Thursday, August 14, 2008

The Spirit of the Law: Heart Before The Mind

This past Tisha B'Av I read a fascinating book recommended by Jordan entitled As The Rabbis Taught: Studies In the Aggados of the Talmud- A Tisha B'Av Reader which focused on Gemaras in Gittin. This was my first introduction to the idea of Naval B'rshus haTorah, someone who does not transgress the law but nevertheless commits an unworthy act. Here is the relevant excerpt:
    R. Yehuda said in the name of Rav: What is meant by the verse (Michah 2:2): And they shall exploit a man and his home, a person and his inheritance? It once happened that a man desired his master's wife and he was an apprentice carpenter. Once the master had to borrow [money]. He [i.e. the apprentice] said: "Send your wife to me and I will give you the loan." He [the master] sent his wife [to pick up the loan] and he [the apprentice] stayed with her for three days. He [the master] came to the apprentice [when his wife failed to return] and said: "Where is my wife whom I sent?" The apprentice replied: "I sent her back immediately but I heard that the children mistreated her on the way back." He asked him: "What shall I do?" The apprentice answered: "If you will listen to my advice, divorce her [because of her unbecoming conduct]." He said: "Her kesubah is large [and I lack the funds to pay it]." The apprentice answered: "I will lend you the money so that you can give her the kesubah" The man divorced her and the apprentice went and married her.

    When the time came [for the master to repay the original loan], he did not have the means with which to repay. The apprentice said: "Come and work for me to pay off your debt." And they [i.e., the former apprentice and his master's former wife] would sit and eat and drink and he [the former master] would serve them and tears would fall from his eyes into their cups. And because of that time [i.e. this incident], the verdict [that called for the destruction of the Beis ha-Mikdash and the Land of Israel] was sealed.

    COMMENTARY

    In concluding its discussion of what transpired during the period of the destruction, the Talmud relates this incident so as to point to the real cause of the destruction- Israel's spiritual deterioration. This was evidenced by the incident of Kamtza and Bar Kamtza with which the Talmud began its discussion, and is reinforced by the incident of the apprentice and the master with which the Talmud concludes. In both cases, no specific laws were violated and the behavior of the parties was within the bounds of the permissible. [emph mine]Nevertheless, the viability of Israel as a nation/ state is dependent upon more than fealty to the letter of the law. Israel is dutybound to create a state of national spirituality with the law serving as the springboard for community development. Hence, when incidents such as those recounted by the Talmud become the norm within society- albeit their being non-punishable in and of themselves- Israel evidences that her unique spirituality is no longer charcteristic of her and she forfeits the Divine protection and guidance which allows her to avoid the calamities of natural historical development.

    R. Yaakov Emden writes that this latter incident shows that there are transgressions that are not spelled out by the Torah but which are more despicable than those which are specifically mentioned. The apprentice was careful to act within the letter of the law and, indeed, employed the law as part of his plot. Ramban refers to this kind of person as a Naval B'rshus HaTorah- a scoundrel acting according to the Torah.

    ~97-98
This idea reminded me of one advanced by Rav Ahron Soloveichik, which I believe lays the groundwork for how we can create a society that allows for someone who is a Naval B'rshus HaTorah.

In his introduction to Logic of the Heart, Logic of the Mind Rav Soloveichik writes:
    Our Sages say, "If you want to understand God, delve into aggadah, for through aggadah you can recognize God and cleave unto His ways" (Sifre, Ekev).

    Our Sages also say, "Do not say, 'I learned halachos, this is enough for me." No. The Torah says [Deuteronomy 8:3], "For not on bread alone does man live, but on everything that emanates from the mouth of God does man live" (Ibid.).

    On the verses, "And you shall love the Lord, your God, with your whole heart, yur whole soul and your whole might. And these words that I command you today shall be put upon your heart" (Deuteronomy 6:5-6), our Sages comment, "What is this love? "And these words shall be..." If you want to understand God, delve into the words of the Torah [halachah]" (Sifre, Va'eschanan).

    How can these two sayings be reconciled? Our Sages say, "And of the blood of the grape you drank foaming wine" [Deuteronomy 32:14]- these are the aggados that attract man's heart like wine" (Sifre). This means that halachah is compared to bread while aggadah is compared to wine. Bread is indispensable for man's existence, but wine is indispensable for man's happiness, as it is written, "Wine gladdens the heart of man" (Psalms 104:15).

