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A Case Study in Contemporary Halakhic Rhetoric

 

A Case Study in Contemporary Halakhic Rhetoric—Rav Asher Weiss on Dina DeMalkhuta

Guest post by Prof. Chaim Saiman

Last week’s dispatch from Rav Asher Weiss (Parshat Chukat, 5770: June 18, 2010 – link), disagrees with nearly all the rishonim, most achronim, and significantly challenges the haredi consensus concerning the relationship between halakha and the State of Israel. Yet, rather than incur the wrath of the community he is addressing, this shiur will likely burnish Rav Asher’s (RA) reputation as a significant halakhic authority and a true Gadol B’Yisrael. For these and several reasons pursued below, this brief shiur is worthy of a close reading.

I. RA’s Overview of DMD

The shiur opens with a presentation of the six leading account of Dina Demalkhuta Dina (DMD) found in the halakhic literature.

  1. Rashbam to Bava Batra 54 who bases the government’s taxing authority on the assumed consent of the populace.
  2. Rashba and Ran to Nedarim 28 who argue that since the king owns the land, he can demand fidelity to his laws in exchange for allowing the Jews to live within his borders.
  3. R. Yonah to Bava Batra 54 who understands DMD in terms of a court’s authority to declare property ownerless and transfer it to another party, הפקר בי”ד הפקר. (RA rejects this view since הפקר בי”ד הפקר only applies to a Jewish court).
  4. The Dvar Avraham’s [R. Avraham DovBear Shapira, Poland, 1871-1943] claim in the name of Rashba and Ritva that a king acquires rights via “din kibbush”— rights by conquest. (This is rejected since conquest by force is an untenable political rationale and governance must be predicated on consent).
  5. Rashi to Gittin 9b who writes that DMD is based on the fact that both Jews and Gentiles are subject to the Noahide law of “dinnim” which includes fidelity to secular law. (This is rejected since post- Sinai Jews are bound to Torah rather than Noahide law).
  6. Hatam Sofer who understands the Gemara Shevuot 35 to grant a king the inherent right to tax. (This is rejected since the Gemara only deals with king’s right to tax for his own purposes but not to erect a government for the betterment of society).

Of the six rationales presented RA sees only two as viable. Yet, using little more than an Enlightenment conception of individual autonomy RA finds fault even with views 1 & 2. (ובמה יתחייב היחיד בדין המלכות מכח הסכמת חבריו, או מכח הסכמת עצמו ולמה לא יוכל לחזור בו בכל עת שירצה.)

In other words, the rishonim’s accounts are based on fictional rather than actual consent. And while this may have been sufficient in the fourteenth century, RA reasons that in the twenty-first century, actual consent is required.

Instead, RA claims that the true basis of DMD is the fact that the Torah implies and the reality of political life demands assuming a foundational concept of political authority for both Jews and Gentiles. Citing Mishna Avot 3:2 אלמלא מוראה איש את רעהו חיים בלעו, RA suggests a social-contractarian grounding of politics. Moreover, RA argues that this is what Chazal mean by DMD—simply the power of the government to rule. As for what the rishonim were talking about—and why they failed to mention this point ולא נחלקו הראשונים אלא במהות הדין שרשו וטעמו האם סמכות המלך משום קבלת העם היא או שמא אין ×–×” משום הסכמת העם כלל אלא משום שהארץ שלו, ואכמ”ל , which to the best of my understanding means: “The rishonim argued only as to the essence of the rule [of DMD] and its source and reasoning: whether the king’s authority is predicated on the consent of the governed or on account of the king’s ownership of the land. But here is not the place to delve into this matter further.” I suspect however, that this statement was never intended to convey much substantive content. Its goal is to assure the reader that due respect has been paid to the rishonim— and then proceed to the next point.

It is important to consider how this opening section operates. First, RA demonstrates his obvious mastery and respect for the arguments and personalities presented in the classical sources. Second, it rejects four of the accounts through a combination of lomdushe (analytical-legal) and substantive arguments. Finally even the two views that are “accepted” are reworked such that the real basis of political authority are the raw facts of social life recognized by Tanakh and the Mishna, but apparently ignored by the leading rishonim.

Why is this significant? Because each rishon’s view presents a significant limitation as to the domain of secular authority. By offering a reworked theory of DMD however, RA legitimates nearly every method of governance employed by the modern administrative state. Thus, RA rejects most limitations suggested by the achronim, including: (i) DMD applies only when the financial interest of the government are at stake but does not apply to social, economic and public safety regulation; (ii) since DMD is predicated on the “lease agreement” between the king and the community for the land the Jews will occupy, DMD applies only outside Israel. In Israel however, where Jews reside as a matter of Hashem’s gift, DMD cannot legitimate secular law or government; (iii) DMD applies only to relationships between Jews and Gentiles, however intra-Jewish relationships are governed exclusively by din torah; and finally (iv), DMD applies only to the executive/legislative branches (malchut) but not to secular courts (arkaot). Through a combination of bold arguments and soft phrasing, RA presents a maximalist vision of DMD, where state law controls in most areas where secular law and din torah conflict.

II. RA’s Specific Applications

In Parts II and III of the shiur, RA applies his understanding of DMD to a number of concrete cases, all while deftly navigating the contrary views of leading achronim.

For example, RA points to a tension between Rema’s holding that DMD applies to all forms of civil law (HM § 369:8) and his statement limiting DMD to laws promulgated “for the benefit of the king or the social welfare.” (369:11). S”ma understands Rema as distinguishing between actions of the executive/legislator on the one hand and the judiciary on the other. (S”ma HM 369:28). While S”ma claims this position is universally accepted, RA dismisses this reading since אך פירוש ×–×” אינו מתיישב בלשון הרמ”א כלל.

Following other achronim, RA understands Rema to distinguish between laws regulating public conduct (which concern the government and are subject to DMD), and laws regulating private conduct which lies outside the government’s interest. However, even this limitation is subtly undermined as RA demonstrates the pliability of the public/private distinction. For example, in HM 154:18, Rema suggests that DMD applies to neighborly disputes regarding a property owner’s rights to maintain a consistent level of access to sunlight. Similarly, in HM 356:7 Rema rules that, despite the Gemara’s holding to the contrary, one must return lost items even after the initial owner has given up hope of recovery. Finally, in HM 73:14 Rema argues that while din torah permits lenders to sell pawns (mashkon) 30 days after the debtor’s default, lenders must comply with secular law and wait an entire year.

Pulling these cases together, RA finds that in an interconnected economy, virtually any law can be described as regulating a matter of public concern. And while RA never rejects the public/private distinction ascribed to Rema, his conclusion דבענינים אלו יש מיסוד וסידור ענפי המסחר ויש בהם תקנת המדינה, וצריך בזה עיון makes it pretty clear where his commitments lie.

