A High Level Torah Discussion Group

Micha Berger | 9 Feb 18:57

A Mamzer Marrying a Shifchah

The topic came up on Areivim about the possibility of a mamzer
"marrying" a shifchah, in which case the children are acadim, and
when freed, wouldn't be mamzeirim.

RAZZ asked me to put up on the archive "The Mamzer and the Shifcha"
by R' David Katz <http://www.aishdas.org/avodah/faxes/mamzerShifcha.pdf>.

The discussion there appears to be hanging on the problem of dina
demalkhusa. Which can mean one or both of the following:

1- We live in countries where slavery is illegal. Therefore, one can't
suggest lekhat-chilah that one buy a slave in the US, it's assur.

I presume this could be avoided by:

a- moving to Israel, so that if one holds like the Ran's understanding
of Tosafos, and not like RAYK that Medinat Yisrael has at least some of
the laws of malkhus DDD doesn't apply (to a non-melekh in EY).

b- making a chiluq between a shifchah as defined in halakhah and a
slave as defined in civil law, and thus find a way to have a shifchah
who isn't a slave.

2- There is a rule in CM that by default, the norms of your host society
are fiscally binding. Therefore one could argue that it is impossible to
buy a shifchah in a country where buying people is illegal.

Possible ways out:

a- Is DDD in this sense the law on the books, or the de facto reality?

(Continue reading)

Zev Sero | 9 Feb 20:06

Re: A Mamzer Marrying a Shifchah

On 9/02/2012 12:57 PM, Micha Berger wrote:

> 1- We live in countries where slavery is illegal. Therefore, one can't
> suggest lekhat-chilah that one buy a slave in the US, it's assur.

As I have written many times before, there is no issur on violating
the law.  You will not find such an issur anywhere in the gemara or
the Shulchan Aruch or the Rambam, or any other accepted code of
Jewish law.  The problem here is not that it is *illegal* to buy a slave
(if indeed it is, which is not at all clear to me), but that in some
countries it may be *impossible*.

Let's get one thing out of the way first: the thirteenth amendment
to the USA constitution isn't relevant, because it refers only to
involuntary servitude.  As far as it's concerned there is no barrier
to voluntary servitude, which is what we're discussing.  The question
is how the laws that implement it are worded, and the history of how
the slaves who existed at the time of its adoption were legally freed.

But let's consider the case of England (and Wales), where the law is
clear: "one may be a villein in England, but not a slave".  Mere
presence in England is enough to be mafkia any kinyan haguf that one
person has over another.  Thus, if we hold that DdMD applies in England,
the shifcha solution won't work.   And the same would apply wherever
the law is similarly phrased.

Unless.  It occurs to me that since "kol tnai shebemamon kayam" is
enough to override both Choshen Mishpat and Minhag Hatagarim, why isn't
it enough to override Dina Demalchusa as well?  If the woman stipulates
that she is aware that DdM decrees such a thing to be impossible, and

(Continue reading)

Micha Berger | 9 Feb 21:59

Re: A Mamzer Marrying a Shifchah

On Thu, Feb 09, 2012 at 02:06:55PM -0500, Zev Sero wrote:
> As I have written many times before, there is no issur on violating
> the law.  You will not find such an issur anywhere in the gemara or
> the Shulchan Aruch or the Rambam, or any other accepted code of
> Jewish law....

You can write the same thing many times, it doesn't make it more
right.

http://www.aishdas.org/avodah/vol27/v27n155.shtml#10

Rashi, Maharshal, Rashbam, Ran, the SA, the Rama and the Shakh all hold
that such an issur exists, and argue over its basis and consequently
its scope. Arguably the Ran's sevara may not apply outside a monarchy.
And the SA may limit the scope to cheating on laws that finance the
gov't.

I agree with the rest of your analysis.

Tir'u baTov!
-Micha

--

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Micha Berger             If a person does not recognize one's own worth,
micha <at> aishdas.org        how can he appreciate the worth of another?
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Zev Sero | 9 Feb 22:38

Re: A Mamzer Marrying a Shifchah

On 9/02/2012 3:59 PM, Micha Berger wrote:
> Rashi, Maharshal, Rashbam, Ran, the SA, the Rama and the Shakh all hold
> that such an issur exists,

You have yet to show where they say so.

