New York – VINDAF VIEWS: Bava Basra 81

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    81aNew York – A recent controversy in the pages of Hakirah – the Flatbush Journal of Jewish Law and Thought dealt with (Summer, 2009 p.20) dealt with an accusation of the Brisker method being “ahistorical.”

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    The Brisker method is often characterized as examining the particulars of a given halacha and finding two or more elements in them that work upon differing principles. The method often questions whether the particular obligation under discussion is one that is incumbent upon the item itself “Cheftza” or the person performing the Mitzvah “Gavra.” Classically, the Brisker methodology utilizes the method to resolve a difficult Rambam, but occasionally it is used to shed light upon a Tosfos or another Rishon as well.

    A Tosfos (“Hahu”) in our Gemorah (81a) seems to be a perfect example of a Brisker form of analysis, and it is clear that, at least in regard to this Tosfos, it is anything but “ahistorical.” It would seem that the authorial intent of this Tosfos is a paradigmatic example of the Brisker method.

    Our Gemorah provides a posuk, “asher tavi meArtzecha” to tell us that Bikkurim is not a Mitzvah that applies also outside of Israel. Tosfos asks why we actually need this posuk – the Gemorah in Kiddushin (36b) states explicitly that any Mitzvah that is dependent on the land is only observed in Israel. Why then do we need this Posuk, when we know that the Mitzvah of Bikkurim is only applicable after the land of Israel was captured?

    Tosfos gives two answers: The first answer is that since there is a connection between the prohibition of milk and meat and Bikkurim (See Shmos 23:19), we might have thought that just like milk and meat is applicable outside of Israel so too is Bikkurim.

    The second answer Tosfos provides is that Bikkurim is not a Mitzvah that is dependent upon the land , rather it is an obligation that falls on the person himself.

    It would seem quite clear that this is point of contention between the two opinions in Tosfos. Should Bikkurim be viewed as an obligation that falls on the land like the first answer in the Tosfos? Or should it be viewed as an obligation that falls on the person?

    All this, of course, does not have bearing on the debate in the pages of Hakirah whether the placing of a Rav Chaim type of Chakirah in a Rambam is an actual determination of the Rambam’s authorial intent. Such an analytical effort would have to be performed on a case by case basis, also determining the language of the Rambam in each particular circumstance.

    The Chazon Ish is quoted to have said that the Briskers would suggest the following Chakirah: Is there actually a death penalty violation when one desecrates the Sabbath? Or is it that, in actuality, every person naturally incurs a death penalty violation – it is just that if one sanctifies instead of desecrates the Sabbath he has earned an exemption in the naturally incurred death penalty violation?

    The Chazon Ish was obviously joking, but the point was that indeed, sometimes the methodology is employed when it was clearly not the authorial intent of the Rambam.


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    12 Comments
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    Anonymous
    Anonymous
    14 years ago

    It sounds like a typical Reb Chaim, but maybe the machlokes is whether there is a hekesh or not..

    Chaim S.
    Chaim S.
    14 years ago

    Typical Hakirah chakirah. Do time-tested methods established by Gedolei Yisroel have relevance in our modern society? Does our holy tradition of mesores avoseinu b’yodeinu have relevance in our modern society? It seems that some of the contributors to Hakirah don’t agree with Chazal that “im rishonim k’malochim”. If we believe that our holy heritage is angelic and spiritually founded then we can at least view ourselves as bnei odom. If we view our holy Rbbeim as mere humans, then we are not much better than chamorim. These “modern bnei Torah” seem to feel that there are two levels of Torah thought, Daas Torah and “daas balei bayis”. They may want to revisit the Gemora in Sanhedrin that deems this so-called daas balei bayis with an interesting soubriquet – shloshe ro’ei bokor.