    I heard from my mother, of sainted memory, that there are two approaches to the appreciation of nature. One is the approach of the scientist, and the other is the approach of the poet. When scientists look at a forest, they are interested in each tree, nay, in each specific leaf, in each specific flower, in each root and in each stem. They are not interested in the forest in its entirety. Poets, on the other hand, take an overall view of the forest, and they proclaim, "How vast are Your Creations, O God" (Psalms 104:24).

    Similarly, the Torah, just like the universe at large, is endowed with a mind and a heart. The halachah represents the mind of the Torah, while the aggadah represents the heart of the Torah. The mind of the Torah and the heart of the Torah represent one inseparable entity. There is a logic of the heart and a logic of the mind. One is immanent in the other. Just as you cannot separate the raysof the sun from the sun itself and the color of the apple from the apple itself, so you cannot separate the halachah from the aggadah and the aggadah from the halachah.

    The halachah and the logic of the mind are compared to bread, while the aggadah and the logic of the heart are compared to wine. On Shabbos and Yom Tov, a Jew recites a blessing first on wine and then on bread, because the logic of the heart precedes the logic of the mind. Likewise, the publication of my hashkafah shiurim precedes the publication of my chidushei halachah, because the logic of the heart precedes the logic of the mind.

    ~xv-xvi
I believe a society that inculcates respect for halakha without the necessary understanding and credence given to respect to aggadah will create people like the naval b'rshus ha'torah mentioned formerly. That is not to say that everyone will be like that, far from it, nor am I familiar enough with the term to apply it. But the idea of someone doing something which is halakhically entirely proper, but where the spirit of the action is improper- yes, that is something that will occur within a society where the logic of the heart and logic of the mind are reversed, and the mind takes precedence over the heart. In that case, people will respect the law as the final inviolate ruling, and not realize that above the law are the examples of the aggadah to guide us and to teach us.

A practical example of such a place (where the law itself and the aggadah suggest different courses of action) is also provided by Rav Ahron:
    The Torah states, “Tzedek, tzedek, you shall pursue” (Deuteronomy 16:20). Why should the Torah repeat the term tzedek? Rabbenu Bachaye, the student of the Ramban, in his work Kad Hakemach, interprets that the Torah intimates how the same standard of justice and righteousness that is applied toward our Jewish brothers is also to be applied toward all Gentiles. When one delves into the halachah, one can readily see that the Torah does not make a distinction between Jews and non-Jews within the realm of mishpat and tzedek. A trespass committed against the property of a pagan is just as criminal as one committed against the property of a Jew. It is truth that the aveidah, the lost object of a pagan that inadvertently comes into the possession of a Jew is permitted. However, this halachha is subject to two qualifications. One distinction is between an idol worshipper, whose lost object is permitted, and a non-pagan Gentile, whose lost goods are forbidden. Significantly, the Meiri (in the Shitah M’kubetzes on Bava Kama 113a) writes that based on this difference between the status of pagans and non-pagans, we assume that today there are no pagans for religious worship. Hence, all lost property that comes into possession of a Jew must be returned to its proper owner. The second qualification of the halachah permitting lost goods of a Gentile is mentioned in the Sefer Mitzvos Hagadol: Lost items of a pagan are not really permitted. Rather, such objects do not fall into the category of gezel, stealing, but still involve a violation of “The remnant of Israel shall not do inquity or speak lies” (Zephaniah 3:13). Taking and keeping the lost object of a pagan would still be considered an unjust and unfair act inasmuch as it runs counter to the principle of human rights and to the concept of tzedek, which must be shown to Jews and non-Jews alike.
    The Talmud Yerushalmi (Bava M’tziya) tells the story of Shimon ben Shetach, who worked in the flax business, struggling to make a living. His disciples advised him to give up the flax business and buy a donkey, which would provide a better source of income. Shimon ben Shetach agreed, and his students bought a donkey from an Arab pagan. After buying the animal, these disciples found a large diamond tied to it, and they brought both the animal and the jewel to their teacher. Upon seeing the acquisitions of his students, Shimon ben Shetach asked, “Did the Arab know that there was a diamond tied to the donkey?” The disciples said, “No.” At that point, Shimon ben Shetach said to his disciples, “Go immediately and return the diamond.” The disciples, however, were curious—is it not stated that all agree that the lost goods of a pagan are permitted to be retained? Shimon ben Shetach responded, “Do you think that I am such a barbarian? I am more interested in hearing the exclamation, “Blessed be the God of the Jews” from the mouths of pagans than I am in making a living.” Although perhaps the act of keeping the diamond might not have been stealing according to the law, it was still forbidden as an act of “barbarism” since “The remnant of Israel shall not do iniquity or speak lies.” It is inconsistent with k’vod habriyos and human rights.
    In this story, Shimon ben Shetach gives a remarkable definition of the term “barbarian.” According to him, anyone who fails to apply a uniform standard of mishpat, justice, and tzedek, righteousness, to all human beings regardless of origin, color, or creed is deemed barbaric.
    From this Yerushalmi, coupled with the concept of k’vod habriyos, one must assume that those people who refuse to grant any human being the same degree of respect that they offer to their own race or nationality are adopting a barbaric attitude.
    ~65-66
    People's hearts must be awakened to the spirit of the law, through the aggadah, before they can go about applying halakha. There is a beauty that permeates and explains the halakha- and that is the meaning, the glory and the grandeur for which we strive, which is found within aggadah.

