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 the status of an object ("cheftza") and the status of actions done by a person with an object ("gavra"). An object may be (e.g.) inherently forbidden or it may forbidden for person to use an object. For example, the Brisker Rav states (Yevamoth 2a) that a forbidden incestuous relative is considered a "forbidden person" (an example of cheftza); on the other hand, a
menstruating woman is not a "forbidden person," rather the sexual
act performed with her is forbidden for other people to perform (an example of gavra). • ''Kiyyum/Ma'aseh'' ("fulfillment/action") refers to the distinction between, in the course of performing a Biblical or Rabbinic commandment, the physical performance-act and the ultimate fulfillment of the commandment. •
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. • ("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 (Kiddushin 29a) that there is one law for a man to
circumcise his son and another that obligates the son himself to be circumcised. In this case, after the son is circumcised, the obligation of circumcision present in both laws is fulfilled, although it is impossible for both laws to be fulfilled in their entirety. • "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!" ==History==