    Anonymous
    Anonymous
    14 years ago

    It is clearly not ahistorical in this case

    brumfin
    brumfin
    14 years ago

    to #1 “but maybe the machlokes is whether there is a hekesh or not..”
    If everyone agrees that it’s a mitzavh on the gavra then why does Tosfos in the first answer need to come on to the hekesh? Muz zein because the first answer holds it’s a din in the cheftza.

    brumfin
    brumfin
    14 years ago

    In the spirit of hocking:

    Perhaps everyone agrees that Bikurim is a Mitzvah on the Gavra. The only question is, does that remove it from being considered a mitzavh shetluya ba’aretz. Tosfos in the hava mina and in the first answer agree that it’s on the gavra but still it’s teluya ba’artetz because it’s fruit from the aretz. (In fact the proofs that Tosfos brings in the second answer seem irrefutable that it’s a din gavra; that one is permitted to eat the fruits before the bikurim is brought, contrary to ma’aser and terumah) Tosfos in the second answer learns that once it’s a din gavra it can not be considered teluya ba’aretz. (Lima’am haemes though this is a doichik because Tosfos in the second answer is mashma that he’s being mechadesh that it’s a din in the gavra)

    Carpet Man from Cherry Hill Says:
    Carpet Man from Cherry Hill Says:
    14 years ago

    I think that Brumfin is saing gaoanis- that if you say the reason that normally Mitzvas Hauretz (ex. trumah) are in Israel only, is because it’s a Din that Eretz means Eretz Yisre, then even if it’s a Mitzvah D’gavrah it will not Make A difference even for Bikurim. However,. If the reason the mitzvos Hauretz are only in israel is because of Kedushas Hauretz, then we could say that if it is a Mitzva D’gavrah to thank Hashem What or how does Kedushas Huaretz stop me from thanking Hashem on my mitzvoh D’gavrah.

    The Truth is even in Kedushas Haaretz I can see two ways of looking at it!
    Vain Kan Mokom L’harich
    So it may be that the brisker
    M’halech can’t even be proved from this Tosfos and Rabbi Hoffman is right once again!

    Anonymous
    Anonymous
    14 years ago

    It is clearly not ahistorical in this case

    Eliyahu
    Eliyahu
    14 years ago

    The brilliant Brisker derech may perhaps not be telling us what the Rambam meant but rather providing us with some amazing insight into the halacha in general while using the Rambam as a convenient summary of the halacha from which to then proceed with its analysis.. And in fact the Rambam might not always agree with the conclusions or even with all of the darchei limud of some of the baalei Tosfos.. However, we need not say that there is ONE derech in learning but rather eilu ve-eilu and we can gain insight into our Torah using many different derachim that at times may appear to be or may actually be inconsistent with each other. People needn’t worry about resolving every kasha; we may have to live with those questions until the Geulah and meanwhile we can enjoy the diversity of such insights as long as they are within the normal parameters of halacha.

    Kavod Hatorah
    Kavod Hatorah
    14 years ago

    Rabbi Hoffman is not arguing on the holy brisker m’halech he
    is just saying that at times it is misused!
    I think even Rav Avrohom Yehoshua would agree.

    Yankel
    Yankel
    14 years ago

    If our ancestors were like malachim, and we are bnei adam, does this mean that our descendants will be monkeys? Seriously, following this logic, what do you expect our descendants to be like?

    Torah Before Brisk
    Torah Before Brisk
    14 years ago

    Chaim S.Keep in mind that there was Torah before 1853 also (The GRACH’s date of birth). And MANY gedolim of that generation didn’t like Rav Chaim’s innovative derech ha-limud. Here is what the Ridbaz had to say “A certain rabbi invented the “chemical” method of study. Those in the know now refer to it as “chemistry,” but many speak of it as “logic.” This proved to be of great harm to us for it is a foreign spirit from without that they have brought in to the Oral Torah. This is not the Torah delivered to us by Moses from the mouth of the Omnipresent. This method of study has spread among the yeshivah students who still hold a gemara in their hands. In no way does this type of Torah study bring men to purity. From the day this method spread abroad this kind of Torah has had no power to protect its students. . . . It is better to have no rosh yeshivah than to have one who studies with the “chemical” method.” So the “modern bnei torah” as you call them may simply be following a mesorah that predated the Brisker derech!