    49 comments:

    Anonymous said...

    How did an apprentice have all this money to lay out?

    Anonymous said...

    (יח) ועשית הישר והטוב בעיני יקוק למען ייטב לך ובאת וירשת את הארץ הטבה אשר נשבע יקוק לאבתיך:
    (
    רמב"ן דברים פרק ו פסוק יח
    (יח) ועשית הישר והטוב בעיני ה' - על דרך הפשט יאמר תשמרו מצות השם ועדותיו וחקותיו ותכוין בעשייתן לעשות הטוב והישר בעיניו בלבד. ולמען ייטב לך - הבטחה, יאמר כי בעשותך הטוב בעיניו ייטב לך, כי השם מטיב לטובים ולישרים בלבותם. ולרבותינו בזה מדרש יפה, אמרו זו פשרה ולפנים משורת הדין. והכוונה בזה, כי מתחלה אמר שתשמור חקותיו ועדותיו אשר צוך, ועתה יאמר גם באשר לא צוך תן דעתך לעשות הטוב והישר בעיניו, כי הוא אוהב הטוב והישר:
    וזה ענין גדול, לפי שאי אפשר להזכיר בתורה כל הנהגות האדם עם שכניו ורעיו וכל משאו ומתנו ותקוני הישוב והמדינות כלם, אבל אחרי שהזכיר מהם הרבה, כגון לא תלך רכיל (ויקרא יט טז), לא תקום ולא תטור (שם פסוק יח), ולא תעמוד על דם רעך (שם פסוק טז), לא תקלל חרש (שם פסוק יד), מפני שיבה תקום (שם פסוק לב), וכיוצא בהן, חזר לומר בדרך כלל שיעשה הטוב והישר בכל דבר, עד שיכנס בזה הפשרה ולפנים משורת הדין, וכגון מה שהזכירו בדינא דבר מצרא (ב"מ קח א), ואפילו מה שאמרו (יומא פו א) פרקו נאה ודבורו בנחת עם הבריות, עד שיקרא בכל ענין תם וישר:


    KT
    Joel Rich

    G said...

    The general point of the post is so very true.

    However, it is also critical to remember that it works just as well the other way.

    Halacha without Aggadah has no heart...Aggadah without Halacha has no brains.

    Anonymous said...

    I think his translation is gravely mistaken, here is the Yerushalmi.

    שמעון בן שטח הוה עסיק בהדא כיתנא אמרין ליה תלמידוי ר' ארפי מינך ואנן זבנין לך חדא חמר ולית את לעי סוגין. ואזלון זבנון ליה חדא חמר מחד סירקאי ותלי ביה חדא מרגלי. אתון לגביה אמרין ליה מן כדון לית את צריך לעי תובן. אמר לון למה אמרין ליה זבנינן לך חד חמר מחד סירקיי ותלי ביה חדא מרגלי. אמר לון וידע בה מרה אמרין ליה לא א"ל לון איזל חזר. לא כן אמר רב הונא ביבי בר גוזלון בשם רב התיבון קומי רבי אפילו כמאן דמר גזילו של עכו"ם אסור כל עמא מודיי שאבידתו מותרת. מה אתון סברין שמעון בן שטח ברברין הוה. בעי הוה שמעון בן שטח משמע בריך אלההון דיהודאי מאגר כל הדין עלמא.

    Anonymous said...

    Does anyone know where the Sefer Mitzvos Hagadol is, I can't find it.

    anon said...

    http://curiousjew.blogspot.com/2007/03/aggada-vs-halakha.html

    Elster said...