Second, the Shach (HM 73:39) explains that DMD applies only to cases where secular law does not contradict din torah. Thus DMD can supplement Torah law, but never supplant it. Citing the Hazon Ish, RA explains that this position is difficult, since by definition, DMD is relevant only in cases of direct conflict between secular and Torah law. While RA closes this section deferentially,וא”×› באמת צ”×¢ בהבנת דברי אדונינו הש”ך רבן של כל ישראל , there is little doubt that his understanding runs contrary to the Shach.

While RA relied on the Hazon Ish as against the Shach, in the very next paragraph, the Hazon Ish’s views on a related matter are summarily rejected. The Hazon Ish understands that DMD recognizes secular law only to as between Gentiles and Jews. In an intra-Jewish context however, the covenantal commitment to din Torah means that secular law never trumps. Citing several of Rema’s applications of DMD, RA dismisses the Hazon Ish, leaving off with a simple “tzareich iyun gadol”.

The most radical claims are left for last. In a paragraph that frankly recognizes that virtually all achronim exclude decisions of secular courts (arkaot) from DMD, והנה על אף שהסכימו האחרונים דרק חוקי המלכות הוי דין ולא משפטי הערכאות, RA argues to the contrary. Because contemporary democracies conceptualize the judiciary as one of three co-equal branches of government, RA understands that the traditional distinction between “kings” (malchut) and “courts” (arkaot) is no longer relevant. Despite this bold claim, the paragraph concludes with a tentative, ולכאורה מסתבר לפי”×– דגם באלה נוהגת זו דדמ”ד, וצ”×¢ בזה.

A similar approach is taken towards an even more explosive issue— the status of DMD in contemporary Israel. Though the position of Ran/Rashba (predicated on monarchical ownership of the land) has long been used to argue against applying DMD in Israel, RA reasons that since contemporary political theory grounds legitimacy in representative democracy rather than the king’s ownership of land, the laws enacted by the popularly elected government in Israel are entitled to DMD recognition. This highly contested claim is then followed, וצע”×’ בכל ×–×”, ולא נתחוורו לי הדברים, and with this RA concludes the shiur.

III. Contemporary Halakhic Rhetoric

In this brief shiur, RA argued with virtually all the rishonim, most of the achronim, and built a theory of DMD that shares more with Enlightenment and democratic values rather than ideas culled from the standard halakhic texts. Nevertheless, I doubt RA will be placed in cherem or lose influence as a result of this shiur. While much has to do with matters that lie outside the text of any specific given shiur (RA’s manner of dress, speech, bearing, peer group etc.), it is worth focusing on what this tells us about the practices of contemporary halakhic discourse.

Form and Substance

The first point, while obvious, bears repeating. RA is a first rate talmid chacham and who displays a level of mastery in substantive literature of the rishonim, achronim, poskim and ba’alei machshava that has few equals in today’s olam hatorah. Of equal importance is his mastery of the achronic form. The tone, texture and structure of the shiur (up to and including the typeface and graphical presentation) display deep affiliation with yeshivish traditions. Despite the “radical” content, the presentation is more comforting than confrontational, demonstrating not only that RA “knows how to learn” but that he conceptualizes Torah in a way that his audience recognizes and identifies with.

Yet, RA is working to expand the boundary lines of the discourse itself. He displays a keen sense for the contours of contemporary political and legal theory and hints at the ideas of social contract, separation of powers and democratic governance. However, because these concepts are enveloped in a thoroughly conventional halakhic frame, the presentation feels organic to the classical materials. Few halakhic writers have demonstrated this level of literary and conceptual dexterity while adhering to the broad conventions of achronic writing.

Discretion and Patience:

Given the political turmoil surrounding the issues covered, the shiur is remarkably discreet. While my own presentation highlights the radical departures both from specific piskei halakha and overall conventions of halakhic argument, RA works to minimize this gap, constantly emphasizing the tentative and hesitant nature of his conclusive non-conclusions. This comes across not only in the self-effacing comments interspersed throughout the text, but in the presentation of this material as “thoughts on the parsha” rather than a programmatic essay setting forth the halakhic and political basis of secular law.

RA also understands that his readers approach these questions halakhically rather than theoretically. While the shiur is obviously predicated on a conception of both halakha and the modern state, these ideas are implied rather than expressed, and are never subjected to systematic exposition. While from a Western/academic perspective this is an undeniable flaw (the constitutional boundaries of the state assumed in the shiur are not well-developed), RA’s audience is far more concerned with his knowledge of achronim than his ability to talk legal or political theory. Moreover, RA uses these predilections to his advantage. While each paragraph and p’sak gently nudges the reader towards accepting RA’s views, he is able to defer the overarching philosophical questions to another day—a day one assumes will be long in coming.

RA is also patient. He has no illusions that this shiur will be the final word, not even his own final word on the topic. He is happy to work interstitially, bit by bit, and return to and reinforce similar themes down the road. RA thus proceeds sugya- by-sugya, confident that increased and non-confrontational exposure to his views will solidify his status as a halakhist and posek.

Method and Message

This shiur was published for Parshat Chukat. If the connection between DMD and Chukat is tenuous, the relationship between DMD and current events is anything but. The Israeli public is currently aflame over questions of halakha and the legitimacy of the State’s legislative and judicial decisions. There is no doubt that DMD was the parsha of this past week, even if it had little to do with this past week’s parsha. Though I have no special insights into RA’s thinking, I find it hard to believe that a shiur concluding with a discussion of the halakhic validity of the courts and government of Israel, is in any way coincidental.

There are many approaches to Torah leadership. Some involve cherems, riots and bromides. Others sense that a shiur on parshat hashavua can serve as a lesson in civic education. RA shows that an approach that is not afraid of a reverentially stating that, באמת צ”×¢ בהבנת דברי אדונינו can be far more effective than a wall full of pashkevilim. והמבין יבין, ואכמ”ל.

Chaim Saiman teaches Jewish law at Villanova University Law School.

 

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Gil Student

Rabbi Gil Student is the founder, publisher and editor-in-chief of Torah Musings.