--

-- 
Zev Sero        "Natural resources are not finite in any meaningful
zev <at> sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
		 are expanding through human ingenuity."
		                            - Julian Simon
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Micha Berger | 9 Feb 22:57

Re: A Mamzer Marrying a Shifchah

On Thu, Feb 09, 2012 at 04:38:29PM -0500, Zev Sero wrote:
> On 9/02/2012 3:59 PM, Micha Berger wrote:
>> Rashi, Maharshal, Rashbam, Ran, the SA, the Rama and the Shakh all hold
>> that such an issur exists,

> You have yet to show where they say so.

No, I just sent a link to a summary of an article by RMJBroyde, including
a link to the article, which has mar'eh meqomos. See RMJB at
<http://www.shmadigital.com/shma/200912?pg=3#pg2>.

You made a similar denial back then, and you replied:
> I got sick of beating my head against a wall.  None of the sources
> were on topic...

To which I wrote:
> Let's see, in the post to which you're replying, I mention Rashi's
> obligation to follow all secular laws that are legislated in fulfillment
> of the 7 mitzvos, the Maharshal's obligation to follow those that make
> for an ordered society, the Rashbam saying DDD means following any
> gov't that rules by the concent of the governed, the Rashba (and the
> BY who cites him) that DDD includes conducting a Jewish investigation
> of a crime on behalf of the civil authorities -- who are responsible
> for any punishment, and the Maharam Shick saying that DDD obligates
> one to turn in a woman suspected of killing her husband even if halakhah
> doesn't call for her death and her guilt hasn't even been determined
> yet.

In addition, in the past we discussed RHSchachter's article (URL in
following quote). And that ran me to frustation as well:

(Continue reading)

Zev Sero | 9 Feb 23:08

Re: A Mamzer Marrying a Shifchah

On 9/02/2012 4:57 PM, Micha Berger wrote:
> You made a similar denial back then, and you replied:
>> >  I got sick of beating my head against a wall.  None of the sources
>> >  were on topic...

And they're still not on topic.  *None* of the sources quoted give
any support to your position, they are simply red herrings.  Your reliance
on the authority of modern English articles does not impress me or anyone
else.  You can torture the Rashi all you like but it still won't say what
you would like it to.  The fact remains that there is no mention of any
such halacha in any source of halacha lemaaseh, which is *not* English
articles by modern rabbis.  If an issur or a chiyuv exists, it must be
mentioned somewhere, and the plain fact is that it isn't.  You admit that
it isn't, because you try to extract it from strange diyukim.  Imagine
if I claimed that an issur shabbos that nobody had ever heard of rested
on such diyukim.  Your basic tactic remains that of begging the question.
You mistranslate the words "dina demalchusa dina", giving them a meaning
that the Aramaic language will not support, and which has no support in
any of the examples the gemara gives, and then every time those words
appear you point to them as support for your position.

--

-- 
Zev Sero        "Natural resources are not finite in any meaningful
zev <at> sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
		 are expanding through human ingenuity."
		                            - Julian Simon
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Micha Berger | 10 Feb 01:05

Re: A Mamzer Marrying a Shifchah

On Thu, Feb 09, 2012 at 05:08:58PM -0500, Zev Sero wrote:
> On 9/02/2012 4:57 PM, Micha Berger wrote:
>> You made a similar denial back then, and you replied:
>>> >  I got sick of beating my head against a wall.  None of the sources
>>> >  were on topic...
>
> And they're still not on topic.  *None* of the sources quoted give
> any support to your position, they are simply red herrings...

It's not my positions. It is those of every poseiq actually quoted on
list. That's how halakhah is done, right? If you want to say there is no
rishon giving such an issur, that's interesting theory. I wouldn't buy
into it given that it assumes believing RZS knows how to read rishonim
better than a large number of rashei yeshiva. But okay. But if you are
making a claim about a pesaq, that no such issur actually exists, and
others quote posqim who do give such a pesaq, don't you too need a bar
pelugta, a poseiq who actually posits the shitah you're advocating?