    I read the same book over Tisha B'av and found it a very worthy addition to my experience.

    Anonymous said...

    Anonymous 4:38,

    Kindly provide us with your translation of the Yerushalmi, and explain what the 'grave mistake' is. Thank you.

    AK said...

    g said:
    "Halacha without Aggadah has no heart...Aggadah without Halacha has no brains."

    Interesting. The reason I say it because I came across people who only follow halacha and don't delve into aggadah or have no respect for it .These people come across as cold , impatient and judgemental.
    There is a huge need for balance in between the two. Those who lack this balance based on personal choice and/or upbringing seem to be leaving quite a bit to be desired.

    Anonymous said...

    The yerushalmi is clearly saying that the only reason r shimon be shetach returned it is to make a kidush hashem. So all one can see form the yerushalmi is that to keep money at the expense of making a kidush hashem would be barbaric, as it shows one values the money more than the kidush hashem-there is def no proof from the yerushalmi to what he is saying, and i believe the korban edah learns the yerushalmi as mentioned above as well- in fact the yam shel shlomo in baba kama says that it is prohibited to return an avedah to an akum even if it will be kiddush hashem if his intention is because he "likes him and has mercy on him"

    anon609 said...

    anon 4:38

    "So all one can see from the yerushalmi is that to keep money at the expense of making a kidush hashem would be barbaric, as it shows one values the money more than the kidush hashem-"

    I believe there is a flaw with your interpretation. Your interpretation implies that if a kiddush hashem didn't occur, it was a waste to not have kept the money.

    But the Yerushalmi never says that an actual kiddush hashem was made; it just says that R' Shimon ben Shatach HOPED to make a kiddush hashem. And that would seem to always apply, which makes Rav Ahron's conclusion correct. As it is only with continuous Kavod Habriyos (which is a very precise term, that includes Gentiles) that we can hope to make a kiddush hashem.

    Anonymous said...

    anon 609-yes, he returned it because he hoped (or wanted as the yerushalmi says)to make a KH. and if he kept money over attempting to make a KH, that would be barbaric. now please explain how that gives RAS proof to reinterpret the yerushalmi to fit his idea

    Anonymous said...

    >it just says that R' Shimon ben Shatach HOPED to make a kiddush hashem. And that would seem to always apply, which makes Rav Ahron's conclusion correct. As it is only with continuous Kavod Habriyos (which is a very precise term, that includes Gentiles) that we can hope to make a kiddush hashem.

    The Talmud says zero about Kavod Habrios. Let me ask you, had it been that no kiddush hashem would possibly occur, can one deduce from this passage that one must return the object because of kavod habrios? On the contrary, the ONLY reason to return it, is for kiddush hashem. It is perfectly muttar to keep the avaida, as the yershulmi clearly states, to the extent that the Yerushalmi asks why did he return it.

    yesod shel limud said...

    i most of the time agree but i can't on such a scenario in this very case
    Halacha needs to always be asserted
    Gemara's can be proven falsely need to do what is right can't walk around intentionally making mistake cmon
    Have a good shabbos all thanks bye

    Ben Rosenfeld

    Anonymous said...

    I too noticed something, there is another mistake in the translation, the Yerushalmi asks itself why did he return it, in R Aaron translation talmidim asked Shimon ben Shetach.


    The Pnei Moshe explanis the Shimon Ben Shetach was not a ברברין to become rich at the expense of a (possible albeit very likely) Kiddush Hashem, the ברברין has nothing to do with acting in a "proper" manner.

    Anon609 said...

    Anon 12:13

    "The Talmud says zero about Kavod Habrios."

    Of course. I was referring to RAS's use of the term in this specific case, and that he chose it carefully.

    "Let me ask you, had it been that no kiddush hashem would possibly occur, can one deduce from this passage that one must return the object because of kavod habrios?"

    No, it is not a direct conclusion. It is indirect. The point is that one never knows when one will make a kiddush hashem. R' Shimon bar Shatach felt he should to strive to make one, even if he is unsure if he would be successful. RAS points out that this attitude is consistent with kavod habriyos.

    Anonymous said...

