- Legal Principles
- Philosophical Principles
Mishneh Torah is Rambam writing down the masqanoth (conclusions) of the legal corpus (the Babylonian Talmud, the Jerusalem Talmud, the Sifra, the Sifre, and the Toseftot) [according to his understanding and mesorah/qabbalah], and organizing them in a logical structured manner, so that anyone could have a reference point. Thus my primary starting point in all measures of Halakha is Mishneh Torah.
Since (for the present) this document overwhelming deals with cut and dry, basic matters of Halakha, I have felt no need to provide sources beyond the Talmudh and Mishneh Torah, except in such sections as may have required or benefitted from additional explanation of later sources - as well as related to issues with no particular Talmudic basis.
On a final note, everything here is written with the understanding that women (and others) may always do time-dependent miswoth, and that they must do so without a berakha. See the sections on “Anything not Specifically Forbidden is Permitted” and “Women and Time-Dependent Miswoth” Sources for this principle are provided below. As should be clear from what I’ve stated so far, my understanding of the Law is that the locus of rabbinic authority is in the text - this is fairly akin to legal positivism. A personal note: unlike the Conservative or Traditional Egalitarian movements, I do not claim to be fully Egalitarian.
Dealing with Censorship §
I always refer to the Mechon Mamre MT ad the most accurate version of the text. It is based off of all the available Yemenite manuscripts, and contains the uncensored words, as well as pesuqim that were lost or censored.
List of Censored Words §
The following almost always indicate censorship
- עכום - Variably replaces to גוי, נכרי
- אפיקורוס - Variably replaces מן, משומד
Passages should always be checked against Mechon Mamre - even the really mundane ones often contain alterations or inaccuracies
- גוים - Idolaters, unless otherwise specified
The Role of Minhag §
- Pesahim 66a:3 Go out and see what the people do - refers to minhag received through qabbalah - not newer customs
- NEEDS REVISION
Legal Principles §
Legal Positivism §
Anything not specifically Forbidden is Permitted §
שכל המחמיר עליו ראיה ללמד שכל דבר שלא נדע טעם לאסרו. מותר הוא בלי טעם. דלא הזכירה התורה דברים המותרים כולן. רק דברים האסורין:
Anything that we do not know a reason to forbid, it is permitted without [need for a] reason. For the Torah did not enumerate all permitted things. Only those which are forbidden.
Those who are Ma7mir must bring proof §
בּוֹ בַיּוֹם אָמְרוּ, עַמּוֹן וּמוֹאָב, מַה הֵן בַּשְּׁבִיעִית. גָּזַר רַבִּי טַרְפוֹן, מַעְשַׂר עָנִי. וְגָזַר רַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה, מַעֲשֵׂר שֵׁנִי. אָמַר רַבִּי יִשְׁמָעֵאל, אֶלְעָזָר בֶּן עֲזַרְיָה, עָלֶיךָ רְאָיָה לְלַמֵּד, שֶׁאַתָּה מַחְמִיר, שֶׁכָּל הַמַּחְמִיר, עָלָיו רְאָיָה לְלַמֵּד. אָמַר לוֹ רַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה, יִשְׁמָעֵאל אָחִי, אֲנִי לֹא שִׁנִּיתִי מִסֵּדֶר הַשָּׁנִים, טַרְפוֹן אָחִי שִׁנָּה, וְעָלָיו רְאָיָה לְלַמֵּד. (ctd)
On that very day they said: What is the status [of the lands] of Ammon and Moav on the Seventh [the Sabbatical year of agrarian rest]? Rabbi Tarphon decreed: [those residing in those lands must pay] tithes for the poor. And Rabbi Elazar ben Azaria decreed: [they must bring] ma’aser sheini [the second tithe of produce, which must be taken to Jerusalem and consumed there]. Rabbi Yishmael said, “Elazar ben Azaria, the onus is upon you to prove your assertion, for you rule stringently, and anyone who rules more stringently, the onus is upon him to bring proof!” Rabbi Elazar ben Azaria said to him, “Yishmael, my brother, I have not deviated from the regular order of the years [with regard to the series indicating which tithes one is obligated to bring each year], but my brother Tarphon has deviated, therefore the onus to bring proof rests upon him!” (ctd)
You Shall Not Stray Left or Right §
Devarim 17:11 - Do not stray left or right. This is where rabbinic authority is derived from. Note: this has further nuances and implications with regard to the fact that we no longer have semikha. [Explain more later]
Rational vs Mystical §
Exchange from Shiviti:
I often shudder at this term “rational.” Misvoth are symbols, and the Hakhamim say this over and over. A symbol is not “rational”, rather it represents something. It points your mind to an idea, an experience or a value of Am Yisrael. Ta3ame Hammisvoth are not “reasons” but rather the “flavor” or sense that performing a misva leaves you with, or imparts to you.