You fail to do so. You even fail to argue your theoretical (non-lemaaseh)
claim. Just positing it repeatedly. I quote Rashi saying X, you say Rashi
doesn't say X, and ignore the quote. Not interpret it differently than
RMJB and RHS did, just positing your conclusion. You give me nothing
to debate.

So lemasseh, the two PDF articles on line are typical of contemporary
pesaqim who say it's prohibited to violate some subset of civil law.
Whether it's financial law, any law made by a non-Israeli or non-Jewish
gov't, any law that fulfils their 7 mitzvos benei noach duties, or that
provides peace, or any law that doesn't violate halakhah... That's the
space of the machloqes, not whether or not the issur altogether exists.

(Continue reading)

Zev Sero | 10 Feb 07:37

Re: A Mamzer Marrying a Shifchah

On 9/02/2012 7:05 PM, Micha Berger wrote:
> It's not my positions. It is those of every poseiq actually quoted on
> list. That's how halakhah is done, right?

No, I don't believe it is.

--

-- 
Zev Sero        "Natural resources are not finite in any meaningful
zev <at> sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
		 are expanding through human ingenuity."
		                            - Julian Simon
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Micha Berger | 10 Feb 11:47

Re: A Mamzer Marrying a Shifchah

On Fri, Feb 10, 2012 at 01:37:59AM -0500, Zev Sero wrote:
> On 9/02/2012 7:05 PM, Micha Berger wrote:
>> It's not my positions. It is those of every poseiq actually quoted on
>> list. That's how halakhah is done, right?

> No, I don't believe it is.

My "that" was vague. Are you denying that halakhah is a matter of going
to a poseiq rather than going with whichever sevara you personally find
compelling, no matter whether anyone agrees?

BBii!
-Micha
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Lisa Liel | 10 Feb 14:05

Re: A Mamzer Marrying a Shifchah

On 2/10/2012 4:47 AM, Micha Berger wrote:
> On Fri, Feb 10, 2012 at 01:37:59AM -0500, Zev Sero wrote:
>    
>> On 9/02/2012 7:05 PM, Micha Berger wrote:
>>      
>>> It's not my positions. It is those of every poseiq actually quoted on
>>> list. That's how halakhah is done, right?
>
>> No, I don't believe it is.
>>      
> My "that" was vague. Are you denying that halakhah is a matter of going
> to a poseiq rather than going with whichever sevara you personally find
> compelling, no matter whether anyone agrees?
>    

I deny that.  That's as extreme as the OO view that says everyone can 
make their own decisions about halakha.  The truth exists in the middle 
ground between OO and haredism.

Lisa
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Zev Sero | 10 Feb 20:38

Re: A Mamzer Marrying a Shifchah

On 10/02/2012 5:47 AM, Micha Berger wrote:
> On Fri, Feb 10, 2012 at 01:37:59AM -0500, Zev Sero wrote:
>> On 9/02/2012 7:05 PM, Micha Berger wrote:
>>> It's not my positions. It is those of every poseiq actually quoted on
>>> list. That's how halakhah is done, right?
>
>> No, I don't believe it is.
>
> My "that" was vague. Are you denying that halakhah is a matter of going
> to a poseiq rather than going with whichever sevara you personally find
> compelling, no matter whether anyone agrees?

Halacha is about sources.  Lo bashamayim hi.  

--

-- 
Zev Sero        "Natural resources are not finite in any meaningful
zev <at> sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
		 are expanding through human ingenuity."
		                            - Julian Simon
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http://lists.aishdas.org/listinfo.cgi/avodah-aishdas.org

Micha Berger | 10 Feb 20:51

Re: A Mamzer Marrying a Shifchah

On Fri, Feb 10, 2012 at 02:38:33PM -0500, Zev Sero wrote:
>> My "that" was vague. Are you denying that halakhah is a matter of going
>> to a poseiq rather than going with whichever sevara you personally find
>> compelling, no matter whether anyone agrees?

> Halacha is about sources.  Lo bashamayim hi.  

Lo bashamayim hi means quite the reverse -- it means we follow the
majority DESPITE any heavenly or other knowledge about the sources.
Legal authority, not best odds of truth, win the day. If something could
possibly be true, the slimness of those odds -- as you assess them -- is
less of an issue than authority. Halakhah is made, not pulled from heaven.