    "Although perhaps the act of keeping the diamond might not have been stealing according to the law, it was still forbidden as an act of “barbarism” since “The remnant of Israel shall not do iniquity or speak lies.” It is inconsistent with k’vod habriyos and human rights. In this story, Shimon ben Shetach gives a remarkable definition of the term “barbarian.” According to him, anyone who fails to apply a uniform standard of mishpat, justice, and tzedek, righteousness, to all human beings regardless of origin, color, or creed is deemed barbaric."-
    he says explicitly that the kovod habriyos was treating the non-jew with respect and dignity mishpat etc. nothing to do with attempted kiddush hashem

    anon609 said...

    Anonymous 12:22

    "I too noticed something, there is another mistake in the translation, the Yerushalmi asks itself why did he return it, in R Aaron translation talmidim asked Shimon ben Shetach."

    So would you consider this a 'grave mistake'? The Gemara many times asks the questions that are on the minds of the students.

    "The Pnei Moshe explanis the Shimon Ben Shetach was not a ברברין to become rich at the expense of a (possible albeit very likely) Kiddush Hashem, the ברברין has nothing to do with acting in a "proper" manner."

    Unfortunately, I don't have a Yerushalmi handy. Are you telling me that the Pnei Moshe actually states "the ברברין has nothing to do with acting in a "proper" manner"? I find that unlikely, and possibly an example of a 'grave mistake', as it misrepresents the facts.

    anon609 said...

    Gentlemen, I'd love to continue this conversation, but I am very tired and need to get some sleep. Have a good night and a good shabbos; perhaps we'll continue this on Motzei Shabbos.

    Anonymous said...

    no prob- are u who I suspect u are?

    anon609 said...

    Yes, of course. I hope you continue your arguments with the same intensity irrespective of that.

    Anonymous said...

    thank you-btw there are 2 anons here, i hope yu were able to figure out which one was not me

    anon609 said...

    Yes, I realized this last night. Anon 12:22 is definitely someone else. And Anon 12:18 is also probably someone else. My guess is that you are acquainted with these people.

    FYI, my response of 12:49 mistakenly addressed Anon 12:13 (you) instead of Anon 12:18. But the content addresses your question as well. My guess is that you aren't satisified with it; let me know why.

    Anonymous said...

    see my response at 12:53-he is not saying it is "consistent" whatever that means, he says very straight forward that the reasn r shimon gave it back was not to trample on the gentiles human rights"It is inconsistent with k’vod habriyos and human rights. In this story, Shimon ben Shetach gives a remarkable definition of the term “barbarian.” According to him, anyone who fails to apply a uniform standard of mishpat, justice, and tzedek, righteousness, to all human beings regardless of origin, color, or creed is deemed barbaric. From this Yerushalmi, coupled with the concept of k’vod habriyos, one must assume that those people who refuse to grant any human being the same degree of respect that they offer to their own race or nationality are adopting a barbaric attitude."
    all the yerushalmi says that to keep it instead of attempting a kidush hashem was "barbarin" where does the rest come from? if the gentile could never have possibly known know a jew gave it back, why would r shimon return it, as the only reason he did was for the kiddush hashem.As opposed to in his interpretation he is adding a new element which would make r shimon "barbarin" not to return it in that case as well.

    anon609 said...

    Theoretically, I think you are correct. If there is no chance for a kiddush hashem, then the Yerushalmi would not require one to return it. And it seems a stretch for RAS to define 'barbaran' in the broader sense.

    But practically l'maaseh, I cannot come up with a case where a kiddush hashem isn't somehow involved. And perhaps that is why RAS presented the thought as he did.

    Anonymous said...

    2 things
    I am not sure why it would be difficult ti come up with a scenario where there is no KH.What about if the person cannot know you are jewish? or will never find out?

    Bet even without that, I don't understand what you meant.As if you agree that if no kiddush hashem even theoretically, according to the yerushalmi there is no reason to return it (and would even be prohibited in many cases) than that stands in direct contradiction to RAS idea. Would that not show that we do not return things to gentiles because of their inherent right to be respected? Would that not be in argument with this-"Taking and keeping the lost object of a pagan would still be considered an unjust and unfair act inasmuch as it runs counter to the principle of human rights and to the concept of tzedek, which must be shown to Jews and non-Jews alike."?

    anon609 said...

    1. If it's not difficult, then please present a practical scenario where no potential kiddush hashem would be involved.

    2. RAS derives his idea about mishpat and tzedek from Rabbenu Bachaye, and from an analysis of halacha:

    "When one delves into the halachah, one can readily see that the Torah does not make a distinction between Jews and non-Jews within the realm of mishpat and tzedek."