Hacham Aaron Haleva - this is a very important point! The word “Ta’am” and “Sibah” are very different!
Even though we may find a “flavor” of a Mitzvah that perhaps can help make it palatable to us, it is most definitely not the “reason” for why that Mitzvah was given!
The Path of Leniency §
A classical Sephardic Maxim is כוחא דהתירא עדיף Ko7a deHetera 3adif (Koa7 deHetera 3adif)
Ma7mir is inherently better §
- kol ha-mahmir tavo alav berakhah - is (often) a falsehood. By being strict in one area, you’re being lenient in another
- This leads to halakhic “schizophrenia” where one tries to satisfy as many disparate opinions as possible, by being strict, and thus ignores the actual Law
Alternate Understanding §
Kochah deheteirah adif is not “it’s better to be meiqil”. This was discussed numerous times on Avodah. It means that since heter requires a greater burden of proof, its existence carries more weight in further decisions.
RYK characterizes it somewhat differently in <http://www.aishdas.org/avodah/vol07/v07n021.shtml#17>: > The term “Koach di’hetera adifa” is a pedagogic term, not a legal one. > It is used by chazal EXCLUSIVELY to mean that when a dispute between two > authorities applies to two different applications, one in which the kula > is the bigger chidush, and the other in which the chumrah is the bigger > chidush, and the statement can be taught in one of two ways, one > emphasizing the kula and the other emphasizing the chumra, we are always > taught the case where the kula is the bigger chidush. See Berachos 60a > and Beitzah 2b. > This is because it is a bigger chidush to teach the lenient ruling than > the strict ruling. (Se Rashi to Beitzah ad loc.)
In either case, the assumption in the gemara’s usage is quite the reverse – qulah is the greater rarity.
The Rashi on Beitza cited by RYK says that it is better to teach the kula “shehakol yochlin l’hachmir v’afilu b’dvar mutar”.
That is, every Tom, Dick or Yankel is able to be machmir and assur, whether or not the thing is in fact mutar.
That being the case, we don’t need a great posek to tell us something is assur, we can all manage to do this ourselves. What we do need a great posek for is to teach us what is mutar, because that we might not be able to work out ourselves.
The New is Forbidden by the Torah §
- hadash asur min ha-Torah - the ideology of the 7atam Sofer, that ultimately crippled the ability of Ashkenazi Halakha to organically evolve and respond to it’s times
- It was a very susbtantial Reform
Alternate Understanding §
Chadash assur min haTorah is the motto of one particular flavor of O that flourished in Hungary. Somehow, though, RSRH’s community has the same system of pesaq as they – despite their embracing chadash. And it was a statement about not changing culture, totally outside of issues of pesaq.
The prohibition against overturning precedent requires believing that we are gadol meihem bechokhmah uveminyan. What happens more frequently is the question of whether the facts on the ground changed enough to warrant new pesaq.
Philosophical Principles §
In the World of Knowledge and Law §
R. Uziel stressed that “the sages of each generation did not limit themselves to their four cubits and the walls of their study halls. Rather, they learned and knew all that was transpiring in the world of knowledge and law [be-olam ha-madda ve-ha-mishpat] and they studied it carefully.” In choosing the phrase “four cubits”, R. Uziel is, of course, alluding to the classic talmudic dictum by Ulla, that “ever since the Temple was destroyed, God has in this world nothing but the four cubits of halakhah” (Berakhot 8a);
Jewish Universalism §
Each country and each nation which respects itself does not and cannot be satisfied with its narrow boundaries and limited domains; rather, they desire to bring in all that is good and beautiful, that is helpful and glorious, to their national [cultural] treasure. And they wish to give the maximum flow of their own blessings to the [cultural] treasury of humanity as a whole, and to establish a link of love and friendship among all nations, for the enrichment of the human storehouse of intellectual and ethical ideas and for the uncovering of the secrets of nature. Happy is the country and happy is the nation that can give itself an accounting of what it has taken in from others; and more importantly, of what it has given of its own to the repository of all humanity. Woe unto that country and that nation that encloses itself in its own four cubits and limits itself to its own narrow boundaries, lacking any- thing of its own to contribute [to humanity] and lacking the tools to receive [cultural contributions] from others
- Hegyonei Uziel (Jerusalem, 5714), vol. 2, p. 127; cited in Angel, op.cit., p. 50.