 
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2 Responses

  1. Hirhurim says:

    Zeliglaw 06/23/2010 11:22 PM
    2 people liked this.
    Thanks for this superb summary! R Asher Weiss is truly an amazing Gadol whose command of Shas, Rishonim, Acharonim and awareness of the current political realia allow him to be a much sought after speaker well beyond the boundaries of the Charedi world.
    ———-
    Jschwartz 06/24/2010 01:12 AM
    1 person liked this.
    Does Rav Asher Weiss also have amazing standing within the Charedi world? Or is he simply the gadol that the Modern Orthodox think is the only contemporary Charedi gadol?
    ———-
    HaDarda”i 06/24/2010 03:16 AM
    Fascinating article. Just a couple of trivial criticisms. R. Avraham Dovber Kahana Shapira was the Kovno Rav. Kovno is, and was in during his lifetime, in Lithuania, not Poland. Also, I would have transliterated his name “Dovber”, not “DovBear”, but I guess that’s just a matter of style.
    ———-
    Binyomin Eckstein 06/24/2010 05:20 AM
    3 people liked this.
    Unfortunately, Prof. Saiman’s piece is basically invented wholecloth.

    1) RA does not “reject” the views of Rabbeinu Yonah or Rashi. He interprets them so that they do not have bearing on the fundamental basis for DMD.

    2) “I suspect however, that this statement was never intended to convey much substantive content. Its goal is to assure the reader that due respect has been paid to the rishonim— and then proceed to the next point.”

    This is blatantly wrong. RA spends subsequent sections extensively, sometimes exclusively, linking various pesakim to either of the two sides of this issue! RA means that while the overarching rationale of DMD is the right to rule, the Rashbam and Ran are discussing where the fundamental right to rule comes from. The entire paragraph by Prof. Saiman: “It is important to consider…” is completely off base.

    The suggestion that RA’s applications stem from his thesis is totally incorrect, and has no support.

    3) “Thus, RA rejects most limitations suggested by the achronim, including: (i) DMD applies only when the financial interest of the government are at stake but does not apply to social, economic and public safety regulation;”

    Which Acharonim suggest this limitation? He only quotes Igros Moshe in support of his own position.

    4) “(ii) since DMD is predicated on the “lease agreement” between the king and the community for the land the Jews will occupy, DMD applies only outside Israel. In Israel however, where Jews reside as a matter of Hashem’s gift, DMD cannot legitimate secular law or government;”

    In section 3:7, RA explicitly links this to the debate between the Rashbam and the Ran, and gives no indication of any linkage to his overarching thesis.

    5) “(iii) DMD applies only to relationships between Jews and Gentiles, however intra-Jewish relationships are governed exclusively by din torah;”

    In section 3:9, RA expresses surprise at the Chazon Ish stating that this is unanimous, when the Mordechai argues on the Rabbeinu Yonah in this matter, and the Darchei Moshe decides the Halachah in accordance with the Mordechai. There is, again, no indication of any linkage to his thesis.

    6) “and finally (iv), DMD applies only to the executive/legislative branches (malchut) but not to secular courts (arkaot). ”

    This is somewhat more ambiguous, but the thrust of RA’s argument here is simply that the executive and legislative branches rely on the judicial branch to supplement and interpret their own laws, but the essential DMD license rests with the Malchus. It, once again, has nothing to do with his thesis.

    7) “his conclusion דבענינים אלו יש מיסוד וסידור ענפי המסחר ויש בהם תקנת המדינה, וצריך בזה עיון makes it pretty clear where his commitments lie.”

    Please quote the full sentence! וצריך בזה ענין והתבוננות בכל פרט לגופו!

    8) “Citing the Hazon Ish, RA explains that this position is difficult, since by definition, DMD is relevant only in cases of direct conflict between secular and Torah law. ”

    I don’t understand RA here (if he wrote this himself), because the Hazon Ish says no such thing, and it doesn’t make sense. You concede that there is room for supplementing without supplanting! All the HI says is that all Halachos can find their resolution in the Torah, and sometimes the resolution is based on DMD.

    9) “While RA closes this section deferentially,וא”×› באמת צ”×¢ בהבנת דברי אדונינו הש”ך רבן של כל ישראל , there is little doubt that his understanding runs contrary to the Shach.”

    This is a gross misunderstanding and misinterpretation of both the HI and RA. The צ”×¢ בהבנת דברי אדוננו is strictly limited to his distinction between laws that are explicit in the Torah and those that are not.

    10) “the Hazon Ish’s views on a related matter are summarily rejected. ”

    No they are not at all!!! RA is simply perplexed that the HI would state that this is unanimous (in Likutim 16:5) in light of the Rema in Darchei Moshe citing the Mordechai opposing the RY and deciding the Halachah in accordance with that Mordechai. The HI himself cites the Mordechai and offers an alternative understanding.

    11) “In an intra-Jewish context however, the covenantal commitment to din Torah means that secular law never trumps.”

    We are not speaking of DMD *trumping* for Jews, G-d forbid, but whether it can have any effect at all in intra-Jewish affairs! This is quite outrageous.

    12) ” Citing several of Rema’s applications of DMD,”

    Not in this context.

    13) RA dismisses the Hazon Ish, leaving off with a simple “tzareich iyun gadol”.

    Again, he does no such thing!

    So – 14) Through a combination of bold arguments and soft phrasing, RA presents a maximalist vision of DMD, where state law controls in most areas where secular law and din torah conflict.

    This is blatantly false.

    The final two paragraphs in Prof. Saiman’s section II are indeed interesting, but a) have nothing to do with RA’s thesis of license to rule, and b) have absolutely nothing to do with situations of intra-Jewish affairs where Torah conflicts with the secular law. The first of these two paragraphs simply grants the right of the “monarchy” to delegate some of their legislative powers to the judicial, but certainly it has no more rights than the monarchy itself. The second merely raises the question of DMD (such as taxes) in Eretz Yisrael. He remains unsure as to the potency of DMD altogether nowadays, with the צע”×’ בכל ×–×” extending to the entire theoretical basis of DMD according to the Ran in light of contemporary governance.