    The Yerushalmi cannot be a sole proof to this, as it can be limited to kiddush hashem. But it is not a contradiction either, as it can be expanded to include this concept.

    Anonymous said...

    1.I said, lets say one cannot tell the person he is a jew for social or danger reasons, is he still obligated to return it-the case of no kidush hashem is an option brought down in rambam, SA etc.
    2.that is a vague statement that can mean many things. he is trying ti prove its application in the practical realm, and the yerushalmi is far from proof, and it does contradic his idea ,as it says the reason is to make a kidush hashem, which according to none who brings it down means that it is for the rights of the gentile-for the simple reason that is not what the yerushalmi says-to say with regards to dinim of avedah, gezeilah etc no dif is made in halacha is simply untrue.

    Anonymous said...

    1.I said, lets say one cannot tell the person he is a jew for social or danger reasons, is he still obligated to return it-the case of no kidush hashem is an option brought down in rambam, SA etc.
    2.that is a vague statement that can mean many things. he is trying ti prove its application in the practical realm, and the yerushalmi is far from proof, and it does contradic his idea ,as it says the reason is to make a kidush hashem, which according to none who brings it down means that it is for the rights of the gentile-for the simple reason that is not what the yerushalmi says-to say with regards to dinim of avedah, gezeilah etc no dif is made in halacha is simply untrue.
    rabeinu bachaye-
    כיון שדברנו בחומר איסור הגזל והוכחנו שהוא אסור גם באומות העולם צריך אדם שינקה עצמו ממנו ויפשפש במעשיו אם יש בידו עון זה ואם פשפש ומצא צריך שירחיקנו מעליו כי לא יטהר עד שיזרקנו כזורק אבן מידו. ומי שישיבו יורשיו גזלה בשבילו אין זה השבה גמורה אלא צריך שינקה הוא בעצמו את נפשו בחייו לא שיניח את גזלתו ויצוה לאדם אחריו להחזירה כי מי יחמול על נפשו יותר ממנו, והנקיות הזה הוא בחייו, הדמיון הנר שאין עיקר אורו אלא כשיוליכנו אדם בפניו ואם יוליכנו אחריו לא יאיר, כן הענין בעצמו בענין השבת גזלה ומזה אמר הכתוב (ישעיה נח) והלך לפניך צדקך וכבוד ה' יאספך. ביאורו אם תצדיק עצמך שילך צדקך לפניך כלומר בחייך בעוד שאתה בחיים המקריים אז כבוד ה' יאספך שהוא עיקר החיים הנצחיים, ולכך צריך אדם שיזהר במדת הגזל בעודו בחיים חיותו ושירדוף אחר הצדק שהוא הפכו כי בזה יענש ובזה יזכה והוא שנצטוינו בתורה צדק צדק תרדוף. וכפל הלשון לטעמים רבים, האחד רוצה לומר בין שתרויח בין שתפסיד, והשני בין בדיבור בין במעשה כי בשתי אלה תשלמנה כל פעולותיו של אדם ולכך יזהירנו שיצדק בדבורו גם במעשהו, והשלישי בין לישראל בין לאומות העולם. ולמעלת מדת הצדק מצינו שנשתבחה בה ירושלים שנא' (ישעיה א) צדק ילין בה, ומצינו הקרבנות שיחס אותן הכתוב למדת הצדק הוא שכתוב (תהלים ד) זבחו זבחי צדק, ובפעולת הצדק אדם זוכה ומקבל פני שכינה שנאמר (שם טז) אני בצדק אחזה פניך אשבעה בהקיץ תמונתך
    does he seem to be saying that there is no difference in the laws that RAS puts under the umbrella of tzedek, or mishpat which rabeinu bachaye does not even mention? or does he say that there is an obligation to be "just" with gentiles, whatever that may mean.

    anon609 said...

    1. Rabbeinu Bachaye in Kad Hakemech brings down the example of Yaakov insisting that his sons return the money to Mitzrayim, and that he wanted to make a kiddush hashem.

    I'm not sure why it would have been a kiddush hashem for the following reasons:
    a) the Egyptians never heard of Hashem, as we find by Pharaoh's statement in Shmos 'Mi Hashem'.
    b) You could possibly claim that Yosef used the name Elokim when he explained Pharaoh's dream, and therefore Pharaoh knew about Hashem. But I believe that Elokim is a more generic name that can apply to all gods, as we find it is used in this way in other parts of Chumash. So this no proof that they knew about Hashem.
    c) No mention is made that Pharaoh was involved in the day-to-day handling of selling grain. We can assume he would never find out about the return of the money.
    d) The fact is that Yaakov could rightly assume that the Mitzrim didn't know about the Ivrim or Hashem.

