Friday, December 22, 2006

are chazakos "ontological reality"?

Comment to a previous post submitted anonymously:
"he thinks chazakas represent onotological realities and cant change."

Quite a striking claim to make! It is one thing to say chazakos are static (as R' Soloveitchik was known to hold) because the Torah defined a fixed legal reality in which halachic rules operate (e.g. like doing geometry with perfect right triangles which exist nowhere in nature other than in rough approximation), but it is quite another thing entirely to say that chazakos represent ontological reality. Is this really so? Doesn't it depend on what type of chazakah you are talking about?

If a kosher mikveh is measured and found to be missing water, the chazakah d'm'ikara tells us that the mikveh is assumed to have been kosher until the moment before it was measured and found lacking (see Nidda 2-3 for a full discussion). Is that because there is some magic ontological rule of evaporation that places its occurance at a moment before measurement, or simply a legal fiction that tells us to assume a status quo is maintained until we have definitive proof otherwise, even though in reality the water might have been missing for days?

25 comments:

  1. Basically, you are asking whether a חז' is a בירור or whether it is merely a הנהגת הספיקות. My Rebbe says that it is obvious that a chazaka does not establish a מציאות because if עדים come against a chazaka, they can establish the מציאות even if it contradicts the conclusion based on the chazaka. So it's only a הנהגה. Although, there are some who hold that a Chazaka is a birur (like a Nesivos is mashma), but my Rebbe says "Chas V'Shalom." Anyways, Rabbi Akiva Eiger (to Kesubos 14) says that there are two types of Chazaka, one which answers a ספק and one which says not to kler the ספק. It could be your question is תלוי in this.

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  2. That is not exactly the same issue. Even if one says metziyus, it is a legal fiction, not ontology. The chakira of the achronim is simply a question of how much weight we give to this legal fiction relative to other forms of proof.

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  3. "Doesn't it depend on what type of chazakah you are talking about?"

    I think that this is a large topic in the lomdus of chazakos. Perhaps you can do a post on those chzakos which are "mevarer the metziyus", and those which are just "hanhagos".

    However, I think that even when in lomdishe terms one say that " the facts are clarified", it is an halachic construct of not dealing with absolutes, as you use the anology of the perfect right angle. The Rambam says that even two witnesses is considered a proof merely because of Torah law and chazaka(Yesodie Hatorah, 7th perek "k'mo shnitztavinu lachtoch hadin al pi shni edim ksherim…" ).

    I think one must judge each case separately. But perhaps its also relevant the case of "pskik reisha". Does every time act A lead to Act B, or is only halachically considered to be an absolute casual relationship?

    Rabbi Slifkin in his "Mike an the Stincus" essay discussed the theoretical case of a chicken living after it died,in the context of Rabbi Eybeschutz 's principle interpreting the gemera about signs of kosher fish.

    He later retracted the example because the chicken's stem was alive, but it's still a theoretical question about "psik reisha".

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  4. I didn't see the discussion between Chaim B and R C Haquoton when I wrote my comments.

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  5. Chaim: You're right. Really, I can't see any צד to say that a חז' makes an ontological reality, unless maybe you would want to say that the type of Chazaka which says not to kler the ספק is so shtark that it makes a metzius itself, but even that I can't hear so well. Perhaps you can explain that צד better.

    Baruch: "I think one must judge each case separately. " The Rambam himself also says that one must judge each case separately and not always are the 2 witnesses always beleived, Bais Din has to "like" their עדות. Rav Avraham Gurwitz Shlita, Rosh Yeshiva of Gateshead, discusses this a lot in his shiurim to the tenth perek of Yevamos.

    Regarding Mike and the Stincus Marinus, see http://rachack.blogspot.com/2005/05/mike-and-stincus.html

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  6. I quote below the relevant parts from the speech of RYBS zt'l:

    "Let me add something that is very important: not only the halachos but also the chazakos
    which chachmei chazal have introduced are indestructible.

    We must not tamper, not only with the halachos, but even with the chazakos, for the
    chazakos of which chazal spoke rest not upon transient psychological
    behavioral patterns, but upon permanent ontological principles rooted in
    the very depth of the human personality, in the metaphysical human
    personality, which is as changeless as the heavens above.