    I will leave it to the reader to decide how much personal bias went into Prof. Saiman’s conjectures and conclusions, and will end by saying that it seems that one’s stature as Gadol B’yisrael in the eyes of some is greatly elevated when one apparently (to the eyes of the beholder, though in RA’s case it is simply false) overturns all the Rishonim on the issue of DMD to reach the conclusion of civic duty, and is vilified for overturning them to the side of tax evasion. This is not Emes nor Bakashas Emes, but plain personal preference.
    ———-
    David Tzohar 06/24/2010 06:33 AM
    1 person liked this.
    The idea that the Jewish state in the land of Israel is an expression of malchut is one of the major themes in Orot of Rav Kook ZTZL and was expanded by Rav Tzvi Yehuda ZTZL and at the present by Rav Tzvi Tau SHLITA the spiritual leader of the “Mamlachti” movement in Yeshivas such as Har HaMor and Mitzpeh Ramon. Their hashkafa is that Medinat Yisrael is the Mamlacha and therefore only here and now does DMD mean the din of the (Jewish) Malchut similar to din hamelech under malchai Yisrael. For this reason Rav Tau was against active participation in the fight against the disengagement from Gush Katif. He said that while we must protest we cannot rebel against the (democratically elected.(.my addition) Mamlacha.
    ———-
    Josh 06/24/2010 08:27 AM
    I was zoche to be at Rav Asher’s shiur delivered in English in Har Nof. The shiur concluded with a masterful and passionate appeal to refrain from the type of “shtick” that is too often used against the (Israeli) government and its agencies. There was no remez of it relating in any way to current events – and I highly doubt that anyone who was there took it that way.
    ———-
    Joelirich 06/24/2010 09:13 AM
    R’ AW’s “libi omer li’s” are well known!
    IMHO the issue comes down to our lack of historical knowledge as to how sanhedrin and melech interacted in practice which allows everyone to project how they think it was/should have been.
    BTW the power of “secular” kings predated matan torah and seemed pretty well accepted – so there must have been some notion of the source and scope of their authority..
    R’HS also has a whole theory based on partnership as to why the no DMD in E”Y is rationalization for what people want to do.
    KT
    ———-
    dlz 06/24/2010 10:55 AM in reply to Jschwartz
    Yes, he does. He is not considered (at least not yet) as one of the major Gedolim, but he is certainly a well-respected Rov.
    ———-
    Zeliglaw 06/24/2010 11:32 AM in reply to Jschwartz
    Mishpacha had a great interview with R A Weiss and an article about his tour of Maidonek. R A Weiss recently spoke at a Night of Chizuk in Lakewood for BMG and was prominently featured in the “Page 6″ pictorial section of an issue of the Yated that showed R A Weiss giving shiurim , listening to a Halacha Chaburah, etc.

    There are also other Gdolim who are Charedi who have standing in the Charedi world but are also respected within the MO world, R Nevenzal, R Y Neubert ,R Z N Goldberg and R N I Oelbaum are some examples.
    ———-
    ej 06/24/2010 12:37 PM
    I can’t say what Rav Asher Weiss said and whether Prof. Saiman’s reading is accurate. I do believe that we must end up pretty close to Prof. Saiman’s reading. It is outrageous to even consider in a serious way that if a posek says gezel akum is permissible, then it is, irrespective of the secular laws. Similarly you can’t run a modern state where charedim have the right to cherry pick which legal rulings they will abide by, other than in a context of civil disobedience where they are willing to accept the punishments attached to breaking the law.

    Chilul Hashem is far too weak a basis for the duty to obey the law, for it implies that if ‘no one is looking’ violations are ok. DMD needs a deeper idea as a basis, preferably a social contract theory or some ideas about the decisions reached in a democratic society. DMD allows people to feel obeying the law is a sort of bedieved…”what can we do, we must give in to the sovereign because the latter has the power.”

    I think these issues should be settled first. The Emmanuel case, aspects of the Rubashkin situation would look very different if Jews felt they weren’t an autonomous state within a state. ej
    ———-
    Zeliglaw 06/24/2010 12:50 PM in reply to ej
    I think that your definition of Chulul HaShem cannot withstand comparison to how Rambam formulates this Halacha,.
    ———-
    Zeliglaw 06/24/2010 12:54 PM in reply to ej
    Similarly you can’t run a modern state where charedim have the right to cherry pick which legal rulings they will abide by, other than in a context of civil disobedience where they are willing to accept the punishments attached to breaking the law.

    The US is premised on the Constitution and the Bill of Rights which protect the individual against the excesses of the government. A state that does not protect or deem all of its citizens worthy of protection against unwarranted governmental intrusion has a strong potential of becoming a tryanny of the majority without due consideration for the rights of a minority.
    ———-
    Binyomin Eckstein 06/24/2010 01:05 PM in reply to ej
    1 person liked this.
    I have no problem with presenting RAW’s “license to rule” basis for DMD, as is, because it is true that he said this. But for all intents and purposes, that is where any relationship between what RAW said and Prof. Saiman’s reading utterly ruptures.
    ———-
    Joelirich 06/24/2010 01:08 PM
    Perhaps that is why R’YBS would point out that Judaism is focused on responsibilities, not rights – lack of understanding of this results in people finding a Ran that no one paskins like and making it into their organizing principle in life (no DMD in E”Y)
    KT
    ———-
    Binyomin Eckstein 06/24/2010 01:17 PM in reply to Joelirich
    I’d be hesitant to say that about people like R’ Shlomo Fisher Shlit”a, who, AFAIK, holds of the Ran l’halachah.
    ———-
    Jerry 06/24/2010 02:29 PM in reply to Binyomin Eckstein
    Why? It’s not an issue of his beki’us, God forbid. It’s a question of justification for a principle that is muskam. If someone believes that it is ethically/morally/logically wrong to hold like the Ran in this case, then anyone – including R’ Fisher – should would be wrong, according to that view, if he holds like the Ran. Simple.
    ———-
    Binyomin Eckstein 06/24/2010 02:37 PM in reply to Jerry
    I’d be hesitant to assume that R’ Fisher’s “lack of understanding” of the focus of Judaism led to him to pasken like a Ran that “no one paskins like”. It would be appropriate to have more respect than that both for his understanding of the focus of Judaism as well as his awareness of who does or does not paskin like the Ran, including his own right to paskin like the Ran.
    ———-
    Jerry 06/24/2010 02:37 PM in reply to Binyomin Eckstein
    Plus a really effective posek discussing DMD requires an understanding of political philosophy (even in an informal sense) that not every Gadol possesses. That doesn’t mean that Gedolim who discussed it without such should not be taken seriously, just that their views should be taken for what they are: halakhically informed but not philosophically/politically informed. R’ Weiss obviously understands this. Thus, when it comes to understanding DMD, if the Ran’s view, or the CI’s view, etc. do not square with contemporary political reality, then that isn’t a problem for contemporary political reality. It’s a problem for the Ran or the CI.

    …Now, obviously this has to be done seriously and respectfully, but then that’s the entire point of this post.
    ———-
    Jerry 06/24/2010 02:45 PM in reply to Binyomin Eckstein
    You’re rephrasing it in an unfair manner. It wasn’t a “lack of understanding of the focus of Judaism” as a whole. It was simply a failure to differentiate – ontologically, halachically, etc. – between responsibilities and rights in the same manner as RYBS (you just wrote a huge comment accusing someone else of creative rephrasing like this, don’t turn around and do it yourself!). A lot of people didn’t make distinctions as clearly and precisely as the Rav, so I don’t have a problem saying that R’ Fisher is one of those people.

    Everyone should certainly have lots of respect for R’ Fisher’s understanding of “the focus of Judaism.”

    As far as who does and does not paskin like the Ran: this is an academic (small “a”) matter, and if he’s wrong, then he’s wrong. If not, then not.