    So I don't understand why the Bachaye thinks that there could be an element of kiddush hashem.

    So perhaps this is an example where no kiddush hashem was involved, yet Yaakov returned it.

    If I recall correctly (where do you get your text from?), the Kad Hakemech makes a kal vachomer - if before matan torah Yaakov did it, then certainly after Matan Torah it should be required.

    But I know, this is not a halacha, but an example of a noble way of acting, and cannot provide a proof that one should return the aveda/taus when no kiddush hashem is involved.

    The Baar Hagola (CM 226, Os Beis)qualifies the Rambam similar to the Meiri's approach, and suggest that is indeed what the Rambam meant. (See also Baar Hagola CM 348, Os Hei) This would indicate that one is not violating a sin to return it. But I can't bring proof from him that it is an obligation to return it.

    The only potential proof is from Rabbenu Bachaye, where he equates the tzedek of a Jew and Gentile. That must be RAS's source.

    2. The Yerushalmi is speaking about returning an aveda to an Akum; that's why the element of kiddush hashem is required. Rabbenu Bachaye is speaking of an Akum who follows just practices, and thereby expands the halacha to all types of tzedek, which seems to include cases where even no kiddush hashem occurs. So the Yerushalmi doesn't contradict RAS's idea.

    I would say the Bachaye is expanding the aveda/taus rights of a Gentile to be equal those of a Jew. This is the pattern of his other two explanations of tzedek tzedek; both sides are equal.

    FYI, I was told that Rav Dovid Cohen returns misdelivered mail to a Gentile with a note. So it seems he is careful to make sure there is a kiddush hashem so that there is no issur hachzara. Yet he does the hachzara to make sure not to violate the Meiri, Baar Hagola, Rabbenu Bachaye, and Sefer Chasidim.

    anon609 said...

    I too noticed something, there is another mistake in the translation, the Yerushalmi asks itself why did he return it, in R Aaron translation talmidim asked Shimon ben Shetach.
    - Anonymous 12:22 AM

    I finally saw the Yerushalmi over Shabbos. On מה אתון סברין שמעון בן שטח ברברין הוה
    the Pnei Moshe clearly says that R' Shimon ben Shetach was answering the talmidim. I assume that he says this since this sentence is in second person and not third person. So that shows that the talmidim were the ones who asked R' Shimon ben Shetach the question, even if the Yerushalmi didn't say it explicitly.

    So RAS was very correct in his translation.

    Anonymous said...

    anon609, you missed the pinei moshe one above that one where he says the conversation was with rebbe, the one who it was said in front of him kol ama modeh diavedaso muttares

    Anonymous said...

    the beer hagolah is def not saying there is a chiyuv, on the contrary, he is explaining the dif bet rambams reason for the issur-"being machzik yedei ovrei aveirah" and rashis(whichb)btw is in direct contradiction to what RAS is saying see rahi kesubos 15b and sanhedrin 76b reason which is dif, nowhere does he say one is obligated to return it, rather there is no issur.
    without getting involved in the meiri and the censors discussion, the idea that one is obligated to give back to "our goyim"is not like the din in SA.besides think about the ramisfications, all our dinim that have to do with ir ruba akum and keeping aveidos are not nogeah anymore.
    rabeinu bachY clearly says(vayikra 25:50) that one is not obligated to return taos akum, only if he does it is a kiddush hashem. all he says is that someone should be "tzedek" with speach and action, whether to jew or to gentile.even with all the options of what the pasuk is refdfering to, where did RAS get this idea that tzedek means to all dinei mamonus?that we treat them the same is just simply untrue in dinei mamonus. what compelled RAS to interpret this din in a way contrary to the reading of everyone else since the beginning of time?

    mosh said...

    I am 11:36 and some of the others, not 11:37. ill try to stick to using my name

    Anonymous said...

    my quote is from kad hakemach"- where he says right before that an avedah and taos of a goy is muttar "*and if he returns it* it is a kiddush hashem* and yes he brings the proof from yaakov, and says a kal vchomer to us who have a mitzvah of kidush hashem as opposed to before matan torah.AAs an ironic side note see the brisker rav on that pasuk where he explains "biyedchem" in the pasuk to mean to make public your deed as to make a kiddush hashem as otherwise its assur

    anon609 said...

