Brisker Method - Examples

Examples

Some of the distinctions which follow may appear to be meaningless: the two alternatives are simply different ways of expressing exactly the same concept. This is indeed a significant danger when formulating Brisker concepts. Therefore it is routine, upon formulating the distinction, to search for a nafka minnah for the distinction - an empirical case in which the two understandings in fact lead to different results. Only when a nafka minnah (even a rare and impractical one) is identified can one be sure that one's Brisker distinction is valid. Each distinction listed below has at least one nafka minnah, even if not specified here.

• Cheftza/gavra ("object/person") refers to distinctions made between a person and his/her actions (or the actions done upon him/her). For example, the Brisker Rav states (Yevamoth 2a) that a forbidden incestual relative is considered a "forbidden person," while though a menstruating woman is not a "forbidden person," the sexual act performed with her is forbidden.

• Siman/sibah ("effect/cause"): Does A cause B, or is A a result of the presence of B? For example, an adhesion on the lung makes a slaughtered animal non-"glatt kosher", but the Shulchan Aruch and the Rama disagree whether it makes the animal non-kosher altogether. This disagreement appears to be based on the question: Does the adhesion cause non-kosher-ness? Or does it potentially result from non-kosher-ness, but also potentially result from a situation in which the animal remains kosher? The Shulchan Aruch holds the former; the Rama holds the latter, in which case an animal with adhesions can be checked and subsequently found to be kosher.

• Active vs. passive: There may be a distinction between a specified exemption in the halakha, and a scenario where the halakha simply fails to obligate someone.

• Tzvei dinim ("two laws"): A Talmudic law can be shown to consist of two or more distinct components. Then, one component can be shown not to apply in a certain case, thus resolving a contradiction between the halachic rules in two situations. An example of this is Rabbi Chaim Brisker's interpretation of (Bava Kama 88a) that there is one law for a man to circumcise his son and another that obligates the son himself to be circumcised. The two overlapping, but distinct, obligations can together explain a set of outcomes which could not be explained by a single logical principle. (Why not? After bar mitzva the obligation passes on to the son, before to the father)

• A term may refer to different laws in different contexts. For example, Rabbi Chaim Soloveitchik observed that the Talmud requires "panim chadashos" (meaning "a new presence" or "new faces") at the Sheva Brachos celebration, i.e. a guest must be present who had not attended the wedding. Elsewhere, the Talmud comments that once sacrificial meat has been burned to ashes, the ashes no longer have a sacrificial status, as "panim chadashos ba'u l'chan" – "a new presence has arrived", meaning that the ashes are not the same as the meat. "So if you were at a Sheva Brachos party, and you looked around and everyone there had already been at this couple's wedding, why not just take some meat and burn it to ashes?", challenged Rabbi Chaim. Clearly, the phrase "panim chadashos" has different meanings in the contexts of wedding celebrations and sacrificial meat.

• "Is the principle stated here merely an application of a general rule, or is it a different and unique principle, specialized to our context?" This distinction is demonstrated in a story involving Rabbi Yitzchak Zev Soloveitchik and witnessed by Rabbi Yehezkel Abramsky. A person died, followed shortly thereafter by another, wealthier person. The Chevra Kadisha (Jewish burial society), rather than follow the first-come, first-served policy mandated by halacha, buried the rich person first. A relative of the poorer person came to demand an apology from the Chevra Kadisha. Rabbi Yitzchak Zev Soloveitchik consulted the Laws of Mourning from Rambam' Mishneh Torah for just a moment before telling the relative: "The Chevra Kadisha were wrong, but that is between them and God. I will inform them that their conduct was improper, but you are not involved here." After the fellow left, Rabbi Soloveitchik explained to his colleague, Rabbi Abramsky, that the question at hand was this: certainly Judaism has a general principle of first-come, first-served, because of the rule that when faced with the opportunity to do a mitzvah, one should not pass it up. If this is the only reason that first-come, first-served applies in the case of burials, then one who violates it is no more in the wrong than one who has passed over any mitzva opportunity, and his/her offense is between himself/herself and God. Or, instead, there may be a specialized notion of first-come, first-served when it comes to burials, to avoid offending the bereaved. Only according to the latter reasoning would an apology be required. Rabbi Soloveitchik found that Maimonides made no explicit mention of first-come, first-served in his Laws of Mourning, and thus extrapolated that only the generalized notion of first-come, first-served applies to burial. Therefore, the bereaved could not demand an apology. Upon hearing this reasoning, Rabbi Abramsky exclaimed (in a positive way), "Rabbi Soloveitchik can deduce laws from the fact that Maimonides says nothing at all!"