    No one is questioning his “right” to paskin like the Ran. R’ Fisher is a Gadol and can do as he pleases. But no one has any obligation to applaud him for it.
    ———-
    Jerry 06/24/2010 02:48 PM
    Anyways, I’d like a follow up from Professor Saiman addressing Binyomin’s concerns!
    ———-
    Shlomo 06/24/2010 02:53 PM in reply to ej
    “Similarly you can’t run a modern state where charedim have the right to cherry pick which legal rulings they will abide by,”

    Everyone has the right to cherry pick which laws they will abide by. And the state has the right to throw them in jail for it. I’m not sure that happens less for charedim that for the population as a whole, but if it is, I’d just tell the police to work a little harder.

    The real charedi abuses (i.e. not serving in the army) are often legal. The real issue, chilul hashem, is only tangentially related to legality.
    ———-
    Binyomin Eckstein 06/24/2010 03:09 PM in reply to Jerry
    I’m not asking anyone to applaud him for it, just not to presume that a lack of understanding of what Judaism is focused on is the reason one would “find a Ran…” One can:
    a) have a different understanding of the focus of Judaism than RYBS
    b) Have a different understanding of the focus of Judaism vis-a-vis the individual versus the government
    c) Accept that this is the focus of Judaism even in this arena and still conclude like the Ran for completely extraneous reasons.

    The thrust of Joel’s argument was that one who practically follows the Ran must have “found him” and proceeded to decide like him based on lack of awareness of what Judaism focuses on. My sense was that Joel was saying that such an opinion could not be based on something more rigorous, like, say, a R’ Shlomo Fisher might be capable of.
    ———-
    Chaim Saiman 06/24/2010 03:12 PM
    2 people liked this.
    I agree with Mr. Eckstein that we should leave it to readers to decide which of us has the better interpretation. I’ll note only that in many ways, Mr. Eckstein’s comments strengthen the points outlined above. If everyone agreed with my reading, it would not work! Had RA written the shiur the way I rephrased it, it would have certainly placed him outside the boundaries of the discourse he inhabits, and registered no impact on the relevant community. [After all, the substance of his views are hardly novel in more “modern” circles—that is not who he is writing for]. It is precisely because RA’s writing lends itself to some [emphasis] of the ambiguities Mr. Eckstein points to (e.g., the distinction between “rejecting” Ran/Rashba and “reinterpreting” them in a way that was not previously understood) that places RA in the achronic method and makes the shiur effective. (I don’t take RA’s citation to the Mab”it or the unknown Gaon to be interpretations of the rishonim, but rather, shittot in accord with the conclusion RA’s independently reaches. Ay”shm). Were RA to present a broad conceptual take on the topic and then systematically disagree with rishonim and achronim; or even if he relied on the writings of people like Shmuel Shilo or Menachem Elon— talmidei chachamim who certainly know a thing or two about DMD— he would not be read or accepted by the audience he is trying to reach.
    Rather, I understand RA as planting seeds on two fronts. First, at the conceptual level, laying the groundwork for an approach to DMD that—contrary to what might be understood from a number of rishonim and achronim— encompasses most iterations of a modern democratic state whether in chu”l or Israel. Secondly, employing reverent, tentative, and qualified language to demonstrate that even within the literary canon and interpretative conventions of contemporary yeshivish p’sak, there are alternate ways of approaching the relationship between halakha and the state.
    To close with the seed planting metaphor, I encourage you all to imagine how a future posek—someone who reads RA the same way RA reads some of the achronim—might make use of this shiur down the road. Ve’ackmal.
    ———-
    Binyomin Eckstein 06/24/2010 03:32 PM
    2 people liked this.
    In other words, RA didn’t really say what Prof. Saiman says he does, but, clearly, he would have if he could have; or, had he thought it more effective in getting his audience to accept what Prof. Saiman would like to think he would have said., he would have said it. I’m too astonished for words.
    ———-
    Jon_Brooklyn 06/24/2010 03:32 PM in reply to Zeliglaw
    That does not give those citizens that don’t like it the right to ignore the law. That gives them the right to leave.
    ———-
    Jon_Brooklyn 06/24/2010 03:43 PM in reply to Binyomin Eckstein
    … and Joel as the right to interpret the actions of those who hold by the Ran that way. If you want to reject his opinion based on his mental ability compared to R Shlomo Fisher’s, go ahead – but you can’t do so on the grounds of his argument itself.
    ———-
    Jon_Brooklyn 06/24/2010 03:44 PM
    Excellent piece! Gil, you should try to get more of these if possible.
    ———-
    Binyomin Eckstein 06/24/2010 03:57 PM in reply to Jon_Brooklyn
    Sure. I can state many possibilities about where this or that idea came from, that you couldn’t prove me wrong on based on the grounds of my arguments. I would guess (or hope) that you would prefer that I be hesitant to ascribe the less rigorous or flattering possibilities to Gedolim BaTorah.
    ———-
    Jerry 06/24/2010 03:59 PM in reply to Binyomin Eckstein
    No! You’re completely missing the point of this post. The point is that he said exactly what Professor Saiman says, but does so in a very subtle fashion. The whole point of subtlety is that it’s not in your face (I can’t believe I’m even saying this…).

    I’m checking it out now, and I tend to agree with Professor Saiman’s interpretation (I’m not finished yet, but he’s been right so far). In fact, I think your reaction that this is essentially “no big deal” is precisely the effect that R’ Weiss intended.

    Basically, the only way you would concede Professor Saiman’s point would be if R’ Weiss had been more blatant about what he was doing, but the entire point is that R’ Weiss INTENTIONALLY did not do that!
    ———-
    Zeliglaw 06/24/2010 04:03 PM in reply to Jon_Brooklyn
    Your comment shows a lack of understanding or tolerance for the rights of a minority to dissent and organize. I think that any minority in a democracy has the right to fight for and against laws that they deem appropriate for the interests of its members.
    ———-
    Binyomin Eckstein 06/24/2010 04:07 PM in reply to Jerry
    1 person liked this.
    He says nothing of the sort. Start with this – where is the linkage, subtle or not, between ANY of the four issues raised by Prof. Saiman and RA’s theme of license to rule. How could he be “rejecting” the Ran/Rashba and the Rashbam and then proceed to offer a whole third section of a Shiur based extensively on those two opinions, with NO MENTION of his thesis!

    The idea that RA just made a statement (that Prof. Saiman clearly didn’t understand, and he concedes as much) for the sake of making believe he really accepts those Rishonim, and then offer a good 70% of his third section based on those Rishonim, is beyond ludicrous.