BBii!
-Micha
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Zev Sero | 10 Feb 21:07

Re: A Mamzer Marrying a Shifchah

On 10/02/2012 2:51 PM, Micha Berger wrote:
> On Fri, Feb 10, 2012 at 02:38:33PM -0500, Zev Sero wrote:
>>> My "that" was vague. Are you denying that halakhah is a matter of going
>>> to a poseiq rather than going with whichever sevara you personally find
>>> compelling, no matter whether anyone agrees?

>> Halacha is about sources.  Lo bashamayim hi.

> Lo bashamayim hi means quite the reverse -- it means we follow the
> majority DESPITE any heavenly or other knowledge about the sources.

Huh?  The sources are here on earth.  And in the absence of smicha
they are our authorities.

[Email #2. -micha]

On 10/02/2012 1:04 PM, Micha Berger wrote:
> I think RZS's invocation about "kol tenai shebemamon qayam" does address
> this concern. One doesn't need to discuss norms if both parties agreed
> to do the abnormal.

But is it valid? Is DdM just another variant on Minhag Hatagarim, or
even like Choshen Mishpat, stating the default rules from which anyone
is entitled to deviate? Or does it establish basic realities of baalus,
so that if DdM says this object belongs to A and not to B, and that this
doesn't depend on their will, then A may give B permission to use it, and
may agree not to sue him or challenge him and to act in all ways *as if*
B owned it, but it remains A's property because that's what the DdM says?

[EMail #3. -micha]

(Continue reading)

kennethgmiller@juno.com | 10 Feb 16:24

Picon

Re: A Mamzer Marrying a Shifchah

R' Micha Berger asked:

> Possible ways out:
> a- Is DDD in this sense the law on the books, or the de facto
> reality? And does your country have enough violators (eg in the
> prostitution trade) that we can say buying people qualifies as
> de facto effective (even if illegal)?

I recall discussing this before, usually in the context of driving over the posted speed limit. IIRC, we
concluded that DDD does not follow the law as passed by the legislators, but rather the law as enforced by
the police. Thus, for example, if the posted speed limit is 55 mph, but the policy is to ignore anyone
driving less than 65, then the DDD speed limit is 65.

I suppose there are some countries where there are so many problems that the police choose to spend their
time on things other than prostitution; in such a case, an argument could be made that DDD no longer applies
to prostitution in that country. But in a country where the police *do* enforce such laws (however
weakly), DDD would still ban it.

On the other hand, when Rav Moshe Feinstein wrote his teshuva (Igros Moshe Yoreh Deah 3:35) about smoking
marijuana in 1973, he gave no less than six reasons to forbid it, and DDD was NOT among them. We can only
speculate why.

Akiva Miller

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Micha Berger | 10 Feb 19:04

Re: A Mamzer Marrying a Shifchah

On Fri, Feb 10, 2012 at 03:24:26PM +0000, kennethgmiller <at> juno.com wrote:
: R' Micha Berger asked:
:> Possible ways out:
:> a- Is DDD in this sense the law on the books, or the de facto
:> reality? And does your country have enough violators (eg in the
:> prostitution trade) that we can say buying people qualifies as
:> de facto effective (even if illegal)?

: I recall discussing this before, usually in the context of driving
: over the posted speed limit....

Which is why I wronte "DDD in this sense". In #2 I was speaking of DDD
as defining norms for choshein mishpat. The case of violating the posted
speed limit like "everyone else does" is DDD as an issur to violate the
law. There we definitely concluded, as you recall, that the issur is to
violate the law as enforced. Posted speed limit is not enforced.

Here I also was trying to discuss the law as enforced, but not necessarily
followed anyway. (Subsequent replies convinced me I was wrong.) I was
looking for a case where people get caught, but still violate it. Since
I was talking about norms, can a law that is violated even if enforced
still define the norms for personal behavior?

I think RZS's invocation about "kol tenai shebemamon qayam" does address
this concern. One doesn't need to discuss norms if both parties agreed
to do the abnormal.

BBii!
-Micha

(Continue reading)

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