimes an expert that transcends psychologists and sometimes an expert in areas of halacha such as gittin.

      There is no such requirement. One needs to be aware of the seriousness of matter - but one also needs to do the best he can and not feel hopeless because he is not an expert. There are guidelines - but they are really commonsense ones.

      One doesn't have to be an expert in psychology to call the police when someone told him he planted a bomb in a school. One doesn't have to be an expert in psychology or halacha when one's child tells him someone is doing unpleasant things to him. Or that a teacher is so unpleasant that he doesn't want to go to school anymore or is depressed and isn't functioning.

      On the other hand there are many rabbis who give out the wrong halachic and psychological views when asked about child abuse or wife abuse. There are many lawyers and therapist who give bad advise about shalom bias or how to end a failed marriage.

      In short given the significant amount of wrong advice and guidance which has been given out in our community on a number of issues - a person is better off relying on his mature commonsense.

    4. ישמעו אזניך מה שאתה מוצא מפיך!

      Let’s start from your conclusion: “a person is better off relying on his mature commonsense “.

      The question is: WHOSE commonsense?

      In the paragraph before you write: “there are many rabbis who give out the wrong halachic and psychological views when asked about child abuse or wife abuse. There are many lawyers and therapist who give bad advise about shalom bias or how to end a failed marriage”.

      Who says that those Rabbis are wrong? Who says that those lawyers and therapist are wrong? You don’t think that they’re using their strongly held “mature commonsense”?

      Is only MY commensense mature enough? Or maybe only YOUR commonsense is “mature”? Don’t you see that we need guidelines?

      Another point: You’re protesting my stance, because “You are adding a dimension that one needs to be an expert before one can open his mouth. Sometimes an expert that transcends psychologists and sometimes an expert in areas of halacha such as gittin”.

      One second, please. Aren’t you telling the same thing to those that would like to rely on the “rabbis who give out the wrong halachic and psychological views …. lawyers and therapist who give bad advise”?

      Aren’t you also saying that one needs to “transcend(s) psychologists and sometimes an expert in areas of Halacha”?????

      Here’s a non-Jewish quote: Every man, in his own opinion, forms an exception to the ordinary rules of morality.
      William Hazlitt

  13. Ploni

    I think you have a fundamental misunderstanding on how a system of law can work. To quote Aristotle, no universal rule can be formulated to account for all situations. Hence, where a law must be enacted but cannot be drafted to cover all situations, "the law chooses the [universal rule] that is usually [correct], well aware of the error being made." Sometimes the universal rule of law is inappropriate for a particular case, since a mechanical application of the universal rule would violate the intended scope of the rule. This is largely the distinction between legislation and case law. When case law (ie particular applications of law) becomes legislation (ie the general rule), the law can depart so drastically from the original intent that it loses its character and utility. I think that is what Rav Eidensohn is investigating: whether the particularization of loshon horo by the Chofetz Chaim z"l and its now mechanical application has caused the laws of loshon horo to be understood very differently from the original general principle as understood by other Rishonim/Achronim and thereby detracted from its usefulness.

    The flow of information is important to human development. Of course that flow has risks as well as benefits. But like all of halocho, loshon horo it is not Euclidean in nature (ie mathematical logic) but is very dependent on shikul daas for each situation. In life, one needs general principles more than particular scenario dependent answers. It is a sad reflection on the state of halocho today that it viewed as an almost mechanical application of "in situation x you must do y etc etc".

  14. Avrohom:

    ""the law chooses the [universal rule] that is usually [correct], well aware of the error being made.""

    The operating word is "usually". Those that formulate laws use their best judgement to decide what's "usual", and they most definitely DO formulate laws to cover what's usual. I was pointing out that the C"C, in his wisdom, saw how pernicious biases and distortions are as a precursor to the slander and vilification that turns little arguments into major battles - and he acted by writing clearer guidelines for laws that always existed. I simply pointed out that those biases and distortions are alive & well. They therefore DO need to be included in any formulation of law.

    "a mechanical application of the universal rule would violate the intended scope of the rule". Definitely true. An understanding of the theoretical framework is a NECESSITY. A recent issue of "Behavior Therapy" was dedicated to this problem in psychology - where Cognitive Behavioral Therapies are being mandated through the introduction of manualized, step-by-step treatments. The proposed solution is NOT to throw away the manual, but rather to SYNTHESIZE it with an understanding of the theoretical framework. That should also address your observation of the damage done by turning case law into legislation. That's only an issue if the theoretical framework & original intent is ignored.

    I think the comparison to secular law is weak, because it is based on a shortcoming of most secular law; the bulk of law practice is REACTIVE rather than PROACTIVE. Some lawyers have attempted to address this problem (for example, see, but with limited success. Had preventive law been more widespread, I'm pretty sure there would be many books dealing with the "particularization" of laws, and they'd be very helpful.

    "the particularization of loshon horo by the Chofetz Chaim z"l and its now mechanical application"
    You're conflating two distinct issues. As I've mentioned, "the particularization of loshon horo by the Chofetz Chaim" is a most welcome phenomenon. HE practiced the laws properly -as I tried proving to DT by privately emailing to him some pretty surprising cases where the C"C DID speak up against what he felt was wrong.

    The second issue, " its now mechanical application". Is something I totally agree with. Most people don't know or care to use the proper שיקול הדעת and go over the edge to one of the extremes. The solution, however, is NOT to oversimplify by ignoring the importance of education on particular practical applications. It's BETTER education. Dumbing things down only gives an ILLUSION of mastery.

    "is very dependent on shikul daas for each situation. In life, one needs general principles more than particular scenario dependent answers". Yes, but we need the proper tools for making the proper שיקול הדעת. You're really taking one side in the age old debate of which is better: Deductive or inductive reasoning?

    I believe good scholars use BOTH inductive AND deductive reasoning. The analogy here is having a good understanding of the theoretical framework AND particular scenario dependent answers.


please use either your real name or a pseudonym.