    Prof. Saiman’s interpretation is completely made up. I can’t believe this is even being discussed.
    ———-
    Jerry 06/24/2010 04:11 PM in reply to Binyomin Eckstein
    a) This is fine, but in some ways it’s less charitable to R’ Fisher. He believes in rights, not responsibilities? Maybe you would prefer to avoid saying that he engaged RYBS’s distinction at all. R’ Fisher may be many things but he’s not a philosopher. The Rav was. That’s just the way it is sometimes.

    b) Maybe, but his gedulah baTorah only qualifies him to judge half of this equation.

    c) …And that, according to some (maybe Joel), is wrong, because it ignores an philosophical distinction that should have been crucial.

    Look, I don’t think what you’re saying is crazy or flat out silly, I just think you’re using the wrong tactic. All you need to say in response to Joel is either a) I disagree with your assertion that it’s wrong to ignore this distinction when paskening DMD, or b) I don’t think that distinction is a meaningful one as applied to DMD, and here is why.

    …But simply saying “R’ Shlomo Fisher paskins like the Ran” isn’t an argument for or against the importance of that distinction. It’s just a factoid.
    ———-
    Binyomin Eckstein 06/24/2010 04:28 PM in reply to Jerry
    Whether it is “a factoid” depends on whether you read Joel’s assertion as a claim or an accusation. The dismissiveness strongly indicated the latter.
    ———-
    ej 06/24/2010 04:31 PM in reply to Zeliglaw
    If the charedim are hankering for a constitution for Israel that protects human rights, with equal and fair treatment to all religious perspectives and all minorities, they just have to ask. Such a constitution is their worst nightmare because there would then be civil marriages etc and no chief rabbi.
    ———-
    Binyomin Eckstein 06/24/2010 04:33 PM
    ” Look, I don’t think what you’re saying is crazy or flat out silly,”

    Great. I don’t think that’s patronizing or flat out pompous either.
    ———-
    Jerry 06/24/2010 04:44 PM in reply to Binyomin Eckstein
    Because, my friend, you clearly don’t understand that this is not about “rejecting” and “making believe.” That’s the whole point. I don’t think you realize how well you are making the point of this post.

    Here’s a scenario: a rav (let’s say an MO one, for argument’s sake) sees that Rishon A holds X, but also asserts that X does not make sense in light of Reality Y (or Gemara Y, whichever works). The rav therefore concludes that the Rishon either was incorrect to hold X, and we must accept Y, or he concludes that the Rishon was right in his time to hold X, but times have changed so now we change the psak to accord with Y.

    Here’s a second scenario: a rav (let’s say a non-MO one) sees that Rishon A holds X, but also sees that X does not accord well with Reality B. The rav therefore concludes that when the Rishon says X – even though this is clearly the intent, as it has been understood for centuries – it must really actually mean something like Y. Or the rav concludes that Rishon A actually holds Y, and his opinion (which we thought was X) was really about another issue.

    Other than tone, what is the difference – l’ma’aseh – between these two scenarios? How would I determine the motivation of the rav in either of these cases?

    In the same vein, most (if not all) of your objections from above relate to this issue. On the one hand, you claim that R’ Weiss is just reinterpreting. But if that reinterpretation essentially says that all of these Rishonim discuss the “why” rather than the “what,” when – for centuries – everyone thought they were discussing the “what,” then I, at least, am inclined to look for something more guiding R’ Weiss.
    ———-
    Jerry 06/24/2010 04:45 PM in reply to Binyomin Eckstein
    I certainly didn’t mean it that way. Tone doesn’t come through over the internet.
    ———-
    Jerry 06/24/2010 04:46 PM in reply to Binyomin Eckstein
    Hmm… See, I read it as a claim, so maybe you’re right about that.
    ———-
    Zeliglaw 06/24/2010 04:50 PM in reply to ej
    I don’t understand the vague concept of “human rights”, esp;ecially as it is abused by LW NGOs, but I do believe that American style civil liberties, including a guarantee of Free Exercise of Religion, without a separation of church and state , would be proper in a state that describes itself as a Jewish state. I think that the argument for “equal and fair treatment of all religious perspectives and all minorities” flounders because some minorities, especially the Arabs, are not the most loyal of citizens and some religious perspectives have no members other than noisy activists who specialize in lawsuits and PR, as opposed to attracting any potential olim to Israel or creating a spiritual beachhead.
    ———-
    Jerry 06/24/2010 04:52 PM
    1 person liked this.
    Having read the shi’ur, I encourage everyone reading this thread to do so. It is very easy to see why the disconnect between Professor Saiman and Binyomin occured.

    I happen to think it’s pretty pashut that Professor Saiman is correct here and that Binyomin is seeing in this what R’ Weiss wants him to see, but he probably thinks something similar about me. But the shi’ur itself is easy reading (one of R’ Weiss’ incredible talents), so everyone should just come to his or her own conclusions.
    ———-
    Binyomin Eckstein 06/24/2010 04:56 PM in reply to Jerry
    NONONONONO!

    He is *REINTERPRETING* THE OPINIONS (RABBEINU YONAH AND RASHI) THAT PROF. SAIMAN CLAIMS RA TOTALLY REJECTS! (my point 1, seems like Prof. Saiman missed that). I never claimed that he is reinterpreting Ran/Rashba or Rashbam. HE FULLY ACCEPTS THE RAN AND RASHBAM! This is as crystal clear from his 3rd section.

    Like I said, find me any indication, a slightest hint, that his thesis had one iota of influence on the four issues that Prof. Saiman raised, which RA clearly links to Ran and Rashbam.
    ———-
    Binyomin Eckstein 06/24/2010 05:07 PM
    I don’t mean this in a mean way, but I think you’re both hallucinatory. But maybe RA wants me to think that about people who can somehow intuit what they think he really meant but subtly expressed.
    ———-
    Jerry 06/24/2010 05:25 PM in reply to Binyomin Eckstein
    1 person liked this.
    Okay, so you’re just not reading it correctly. See page Vav. He “fully accepts” the Rashbam and the Ran only after they don’t mean anything at all like what every single person prior to him thought they meant.

    More importantly (and this addresses your question), R’ Weiss CANNOT be right, if, for instance, the Ran is correct IN THE WAY EVERYONE THINKS. That is the key point, and that is how R’ Weiss’ thesis impacts Professor Saiman’s points.
    ———-
    Jerry 06/24/2010 05:34 PM in reply to Binyomin Eckstein
    1 person liked this.
    Did you read even read page Ches (11 in the PDF)? The third section is only “based on” the opinions of the Ran/Rashba and the Rashbam in the sense that R’ Weiss’ point is to say that the machlokes doesn’t ultimately hinge on the difference between these opinions.

