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1960

Letter to the Editor from R. Walkenfeld about Article on Conservative Amendments to the Ketubah (1960)

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Letters to the Editor re: R. Lamm's Article about Late Friday Service (1957)

Dear Rabbi Weiss: I’ve enjoyed your column “Modor Hahalacha.” Rabbi Norman Lamm’s latest contribution was very interesting reading. The thought is whether you are doing justice to the concept of a “Modor Hahalacha” by printing under its masthead a research paper, no matter how brilliantly or scholarly written. Even secular research has established a style and format of its own. Certainly halacha and sheilot u’teshuvot have a style of their own. If this was a sheilah it should have been addressed to the gedolim — if it was a chidush or teshuvah then writing Torah has a definite style — lashon hakodesh. Rabbi Lamm’s piece was a very fine bit of research, so should it not be labeled as such? Again, the wise are to be careful with their words, and to put into printed English the choice of making a choice between Maimonides and Tosafot does seem a bit risky. (Rabbi) Freddie Wolf, Montreal, Quebec, Canada. Dear Rabbi Weiss: First, I should like to congratulate you on your decision to accept halachic articles from our musmachim for your column “Modor Hahalacha.” This should stimulate greater halachic interest and activity on our part. If I may, I would like to voice my disagreement with the basic premise of Rabbi Lamm’s article in the September issue of Chavrusa — namely, the equation of the question of late Friday night services to Maariv of motzaei Shabbat said beshabbat. By praying the Maariv shel motzaei Shabbat beshabbat, you necessarily preclude the possibility of tosefet Shabbat by the content of the Maariv shel chol. However, by praying the late Friday service, you don’t preclude the possibility of tosefet Shabbat. One can be mosif Shabbat without Maariv shel Shabbat also. I strongly believe that this objection definitely invalidates Rabbi Lamm’s premise and hence his entire thesis, which — according to him — seems to involve so many halachic authorities from Amoraic times through the period of the Ashkenazic and Sephardic Rishonim who presumably aligned themselv…
Practical Halacha Kehillat Kodimoh

Article

Letters to the Editor re: R. Lamm's Article on the Fifth Amendment (1967)

Staten Island, New York. Of late, a spate of articles and letters have appeared in Jewish Life and elsewhere comparing Jewish law to the common law. While this is a very gratifying development for many reasons, a caveat hinted at in Rabbi Wein's article “Threading the Needle of Jewish Law” (July 1967) should be heavily stressed to avoid some unfortunate errors. The so-called criminal law of the Talmud as applied to a ben Yisrael is wholly inappropriate to a present-day penal system. If directly applied, its leniency would result in a complete breakdown of law and order. Present-day penal laws are based in varying degrees on achieving three fundamental purposes: deterrence, retribution, and correction. Talmudic law, however, as applied to a ben Yisrael, is unique in that its underlying purpose is in obtaining atonement (kapparah) for the defendant. It presupposes a high morality on the part of the society to which it is applied (see Wein, p. 36). Furthermore, the concept of the court as referee between two contestants is not as applicable in Jewish law as in common law. In the former, the function of the court is deemed to be more of a teacher instructing the litigants as to their duties rather than as an umpire in a contest. Direct comparisons, therefore, may be very dangerous. Such an unfortunate comparison was made by Rabbi Norman Lamm, who is mentioned by three letter-writers in the July–August issue as having conclusively shown in his celebrated discussion of the Fifth Amendment and Halakhah — which was cited by Chief Justice Warren in the Miranda case — that the Torah view and the Supreme Court are harmonious. Regrettably, that brilliant but unsound article failed to distinguish between a ben Yisrael and a ben Noach. In the case of the latter, as far as I can discover, a confession is admissible and may be sufficient to convict (see Sefer ha-Chinukh, mitzvot 28, 192; Bereishit Rabbah [Noach 34:19]; Yerushalmi Kiddushin, perek 1, halakhah 1). After all, Mirand…
Practical Halacha Jewish Law & Secular Law

Correspondence

Exchange with R. Walkenfeld about Article on Conservative Amendments to the Ketubah (1960)

Dear Norman, I am returning the proofs of my communication and I wish to thank you for including the proof of your reply. I feel it incumbent upon me however, for the sake of truth, logic and halachic veracity, to inform you that the reply you give in no way answers my objections to your article. At the outset it would be advisable to bear in mind that the intent of your article was to prove that the Conservative amendment is invalid because of its ‘asmachta’ nature. In order to accomplish that noble purpose it must be shown that no halachic authority would or could consider this amendment other than an ‘asmachta’. If there can be found one authority who would not consider this an ‘asmachta’ you have failed in your purpose. Therefore, the fact that “you believe” that Mekhirah 11:17 should be interpreted in a certain manner is no proof that it must so be interpreted. Unless and until you can prove that no other explanation is possible you have failed in your appointed task, for I can with the full sanction of halacha state, as I did, that the Rambam maintains that an agreement to pay an indemnity sum is binding if it is made under a wedding canopy. You may disagree but you have not disproven my contention. You have not shown that the Conservative amendment, except according to your understanding of Mekhirah 11:17, is an ‘asmachta’. For the same reason your reply to my third point is also not an acceptable answer. Whether or not you personally concede that a ‘kinyan’ and a retroactive clause are sufficient to neutralize the ‘asmachta’-nature of a contract is immaterial and inconsequential. If there is any halachic basis for such concessions then you cannot with impunity invalidate the Conservative Ketubah. In truth, however, I addressed myself mainly to your very lucid statement that even with these concessions it would remain an ‘asmachta’, and you must admit that the reverse is the only logical conclusion.
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