    Let us take for example the chazaka that I was told about: the chazaka tav l'meisiv tan du
    mil'meisiv armalo has absolutely nothing to do with the social and
    political status of women in antiquity. This chazaka is based not upon
    sociological factors, but upon a verse in breishis -- harba arbeh
    itz'voneich v'heironeich b'etzev teildi vanim v'el isheich t'shukaseich
    v'hu yimshal bach -- "I will greatly multiply thy pain and thy travail; in
    pain thou shalt bring forth children, and thy desire shall be to thy
    husband, and he shall rule over thee". It is a metaphysical curse
    rooted in the feminine personality -- she suffers incomparably more that
    the male who is in solitude. Solitude to the male is not as terrible an
    experience, as horrifying an experience, as is solitude to the woman. And
    this will never change, mayid shamayim vaaretz.

    This is not a psychological fact; it is an existential fact, which is due not to the
    inferior status of the woman, but rather to the difference, the basic
    distinction, between the female personality and the male personality.
    Loneliness frightens the woman, and an old spinster's life is much more
    miserable and tragic than the life of an old bachelor. This was true in
    antiquity; it is still true, and it will be true a thousand years from
    now. So, to say that tan du mil'meisiv armalo was or is due to the
    inferior political or social status of the woman is simply misinterpreting
    the chazaka tan du mil'meisiv armalo. "

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  7. That's not to say that there are no time-bound chazakas, for example see Tosafos to Kesubos 26b, ד"ה אנן who mentions a chazaka that at a certain period of time, most women were b'chezkas having been kidnapped, but this chazaka does not apply in present days.

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  8. "Regarding Mike and the Stincus Marinus, see http://rachack.blogspot.com/2005/05/mike-and-stincus.html "

    RNS subsequently retracted the specific example of Mike, and concludes as mentioned in your link, that Mike's brain stem wasn't cut off.

    Regarding psik reisha in general(not the theoretical case of a chicken living without a head ), subsequent to the Stincus essay, RNS writes:

    "with regard to the issue of whether the principle of psik raisha is intended to be true 100% of the time, see Maharsha, Shabbos 120b s.v. Ve'od d'im kain and Biyur Halachah 277 s.v. shema. "

    Has anyone seen these sources?

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  9. I just looked at that biur halacha, he says in the name of Maharsha that even if something isn't mamish a psik raisha, it can still be "called" a psik raisha.

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  10. Anonymous11:07 AM

    Hi, I'm the author of that comment. (I was joking re XGH anyway)

    As Boruch Horowitz divined, I was referring to RYBS' speech in which he said that the chazaka of tav l'meisiv represents ontological reality and is derived from breishis. Even RYBS doesn't hold that all chazakas represent ontological realities (RHS has been quoting as saying this explicitly) but apparently only this one, as he believes it's derived from breishis. This is quite difficult even inexplicable for many reasons, among them that the posuk the chazaka allegedly rests on is a klala. (I dont think v'el ishech tshukaseych necessarily means living together vs in solitude either.)

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  11. Anonymous11:09 AM

    P.S. As a general klal, call it a chazaka, if someone uses the term "ontological reality" they are a) referring to something by RYBS
    b) quite possibly joking

    :-)

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  12. Chazaka? Not that I agree with him, but RYBS was referring to Umdenos.

    Closer to Rubba d'Leisa Kamman.

    ReplyDelete
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  14. 1- RYBS called it an existential reality, not an ontological one. WADR to R' Rakeffet, who repeatedly in his shiurim (available at YUTorah.org) misstates it.

    Someone who cares about the difference must be truly far-gone.

    But my point is, RYBS isn't saying that "tav lemeisiv" is a "thing", but a permanent feature of the human condition, written into Chavah as part of her onesh.

    2- I found this post researching a current discussion on Avodah. You might wish to stop in to present your thoughts there.

    3- IMHO, RYBS is saying that chazaqah disvarah (not talking about chazaqah demei'ikara) is a statement of a law of nature, in this case, human nature. Even if today other factors mean this law is rarely the determining factor, we still presume it played a role.

    So, a woman may have other concerns than her tav lemeisiv instinct, and therefore rarely believe that it is overall better, but that doesn't mean the instinct is gone, or that it doesn't create a chazaqah.

    In the case of a chalaf used for chopping bones, which admittedly is the other kind of chazaqah, we do not follow rov. Why assume that chazaqah disvara necessarily bows to rov, or is perhaps even (as I was left thinking) a kind of ruba deleisa leqaman?

    4- R' Chaim, please delete the comment just before this. (You can edit out this bullet item too, left people think I'm talking about RYGB's post.) Hopefully you get all comments by email and will see my addition to an old post.

    -micha

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