    And on the very next page, R’ Weiss eviscerates the distinction between public and private in the Rema, so that it can’t very well apply anymore in a practical sense. And the premise of this statement is that the Ran/Rashba and Rashbam would agree with this! That’s an unbelievably novel understanding of these sources! To me, that is very suggestive.
    ———-
    Jerry 06/24/2010 05:35 PM in reply to Binyomin Eckstein
    Maybe.
    ———-
    Binyomin Eckstein 06/24/2010 05:48 PM in reply to Jerry
    On page vav all he did was funnel the Ran and the Rashbam through the license to rule concept. WHERE DOES HE EXPRESS THAT THIS HAS ANY IMPACT ON ANY OF THE FOUR AREAS PROF. SAIMAN RAISED? Aderabbah, he explicitly links these questions to one side of the debate. Besides, many of Prof. Saiman’s interpretations of RA’s points, even internally, are blatantly.

    Please explain what Rav Weiss cannot be right about.
    ———-
    Binyomin Eckstein 06/24/2010 05:56 PM in reply to Jerry
    On page ches, or anywhere else – tell me, do you think RA’s intent throughout is expressive of an attitude that: “this statement was never intended to convey much substantive content. Its goal is to assure the reader that due respect has been paid to the rishonim— and then proceed to the next point. ” JUST ABOUT THE WHOLE SHIUR IS BASED ON THESE OPINIONS!

    “So it can’t very well apply in a practical sense” is a very biased reading of וצריך בזה עיון והתבוננות בכל פרט לגופו , and I’m being generous.

    It isn’t suggestive to me of anything beyond what it says.
    ———-
    Binyomin Eckstein 06/24/2010 06:14 PM
    In general, I put significant time into those 14 points of mine. I would appreciate if you or Prof. Saiman would address them individually, or lump together whatever ones you want to respond to at once. Don’t tell me – “well it’s all subtle, and that’s the point” (and I think you’re wrong on that as well), because that doesn’t remotely address many of the points I raised. If you don’t want to do that, I’ll call it a topic and move on.
    ———-
    Jon_Brooklyn 06/24/2010 06:43 PM in reply to Zeliglaw
    Dissent and organization differ from crime quite substantially. If you don’t see how, then I can’t help you.
    ———-
    Jon_Brooklyn 06/24/2010 06:46 PM in reply to Binyomin Eckstein
    Gedolim BaTorah can decide to make judgment calls. They can also be immoral human beings, but that’s just a side point, as I have no reason to suspect R. Shlomo Fisher is an immoral human being, and indeed, I doubt he is one. So don’t get distracted by that comment. However, I do have reason to suspect he’d be interested in making a certain judgment call, and using the Ran as a source for doing so.
    ———-
    emma 06/24/2010 07:03 PM in reply to Binyomin Eckstein
    1 person liked this.
    It seems that one of Binyomin Eckstein’s main contentions (see subpoints 2,4,5, and 6) is that the “applications” section (part gimmel) has nothing to do with the “thesis” (part beis). I find this suggestions strange. In general, my experience is that it is both sensible and traditional to try and suggest connections between facially separate opinions of one individual, especially when those opinions are presented as part of one work. In other words, to say that R. Weiss just took assorted ideas that are all somehow related to DMD and put them together is a less charitable and ultimately more shallow way to read the piece than to suggest some way in which the different parts are connected. Juxtaposition of the applications to the thesis is itself a suggestions of “linkage” between them!

    (I am not saying that it can never be that a shiur would have unconnected parts, just that a presumption of connection seems both reasonable and traditional to me.)

    The real issue for Mr. Eckstein, I suspect, is not that there is, facially, no connection between the applications and the thesis, but rather the way Prof. Saiman discusses the connection. On that point, I agree that the exchange highlights the point of the article rather nicely.
    ———-
    emma 06/24/2010 07:07 PM
    1 person liked this.
    A question for Prof. Saiman:
    “RA is working to expand the boundary lines of the discourse itself. ”
    I fully accept this as a description of what the shiur does/can accomplish. But you also seem to be claiming that it describes RAW’s subjective intent. If so, what convinces you that RAW is self-aware about the way he is bringing halakhah in line with contemporary political thinking, as opposed to subconsciously assimilating the two?
    ———-
    joelrich 06/24/2010 07:18 PM
    Sorry-I was away making a living :-)
    I didn’t mean to be dismissive (frankly I must have missed that a modern day posek holds that way)but does the Rambam or S”A or Rama bring down the Ran l’halacha (I think not). My other point (and I can’t speak to the process that any posek went through) is that at some level imho everyone (including poskim) develop a worldview which shows up in their psak (conscious or subconscious) – the rights vs. responsibilities one is a clear one to me (a’ la the Vasita hatov vhayashar vs. there’s no specific issur)
    KT
    ———-
    ej 06/24/2010 07:33 PM
    Your constitution would not protect the rights of 20% of the population, namely Israeli Arabs. It would not protect the rights of the Russians and the secular Israelis who demand civil marriages and divorce.It would discriminate against Reform and Conservative Jews by not accepting the conversions of their rabbis plus more. It would limit the freedom of speech of left wing NGO’s because you don’t approve of their politics.

    You do believe in American style civil liberties. From my perspective this American style civil liberties stand to civil liberties in much the same way as kosher style stands to kosher.
    ———-
    David Tzohar 06/24/2010 10:14 PM in reply to ej
    Obviously Torah (in the broader sense) is not centered around the idea of individual rights. There are madregot, Goyim dont have all the privilages and responsibilities as gerim who are a different level than Yisrael who are different than Leviim, Cohanim and melachim. The system is theocentric where each strata of society and the individuals within have their own rights and responsibilities vis a vis Hashem and His Torah. the place of nonjews both bnei Noach and AKUM are also defined within the system,.The interactions of these strata and the definition of the nation is one of the major themes of Sefer Bamidbar
    ———-
    boston 06/24/2010 10:52 PM
    “The most radical claims are left for last [...] RA understands that the traditional distinction between “kings” (malchut) and “courts” (arkaot) is no longer relevant. Despite this bold claim, the paragraph concludes with a tentative, ולכאורה מסתבר לפי”×– דגם באלה נוהגת זו דדמ”ד, וצ”×¢ בזה.