    Mosh,

    I don't have a Yerushalmi and will have look at this tomorrow. But how could Shimon ben Shetach who lived during the reign of Yanai Hamelech be responding to Rebbe who lived after the Churban? And אתון is plural, not singular.

    mosh said...

    here is the yerushalmi

    http://hebrewbooks.org/pdfpager.aspx?req=14136&hilite=&pgnum=114

    rebbi was responding to the talmidim sitting with him, not to sbs

    anon609 said...

    Mosh,

    Thank you for the link.
    So how do you explain the Pnei Moshe where he says "Umipnei ma ata m'tzave l'hachzir aveidaso". It should say "Umipnei ma hu tziva l'hachzir aveidaso".

    mosh said...

    It's not the direct "you" but rather the general you, it the way the gemara refers to "anyone", as in how are you allowed, why are so suppose to. Again it's clear from the PM this conversation is taking place קומי רבי.

    anon609 said...

    I agree with your analysis of the Beer Hagola; I said the same thing.

    "all our dinim that have to do with ir ruba akum and keeping aveidos are not nogeah anymore."
    I think the Jews in all the republics of the former Soviet Union and Iran would disagree with you. The system is still not just there. I can put you in touch with someone who can fill you in on details if you'd like.

    "that we treat them the same is just simply untrue in dinei mamonus." Please give some examples.

    Anonymous said...

    i was saying that in america it would be moot, which is quite a chiddush.the sema brings the reason of rashi which would clearly apply to all goyim as the beer hagolah says as well.
    3.hafkaas halva,taos akum,esmachta lo kanya,and remember dont forgrt the rema brings a shita that it is mutar to "trick" a goy in business, and yes im aware most poskim dont go that way, but if we are going to be presenting this as ideals and justice of jewish law, that shita would seem horrific and unjust?

    anon609 said...

    Mosh,

    I'm not happy with your answer on this one. I think the Pnei Moshe is a bit unclear; that's my guess as to why RAS translated the gemara the way he did.

    But I agree with you that the grammar supports the rest of the way the Pnei Moshe translates it, and that RAS should have translated it differently.

    Thank you for making this clear to me.

    anon609 said...

    "but if we are going to be presenting this as ideals and justice of jewish law, that shita would seem horrific and unjust?"

    I think RAS would apply the Rema to Akum that are not just. If the Akum will trick the Jew within their legal system, then the Jew can trick them within halacha.

    But RAS would say this would definitely not apply in America, where the legal system is fair, and yes, these halachos would be moot in America.

    I'm sure you are familar with the baar hagola who states the people who used the 'trick' method to get rich ended up losing their money and leaving nothing to their heirs.

    So to conclude, do you still think that RAS's translation is 'gravely mistaken'? Or that, in your opinion, he is overextending the Rabbenu Bachaye?

    Anonymous said...

    "gravenly mistaken" was not me

    yes im aware,of the beer hagolah, but that has to do with tricking and lying as in the smag, no real reason to say he means "violating rights"
    and please show mw a posek who says the dinim of aveidas akum, taos akum, or even the shitah in the rema re tricking does not apply in america
    in conclusion, i think to say he overextended a rabeinu bachaya and reinterpreted a yerushalmi, as well as many dinim in SA is an understatement
    and i mean no disrespect by that

    mosh said...

    it seems he took some preconceived notion and decided to do whatever he could to fit sources into it.
    Nowhere in any of his sources does it champion or even mention this "equality of rights" or whatever it is. on the contrary, the simple and accepted understanding of the sources seem to point in a very different direction and any attempt to read them otherwise has been proven to be unsuccessful

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    Use your crystal goblets.Do not save your best perfume,and use it every time you feel you want it maple story accounts sevise.

    anon609 said...

    "and please show mw a posek who says the dinim of aveidas akum, taos akum, or even the shitah in the rema re tricking does not apply in america".

    Here are some poskim who essentially say this. Thanks to Rabbi R. for giving me these mkorot.

    Rabbi Yosef Eliyahu Henkin
    Title Page
    Text

    Rabbi Yechiel Yaakov Weinberg
    Title Page
    Text

    Rabbi Reuven Margolies
    Title Page
    Text

    Rabbi Avraham Eliyahu Kaplan
    Title Page
    Text1
    Text2

    Anonymous said...

    What about a goy who violates any of the shiva mitzvot being liable for capital punishment... Where's the equal rights there? Ah, we never do it, but the Torah says we should...

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