    In American law, court decisions (common law) are equated with legislative enactments as valid and enforceable law. Federal judges tried to ignore State common law in the 1930′s, but Justice Brandeis revolutionized this trend with the “Erie Doctrine”, which required the federal courts to follow state judicial decisions as state law. [Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)].
    ———-
    Charlie Hall 06/24/2010 11:43 PM in reply to Zeliglaw
    “A state that does not protect or deem all of its citizens worthy of protection against unwarranted governmental intrusion has a strong potential of becoming a tryanny of the majority without due consideration for the rights of a minority. ”

    The US solved that problem by not considering a substantial part of its residents to be citizens. This is in fact the primary narrative against the state of Israel today by its opponents, as Palestinians in the West Bank have no citizenship rights while Jews do. It isn’t Apartheid, but it isn’t a Western Democracy either.
    ———-
    Charlie Hall 06/24/2010 11:55 PM
    1 person liked this.
    No Rishon lived in anything like a modern state, much less a modern democracy. The only political systems most of them ever saw were feudal arrangements, absolute monarchies, and (rarely) a few Italian oligarchic city-states. No Jew lives in any such society today.
    ———-
    moshe shoshan 06/25/2010 12:34 AM in reply to Binyomin Eckstein
    please stop yelling
    ———-
    Binyomin Eckstein 06/25/2010 02:32 AM in reply to emma
    Just read the Shiur. You’ve simply bought into the connection that Prof. Saiman would like you to believe exists, but there is no hint of.

    Prof. Saiman erects two strawmen: 1) RAW dismisses the Ran and Rashbam and just shows their opinions perfunctory respect. This is bunkum nonsense and Prof. Saiman, albeit subtly, concedes he didn’t understand the line where RAW says that the Ran and the Rashbam are discussing מהות הדין שרשו וטעמו, which, to Prof. Saiman, somehow means that they are not even interesting art decor in this Shiur.

    2) As a result of 1, which is bunkum, RAW feels he can’t really say that explicitly, so he proceeded to build a whole section 3, at least 70% of which is a discussion based on those Rishonim he ostensibly rejected, (when in reality, what connects the parts of the Shiur are those Rishonim, who he didn’t reject, except in Prof. Saiman’s imagination!), sometimes explaining various Shitos as according with only one side of the debate between those Rishonim (!), just to fake you out into thinking that he really, really respects those Rishonim. He really means they’re all wrong, and secular law trumps Torah law, even for intra-Jewish affairs, which nobody ever said.
    ———-
    Binyomin Eckstein 06/25/2010 02:56 AM
    Nobody ever said, that is, including RAW himself.
    ———-
    joelrich 06/25/2010 05:23 AM
    1. think siman vs. sibah (descriptive vs. prescriptive) esprcially since the term dmd arises almost yesh mayin from the amora shmuel.
    2.think about the navi shmuel in parshat hamelech -what did he base his claims on according to those who took him literally?

    KT
    ———-
    joelrich 06/25/2010 05:29 AM
    btw i’m told there is a correlation between rishonim and geographic/era political theories.
    KT
    ———-
    Eliyahu 06/25/2010 05:40 AM
    The doctrine of popular consent by the majority is nice in theory; however it depends upon the elected politicians being politically moral.
    When there are no populist political safety valves such as referendum and recall and the governing political party lacks a sense of political morality then does the above theory behind DDM still work?. Thus what of a situation where a political leader is elected on on a platform with clear paramount goals that he then drops in favour of his opponents’ platform after offering a flimsy veneer of excuses. A moral poltical solution -if a leader really believed in the truth of the exigencies he cited as being overriding require him to resign and call a new election or at the very least call a referendum . Does the doctrine of consent by the majority then apply to political immorality when a majority has consented to being governed by members of a party that after obtaining such consent based on one platform then abandones the main parts of its platform?
    ———-
    Zeliglaw 06/25/2010 10:58 AM in reply to ej
    Do you think that the 20% would ever swear an oath of loayalty to the State of Israel ?
    ———-
    ej 06/25/2010 12:09 PM
    David Tzohar…we are in agreement. The Torah does not present an ideal of democracy, human rights and equality of opportunity for all citizens irrespective of religion and gender.
    That is why I claimed for the charedim, a constitution in Israel today, which would reflect such values is the last thing they want. The non-charedi 80-90% of Israel would surely not allow the Torah-charedi ideas how to structure society to be the basis for any constitution. I doubt if the majority today would even agree to the deal Ben Gurion made with Chazon Ish.

    Zeliglaw…I don’t know. I believe the Israeli Arabs are citizens and are entitled to equal rights, such as voting and religious freedom which they have today, as well asother rights such as freedom of speech. Such a right need not be absolute, but could be defeated when there is good reason that an individual Arab or the sector as a whole be denied the right. Obviously inequalities in welfare would require a different level of proof than the opportunity to work in Dimona on nuclear bombs.

    But we are now far away from where we started, and I don’t want to start a discussion on the details of an ideal constitution for Israel if a constitutional convention were held today.
    ———-
    emma 06/25/2010 01:01 PM in reply to Binyomin Eckstein
    “Just read the Shiur. You’ve simply bought into the connection that Prof. Saiman would like you to believe exists, but there is no hint of.”

    I was saying that the juxtaposition is the hint.
    ———-
    Danielk 06/26/2010 05:08 PM
    2 people liked this.
    Re: Prof. Saiman’s concluding remark:
    “Though I have no special insights into RA’s thinking, I find it hard to believe that a shiur concluding with a discussion of the halakhic validity of the courts and government of Israel, is in any way coincidental.”

    I am a member of Rav Asher Weiss’ shul in the Ramot neighborhood in Yerushalayim. I personally discussed this issue with him. Rav Asher’s response was that he had no intention of hinting at the Emanuel issue in his shiur. Furthermore, he added that DMD applies only to the legislative powers of the government and not to the judicial body. (He quoted the Sm”A to this effect.) I hope this clears things up.
    ———-
    Zeliglaw 06/27/2010 11:16 AM
    Fot those interested in another possible current application by R A Weiss of Halacha to the present , see Minchas Asher, Parshas Balak, where in a shiur on Kedushas Beis HaKnesses, R A Weiss quotes from ShuT Chasam Sofer that any donation for the building of a shul must be MeHaMutar BPicha-which the CS understands to be a Torah requirement.
    ———-
    Binyomin Eckstein 06/27/2010 04:36 PM
    For the sake of honesty, I have to rescind one area of critique, and that is in the matter of the context of the HI discussing secular law trumping Torah law. While the language of virtually all the Rishonim is along the lines of “G-d forbid” etc., it does indeed seem that RA is suggesting that the Rema, in his citing the Mordechai, seems to disagree. I still maintain, though, that RA’s critique of the HI is not a “summary dismissal”, but an expression of surprise that the HI would say that *nobody* argues on Rabbeinu Yonah, (the HI himself offers a different interpretation of the Mordechai) and, more importantly, that this has nothing to do with RA’s thesis of license to rule.

  2. [...] in numerous places and his publications. A blog post analyzing a responsum of his can be found here, and a “review” of his responsa [...]

 
 

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